Subject: 

Approval: 

., .. 

OSM/103 

u:s. DEP"ARTMENT OF THE INTERIOR SubiectNum!-.: 

OFFICE 

RECLAMATION 

OF SURF ACE MINING t-:-....;T=sR-~~-~ AND ENFORCEM~"JT Trans:r.ir.a!Number: 404 

DIRECTIVES SYSTEM Date: . DEC I 8 1987 

Protectinq Historic Properties ...., . 

Director 

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1. pgrpose~ 

This directive sets. forth policy and procedures tor the Office. of surface Mininq Reclamation and Enforcement's (OSMRE) conduct of requlatory acti~ities which may affect historic properties. 

2. Definitions.· 

a. Historic properties or historig ra•ources means any prehistoric or historic district, site, buildinq, structure, or object siqnificant in American history, architecture, . archeology, engineering, and culture meeting the criteria found in 36 CFR Part 60, •National Register 'of Historic Places." Included are properties that have gone through a formal designation process resulting in "listing on" the National Register, a~ well as properties known to be eligible and those not yet identified and evaluated, but which would be found eligible if evaluated. Properties that meet the criteria are termed "historic properties."· 

b. State Historic Preseryotion Officer CSHpQl is the 

official in each State, Territory, and the District of Columbia designated under the National Historic Preservation Act (16 u.s.c. 470 et seq.) to administer the State historic preservation program. Among other responsibilities, this official maintains comprehensive survey and inventory information on historic properties within his/her jurisdiction. 

c. Federal permitting entity is the OSMRE organizational unit with responsibility tor receiving and processing applications for renewals and revisions, i.e., the appropriate Eastern or Western Field Operations office. 

3 • Pol icy/Procedures. 

a. Backgrqgnd. Two major statutes provide for the consideration of historic properties affected by surface coal mining operations. In addition to the specific requirements for the protection of historic properties in the Surface Mining Control and Reclamation Act (SMCRA), section 106 of the National Historic Preservation Act (NHPA) requires Federal agencies to take into account the effects of their undertakings on historic properties. 
While the requirements in Section 106 of NHPA and implementing regulations (36 CFR 800) apply only to Federal or federally assisted undertakings, the requirements in SMCRA apply to all 

activities authorized by SMCRA. In addition, a State agrees to 

assist the Secretary of the Interior in fulfilling his Section 

106 responsibilities upon accepting a grant to cover a portion of the cost of its regulatory program. In order to ensure that 

the requirements in SMCRA are implemented at all levels, including where the State has a responsibility for meeting Federal program requirements, OSMRE developed regulations providing specific mechanisms for the consideration of historic 

properties in the context of SMCRA. 

on February 10, 1987 (52 FR 4244), OSMRE promulgated final 

regulations entitled "Protecting Historic Properties From 

surface coal Mining Operations." These regulations, codified 

in 30 CFR Parts 731, 732, 761, 772, 773, 779, 780, 783, and 

784, require consideration of the effects of permitting actions 

on historic properties and consultation with appropriate State, Federal and local agencies having responsibility for historic properties. 

b. Responsibilities. 

(1) The Deputy Director. Operations and Technical 

services, has overall responsibility fo~ the.policy, procedures and activities associated with the protection of historic 

properties. 

(2) The Assistant Director. Program Policy, is 

responsible for developing policy and guidance relative to the 

protection of historic properties. This includes developing standards for the conduct of oversight reviews and evaluations of State programs and developing standardized reporting methods 

and data collection procedures. 

(3) The Assistant pirectors. Field Operations are 

responsible for ensuring that the policies and procedures for 

the protection of historic properties are applied consistently by Federal permitting entities and for the consistent 

evaluation of State regulatory authorities (SRAs) in the 

implementation of their approved programs concerning the 

protection of historic properties. This includes ensuring that 

annual evaluations are conducted in a manner that is consistent with national OSMRE policies. 

(4) The Federal permitting entities are responsible for compliance with this Directive in all permitting actions. 

(5) The Field Office pirectors (FOPs) are 

responsible for evaluating States' consideration of historic 

properties in States with approved programs. FOPs should also 

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encourage States with approved programs to consider the 

guidance contained in the "Technical Considerations for the 

Implementation of Historic Property Regulations" cited in this 

Directive as an effective means of taking into account historic 

properties in carrying out their programs. FODs must, however, be aware that states cannot be bound by OSMRE to follow such 

guidance. 

(6) The Federal Preseryation Officer is responsible for monitoring the impl~entation of regulatory requirements, including coordinating compliance with the regulations at all 

levels within OSMRE, evaluating SRA activities, and providing guidance and expertise in historic preservation matters. 

c. Procedures. In addition to complying with the 

requirements in 36 CFR 800 in cases of Federal or federally assisted undertakings, Federal permitting entities shall follow 

the guidance found in "Technical Considerations for the 

Implementation of Historic Property Regulations" in carrying out their responsibilities to protect historic properties. 

4. Reporting Requirements. 

No new reporting requirements are established by this 

directive. 

5. References. 

a. "Technical Considerations for the Implementation of 

Historic Property Regulations." 

b. "Oversight of State Programs -Annual Evaluations," Directive REG-8 issued October 9, 1987. 

6. Effect on other Documents. 

None. 

7. Effective Date. 

Upon issuance. 

8. Contact. 

For additional information, contact Branch of Research and 

Technical Standards, Division of Technical Services, Office of 

Surface Mining Reclamation and Enforcement, Department of the 

Interior, Washington, D.C. 20240: (202) 343-1514. 

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Office of Surface Mining Reclamation and Enforcement 

Technical Considerations for the Implementation of 

Historic Property Regulations 

This document explains the policy and procedures to be followed 

by OSMRE when acting as the regulatory authority as set forth 

in regulations protecting historic properties from surface coal 

mining operations found in 30 CFR Part 731, 732, 761, 772, 773, 

779, 780, 783, and 784. Final regulations concerning historic 

properties were published by the Office of Surface Mining 

Reclamation and Enforcement (OSMRE) in the Federal Register on 

February 10, 1987 (52 FR 4244-4263). 

A. Identifying and describing historic and archeological 

resources. 

Under_30 CFR 779.12(b) (1) and 783.12(b) (1), each permit 

application shall describe and identify the "nature of 

cultural, historic and archeological resources listed or 

eligible for listing on the National Register of Historic 

Places and known archeological sites within the proposed permit 

and adjacent areas. The description shall be based on all 

available information, including, but not. limited to, 

information from the State Historic Pre~ervation Officer and 

from local archeological, historical, and' cultural preservation 

agencies." 

(1) Sources of information on National Register eligible 

properties. Properties must meet the National Register 

criteria in 36 CFR 60, "National Register of Historic 

Places" in order to be historic. In order to fulfill the 

requirement to identify all properties "listed or eligible 

for listing" in the affected area (see definition of 

affected area in 30 CFR 701.5), the application must show 

that credible sources of such information have been 

contacted and given a reasonable opportunity to provide 

the information. These sources include the State Historic 

Preservation Officer and any other officially designated 

State repository of prehistoric and historic resource 

information. If these sources do not provide the 

necessary information within 30 days of an applicant's 

request, the applicant should document the request and 

proceed with the application. Additional sources which 

can be consulted include the following: 

(a) State historical society; 

(b) State archeological survey; 

(c) local and regional museums; 

(d) State archeological society; 
(2) 

(J) 

(e) State archeologist; 

·(f) university departments of anthropology; 

(g) other State and local archeological and historical 

groups and individuals; and 

(h) Federal agencies with prehistoric and historic 

resource information. 

sources of information on "known arcbeological sites." 

Known archeological sites may include both National 

Register eligible and non-eligible properties. Sources of 

this information include the State Historic Preservation 

Officer (SHPO) and any other officially designated State 

repository of archeological resource information. Other 

sources which can be consulted are listed above at A(l). 

Describing properties. In addition to identifying known 

National Register eligible properties and known 

archeological sites, the applicant is required to describe 

those properties in the application. This requirement can 

be satisfied by including in the application a copy of any cultural resource report identifying. and describing the 

properties, as long as such report• includes the 

information listed in (3)(a) through' (d) of this guidance. If no such report is available, the application should 

include, at a minimum, the following information on each 

property: 

(a) name of each property (both common and historic names 

should be included); 

(b) location of each property (note 30 CFR 769.16(b) (2) regarding confidentiality). An address is generally sufficient. However, in many cases, particularly for 

archeological properties, locations should be 

described by Universal Transverse Mercator (UTM) andjor Township/Range/Section references. See 30 CFR 

779.24(i) for map requirements; 

(c) brief statement discussing why each historic property is considered eligible for the National Register. For example, an archeological site may be significant "for the information it can produce about the 

development of prehistoric agriculture in the Lower 

Mississippi River Basin;" a historic house may be 

significant "because it was the home of the first 

governor of the State;" and 

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(d) projected impact of the proposed operation on each 

pr.operty. 

B. Identification and evaluation of potentially eligible 

resources. 

Under 30 CFR 779.12(b)(2) and 783.12(b)(2), the regulatory authority "may require the applicant to identify and evaluate 

important historic and archeoloqical resources that may be 

eligible for listing on the National Register of Historic 

Places through (i) collection of additional information, (ii) conduct of field investigations, or (iii) other appropriate analyses." 

(1) Information to consider. In determining whether to 

require the applicant to identify and evaluate resources 

that may be eligible for the National Register, as 

authorized in 30 CFR 779.12(b)(2), the permitting entity should consider the following information: 

(a) information in the application; 

(b) comments from the SHPO; 

(c) information based on a review of other permits or 

applications pertaining to·th~'c;Jeneral area; and 

(d) any other comments received by the permitting entity. 

(2) Reiection of the SHPQ's recommendation. Any decision to 

reject a recommendation of a SHPO should be clearly documented and justified in the record. A permitting entity's consistent rejection of SHPO recommendations 

without clear and convincing justification would be 

inconsistent with Federal program requirements. 

(3) Wben to require identification. The permitting entity shall require identification andjor evaluation when he or 

she determines, based on the information in B(l) above, that there is a "substantial likelihood" of the presence of unevaluated properties that may be eligible for the 

National Register. A determination of "substantial 

likelihood" may be based on information about resources 

within the area. Such a determination may also be based 

on reasoned analyses of the resources in areas similar to 

the permit area in question. Examples of information that 

may lead to a "substantial likelihood" determination are: 

(a) "There are known archeological sites in the area that 

have not yet been evaluated for National Register eligibility;" 

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(b) "Although no survey to locate archeological sites has 

been conduC"ted j_n the proposed affected area, several 

surveys in surrounding counties have shown that type ~ 

A sites, which are eligible for the National 

Register, are commonly found on soil type X on ridge tops above the confluence of first and second order 

streams. Several locations within the proposed affected area contain soil type X and ridge tops overlooking stream confluences, and it is likely that 

sites eligible for the National Register will be 

found there:" and 

(c) "Alluvial valley floors served by first order 

perennial streams are frequently the location of late 

prehistoric village sites. These sites almost always contain human remains within a burial area, typically in the central plaza of the village. The proposed affected area contains two areas fitting this 

description; there is a significant likelihoo~ that 

prehistoric villages containing burials occur there." 

(4) The kind of identification effort necessary. In cases 

where there is a "substantial likelihood" that unrecorded, potentially eligible properties exist, the permitting entity shall require the applicant-to conduct or have 

conducted appropriate analyses to identify and evaluate 

such properties. An attachment to these Technical 

Considerations, The Secretary of the Interior's Standards 

and Guidelines for Archeology and Historic Preservation 

(48 FR 44716; September 29, 1983), provides considerable 

guidance in conducting studies to identify and evaluate 

historic properties. 

(5) Determining eligibility for the National Register. 

(a) Wben determinations of eligibility are necessary. The process of determining properties eligible for 

the National Register is detailed in 36 CFR 60 

(formerly 63), "National Register of Historic 

Places." In brief, these rules require.a Federal 

agency which is affecting a potentially eligible 

property to make such determinations, in consultation 

with the SHPO, in order to consider the effects of 

the agency's action on eligible properties. In the 

case of OSMRE, the issuance of a permit to conduct 

mining operations may adversely affect historic 

properties either listed on or eligible for the 

National Register. 

(b) Making determinations. Decisions about the 

eligibility of properties are made by the permitting 

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(C) 

entity in consultation with the SHPO. If he/she is 

unable to come to an agreement with the SHPO, the 

property shall be referred by him/her to the Keepe= of the National Register, National Park Service, for 

a final determination. · 

National Register criteria and state plan. Permitting entities shall be guided in their 

consideration of whether specific properties are 

eligible for the National Register by the criteria 

found in 36 CFR 60 in conjunction with the 

Comprehensive Statewide Historic Preservation Plan, 

available from the SHPO. This plan explains what 

types of properties are considered important by the 

State. 

c. Taking into account historic properties. 

30 CFR 773.15(c}(ll) requires, prior to the approval of a 

permit application or application for significant revision of a 

permit, a written finding by the regulatory authority that it 

has "taken into account the effect of the proposed permitting action on properties listed on and eligible for listing on the 

National Register of Historic Places." · 

(1) Supporting a finding. To suppore such a finding, the 

permitting entity must be able to demonstrate that: 

(a) the effect of the proposed surface mining operations 

on properties listed on and eligible for listing on 

the National Register has been considered; 

(b) all comments concerning the properties, particularly those from the SHPO, have been considered; and 

(c) any appropriate conditions in the permit designed to 

protect historic resources have been made. 

(2) Appropriate permit conditions. 30 CFR 773.15(c) (11) provides that the "finding may be supported in part by inclusion of appropriate permit conditions or changes in 

the operation plan protecting historic reso~rces, ... " 

Permit conditions or changes in the operation plan to 

protect historic properties may include preservation 

treatments or mitigation measures such as: 

(a) reuse of historic properties to meet both the 

preservation goal and the needs of the applicant; 

(b) physical stabilization of properties; 

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(c) conducting historic, architectural, or engineering documentation in accordance with ac~epted 

documentation stand~rds (such as those in the 

Secretary of the Interior's standards and Guidelines 

for Archeology and Historic Preservation); 

(d) archeological research to recover and analyze si~nificant data and materials from threatened 

archeological sites; 

(e) . relocation of structures or objects, when 

preservation in place is not feasible, to a setting similar to that of the original location; 

(f) salvage of architectural elements for exhibition or 

reuse; 

(g) provision for publication of significant information 

on archeological_sites; 

(h) recordation and deposition of documentation in an 

appropriate repository; and 

(i) curation of artifacts, records, and remains; 

(3) Decision that no additional protection measures are 

necessary. In addition to the provision for supporting a 

finding by including appropriate permit conditions or 

changes in the operation plan protecting historic 

resources, 30 CFR 773.15(c)(ll) provides for a "documented 

decision that the regulatory authority has determined that 

no additional protection measures are necessary." Documentation supporting a determination that no 

additional protection measures are necessary should 

demonstrate that: 

(a) there is no convincing evidence that currently unknown properties eligible for the National Register exist in the proposed affected area; or, 

(b) known properties are not eligible for the National 

Register; or, 

(c) the proposed mining operations will not have an 

adverse effect on properties known to be eligible for 

the National Register; or 

(d) mitigation of the effects has been satisfactorily completed; or 

(e) there is no feasible mitigation of effects for known 

eligible properties. 

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(4) Qecision tnat no furtber identification efforts are 

necessary. I! survey reports, inventories, and other 

information maintained by the SHPO indicate that the 

affected area has been adequately surveyed to identify historic properties, and that it can be reliably assumed 

that no historic properties exist in the area, no further 

work should be necessary. If available information does 

not provide convincing evidence that currently unknown 

properties that may be eligible for the National Register 

are present in the proposed affected area, no further work 

should be necessary. Results of any additional 

information collection, analyses, or other studies that 

the permitting entity requires the applicant to conduct 

should be provided to the SHPO for incorporation into 

State records. 

