Sections 21083.2 and 21084.1
CEQA and the CEQA Guidelines
The California Environmental Quality Act (CEQA) establishes statutory requirements
for the formal review and analysis of projects. The CEQA Guidelines
have been adopted by the State to guide public agencies in implementing
CEQA. CEQA's requirements for addressing impacts on archaeological resources
are discussed in detail under Sections 21083.2 and 21084.1 (see Appendix
1 of this paper). Appendix K of the Guidelines (or Supplementary
Document J of the 1992 printing of the Guidelines) offers a suggested
method for implementing the requirements of Section 21083.2.
Sections 21083.2 and 21084.1 operate independently to ensure that potential
effects on archaeological resources are considered as part of a project's
environmental analysis. The latter applies to archaeological sites which
are listed on or eligible for listing on the California Register, the former
applies to other "unique" archaeological resources. Either of
these benchmarks may indicate that a proposal may have a potential adverse
effect on archaeological resources.
An initial study must be prepared for projects which are not exempt from
CEQA in order to guide the decision whether to prepare either a Negative
Declaration or EIR (Guidelines Section 15063). The original determination
whether to prepare a Negative Declaration or an EIR is subject to the "fair
argument" test (Laurel Heights Improvement Assoc. v. U.C. Regents
(1993) 47 Cal.3d 376). In other words, if a fair argument can be raised
on the basis of "substantial evidence" in the record that the
project may have a significant adverse environmental impact, in this case
that unique archaeological resources or archaeological sites that are historical
resources would be affected, then an EIR is required even if evidence also
exists to the contrary.
Section 21083.2 explicitly requires that the initial study examine whether
the project may have a significant adverse effect on "unique archaeological
resources." Pursuant to Part (g) of that section, a unique archaeological
In the one court case to address this definition, the Court of Appeal applied
it strictly in finding that "[a]n archaeological artifact, object,
or site which does not meet these criteria is a nonunique archaeological
resource and 'need be given no further consideration, other than the simple
recording of its existence by the lead agency if it so elects.'" (Topanga
Association for a Scenic Community v. County of Los Angeles (1989) 214
Appendix K of the Guidelines (see Appendix
2 of this document) takes a broader approach, using the term "important"
in place of "unique." Appendix K goes beyond Section 21083.2,
suggesting additional criteria to guide the Lead Agency in making a determination
of uniqueness. These include that the resource be at least 100 years old
and possess "substantial stratigraphic integrity" (i.e., is substantially
undisturbed); and the resource involves "important" research questions
that historical research has shown can be answered only with archaeological
Section 21084.1 requires an initial study to treat any substantial adverse
change in the significance of a historical resource listed in or eligible
to be listed in the California Register as a significant effect on the environment.
The definition of "historical resource" includes archaeological
resources listed in or formally determined eligible for listing in the California
Register and, by reference, the National Register of Historic Places, California
Historical Landmarks, Points of Historical Interest, and local registers
(Sections 5020.1(j) and 5024.1).
If such an effect may occur, the Lead Agency must prepare an EIR. If there
is no substantial evidence in the record for the occurrence of such effect,
or if the potential effect can be reduced to a level of insignificance through
project revisions, a Negative Declaration or mitigated Negative Declaration
can be adopted. The Lead Agency must note the source or content of the data
relied upon in preparing the initial study (Sundstrom v. County of Mendocino
(1988) 202 Cal.App.3d 296). Supporting information may include specific
studies, or references to previous environmental documents or other information
sources. A thorough, referenced initial study is a crucial part of the record
supporting the Lead Agency's determination to prepare a Negative Declaration
or mitigated Negative Declaration. Bear in mind, of course, that an initial
study is not required to provide the full-blown analysis of a complete EIR
(Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d
Pursuant to Sections 21083.2 and 21084.1, neither an EIR nor a Negative
Declaration is required for a project which would impact only non-unique
archaeological resources or archaeological sites that are not considered
"historical resources" pursuant to Section 5020.1(j). Furthermore,
an EIR that is required as a consequence of other significant environmental
effects is not required to address non-unique archaeological resources.
