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VERMONT HISTORIC PRESERVATION ACT RULES
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Effective March 15, 2001
TABLE OF CONTENTS
Rule 1. Authority and
Statement of Purpose
Rule 2. Definitions
Rule 3. Regulations
for the Vermont Certified Local Government Program
Rule 4. Historic and
Archeological Resources and the Act 250 Process
Rule 5. (Reserved)
Rule 6. (Reserved)
Rule 7. State Undertakings (Reserved)
Rules 8-11: Designation of Historic and Archeological
Resources
Rule 8. The Vermont Historic Sites and Structures Survey
and Vermont Archeological Inventory (Reserved)
Rule 9. The Vermont
State Register of Historic Places
Rule 10. The National
Register of Historic Places
Rule 11. Archeological Landmarks (Reserved)
Rule 12. Vermont Advisory
Council on Historic Preservation
Rule 1. AUTHORITY AND STATEMENT OF PURPOSE
The Division for Historic Preservation (Division) is authorized
by 22 V.S.A. § 723(10) to adopt rules and carry out the purposes
of the Vermont Historic Preservation Act (VHPA), 22 V.S.A.
chapter 14.
These Rules address the responsibilities of the Division,
the State Historic Preservation Officer (SHPO), and the Vermont
Advisory Council on Historic Preservation (Council) with respect
to the Act 250 Environmental Board process, designation of
resources to the State and National Registers of Historic
Places, and other functions with which the Division, the SHPO,
and the Council are charged pursuant to the VHPA.
Rule 2. DEFINITIONS
The Definitions set forth herein apply to the rules of the
Division for Historic Preservation, with the exception of
Rule 3. Additional explanatory information, citations, and
examples may be found in supplemental materials prepared by
the Division.
2.1 "Act 250" means 10 V.S.A. chapter
151, as amended from time to time.
2.2 "Adverse effect" means a change in
a historic property's or historic resource's integrity of
location, design, setting, materials, workmanship, feeling,
and association resulting from: physical destruction, damage
or alteration; introduction of incongruous or incompatible
effects such as isolation of a historic structure from its
historic setting; new property uses; or new visual, audible
or atmospheric elements.
2.3 "Agency" (including "state agency"
or "independent agency") means any agency, board,
department, division, commission, committee, branch or authority
of the state.
2.4 "Applicant" means the property owner,
developer of the project, or other person who has applied
for an Act 250 permit.
2.5 "Archeological Guidelines" means
the Guidelines for Conducting Archeological Studies in
Vermont, adopted or promulgated by and periodically updated
by the SHPO to provide guidance on statewide policies and
on appropriate archeological field methodology, documentation,
reporting, management of archeological collections, and public
education requirements for archeological investigations.
2.6 "Archeological landmark" means an
archeological site of significance to the scientific study
or public representation of the state's historical, prehistorical
or aboriginal past designated pursuant to 22 V.S.A. § 763.
2.7 "Archeological site" means any aboriginal
mound, fort, earthwork, village location, burial ground, historic
or prehistoric ruin, mine, cave, or other location which is
or may be a source of important archeological data, as set
forth at 22 V.S.A. § 701(8).
2.8 "Area of potential effects" means
the geographic area or areas within which an undertaking may
directly or indirectly cause changes in the character or use
of historic properties, should such properties exist. Such
area shall include the project area, and may include additional
areas outside of the project area. Identification of the area
of potential effects shall be determined after consideration
of the scale and nature of an undertaking, and may vary with
different kinds of effects caused by the same undertaking.
2.9 "CLG" means Certified Local Government,
a federal program established by the National Historic Preservation
Act (NHPA) that is administered by the Division under Rule
3 of these rules.
2.10 "Council" or "Advisory Council"
means the Vermont Advisory Council on Historic Preservation
as created by the VHPA at 22 V.S.A. § 741.
2.11 "Cultural Landscape" means a geographic
area associated with a historic event, activity, or person
which exhibits other cultural values. There are four general
types of cultural landscapes, not mutually exclusive: historic
sites; historic designed landscapes; historic vernacular landscapes;
and sites of non-western and western world view landscape
value, including places of religious or other traditional
significance to other ethnic or cultural communities.
2.12 "Days" means calendar days.
If the final day of an allowed timeframe falls on a Saturday,
Sunday, or holiday, the timeframe shall extend to the following
business day.
2.13 "District" means a group of buildings,
sites, structures, objects, and/or landscape features linked
together by a common history and development and forming a
cohesive and recognizable entity such as, but not limited
to, a historic village center, residential neighborhood, adjacent
historic farms along a rural valley, the archeological remains
of such areas, or a group of related archeological sites in
a given geographic area.
2.14 "Division" means the Division for
Historic Preservation as created by the VHPA at 22 V.S.A.
§ 721.
2.15 "Effect" means an alteration of
a characteristic or characteristics of a historic property
which characteristics may qualify such property for inclusion
in the State or National Register.
2.16 "Eligible for the State and National Register"
means meeting the criteria for listing, though not officially
listed in either Register. See Rules 2.27 and 2.40.
2.17 "Field inspection" means visiting
a project area to quickly assess the physical landscape for
archeological sensitivity, to identify areas that have been
significantly disturbed in the past, and to identify potential
archeological issues that should be considered during project
planning.
2.18 "Field investigation" means the
study of the traces of human culture at any land or water
site by means of surveying, digging, sampling, excavating,
removing surface or subsurface objects, or going on a site
with that intent, as set forth at 22 V.S.A. § 701(4).
2.19 "Ground disturbance" or "soil
disturbance" means a natural or man-made alteration
of the soil that alters or destroys the integrity of any archeological
sites contained in that soil.
2.20 "Historic preservation" means the
research, protection, restoration, and rehabilitation of buildings,
structures, objects, districts, areas, and sites significant
in the history, architecture, archeology or culture of this
state, its communities, or the nation, as set forth at 22
V.S.A. § 701(5).
2.21 "Historic property" or "resource"
means any building, structure, object, district, area,
or site that is significant in the history, architecture,
archeology or culture of this state, its communities, or the
nation, as set forth at 22 V.S.A. § 701(6). When used without
the term "historic" in these rules, the term "resource"
shall mean any building, structure, object, district, area
or archeological site which is the subject of evaluation,
though not yet identified as significant.
2.22 "Historic site" means, for the purposes
of Act 250 and as defined in 10 V.S.A § 6001(9), any site,
structure, district or archeological landmark which has been
officially included in the State Register of Historic Places
and/or the National Register of Historic Places, or which
is established by testimony of the Council as being historically
significant.
2.23 "Historically Significant" means
a historic property or historic resource that is eligible
for the State Register or National Register.
2.24 "Mitigation" means one or more measures
that would modify an undertaking in order to avoid an adverse
or an undue adverse effect on a resource, or otherwise compensate
for its damage or loss.
2.25 "National Historic Preservation Act (NHPA)"
means 16 U.S.C. §§ 470 - 470x-6, as amended from time
to time.
2.26 "National Register" means the National
Register of Historic Places established by the NHPA.
2.27 "National Register Criteria" means
the criteria set forth at 36 CFR 60.4, used by the Secretary
of the Interior and related National Register Bulletins published
by the U.S. Department of the Interior, National Park Service
to evaluate the qualifications of historic properties
for the National Register.
2.28 "Participation" means under 22 V.S.A.
§ 742(a)(8), the performance by the SHPO and Division of certain
functions in federal and nonfederal undertakings, as delegated
by the Council.
2.29 "Potential archeological site" means
an area that has a high probability of containing a
significant archeological site.
2.30 "Potentially significant property or resource"
means a property or resource that may meet the criteria for
eligibility for the State and National Registers, or that
shows a likelihood of containing historic or prehistoric
archeological sites based on historic maps, information provided
by individuals knowledgeable about the history or prehistory
of the area, a predictive model(s) adopted by the Council,
or other archival sources. (See Rule 2.21.)
2.31 "Predictive model" means an analytical
tool developed and used by professional archeologists to identify
the archeological sensitivity of a particular property or
landscape. A predictive model predicts where
archeological sites are likely to be found based on a clustering
of needed human resources such as food, water, shelter, and
raw materials, and other environmental factors. Predictive
models must be approved by the Council.
2.32 "Project Area" means, for the purposes
of review by the Division and the Council of an Act 250 application,
the entire area subject to the application, including portions
to be developed and those to be left undisturbed.
2.33 "Qualified Professional" means a
person who meets the Professional Qualifications Requirements
published by the National Park Service at 36 CFR 61, as may
be supplemented by the SHPO's policies from time to time.
In addition, a Qualified Professional may be a professional
who meets the standard for historic preservationist or other
discipline, as adopted and published by the Division and/or
the National Park Service.
2.34 "RPC" means a regional planning
commission in Vermont.
2.35 "Secretary" means the Secretary
of the Vermont Agency of Commerce and Community Development.
2.36 "Secretary of the Interior's Standards"
means the Secretary of the Interior's Standards for the
Treatment of Historic Properties, 36 CFR Part 68, July 12,
1995 Federal Register (Vol, 60, No. 133), as they may be amended
from time to time, and accompanying Guidelines. The Standards
for Rehabilitation will apply to work on buildings, except
in unusual cases involving reconstruction or museum-quality
restoration of buildings when the Standards for Reconstruction
or Restoration will apply.
2.37 "Section 106" means the section
of the NHPA that requires each federal agency, and, by extension,
any state agency, municipality or other entity using federal
money or applying for a federal permit or license for a particular
undertaking, to take into account the effects of its actions
on historic properties.
2.38 "State Historic Preservation Officer" or
"SHPO" means the person appointed under 22 V.S.A.
§ 723(a), consistent with the requirements of the National
Historic Preservation Act, for consultation on federal undertakings.
2.39 "State Register" means the State
Register of Historic Places, which is the state's official
listing of buildings, structures, objects, districts, and
sites that are significant in local, state, and/or national
history, architecture, archeology, and culture, as authorized
by 22 V.S.A. § 723.
2.40 "State Register criteria" means
the standards the SHPO has adopted pursuant to 22 V.S.A. §
723(a)(2) for listing a property on the State Register. The
adopted State Register criteria are identical to the National
Register criteria.
2.41 "Undertaking" means any project,
activity, or program, including action on approval, authorization,
license, and permit applications, that can result
in a change in the character or use of an historic property
or historic resource.
2.42 "Undue adverse effect" on a historic
site for Act 250 purposes means an adverse effect that is
not appropriately mitigated or reasonably avoided.
2.43 "Vermont Archeological Inventory (VAI)"
means the written, photographic, and/or digital record
of archeological sites that is maintained by the Division
as the inventory of the state's archeological sites. Such
archeological sites may be minimally or extensively documented,
and may not necessarily meet the criteria for listing on the
State or National Registers.
2.44 "Vermont Historic Preservation Act (VHPA)"
means 22 V.S.A. chapter 14, as amended from time to time.
2.45 "Vermont Historic Sites and Structures Survey
(VHSS)" means the written, photographic, and/or digital
record of historic buildings, districts, structures and objects
that is compiled in a standardized format and maintained by
the Division as an inventory of the state's resources that
are significant for their architectural, historic or engineering
merit and that appear to meet the criteria for the State and
National Registers of Historic Places.
Rule 3. REGULATIONS FOR THE VERMONT CERTIFIED
LOCAL GOVERNMENT PROGRAM
3.1 Introduction
3.1.1 Statutory background. The National Historic
Preservation Act of 1966, as amended (16 U.S.C. Section
470 - 470x-6) provides for matching grants-in-aid to the
states from the Historic Preservation Fund for historic
preservation programs and projects. Amendments to the
Act passed in 1980 require that at least ten percent of
each state's Historic Preservation Fund grant be designated
for transfer to certified local governments which apply
for the money. Vermont's participation in this federal
program is authorized by the Vermont Historic Preservation
Act, 22 V.S.A. chapter 14, which also creates the Vermont
Division for Historic Preservation and directs the Division
to adopt regulations to carry out the purposes of the
Act. These regulations are issued to comply with that
statutory directive and to implement a program known as
the Certified Local Government, or CLG, program, which
creates the opportunity for local governments to apply
for CLG status and, once certified, to apply for grants-in-aid
under the program.
3.1.2 Historic preservation. Historic preservation
is the thoughtful management of the built environment.
In some cases, preservation is a tool for economic development.
In others, it is a mechanism to maintain a community's
unique identity. But beyond these practical and aesthetic
considerations, preservation is part of the Vermont ethic:
you don't throw something away if it is still useful.
It is good common sense in the fullest sense of the Vermont
tradition to conserve, use, and improve what you already
have. That is the spirit behind the Vermont CLG program
and these regulations.
3.1.3 Purpose of CLG grants. Grants to Certified
Local Governments will be for activities directly related
to the identification, evaluation, or protection of historic
and archeological resources that are eligible for Historic
Preservation Fund grant assistance.
3.1.4 Cooperation with local governments. An
integral part of the CLG program will be continuation
of the Division for Historic Preservation's strong commitment
to working cooperatively with local governments on historic
preservation programs. Existing grant programs will continue,
so that a community is not required to become a CLG in
order to receive funds for historic preservation purposes.
Grants received through the CLG program, however, will
be locally administered. Along with this added local administrative
responsibility goes the potential for significantly increased
funding from Congress through future grant programs which
may be based on CLG status. Local matching funds will
be required for all CLG grants.
3.1.5 Where to get more information. Inquiries
about the Vermont CLG program should be directed to the
Vermont Division for Historic Preservation.
3.2 Definitions. These definitions apply to the
Regulations for the Vermont Certified Local Government Program.
3.2.1 "Certified Local Government" or
"CLG" means a local government that has been certified
by the National Park Service to carry out the purposes
of the National Historic Preservation Act, as amended,
in accordance with Section 101(c) of the Act.
3.2.2 "Chief elected local official"
means the chairman of a board of selectmen in a town,
the mayor of a city, the chairman of the board of trustees
in a village or any other elected head of a local government.
3.2.3 "CLG share" means the federal
funding authorized for transfer to local governments in
accordance with Section 103(c) of the National Historic
Preservation Act, as amended, and these regulations.
3.2.4 "Commission" means the historic
preservation review commission established by a local
government in accordance with section 3.3.1(2) of these
regulations.
3.2.5 "Comprehensive historic preservation
planning" means an ongoing process that is consistent
with technical standards issued by the United States Department
of the Interior and which produces reliable, understandable,
and up-to-date information for decision making related
to the identification, evaluation, and protection/treatment
of historic resources.
3.2.6 "Council" means the
Vermont Advisory Council on Historic Preservation.
3.2.7 "Designation" means
the identification and registration of properties for
protection that meet criteria established by the State
or local government for significant historic and prehistoric
resources within the jurisdiction of the local government.
Designation includes the identification and registration
of resources according to State or local criteria which
must be consistent with the Secretary of the Interior's
Standards for Identification and Registration.
3.2.8 "Division" means the Division
for Historic Preservation as created by the Vermont Historic
Preservation Act, 22 V.S.A. chapter 14.
3.2.9 "Historic Preservation" includes
identification, evaluation, recordation, documentation,
curation, acquisition, management, stabilization, maintenance,
interpretation, conservation, research, protection, restoration,
and rehabilitation and education and training regarding
the foregoing activities of any prehistoric or historic
district, site, building, structure, or object significant
in American history, architecture, archeology, engineering,
or culture.
3.2.10 "The Historic Preservation Fund Grants
Manual" means the document that sets forth federal
administrative procedures and requirements for activities
concerning the federally related historic preservation
programs of the states, and certified local governments.
This Manual includes requirements and procedures for the
administration of the historic preservation grants-in-aid
program, which includes the program described in these
regulations.
3.2.11 "Historic property" or "resource"
means any building, structure, object, district, area
or site that is significant in the history, architecture,
archeology or culture of this state, its communities or
the nation.
3.2.12 "Local government" means a town,
city, village, or municipality, the existence of which
is authorized by law, or any general purpose political
subdivision of the state.
3.2.13 "National Register of Historic Places"
or "National Register" means the national list
of districts, sites, buildings, structures, and objects
significant in American history, architecture, archeology,
engineering, and culture, maintained by the United States
Secretary of the Interior under the authority of Section
101(a)(1)(A) of the National Historic Preservation Act,
as amended.
3.2.14 "Protection" means a local
review process under State or local law for proposed demolition
of, changes to, or other action that may affect historic
properties. The CLG's review process applies only to properties
designated pursuant to State or local laws and procedures
and does not include properties listed on or determined
eligible for the National Register of Historic Places
unless such properties were designated under the appropriate
State or local process.
3.2.15 "Secretary" means the Secretary
of the Interior. Unless otherwise stated in law or regulation,
the Secretary has delegated the authority and responsibility
for administering the National Historic Preservation program
to the National Park Service.
3.2.16 "State Historic Preservation Officer"
or "SHPO" means the person appointed under 22 V.S.A.
§ 722(a), consistent with the requirements of the National
Historic Preservation Act for consultation on federal
undertakings. Pursuant to 22 V.S.A. §723(b), the SHPO
may delegate to a Deputy SHPO the duties and responsibilities
of the SHPO in the SHPO's absence. In addition, the SHPO
may delegate duties to such Division staff as are necessary
to carry out the purposes of the Division.
3.2.17 "Vermont Archeological Inventory"
means the written, photographic, and/or digital record
of archeological sites that is maintained by the Division
as the inventory of the state's archeological resources.
Such archeological sites may be minimally or extensively
documented, and may not necessarily meet the criteria
for listing on the State or National Registers.
3.2.18 "The Vermont Historic Sites and Structures
Survey" means the written, photographic, and/or digital
record of historic buildings, districts, structures and
objects that is compiled in a standardized format and
maintained by the Division as an inventory of the state's
resources that are significant for their architectural,
historic, or engineering merit and that appear to meet
the criteria for the State and National Registers of Historic
Places.
3.3 The certification process.
3.3.1 Request for certification.
3.3.1.1 Any local government may request
certification from the SHPO on forms provided by the
Division. A request for certification shall be approved
by the SHPO for forwarding to the National Park Service
when the local government making the request has submitted
written documentation of compliance with the following
requirements:
(1) The local government has agreed
to enforce, within its jurisdiction, the provisions
of the Vermont Planning and Development Act (24
V.S.A. chapter 117), the Vermont Historic Preservation
Act (22 V.S.A. chapter 14), and any other state
or local legislation which may be enacted for
the designation and protection of historic properties.
(2) The local government has established
by action appropriate to its procedures a historic
preservation review commission of not less than
three nor more than nine members appointed by
the legislative body of the local government.
The action establishing the commission shall include
the following information:
(A) That the commission be composed
of professional and lay members, a majority
of which reside within the jurisdiction of
the local government.
(B) That all members have demonstrated
interest, competence or knowledge in historic
preservation.
(C) That to the extent available
within the jurisdiction of the local government,
at least a majority of the members shall be
professionals who meet "the Secretary's
Professional Qualifications Standards"
published by the National Park Service in
36 CFR 61 including those from the disciplines
of history, prehistoric or historic archeology,
architectural history, architecture and historical
architecture who meet the requirements of
Appendix A. Members representing other historic
preservation related disciplines, such as
urban planning, American studies, American
civilization, cultural geography, or cultural
anthropology, and lay members are encouraged.
(D) That all activities of the
commission shall be conducted in accordance
with the terms of the Vermont Open Meeting
Law (1 V.S.A. chapter 5, subchapter 3), and
that the commission shall take additional
steps as it deems appropriate to stimulate
public participation in commission activities,
such as, publishing its minutes, publishing
the procedures by which assessments of potential
National Register nominations will be carried
out or using public service announcements
to publicize commission activities. The commission
may withhold from disclosure to the public
information about the location, character,
or ownership of archeological resources if
such disclosure might risk harm to the resource.
(E) That the commission shall have
written rules of procedure, including conflict
of interest provisions incorporating the detailed
requirements involving conflict of interest
set out in the "Historic Preservation
Fund Grants Manual."
(F) That the commission shall have
the following responsibilities, to be carried
out in coordination with and in accordance
with format and standards established by the
Division:
(i) Creation and maintenance
of a system for the survey and inventory
of historic properties within its jurisdiction
that is coordinated with the Vermont
Historic Sites and Structures Survey
and the Vermont Archeological Inventory.
(ii) Preparation, for submission
to the Division by the legislative body
of the local government, of a report concerning
properties within its jurisdiction which
are under consideration for nomination
for inclusion on the National Register.
The report shall be prepared in cooperation
with the Division and shall be prepared
in a manner consistent with the following
requirements of the National Historic
Preservation Act:
101(c)(2)(A) "Before a property within
the jurisdiction of the certified local
government may be considered by the State
to be nominated to the Secretary for inclusion
on the National Register, the State Historic
Preservation Officer shall notify the
owner, the applicable chief local elected
official, and the local historic preservation
commission. The commission, after reasonable
opportunity for public comment, shall
prepare a report as to whether or not
such property, in its opinion, meets the
criteria of the National Register. Within
sixty days of notice form the State Historic
Preservation Officer the chief elected
local official shall transmit the report
of the commission and his recommendation
to the State Historic Preservation Officer.
Except as provided in subparagraph (B),
after receipt of such report and recommendation,
or if no such report and recommendation
are received within sixty days, the State
shall make the nomination pursuant to
section 101(a). The State may expedite
such process with the concurrence of the
certified local government."
101(c)(2)(B) "If both the commission
and the chief elected local official recommend
that a property not be nominated to the
National Register, the State Historic
Preservation Officer shall take no further
action, unless within thirty days of receipt
of such recommendation by the State Historic
Preservation Officer an appeal is filed
with the state. If such an appeal is filed,
the state shall follow the procedures
for making a nomination pursuant to section
101(a). Any report and recommendations
made under this section shall be included
with any nomination submitted by the state
to the Secretary."
(iii) When determined to be
appropriate in the discretion of the commission,
preparation and submission for approval
by the local government's legislative
body of grant applications to the Division
for funds from the CLG share of the state's
annual Historic Preservation Fund (HPF)
grant award.
(iv) Advising and assisting
the legislative body of the local government,
planning commission and other appropriate
persons on matters related to historic
preservation.
(v) Performance of additional
responsibilities in accordance with a
mutual written agreement between the Division
and the Certified Local Government.
(G) That the commission shall meet
no less than four times annually, and maintain
an attendance rule for commission members.
(3) The local government has agreed
to cooperate with the Division with respect to
the Division's monitoring and evaluation of the
CLG program.
3.3.1.2 A request for certification will
be approved without the minimum of professional persons
on the commission if the local government demonstrates
to the SHPO that it has made a reasonable effort to
fill the positions with persons from appropriate disciplines.
When a discipline is not represented on the commission,
the commission shall seek expertise in this area from
persons meeting the Secretary of the Interior's Professional
Qualification Standards when considering National
Register nominations.
3.3.2 Approval of certification request by SHPO.
The SHPO shall review certification requests from local
governments and within forty-five days of receipt issue
a letter of approval or disapproval, stating the reasons
for the action taken. This review shall be based on compliance
with all requirements set forth in Section 3.3.1 of these
regulations
3.3.3 Certification agreement. When
a certification request has been approved, the SHPO shall
prepare a written certification agreement incorporating
the requirements and responsibilities agreed to by the
local government in the certification process and the
responsibilities of the SHPO and the Division to the CLG
as set out in these regulations.
3.3.4 Approval by federal authorities. Within
ten business days of receipt of signature of the certification
agreement by the chief elected local official and the
SHPO, the SHPO shall forward to the United States Secretary
of the Interior a copy of the approved certification request,
the signed certification agreement and a certification
by the SHPO that the CLG application is complete and the
local government meets the requirements for CLG status,
in a form approved by the NPS. As specified by federal
regulations, if the Secretary of the Interior does not
take exception to the request within fifteen working days
of receipt, the local government shall be regarded as
certified.
3.4 Grants to Certified Local Governments (CLGs)
3.4.1 Any CLG may apply to the Division for a
grant from the CLG share of Vermont's annual HPF grant
award. Applications will be evaluated and grants awarded
based on the criteria established in this chapter and
the annual grant program priorities established by the
Division and the Vermont Advisory Council on Historic
Preservation. The Division is not required to award grants
if there are no qualifying applications. However, at least
ten percent of Vermont's annual HPF allocations shall
be designated by the Division for transfer to CLGs, as
subgrantees, which submit applications meeting the criteria
of these regulations. In addition, in any year in which
the federal HPF grant appropriations for all states exceeds
$65,000,000, one-half of Vermont's share of the excess
shall be transferred to CLGs according to procedures to
be provided by the United States Secretary of the Interior.
3.4.2 Annually the Division shall notify all
CLGs of the current year's deadline for receipt by the
Division of grant applications from CLGs. The notice shall
be sent no less than sixty days prior to the deadline,
unless federally imposed time limits require a shorter
notice period. Only applications received prior to the
deadline will be considered.
3.4.3 Grant applications shall be on forms
prescribed by the Division.
3.4.4 Matching fund requirements. All grants
to CLGs shall be matching grants. No grant shall be for
more than 60 percent of the aggregate cost of carrying
out the proposed project or program. Except as specifically
permitted by federal law, the local share for CLG matching
grants shall come from non-federal sources. Grant monies
transferred to CLGs shall not be applied as matching share
for any other federal grant.
3.4.5 Grant award criteria
3.4.5.1 The following priorities will
be used by the Division and the Council in the selection
for funding of CLG applicants unless specific priorities
are defined for the fiscal year and are made available
to all CLGs and local governments whose applications
for certification are pending, as part of the annual
notice of funds availability:
(1) Activities contributing to completion
within the CLG of the Vermont Historic Sites and
Structure Survey or the Vermont Archeological
Inventory.
(2) Preparation of nominations to the
National Register for significant districts, buildings,
structures, sites or objects.
(3) Comprehensive historic preservation
planning in communities.
(4) Activities contributing to a broader
understanding and appreciation of historic resources
by the general public, such as, educational programs
or printed materials concerning historic preservation
activities in the community.
(5) The identification and evaluation
of significant features of National Register or
National Register eligible properties.
(6) Pre-development planning, which
means the planning necessary for the protection,
stabilization, restoration or rehabilitation of
a historic property according to federal standards.
(7) Activities made eligible for funding
by future federal legislation or regulations.
(8) Activities providing integration
of historic resources, when appropriate, into
community recreation plans or plans for public
access or enhancement of cultural resources.
3.4.5.2 For development projects, the following
specific priorities will be used by the Division and
the Council in selecting among CLG applicants for
such projects:
(1) Projects that provide local, long-term
economic impact.
(2) Projects that promote the best
long-term use of historic resources.
(3) Projects that best preserve the
qualities and features of a historic resource
that make it eligible for the National Register.
(4) Projects that are most likely of
completion and sustained benefit because of the
capabilities of the applicant.
3.4.5.3 Review of applications and selection
of applicants for funding shall also be based on the
following:
(1) Funds awarded to each grantee should
be sufficient to produce a specific tangible impact
and to generate effects directly as a result of
the funds transfer. This may not be waived even
if the applicant is otherwise eligible.
(2) To the extent consistent with paragraph
3.4.5.3 of this section, the Division will make
reasonable efforts to distribute CLG grants among
the maximum number of CLGs and to ensure a reasonable
distribution between urban and rural areas.
(3) No CLG may receive a disproportionate
share of the state CLG allocation.
3.4.6 Public access. The Division shall make
available to the public, upon request, the rationale for
the applicants selected and the amounts awarded.
3.4.7 Minimum requirements for CLGs. The following
minimum requirements must be met by a CLG before it may
receive a portion of the state CLG share:
(1) The local financial management system
shall be maintained in accordance with the standards
specified in OMB Circular A-102, Attachment G, "Standards
for Grantee Financial Management Systems" and shall
be auditable in accordance with General Accounting
Office's Standards for Audit of Governmental Organizations,
Programs, Activities, and Functions.
(2) In its historic preservation activities,
the CLG shall adhere to all requirements of the Historic
Preservation Fund Grants Manual. Indirect costs may
be charged as part of a CLG grant only if the applicant
meets the requirements of the Guideline and has a
current indirect cost rate approved by the cognizant
federal agency.
(3) The CLG must agree to adhere to any
requirements which may be mandated by Congress regarding
use of CLG funds.
3.4.8 Grant agreements. Before transfer of
CLG funds to a successful CLG grant applicant, a written
grant agreement prepared by the Division shall be entered
into between the Division and the CLG which shall include
the minimum requirements set out in this chapter.
3.4.9 Closeout with decertification. When a
CLG is decertified, the Division will conduct financial
assistance closeout procedures in accordance with the
Historic Preservation Fund Grants Manual.
3.5 Training, Monitoring and Evaluation
3.5.1 Training. The Division shall make available
to all local historic preservation review commissions
orientation materials and training programs designed to
provide a working knowledge of the roles and operations
of federal, state and local preservation programs.
3.5.2 Financial audit. The Division is responsible,
through financial audit, for the proper accounting of
Vermont's CLG share monies in accordance with OMB Circular
A-133 "Audit Requirements." Accordingly, the Division
evaluation of CLG performance which occurs once every
four years shall include an assessment of the fiscal management
of CLG grant monies.
3.5.3 Monitoring and evaluation
3.5.3.1 The Division is required to inform
all CLGs about the contents of the statewide comprehensive
historic preservation plan, provide all CLGs with
an opportunity to participate in the planning process
and monitor CLG performance to ensure consistency
and coordination with the statewide comprehensive
historic preservation planning process. Accordingly,
the Division shall evaluate the performance of each
CLG not less often than once every four years.
3.5.3.2 The evaluation shall include a
review of CLG program operation and administration
by such methods as an annual report (prepared in accordance
with Appendix C), site visits, interviews with local
commission members, elected officials and citizens,
comparison of program progress since the last evaluation
and review of CLG financial and program records.
3.5.3.3 The evaluation shall be based on
the procedures and guidelines set out in the Historic
Preservation Fund Grants Manual, and the Division's
Performance Evaluation Checklist (Appendix B to this
Rule), on compliance with the terms of the CLG agreement
and current grant agreements, and on consistency with
the statewide comprehensive historic preservation
planning process. The evaluation shall also be based
on the following specific factors, among others:
(1) Maintenance of qualified commission
membership;
(2) Number and frequency of commission
meetings;
(3) Educational activities or programs
conducted;
(4) Fiscal management of Historic Preservation
Fund subgrants;
(5) Consistency and coordination with
the state historic preservation planning process.
3.5.3.4 A written report of the evaluation
shall be sent to the local historic preservation review
commission and the chief elected local official within
thirty days of completion of the evaluation.
3.5.4 Decertification
3.5.4.1 When the Division determines, after
evaluation, that the performance of a CLG is inadequate,
the Division may recommend to the United States Secretary
of the Interior that the CLG be decertified. The recommendation
shall contain specific reasons for the decertification
request.
3.5.4.2 Before recommending decertification
to the Secretary of the Interior, the Division shall
notify the CLG of the reasons why its performance
is deemed to be inadequate and provide advice and
assistance to the CLG to improve its performance.
If the Division determines that sufficient improvement
has not occurred within ninety days of the notice
to the CLG, the decertification recommendation may
be made.
3.5.4.3 When a CLG is decertified, the
Division will conduct financial assistance closeout
procedures in accordance with the Historic Preservation
Fund Grants Manual for any CLG funds the CLG received.
3.5.4.4 The SHPO may recommend decertification
to the Secretary of the Interior if a CLG requests
to be decertified in writing. The SHPO shall forward
a copy of the CLG's letter with the SHPO's written
request to the Secretary to decertify the CLG. Compliance
with the conditions stipulated in sections 3.5.4.1
and 3.5.4.2 above, is not required, if the CLG has
requested its own decertification.
Rule 4. HISTORIC AND ARCHEOLOGICAL
RESOURCES AND THE ACT 250 PROCESS
Criterion 8 of Act 250, 10 VSA § 6086(a)(8), directs District
Environmental Commissions to take into account the effects
of proposed projects on historic sites in deciding whether
to issue an Act 250 permit. The Division for Historic Preservation
is a statutory party in the Act 250 process and offers comments
to the District Commissions and Environmental Board on the
significance of resources, the potential effects of proposed
projects, and as appropriate, measures to avoid or mitigate
adverse effects. The Advisory Council on Historic Preservation
may evaluate the significance of resources.
An applicant planning to apply for an Act 250 permit should
contact the Division for Historic Preservation as early as
possible in the planning stages of the undertaking, preferably
before filing the permit application. The Division and the
District Commissions distribute a guidebook on historic and
archeological resources in the Act 250 permit process. If
the proposed project has the potential to impact historic
resources, issues that may arise are more easily resolved
before plans for the undertaking are finalized. An applicant
is encouraged to retain the services of a qualified historic
preservation or archeological professional, especially in
those cases where there may be an adverse effect on a historic
resource.
4.1 Introduction
4.1.1 Scope of rules. This Rule delineates
the responsibilities of, and establishes procedures for
use by, the SHPO, the Division and the Vermont Advisory
Council on Historic Preservation with respect to participation
in the Act 250 process. This Rule, in and of itself, imposes
no obligation on any Act 250 applicant unless such applicant
has chosen to seek the cooperation of the SHPO, the Division,
or the Vermont Advisory Council with respect to the testimony
it may provide to the District Commission or the Environmental
Board on the applicant's Act 250 permit application. This
Rule is intended to encourage collaboration, and to result
in timely and predictable participation in the Act 250
process by the SHPO, the Division and the Council. The
testimony ultimately provided will depend on the results
of the process set forth herein. A determination by the
Council that a site is historically significant is not
a determination of historic significance under Act 250
unless accepted by a District Commission or the Environmental
Board, or unless such site is listed on the State Register
of Historic Places or the National Register of Historic
Places.
4.1.2 Pre-filing and post-filing Division consultation.
An applicant may consult the Division as outlined in these
rules before or after filing an application for an Act
250 permit.
4.1. 3 Applicability of these rules to a project.
This Rule shall apply when the applicant's project
may affect historic or archeological resources. Generally,
a project may affect historic or archeological resources
when there exists:
(1) a building, structure, district, or site in
the project area or area of potential effects that is
listed on the State or National Register of Historic
Places;
(2) a building, structure, district, or site in
the project area or area of potential effects that is
50 years old or older;
(3) a possibility of ground disturbance in the project
area or area of potential effects that may affect significant
archeological resources; or
(4) the possibility of disturbance of underwater
archeological resources.
4.1.4 Participation and Delegation. Pursuant
to 22 V.S.A. § 742(a)(8), the Council has delegated to
the SHPO, or his or her designee in the Division, performance
of certain functions in the Act 250 process
with respect to buildings, structures, objects, districts,
areas and archeological sites, including, but not limited
to:
(1) identification of historic significance, including
application of the State Register criteria to provide
testimony on behalf of the Council to a District Commission
or the Environmental Board as to whether a resource
is historically significant;
(2) presentation of evidence to the Council to aid
the Council in evaluating whether a building, structure,
object, district, area or archeological site is
historically significant, in the event an
applicant requests an evaluation of significance from
the Council;
(3) presentation of testimony about the Council's
evaluation of significance to the District Commission
or Environmental Board, when requested by the Council.
For any reason, an applicant, the SHPO, or the chairperson
of the Advisory Council may request that the Council evaluate
the historic significance of a resource under Rule 4.
4.1.5 Time limits. The Division shall evaluate
the historic significance of a property and effect of a
project on a Historic Site, if any, within 45 days of receipt
of sufficient information from the applicant. The Division
shall, within 20 days of receipt of such information determine
whether additional information is required, and request
such additional information from the applicant. The Division
shall complete its evaluation within 30 days of receipt
of such additional information from the applicant. These
time limits may be extended for archeological evaluations
as reasonably required by winter conditions.
4.1.6 Programmatic review. The SHPO may negotiate
programmatic approaches for the review of large numbers
of similar projects proposed by the same applicant, or for
the review of a single project affecting numerous resources,
if such an approach is also being used to satisfy federal
Section 106 review requirements. Such programmatic approaches
shall include review by qualified professionals and shall
be in writing.
4.1.7 Revised Project Plans. Unless specifically
waived by the Division, an applicant shall submit to the
Division any revisions to its plans for an undertaking for
further review and comment. The timeframes set forth at
Rule 4.1.5 shall apply with respect to such resubmission.
Rules 4.2 to 4.17 Review Process.
4.2 Act 250 Historic Preservation Review.
When undertaking a project that may affect historic or potentially
significant archeological resources, an applicant shall provide
to the Division information sufficient to allow the Division
to evaluate the project's potential for effect on a Historic
Site, or a potentially significant property or resource. Sufficient
information shall include a project summary, and information
on the location, history, environmental character, existing
building and structures, current and past land use, and potential
project impacts to the historic site or potentially significant
archeological resources; and attachments including, but not
limited to, photographs, plans, and maps. An applicant who
is also submitting information for review under Section 106
may submit a Section 106 report to satisfy this requirement.
4.2.1 Division Review. The Division shall review
the applicant's information in accordance with Rule 4.1.5.
The Division may request in writing that the applicant provide
more information.
4.3 Area of Potential Effects. The Division
shall identify the area of potential effects of the undertaking.
4.4 No Affected Historic Properties. If the
SHPO determines that there are no historic properties in the
area of potential effects, the SHPO shall so notify the applicant
and the District Commission or Environmental Board in writing
within 45 days of receipt of sufficient information to make
such determination.
4.5 Historic Properties Listed in State or National
Register. The Division shall determine if any building,
structure, object, district, area or archeological site in
the area of potential effects is listed in the State or National
Register. The Division shall review the information about
the proposed undertaking in accordance with these Rules to
evaluate if a listed historic property may be affected by
the undertaking.
4.6 Historic Buildings, Structures, Objects, Districts,
or Areas Not Listed in State or National Register.
4.6.1 If the undertaking's area of potential
effects contains a building, structure, object, district
or area that is 50 years old or older, the SHPO shall apply
the State Register criteria to determine whether the resource
is historically significant. The SHPO may ask the Council
to review the resource and list it in the State Register.
4.6.2 If the applicant disagrees with the SHPO's
determination under Rule 4.6.1, the applicant may, pursuant
to Rule 4.9, request that the Advisory Council review the
resource or resources and determine whether the resource
is historically significant. The Council's determination
will be the determination that is then submitted to the
District Commission. The Council shall evaluate historic
significance within the timeframes established at Rule 4.9.
4.6.3 If the SHPO or Council concludes that the
area of potential effects contains a historically significant
resource, the SHPO shall then determine the effect of the
project in accordance with these Rules, and recommend that
the District Commission or the Environmental Board make
the same determination.
4.6.4 If the SHPO or Council determines that
the area of potential effects contains no Historic Site,
the Division shall notify the applicant in writing of that
determination within 45 days of receipt of sufficient information
to make such determination. If the Council evaluates significance,
the timeframes in Rule 4.9 shall apply.
4.7 Archeological Sites Not Listed in the State or National
Register.
Project areas may contain significant archeological sites
that have not yet been discovered. Identifying such resources
often requires research and field investigation. It is noted
that the applicant has the responsibility of producing sufficient
information so that the District Commission or Environmental
Board can render a finding of fact and conclusion of law with
respect to 10 V.S.A. § 6086(a)(8). Division for Historic Preservation
staff may gather initial information, as outlined in 4.7.1.1.1
through 4.7.1.1.3 below, or the applicant may, at its option,
retain a qualified archeological professional to gather initial
information. If, after evaluation of such initial information,
the Division staff determines that an archeological field
investigation is warranted, the SHPO may recommend to the
District Commission that the applicant retain a qualified
archeological professional to conduct the studies as outlined
at Rule 4.7.1.2. All archeological studies must meet the SHPO's
Guidelines for Conducting Archeological Studies in Vermont.
4.7.1 Identifying archeological sites. The
Division may identify archeological sites that have not
been listed on the State or National Register, but are
eligible for the State or National Registers, and thus
may be historic sites.
A number of steps are necessary to identify archeological
sites. Some steps are completed concurrently; other steps
are completed only if results of a previous step warrant.
4.7.1.1 Archeological Resource Assessment
4.7.1.1.1 Background Research. Background
Research shall include, but shall not be limited
to, review of the Vermont Archeological Inventory,
historic maps, and any other relevant source of
information to identify recorded or potential
archeological sites. Background Research may be
completed either by the Division or the applicant's
qualified professional.
4.7.1.1.2 Applying predictive models. Approved
predictive models may be used to determine the
likelihood that potential archeological sites
exist within the project area. If such predictive
models indicate a high likelihood that significant
archeological sites exist in the project area,
an archeological field inspection may be conducted.
Application of a predictive model may be performed
either by the Division or the applicant's qualified
professional.
4.7.1.1.3 Archeological Field Inspection.
The Archeological Field Inspection may be performed
either by the Division or the applicant's qualified
professional, for the purpose of identifying potentially
significant archeological sites.
