New Mexico Administrative Code › Title 4 - CULTURAL RESOURCES › Chapter 10 - CULTURAL PROPERTIES AND HISTORIC PRESERVATION › Part 12 - IMPLEMENTATION OF THE PREHISTORIC AND HISTORIC SITES PRESERVATION ACT › Section 4.10.12.11 - PRUDENT AND FEASIBLE ALTERNATIVES

Current through Register Vol. 35, No. 13, July 16, 2024
Whenever an entity proposes to spend public funds on any
				  program or project that may require the use of or any portion of or any land
				  from a significant prehistoric or historic site, that entity shall, at the
				  earliest practicable stage in planning the program or project, make a
				  determination that there is no prudent and feasible alternative to such use.
				  The affirmative responsibility of showing that there is no such alternative
				  rests on the entity. This showing shall be arrived at in the following
				  manner:
A. At an early stage in the
				development of a proposal to carry out a program or project that may use land
				from a significant prehistoric or historic site, the entity shall submit an
				appropriately substantial written and graphic description of the proposed
				program or project and a map showing the area of impact of the proposed program
				or project to the division, and shall request the determination of the division
				as to whether the program or project will use a significant prehistoric or
				historic site. Within thirty days of receipt of such request the division will
				respond with a determination and a list of any prehistoric or historic sites
				which will be used, including sites entered in the state register of cultural
				properties or national register of historic places. The division will also
				inform the entity about any sites determined by the division to be eligible to
				either register, sites in process of nomination to either register, and the
				status of prehistoric an historic inventory of the area.
B. If the SHPO determines that the proposed
				program or project will use a significant prehistoric or historic site, the
				entity shall, at an early stage in the planning for that program or project,
				hold at least one public hearing, advertised not less than thirty days in
				advance of such hearing in one newspaper of statewide circulation and one
				newspaper in the locality or region of the action, to solicit proposed
				alternatives that will avoid such use. The entity shall give direct and timely
				written notice of such hearing to the SHPO. At such public hearing, the entity
				shall take oral and written testimony of interested persons. The entity shall
				hold the hearing record open for an additional fifteen days to take additional
				written comments. The SHPO may propose an alternative or alternatives at the
				hearing or for the hearing record. The entity may employ any timely design,
				public information or other hearing, e.g., a hearing provided for in its
				standard procedures, as the forum for soliciting alternatives.
C. Only those prehistoric or historic sites
				entered in the state register of cultural properties or national register of
				historic places as of the closing date of the hearing record shall be deemed to
				fall within the scope of this regulation. However, any proposed change in the
				scope of a program or project which brings a significant prehistoric or
				historic site within the area of impact of that program or project will require
				full consideration under this section and the following section of this
				regulation. It shall be the responsibility of the division to give timely
				written notice of any proposal to enter a property in the state register of
				cultural properties to the property owner, the affected municipality if any,
				and the affected county not less than thirty days before a meeting of the
				committee to consider such proposal.
D. The entity, on the basis of testimony
				received in the hearing and upon its own initiative and responsibility shall
				document alternatives to the proposed use. It shall then be the affirmative
				responsibility of the entity to prepare a written, reviewable and appropriately
				substantial record of its examination of alternatives, including a discussion
				of social and environmental concerns, of any identified hazard or emergency,
				and of the cost and community disruption resulting from each alternative.
				Commonly available alternatives may include use of federal or state funds for
				preservation and maintenance of the significant prehistoric or historic site or
				sites and the no-build alternative. The entity must make a written conclusion
				of the imprudence or infeasibility of alternatives, including the no-build
				alternative, identified by itself or by the state historic preservation
				officer. Arguments based on cost and technical feasibility must be supported by
				affidavit of a qualified architect or engineer. It shall not be deemed
				sufficient for the purposes of this analysis to reject an alternative as
				imprudent or infeasible because it would affect other significant prehistoric
				or historic sites, or would affect the same sites in a different
				manner.
E. It shall be the
				affirmative responsibility of the entity either to determine that there is no
				prudent and feasible alternative to a proposed program or project or to select
				the alternative to a proposed program or project which causes the least harm to
				any significant prehistoric or historic site or sites. The entity shall issue
				this determination in the form of a written record of decision to all
				interested parties, including direct notice to the division.
F. It shall be the affirmative responsibility
				of the SHPO to respond to the record of decision and to concur with or to
				dissent from its conclusions within forty-five days of receipt of the record.
				The SHPO shall state in writing his finding that there is or is not a prudent
				and feasible alternative to the proposed program or project, or that the
				alternative causing the least harm to any significant prehistoric or historic
				site or sites has or has not been selected, and that all possible planning to
				minimize harm to a significant prehistoric or historic site or sites has or has
				not been carried out as further set forth in 4.10.12.12 NMAC below.
G. Compliance with federal rule or regulation
				which:
(1) requires a determination that there
				is no prudent or feasible alternative to a program or project affecting a
				significant prehistoric or historic site or sites;
(2) requires all possible planning to
				minimize harm to any affected significant prehistoric or historic site or
				sites; and
(3) requires
				consultation with the SHPO, may substitute for compliance with this
				regulation.