The effectiveness of the initial study depends largely upon an accurate
evaluation of the site's potential archaeological significance. This means
determining whether there is present a unique archaeological resource (Section
21083.2) or a historical resource that is an archaeological resource (Section
The "unique" criterion established by Section 21083.1 is narrower
and more restrictive than general, professionally accepted criteria by which
the significance of an archaeological site would be evaluated. Establishing
that a site is or is not "unique" may involve extensive research,
analysis, field testing, and excavation. In practice, ascertaining that
a significant archaeological site is not unique and therefore not subject
to CEQA may involve more research, analysis, and testing than would be necessary
if the resource were a significant historical resource and mitigated. This
is particularly true when avoidance is a feasible alternative.
A record search to determine whether any previously identified resources
exist on site is the first step in determining whether there may be archaeological
resources present. Often, when the applicant submits environmental information
with their project the Lead Agency requires that this include the results
of a record search at the applicable California Historical Resources File
System Information Center (formerly the Archaeological Information Centers).
These 11 regional centers maintain the State Archaeological Inventory as
part of the Historical Resources File System. This system maintains current
information on recorded archaeological sites, as well as resources listed
on the California Register of Historic Resources. Alternatively, the Lead
Agency itself may undertake this record search during the initial study
phase of project review.
Additional sources of information on the possible presence and value of
archaeological resources are colleges and universities with archaeology
departments, the local historical or archaeological society, local Native
American groups, or appropriate archives and repositories. Also, the Native
American Heritage Commission maintains a file of Sacred Lands which contain
information unavailable elsewhere. The Commission can be contacted at:
915 Capitol Mall, Room 364
Sacramento, CA 95814
Some cities and counties have mapped areas of known archaeological sensitivity.
These maps may be used as general indicators of the presence of archaeological
resources, but are usually not detailed enough or current enough to be definitive.
Sensitivity maps do not substitute for a record search, or archaeological
field survey where necessary.1416 Ninth Street
If the project area is expected to contain unique archaeological sites or
historical resources that are archaeological resources, the Lead Agency
should require a field survey by a qualified professional archaeologist
in order to assess the significance of the resource. Certification by the
Society of Professional Archaeologists (SOPA) is one indicator that an archaeologist
is qualified. The State of California does not license or certify archaeologists.
Where field survey results are inconclusive, a test excavation of some type
may be necessary to determine whether unique, subsurface components exist.
When a unique resource is found, the archaeologist should recommend means
of avoiding or mitigating impacts, including excavation plans if necessary.
In such cases, the archaeologist's report should also estimate the cost
In order to protect the sites from unauthorized excavation, looting, or
vandalism, the Lead Agency should not publicize the location of known archaeological
resources beyond what is necessary. Records in the Information Centers are
exempt from the California Public Records Act (Government Code Section 6250
et seq.). Government Code Section 6254.19 states that "nothing in this
chapter requires disclosure of records that relate to archaeological sites
information maintained by the Department of Parks and Recreation, the State
Historical Resources Commission, or the State Lands Commission." Along
this line, Government Code Section 6254 explicitly authorizes public agencies
to withhold information from the public relating to "Native American
graves, cemeteries, and sacred places maintained by the Native American
The State Office of Historic Preservation can provide additional assistance
regarding archaeological resources. The Office can be contacted at:
Sacramento, CA 95814
For examples of local guidelines for researching archaeological data,
see Appendix 4 of the print version of this document. Appendix
3 lists the Historical Resources File System Information Centers across
CEQA requires the Lead Agency to examine and impose mitigation measures
or feasible project alternatives that would avoid or minimize any impacts
or potential impacts identified in an EIR or a mitigated Negative Declaration.
When archaeological resources are involved, avoidance, or preservation in
an undisturbed state is the preferable course of action. Section 21083.2
provides that preservation methods may include:
Actual preservation measures may vary, depending upon the specific situation.
For instance, capping or covering sites with soil may not be a practical
solution where it might interfere with later carbon-14 or pollen dating
- Planning construction to avoid archaeological sites.
- Deeding sites into permanent conservation easements.
- Capping or covering sites with a layer of soil before building on the
- Planning parks, greenspace, or other open space to incorporate archaeological
When avoidance is not possible, excavation may be the only feasible alternative
or mitigation measure. Section 21083.2 limits excavation to those parts
of the site which would otherwise be damaged or destroyed by the project.
Excavation is not required if the Lead Agency determines that testing or
studies already completed have adequately recovered the scientifically consequential
information from and about the resource. This information must be documented
in the EIR.
Part V of Appendix K suggests that any necessary excavation should be based
upon an excavation plan or "research design." The contents of
such a plan might include, but are not limited to:
An excavation plan should be prepared by a qualified archaeologist. Unless
special or unusual circumstances warrant a longer period, Section 21083.2
requires that the field excavation phase of an approved mitigation plan
must be completed within 90 days of final approval. Where a phased project
is involved, the excavation must be completed within 90 days of the final
approval of the phase to which the mitigation measures apply. The project
applicant may allow additional time at their discretion.
- A brief summary of the excavation proposed as part of the mitigation
- A list and discussion of important information the excavated resources
contain or are likely to contain.
- An explanation of how the information should be recovered to be useful
in addressing scientifically valid research questions.
- An explanation of the methods of analysis.
- A final report for distribution.
- An estimate of the cost of and time required to complete the excavation
proposed under the plan.
- Plans for the curation of collected materials.
Mitigation Monitoring and Reporting
Section 21081.6 requires a public agency to adopt a mitigation monitoring
and reporting program whenever it makes a finding of significance under
subdivision (a) of Section 21081 (also CEQA Guidelines Section 15091(a)(1))
or adopts a mitigated Negative Declaration. This clearly applies to any
EIR or mitigated Negative Declaration which identifies adverse effects or
potentially adverse effects on unique archaeological resources or historical
The purpose of the mitigation monitoring and reporting program is to ensure
that mitigation measures such as avoiding sites during construction, following
an excavation plan, or halting construction when resources are discovered,
are complied with during project implementation. Where unique archaeological
resources or historical resources are involved, continuous monitoring may
be necessary during development. OPR's advisory memo entitled Tracking
CEQA Mitigation Measures Under AB 3180 discusses monitoring and reporting
programs in detail.
Section 21083.2 requires the applicant for a qualifying project to guarantee
to the Lead Agency that the applicant will pay one-half the estimated cost
of mitigating the project's effects on the resource. When determining the
applicant's share, consideration must be given to the in-kind value of "project
design or expenditures" that permit any or all the unique archaeological
resource to be preserved in place or left undisturbed. The estimated cost
of mitigation, other than avoidance or leaving the resource in an undisturbed
state, should be included in the EIR.
The project applicant's share of mitigation funding is limited by statute
to the following amounts:
When a final decision is made on the project, the Lead Agency shall, if
necessary, reduce the specified mitigation measures to those which can be
funded with the money guaranteed by the applicant and any other sources.
Where such reduction results in a significant effect not being reduced to
a level of insignificance, the Lead Agency must adopt findings of overriding
consideration pursuant to Guidelines Section 15093.
- For commercial or industrial projects, an amount equal to one-half of
one percent of the projected cost of the project for mitigation measures
undertaken within the site boundaries.
- For a single residential unit, an amount equal to three-fourths of one
percent of the projected cost of the project for mitigation measures undertaken
within the site boundaries.
- For a residential project of more than one unit, an amount equal to
three-fourths of one percent of the projected cost of the project for mitigation
measures undertaken within the site boundaries for the first unit plus the
sum of the following:
a. $200 per unit for any of the next 99 units.
b. $150 per unit for any of the next 400 units.
c. $100 per unit in excess of 500 units.
