RAPID/Roadmap/11-UT-a

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Utah State Cultural Considerations (11-UT-a)

In Utah, a developer must consider the project's impact on state cultural and historic resources.


State Cultural Considerations Process

11-UT-a.1 - Will the Project Be Undertaken by a State Agency or With state Agency Funding?

Utah law requires state agencies and developers using state funds to take into account how their expenditures or undertakings will affect historic properties. They must also provide the State Historic Preservation Officer (SHPO) with a written evaluation of the project and an opportunity to comment.

(See SHPO Website)

11-UT-a.2 - Does the Agency Expenditure/Undertaking Have Any Potential to Affect Cultural/Historic Resources?

If the project has no potential to affect cultural/historic resources, no further process is required unless cultural/historic resources are discovered during construction.

11-UT-a.3 - Is the Agency Action Exempted by Agreement with SHPO?

The state agency funding or undertaking the project does not have to submit a written evaluation to the SHPO if the project is exempted by agreement.

11-UT-a.4 - Determine Area of Potential Effect (APE)

If the state agency has determined cultural/historic resources will be affected by the project, the state agency must then determine and define the area in which cultural/historic resources are likely to be effected.

11-UT-a.5 - Identify Historic Properties (Record Search, Survey, Other)

The state agency must identify any and all historic properties in the APE. The state agency may do so by searching through records, conducting archaeological surveys, or other methods.

11-UT-a.6 - Are Historic Properties Present AND Will they Be Adversely Affected?

In order for further action to be required, historic properties must not only be present, but they must have the potential to be adversely affected by the project.

11-UT-a.7 - Determine Mitigation Effort

If historic properties are located and they will be adversely affected by the project, the state agency must come up with a plan to mitigate the impacts of the project on the cultural/historic resources.

11-UT-a.8 - Written Evaluation of the Effect on the Historic Property; Sent to SHPO

If cultural/historic resources will be adversely affected by the project, the state agency must send a written evaluation of the effect to the SHPO.

11-UT-a.9 - Does SHPO Concur with State Agency Evaluation?

11-UT-a.10 - Inform Public Lands Policy Coordination Office (PLPCO) of Any Objections

If the SHPO does not concur with the state agency's written evaluation, the SHPO must inform the PLPCO of any objections. (UC 9-8-404(2))

11-UT-a.11 - Review Objections, Determine Whether to Initiate Joint Analysis

The PLPCO must review the SHPO's objections and determine whether or not to initiate a joint analysis. If the PLPCO determines further analysis is necessary, the PLPCO shall, jointly with the state agency and the SHPO, analyze:

  • The cost of the undertaking, excluding costs attributable to the identification, potential recovery, or excavation of historic properties;
  • The ownership of the land involved;
  • The likelihood of the presence and the nature and type of historical properties that may be affected by the expenditure or undertaking; and
  • Clear and distinct alternatives for the identification, recovery, or excavation of historic properties, including ways to maximize the amount of information recovered and report that information at current standards of scientific rigor.

The PLPCO, the state agency, and the SHPO shall also consider as part of the joint analysis:

  • The estimated costs of the alternatives in total and as a percentage of the total cost of the undertaking; and
  • At least one plan for the identification, recovery, or excavation of historic properties that does not substantially increase the cost of the proposed undertaking

(UC 9-8-404(2))

11-UT-a.12 - Formal Comments Provided to State Agency

If the SHPO concurs with the state agency's evaluation - or if the PLPCO determines that the joint analysis is unnecessary - the SHPO will provide formal comments on the state agency's evaluation no later than 30 days after receiving the evaluation.

If a joint analysis is conducted, the SHPO will provide formal comments on the state agency's evaluation no later than 30 days after the conclusion of the joint analysis. The formal comments will include any results of the joint analysis.

11-UT-a.13 - Implement Mitigation Plan or Joint Analysis (If Applicable)

11-UT-a.14 - Continue With Project

The developer may continue after employing any measures suggested in the mitigation plan or joint analysis.

11-UT-a.15 - Include Development Activity on Monthly Update to PLPCO

Once per month, the SHPO shall provide the PLPCO with a list of undertakings on which a state agency has requested the advice or consultation of the SHPO or the Antiquities Section.

11-UT-a.16 - During Development, Has the Developer Discovered Archaeological Resources?

11-UT-a.17 - Continue with Project

If no archaeological resources are discovered while engaging in construction or geothermal production, no permit is required and the developer may continue.

11-UT-a.18 - Report Discovery to Division of Utah State History

Report of Discovery on State or Private Lands

(1) Any person who discovers any archaeological resources on lands owned or controlled by the state or its subdivisions shall promptly report the discovery to the division.

(2) Any person who discovers any archaeological resources on privately owned lands shall promptly report the discovery to the division.

(UC 9-8-307)

11-UT-a.19 - Has the Developer Discovered Human Remains?

The discovery of human remains will require the developer to follow specific procedures.

11-UT-a.20 - Cease Activity in Area, Make Reasonable Effort to Protect Remains, and Notify Local Law Enforcement

If the developer discovers human remains on non-federal, non-state land, the developer must:

(a) Cease activity in the area of discovery, and (b) Notify local law enforcement

(UC 9-8-309)

11-UT-a.21 - Notify Owner or Person in Control of Land or Agency in Control of Land in Writing

If a developer knows or has reason to know that the developer has discovered human remains on non-federal, non-state land, the developer must notify local law enforcement and notify the person who owns or controls the land.

If a developer knows or has reason to know that the developer has discovered Native American remains on state lands, the developer must notify, in writing, the appropriate state agency having primary management authority over the lands.

11-UT-a.22 - Has the Developer Discovered Native American Remains?

If the human remains are recognized to be Native American remains, the developer must follow a different, specific procedure.

11-UT-a.23 - Ensure Activity has Ceased and Remains Have Been Protected

The person who owns or controls the land must require that activity in the area of the discovery cease until activity may be resumed in accordance with UC 9-8-309(1)(d).

The person who owns or controls the land must also make a reasonable effort to protect the human remains.

11-UT-a.24 - Contact Antiquities Section

If local law enforcement believes that human remains have been discovered, local law enforcement must contact the Antiquities Section.

11-UT-a.25 - Notify Landowner that Section May Excavate and Retrieve Remains with Permission

Within two business days, the Antiquities Section must notify the landowner that the Section may excavate and retrieve the remains with the landowner's permission.

11-UT-a.26 - Did Landowner Give Permission?

11-UT-a.27 - Excavate Remains According to Schedule in UC 9-8-309 (1)(b)

If the landowner gives permission, the Section must excavate the remains no later than five business days from the date of permission. However, under extraordinary circumstances, the director may designate a time period longer than five days but not to exceed 30 days.

11-UT-a.28 - Certify that Notification Has Been Received

The developer may resume activity in compliance with UC 76-9-404 only after the appropriate state agency has been notified and that agency has certified that notification has been received. (UC 9-9-403)

11-UT-a.29 - Determine Ownership of the Remains According to UC 9-9-403

(1) If Native American remains are discovered on nonfederal lands on or after April 30, 2007, the ownership or control of the Native American remains shall be determined in the following priority:

  • (a) first, in the lineal descendants of the Native American;
  • (b) second, if the lineal descendants cannot be ascertained, in the Indian tribe that:
    • (i) has the closest cultural affiliation with the Native American remains; and
    • (ii) states a claim for the Native American remains; or
  • (c) third:
    • (i) in the Indian tribe that is recognized as aboriginally occupying the area in which the Native American remains are discovered, if:
      • (A) cultural affiliation of the Native American remains cannot be reasonably ascertained;
      • (B) the land is recognized either by a final judgment of the Indian Claims Commission or through other evidence as the exclusive or joint aboriginal land of some Indian tribe; and
      • (C) that tribe states a claim for the Native American remains; or
    • (ii) in a different tribe if:
      • (A) it can be shown by a preponderance of the evidence that that different tribe has a stronger genetic or cultural relationship with the Native American remains; and
      • (B) that different tribe states a claim for the Native American remains.


(2) Subject to Subsection 7 (of UC 9-9-403), Native American remains discovered on nonfederal lands that are not claimed under Subsection 1 shall be disposed of in accordance with rules made by the division:


(6)(a) Ownership of Native American remains shall be determined in accordance with this Subsection (6) if:

    • (i) there are multiple claims of ownership under Subsection (1) of Native American remains; and
    • (ii) the division cannot clearly determine which claimant is the most appropriate claimant.
  • (b) If the conditions of Subsection (6)(a) are met, the appropriate state agency having primary authority over the lands as provided in Chapter 8, Part 3, Antiquities, may retain the remains until:
    • (i) the multiple claimants for the Native American remains enter into an agreement concerning the disposition of the Native American remains;
    • (ii) the dispute is resolved through an administrative process:
      • (A) established by rules made by the division in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
      • (B) that is exempt from Title 63G, Chapter 4, Administrative Procedures Act; or
    • (iii) after the administrative process described in Subsection (6)(b)(ii) is complete, the dispute is resolved by a court of competent jurisdiction.

(UC 9-9-403)


11-UT-a.30 - Resume Activity After Removal of Remains or Specified Time Period, In Compliance with UC 76-9-404

According to UC-9-8-309(d), the owner of private land may engage in activities in the discovery area without violating UC 76-9-404 if, after having been notified of the discovery, the owner consents to an Antiquities Section excavation and engages in activity only after the remains are removed or after the time frame described in UC 9-8-309(d)(1)(b)(ii)(B).

(See UC-9-8-309 and UC 76-9-404)




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Edit Utah State Historic Preservation Office
Deputy SHPO

lhunsaker@utahabbazabbagov
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Edit Utah State Historic Preservation Office
Governor's Public Lands Policy Coordination Office Contact
801.537.9014
davidyoder@utahabbazabbagov
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