The New Permit Conditions

1. The New Permit Conditions

2. Objectives of This Presentation • Clarify roles of various entities in Section 106 compliance • Discuss specific permit conditions • Clarify the roles of the Field Office and State Office relating to permit violations, suspension and revocation

3. Role of BFO in NHPA Compliance • Must follow consultation procedures with SHPO as outlined in the Wyoming Protocol • Responsible to make determinations of eligibility and effect to historic properties as a result of a federal undertaking • Must review contracted reports • Must ensure reports comply with standards • BFO is legally responsible for any determinations once the report is accepted

4. Role of BFO in NHPA Compliance • BLM has sole responsibility to determine the “area of potential effect.” • This could mean that additional survey will be required when the project application is submitted to BLM • For example, if a permittee conducts a survey and sends the report in to BLM, it may sit in the office until the project is submitted by industry. There is no undertaking until the project application comes in to BLM. At that point BLM will determine the area of potential effect and may require additional fieldwork. • Also, in order to create a “no adverse effect” or “no effect” situation, BLM may require additional fieldwork to ensure the project does not affect historic properties.

5. Role of SHPO in NHPA compliance • Must follow consultation procedures with BLM as outlined in the Wyoming Protocol • Due to the new protocol, SHPO’s focus is nearly entirely on historic sites – for the most part, they trust BFO to make the proper determination for prehistoric sites • SHPO does not make determinations of eligibility or effect, they either concur with BFO’s determinations, or consultation continues

6. Role of an applicant in the NHPA compliance process • Applicants are mentioned three times in the regulations at 36CFR 800: • Federal agencies may use the services of applicants to, “..to prepare information, analyses, and recommendations.” • Applicants are entitled to be consulting parties in the process • A process to resolve intentional adverse effects by applicants (Section 110(k) of the NHPA) is outlined

7. Role of contractors in the NHPA compliance process • Contractors are mentioned twice in the regulations at 36CFR 800: • Agencies are responsible for ensuring all actions taken by contractors meet professional standards • Agencies may use the services of contractors, although the agency is legally responsible for all findings and determinations • The reports that contractors write are exclusively for the federal agency to use as consultation documents. The applicant may pay for the work, however, that payment does not entitle them to a copy of the report.

8. 36CFR800.2(a)(3) Participants in the Section 106 process Use of contractors. Consistent with applicable conflict of interest laws, the agency official may use the services of applicants, consultants, or designees to prepare information, analyses and recommendations under this part. The agency official remains legally responsible for all required findings and determinations. If a document or study is prepared by a non-Federal party, the agency official is responsible for ensuring that its content meets applicable standards and guidelines.

9. Summary of Roles in 106 Compliance • BFO makes determinations of eligibility and effect and is legally responsibly for those determinations. • SHPO’s role is to provide oversight and to comment on BFO’s determinations. If SHPO disagrees with BFO’s determination, the consultation process continues until there is an agreement. • Applicants can speed up the review process by supplying services to the agency • Contractors can create reports with recommendations of eligibility and effect, but the legal responsibility for determinations is on BFO.

10. Permit Conditions • The new permit conditions were written with the assistance of a DOI Solicitor. • By adhering to these conditions, you will help ensure that BLM meets its responsibilities under various laws and regulations. • And that is your responsibility under the relationship formed through the cultural resource use permit.

11. Part One (b) • All standards will be used by the BLM to comply with laws and regulations, including but not limited to the National Historic Preservation Act, the National Environmental Policy Act, and the Federal Land Policy and Management Act • The creation of the EA can result in cultural resource issues that don’t involve the NHPA • Non-NHPA issues need to be reported such as • Description of sites that are not historic properties (NEPA) • Description of sites that may fall under additional statutes (NAGPRA) • Description of sites that may have importance to tribes (AIRFA, EO 13007, etc.)

12. Part One (c) • The permittee and this permit are subject to all other Federal, State, and local laws and regulations applicable to the public lands and resources. • This includes BLM road closures • This includes restrictions during fire seasons • This includes wildlife timing restrictions • Operators should already know what areas have wildlife timing restrictions • Raptors • Big game • Sage grouse • Ute-Ladies’-Tresses • If in doubt, check with BFO

13. Part One (h) • This condition was previously on the face of the permit (#12 for permits prior to 2003) or on the back of permits issued since 2003 (Permit Stipulations #2). • BLM is concerned about maintaining correct contact information, such as address and phone numbers. • Monitor the permit for personnel changes. Let us know if people leave your company. • We will not suspend, revoke or not renew your permit because you didn’t tell us that someone left your company. Just be aware of the legal nature of the permit.

14. Part Two (b) • All persons working under this permit are prohibited from revealing information on the nature and location of archaeological resources to the general public unless or until the BLM has given approval. • Do not disclose site information to members of the public • Do not give copies of reports or site forms to any landowners unless the information relates ONLY to their property • Do not give any more information to operators than is allowed for in the permit condition at Part Three (t)

15. Part Two (e) • The BLM will be afforded the opportunity to review drafts of conference presentations and both printed and internet-based publications prior to presentation or publication in order to ensure confidentiality of cultural resource location information. • This applies to any work done under a CRUP on private land • BFO will not critique content, they will only ensure that site locations are not disclosed

16. Part Two (i-t) • These permit conditions are National Special Conditions attached to all DOI permits.

17. Part Two (j) • Permittee shall cease work upon discovering any human remains and shall immediately notify the BLM authorized officer. Work in the vicinity of the discovery may not resume until the BLM authorized officer has given permission in writing. • This also applies to CRUP related activity on private land • Even if the remains obviously appear to be prehistoric, it must initially be treated as a crime scene

18. Part Three (a) • BLM will not provide a definition of “a single significant violation.” • When BLM cannot meet its responsibilities because a significant site was missed on the field survey and subsequently damaged or destroyed, that would be serious. • Errors in the report do not constitute a significant violation unless a pattern is shown. BFO treats these as “report deficiencies”, which are sent to the operator. • A BLM Field Office cannot suspend, revoke or not renew a permit. Only the State Office can take this action. • Field Offices will coordinate with the State Office should a permittee reach a level that could trigger a suspension, revocation or non-renewal of a permit.