The disposition of Native American burials (human remains) are governed
by the provisions of Sections 5097.94 and 5097.98, and fall within the jurisdiction
of the Native American Heritage Commission. Where human remains are known,
or thought likely to exist, consultation with the Native American Heritage
Commission should be initiated by the Lead Agency as early in the project
planning process as possible. The Commission has statutory authority to
mediate agreements relative to the disposition of Native American remains.
These agreements are not subject to CEQA.
The location of old grave sites and Native American remains are often not
known in advance. Appendix K suggests a specific procedure for dealing with
the unexpected discovery of human remains. (Part VIII of Appendix K) If
human remains are discovered, the County Coroner must be notified within
48 hours. There should be no further disturbance to the site where the remains
were found. If the remains are Native American, the coroner is responsible
for contacting the Native American Heritage Commission within 24 hours.
The Commission, pursuant to Section 5097.98, will immediately notify those
persons it believes to be most likely to be descended from the deceased
CEQA authorizes, but does not require, a Lead Agency to adopt provisions
in the agency's own CEQA guidelines for responding to the accidental discovery
of archaeological resources during construction. A number of jurisdictions
have done this, including Santa Barbara County. These measures may include,
but are not limited to, the following:
- Requirements for the immediate evaluation of the find.
- Provisions for contingency funding and a time allotment sufficient to
either allow excavation and recovery of an archaeological sample, or to
employ measures which would avoid the site of the resource without disturbing
- The stopping of construction work on that portion of the site where
an archaeological or historical resource was discovered.
SECTION 21083.2 EXCEPTION
Pursuant to its subdivision (j), the requirements of Section 21083.2, including
limits on the applicant's share of the cost of mitigation, may be waived
for the following:
When Section 21083.2 does not apply, a substantial adverse change in any
archaeological resource should be considered a significant effect on the
environment. Therefore, the project's initial study must address the potential
for significant impacts relative to any significant archaeological resource
(not simply the "unique resources" defined under Section 21083.2),
as well as any archaeological resource that is also a historical resource
pursuant to Section 21084.1.
- A public agency project, if the Lead Agency elects to comply with all
other applicable provisions of CEQA.
- A project undertaken by a person that is supported in whole or in part
through contracts, grants, subsidies, loans or other forms of assistance
from one or more public agencies, if the Lead Agency elects to comply with
all other applicable provisions of CEQA.
- A public agency's consideration of a private project, if the applicant
and the Lead Agency jointly elect to comply with all other applicable provisions
of CEQA. A private project cannot be excepted from Section 21083.2 without
the applicant's consent.
The majority of sub-surface archaeological sites derive their significance
from their information potential, that is, the ability to yield important
information which contributes to our understanding of history and pre-history.
Any action, such as clearing, scraping, soil removal, mechanical excavation
or digging that would alter or destroy a site's integrity (i.e., intactness),
stratigraphy, or association has the potential to be a significant adverse
For purposes of CEQA, "environment" is defined to include: "the
physical conditions which exist within the area which will be affected by
the proposed project, including ... objects of historic or aesthetic significance"
(Section 21060.5). This includes archaeological sites (Society of California
Archaeology v. Butte County (1977) 65 Cal.App.3d 832).
Although the specific mitigation provisions of Section 21083.2 do not apply,
the applicant and Lead Agency may use them as a general guide to mitigation.
If an archaeological survey and report is required for the project, it should
recommend specific measures to mitigate the significant effect identified
in the report. These recommendations should form the basis for mitigation
measures or alternatives in the EIR for the project. If the project is approved
on the basis of an EIR or mitigated Negative Declaration, the Lead Agency
must adopt a mitigation monitoring and reporting program as required under
Appendix 1: Excerpts from
the Public Resources Code
Appendix 2: Appendix K of the
Appendix 3: Historical Resources
State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814