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. 6, March 26, 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:
