Previously, I wrote about off-site drainage considerations for developers. There are a host of other environmental considerations – and related permitting requirements – developers should take into account when undertaking a project. The discovery or disturbance of archaeological artifacts is one such consideration.
There could be both federal (if any part of the project is federally funded or occurs on federally owned or managed land) and state requirements if a development project disturbs or discovers archaeological artifacts. For purposes of this discussion, the following definitions apply:
- “Archaeological resource” under federal law means any material remains of human life or activities which are at least 100 years of age, and which are of archaeological interest. 43 CFR 7.3.
- “Archaeological resource” under state law means any material remains of human life or activities which are of archaeological interest, including all sites, objects, structures, artifacts, implements, and locations of prehistorical or archaeological interest, whether previously recorded or still unrecognized, including, but not limited to, those pertaining to prehistoric and historic American Indian or aboriginal burials, campsites, dwellings, and their habitation sites, including rock shelters and caves, their artifacts and implements of culture such as projectile points, arrowheads, skeletal remains, grave goods, basketry, pestles, mauls, and grinding stones, knives, scrapers, rock carvings and paintings, and other implements and artifacts of any material. WAC 25-48-020(10).
- “Archaeological object” means an object that comprises the physical evidence of an indigenous and subsequent culture, including material remains of past human life, including monuments, symbols, tools, facilities, and technological by-products. RCW 27.53.030(2); WAC 25-48-020(8).
In a region with a robust tribal presence such as the Pacific Northwest, it is likely that archaeological resources or objects may be present in a given project area. In that case, certain requirements must be met:
- If the resources or objects are on federal land, then 16 USC 470aa et seq. and 43 CFR Part 7 apply. Under those authorities, there are criminal penalties for excavation, removal, damage, alteration, defacing, or attempting to do any of the same, of any archaeological resource located on public lands unless done pursuant to a permit. See 16 USC 470ee(a); 43 CFR 7.4(a).
- However, no permit is required “for any person conducting activities on the public lands under other permits, leases, licenses, or entitlements for use, when those activities are exclusively for purposes other than the excavation and/or removal of archaeological resources, even though those activities might incidentally result in the disturbance of archaeological resources.” 43 CFR 7.5(b)(1). This is because the “other permit, lease, license, or entitlement for use” will take into account the presence or possible presence of archaeological resources or objects and will contain conditions adequate to protect those resources or objects. Most common is a condition requiring work to stop upon the discovery of said resources or objects, and for the developer or its representative to contact the appropriate officials for direction.
- If the resources or objects are not on federal land, then state law applies. For example, Washington law prohibits the knowing removal, alteration, excavation, damage, or destruction of archaeological resources without a permit. See RCW 27.53.060. Failure to obtain a permit carries criminal penalties. RCW 27.53.090.
- WAC 25-48-060 provides for two types of permits: an archaeological site alteration and excavation permit, WAC 25-48-060(1), and an archaeological monitoring permit, WAC 25-48-060(2).
- Per WAC 25-48-090, the Washington Department of Archaeology and Historic Preservation will normally act on a permit application within 60 days of receipt of a complete application. This includes a 30-day period for both public notice, WAC 25-48-080, and notification to the tribes, WAC 25-48-070.
In an area where the presence of archaeological artifacts is likely on some or all of the project site, advance consultation with the State Historic Preservation Officer is prudent in order to verify the presence of any artifacts and either confirm the requirement for a permit or document the lack of archaeological resources or objects within the project footprint. If a permit is required, knowing that in advance can mean the difference between a project that stays on time and budget and one that gets delayed while the process runs its course.
Elizabeth Rosso is an attorney at Jordan Ramis PC who focuses her practice on environmental law. Contact her at firstname.lastname@example.org or (503) 598-7070.
Thank you for your interest in this blog. The information contained in this blog is for the general interest of our readers and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our environmental and natural resources practice group.