D. Protection of public parks and historic places. 

30 CFR 780.31 requires that mining and reclamation plans describe measures to be used to prevent adverse impacts to 

publicly owned parks and all properties listed on the National 

Register of Historic Places, or to minimize such impacts if 

valid existing rights exist or if joint agency authorization is 

to be obtained. 

(1) Preventing adverse impacts. Generally, any impacts to 

properties should be considered adverse, unless the SHPO 

and the permitting entity jointly determine otherwise. It 

may often be possible to determine that archeological sites will not be adversely impacted, even though they are 

destroyed by mining operations, through development and 

implementation of a data recovery plan. 

(2) Minimizing adverse impacts. Where an operator is found to 

have valid existing rights to conduct mining operations which will result in an adverse impact to a property listed on the National Register of Historic Places, or 

when the permitting entity and the agency with 

jurisdiction have agreed that mining can occur, the plan should discuss measures to minimize such impacts. A 

variety of techniques are available to achieve this 

purpose. The permitting entity can find more detailed 

information on such techniques, as well as references to 

additional sources, in The Secretary of the Interior's 

Standards and Guidelines for Archeology and Historic 

Preservation. The SHPO should also be consulted for 

advice on appropriate techniques. 

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E. Prohibitions against mining. 

(1} National Register listed properties. Under 30 CFR 

761.11(c}, mining is prohibited, except where there are 

valid existing rights, where it would adversely affect any place included on the National Register of Historic 

Places, unless jointly approved by the regulatory authority and the Federal, State, or local agency with 

jurisdiction over the property. 30 CFR 761.12(f} (1} specifies the consultation procedures to be followed when 

the regulatory authority determines that the proposed surface coal mining operation will adversely affect such 

listed properties. Permit applications should not be 

approved if information submitted by the applicant or any other party demonstrates the presence of a National 

Register listed property, regardless of ownership, unless: 

(a} There is a determination of valid existing rights; or 

(b) The record demonstrates that the permitting entity ~ the SHPO agree that the property will not be 

adversely affected by mining; or 

(c) The property will be adversely affected by mining and 

the record demonstrates that the permitting entity and the agency with jurisdiction over the property 

agree that mining can occur. Agencies with 

jurisdiction include: 

(i} for publicly owned properties, the land managing 

agency, including but not limited to the Bureau 

of Land Management, u.s. Forest Service, and 

Bureau of Indian Affairs; 

(ii} for Indian lands, the tribal government; 

(iii} for privately owned properties, the agency making the initial determination that the 

property was historic, such as the SHPO, and any other agency with jurisdiction, such as a local 

zoning board, County Commission, etc. 

(2} Cemeteries. 30 CFR 761.11(g) prohibits mining within 100 

feet, measured horizontally, of any cemetery; cemeteries 

may be relocated if authorized by applicable state law or 

regulations. Historic and prehistoric Indian burial 

areas, such as burial mounds, other mortuary structures, and concentrations of burials in specific locations at or 

near archeological sites, are considered cemeteries. The 

permitting entity shall not issue any permits for mining within 100 feet, measured horizontally, of such areas, unless the cemetery has been relocated as provided in 

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applicable State law or regulations. Information from the 

SHPO or other co.-enters that currently unknown cemeteries 

are likely to be present in the affected area should 

prompt investigation of the area through appropriate information collection or analyses prior to permit issuance. 

F. Professional Qualifications. 

Although OSMRE's regulations do not specify the minimum 

qualifications necessary to carry out the identification, evaluation, and protection responsibilities prescribed in the 

regulations, the permitting entity should ensure that 

identification and evaluation efforts are carried out by qualified professionals. Tbe Secretary of the Interior's 

Standards and Guidelines for Arcbeology and Historic 

Preservation provide specific minimum qualification standards 

for historians, architectural historians, and archeologists carrying out the activities described in the Standards. 

Permitting entities should ensure that those ultimately responsible for identifying, evaluating, and protecting properties meet these minimum standards or a reasonable 

equivalent of academic training andjor experience. 

Dire tor, Office of Surface Mining eclamation and Enforcement 

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