19. Part Three (b) • Permittees have been required to allow BLM Field Offices 10 working days to process fieldwork notifications (FWN) since July 2006. • BLM can usually get to the FWN before 10 days goes by. • If your fieldwork notification has been issued and something causes you to change your fieldwork dates, you must notify BLM of the change and provide new dates. Since your FWN has already been approved you do not need to wait another 10 days. • For example, if you have said you are going in the field on 4/1, and your office burns down on 3/31, that probably means you won’t be going in the field on 4/1. Let BLM know of the issue and that you will get back to them with the new fieldwork dates as soon as you can.

20. Part Three (e) • Fieldwork shall occur only when environmental conditions, such as weather, light conditions, ground visibility, soil conditions, etc., allow for professional quality work. • If you have a question, call the BLM.

21. Part Three (h) • The only exception to this rule is for geophysical projects. • The Wyoming Protocol states that: • “Cultural resource inventories conducted specifically for geophysical exploration projects will not be required to evaluate identified properties provided the properties are avoided by an appropriate distance as defined in BLM Handbook H-3150. Proper avoidance will be regarded as a “no effect” situation. The BLM will submit the report to the SHPO per Section VI.A and proceed with the undertaking. “

22. Part Three (j) • At least one person listed under item 8 of the Permit for Archeological Investigations shall physically be in the field, within sight and in supervisory control of crew members, at all times when work is in progress. • This includes site recordation, subsurface testing, data recovery and monitoring projects • All modifications to field methodology must be discussed with the BLM archaeologist in charge of that project. This communication must occur and new methodology approved by BLM in advance of the project.

23. Part Three (k) • Diagnostic archaeological materials shall be collected from public lands. All artifacts from shovel tests or auger probes on public lands shall be collected. • This is a change from previous BFO policy • Do not collect FCR from shovel tests • Artifacts from private land shall not be collected unless a repository donation form has been signed by the landowner. • This only applies to collections by the CRUP that will be analyzed and/or curated in a curation facility

24. Part Three (n) • A site datum shall be placed on all sites recorded on BLM administered land. • Do not place datums on private property

25. Part Three (o) • GPS points for linear inventories only need to be taken at the beginning and ending of each linear inventory

26. Part Three (p) • Permittee shall remove temporary stakes, flagging and/or pin flags, which the permittee has installed, immediately upon completion of fieldwork. Prior to entering the field, the permittee must contact the BLM authorized officer to determine if the field office has additional instructions regarding site identification materials left overnight. • It is BFO policy that general site locations can be marked in order to relocate a site, but… • No stakes, pin flags, flagging tape or any other material identifying artifacts or features may be left unsupervised in the field

27. Part Three (s) • This permit condition has been around since at least 1985 (stip #7 back then, #13 since 2000). A permittee has always had the ability to contact BLM and ask for an extension of the report deadline (it’s the “…unless otherwise negotiated with the Field Manager” clause). If a BLM office plans to deny a request for a report extension, they will contact the State Office prior to the denial. In most cases, the request for report extension will always be approved.

28. Part Three (t) • Copies of reports submitted to the project sponsor shall contain abbreviated site descriptions only and shall omit references to site features and artifacts. Maps provided to the project sponsor that indicate the relationship of undertaking boundaries or project reroutes to cultural properties shall show only site outlines; feature or artifact locations will not be shown. • Information the applicant gets include: • A map showing site locations in relation to the undertaking • An abbreviated list of sites without reference to artifacts or features • Nothing else • BLM will not review the project sponsor’s report

29. Part Three (v) • Depositing artifacts, collections, original records, data, photographs, etc. has been around since 1985 (#5 back then, #6 since 2000). • The change in this condition is that you must now deposit this material no later than 60 days after the date the final report is submitted to the BLM. This time frame allows BLM to come into compliance with 36 CFR 79. • If you have questions about what to curate, please contact the University of Wyoming Archaeological Repository (UWAR). • UWAR is fully aware that they must provide a confirmation regarding deposition of materials.

30. Report Deficiencies • Deficiencies are mistakes in reports that are not specific permit violations – they most often relate to the SHPO Class III report standards • Deficiencies often arise as large scale projects are permitted • Due to project redesign by BLM • Due to revisions by the operator • For CBM PODs in BFO, cultural report deficiencies will be included in the deficiency letter that is sent to the operator both before and after the onsite

31. Permit Violations • Role of BFO: • Review reports to determine if permit violations are present • Write letters to CRUP’s notifying them of permit violation • Forward violation letters to the State Office • Role of the State Office: • Review and file violation letters • Determine if there is a repeated failure to comply with permit conditions warranting suspension or revocation of the permit • The State Director is responsible for suspending or revoking a permit (pending appeal by the CRUP)