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.

Initial Study

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 resource is: "an archaeological artifact, object, or site, about which it can be clearly demonstrated that, without merely adding to the current body of knowledge, there is a high probability that is meets any of the following criteria:
"(1) Contains information needed to answer important scientific research questions and there is a demonstrable public interest in that information.
"(2) Has a special and particular quality such as being the oldest of its type or the best available example of its type.
"(3) Is directly associated with a scientifically recognized important prehistoric or historic event or person." [emphasis added] 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 Cal.App.3d 1348)

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 methods.

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 1337).

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.

Site Evaluation

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 21084.1).

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
(916) 653-4082

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.

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 of mitigation.

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 Heritage Commission."

The State Office of Historic Preservation can provide additional assistance regarding archaeological resources. The Office can be contacted at:

1416 Ninth Street
Sacramento, CA 95814
(916) 653-6624

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 the State.

Mitigation

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 procedures.

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.

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 resources.

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.

Applicant Contributions

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.

Human Remains

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 Native American.

Accidental Discoveries

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:

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.

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 impact.

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).

Mitigation Measures

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 Section 21081.6.

END

Appendix 1: Excerpts from the Public Resources Code

Appendix 2: Appendix K of the CEQA Guidelines

Appendix 3: Historical Resources Information Centers

State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-322-2318