4.7.1.1.4 Background research, application
of predictive models and field inspection conducted
by applicant's qualified professional. An
applicant may submit to the Division a report
of its qualified professional's background research,
application of predictive models approved by the
Council, and archeological field inspection that
meets the SHPO's Guidelines for Conducting
Archeological Studies in Vermont. In such
case, the SHPO shall determine within 30 days
whether he or she will recommend to the District
Commission that the applicant's qualified professional
conduct an archeological field investigation pursuant
to Rule 4.7.1.2.1.
4.7.1.2 Archeological Field Investigation
4.7.1.2.1 Confirming presence of archeological
sites through archeological field investigation.
If the project area is likely to contain significant
archeological sites that cannot be avoided and
preserved in-place through appropriate measures,
the SHPO may recommend to the District Commission
or Environmental Board that the applicant's qualified
professional archeologist conduct an archeological
field investigation. The purpose of the field
investigation shall be to collect evidence sufficient
for the SHPO to apply the State Register criteria
to determine whether the archeological site is
historically significant. Depending on the scope
and results of the field investigation, the SHPO
may recommend additional evaluation to obtain
information sufficient to permit the SHPO to apply
the State Register criteria to determine whether
the archeological site is historically significant.
4.7.1.2.2 Management of Archeological Collections
(Reserved.)
4.7.2 No affected archeological sites. If the
SHPO determines that there are no significant archeological
resources in the area of potential effects, the SHPO shall
so notify the applicant and the District Commission or Environmental
Board in writing within 45 days of receipt of sufficient
information to make such determination.
4.7.3 Evaluating archeological sites.
4.7.3.1 When background research, a predictive
model, field inspections or field investigations provide
sufficient evidence, the SHPO shall apply the State Register
criteria. A determination by the SHPO that the project
area includes an archeological site which meets the State
Register criteria shall be a determination that the project
area contains a resource that is historically significant.
The SHPO may then provide testimony to the District Commission
or the Board seeking a final determination that the project
area contains a resource that is historically significant
or request that the Council list the site on the State
or National Register.
4.7.3.2 Winter field inspections. If the evaluation
occurs when the ground is frozen and/or the area has deep
snow cover, the SHPO may inform the applicant that a field
inspection will need to wait until weather conditions
are appropriate and request that the field inspection
be scheduled as soon as weather conditions permit.
4.8 Mitigation of Adverse Effects on a Potential
Archeological Site. The applicant may recommend to the
SHPO, or his or her designee on Division staff, mitigation
measures and permit conditions before the SHPO has made a
determination that a potential archeological site is significant.
The SHPO shall evaluate the effect of the project on the resources
as set forth in Rules 4.10 through 4.15.
4.8.1 At any time the applicant and the SHPO
may agree on measures the applicant shall take to avoid
or minimize the undertaking's effect on the potential archeological
site. The SHPO or the applicant's qualified archeological
professional shall prepare a letter that clearly states
all mitigation measures to which the applicant and the SHPO
have agreed and requests that the District Commission or
the Environmental Board recognize such agreement and include
such measures as conditions in any permit that is issued.
The SHPO and the applicant shall appropriately memorialize
any such agreement.
4.9 Referral to the Advisory Council for Determination
of Historic Significance.
4.9.1 Applicant Request. Should the applicant
disagree with the SHPO's determination that a resource is
historically significant, the applicant may request in writing
addressed to the Chairperson of the Council that the Council
evaluate the resource and provide testimony to the District
Commission.
4.9.2 SHPO and Council Request. The SHPO or the
Chairperson of the Advisory Council may ask the Council
to review the resource and determine if it is historically
significant or list it in the State Register.
4.9.3 Notice of Meeting. The Division shall inform
the applicant of the date, time and place of the Council's
meeting when it will determine if the area of potential
effects of the proposed undertaking will affect a resource
that is historically significant. The applicant shall submit
to the Council, at the Division's office, 9 copies of any
information that the applicant wishes the Council to consider
at least 15 days before the Council meeting. The SHPO in
consultation with the Chairperson of the Advisory Council
may waive the 15-day requirement in exceptional circumstances.
4.9.4 The applicant, the SHPO and the Division
may present pertinent information at the Council meeting
about any buildings, structures, districts, objects, areas,
or archeological sites in the area of potential effects.
4.9.5 The applicant's qualified professional
or other representative may present information to the Council
on behalf of the applicant.
4.9.6 The Council shall apply the State Register
criteria to determine whether the area of potential effects
contains a resource that is historically significant.
4.9.7 The Council shall deliberate and, unless
it needs more information, the Council shall make a decision
concerning whether or not any part of the area of potential
effects contains a resource that is historically significant
before the Council adjourns its meeting. The Council may
list any resource it determines to be historically significant
in the State Register.
4.9.8 If the Council determines that it needs
more information to determine if any part of the area of
potential effects contains a resource that is historically
significant, the Council shall recess the agenda item to
a future meeting on a certain date, and identify what further
information it needs and who shall be responsible for providing
it.
4.9.9 Within 15 days after the Council has adjourned
its meeting, the Division shall send written notice to the
applicant and the District Commission or the Environmental
Board of the decision announced at the Council meeting,
or the need for more information.
4.9.10 If the Council finds that any part of
the area of potential effects contains a resource that is
historically significant, the SHPO shall determine the effect,
if any, of the proposed undertaking, as set forth at Rules
4.10 through 4.15.
4.9.11 If the Council determines that the area
of potential effects contains no resource that is historically
significant, and if the SHPO or the Division have been negotiating
with the applicant pursuant to Rule 4.8, such negotiations
with the applicant shall be terminated.
4.10 Evaluation of Effect on a Historic Site.
The SHPO shall evaluate and prepare testimony on whether
the proposed undertaking will have any effect (as defined
in Rule 2.15) on the Historic Site; whether the effect, if
any, will be adverse (as defined in Rule 2.2); whether the
adverse effect, if any, will be undue (as defined in Rules
2.42); and whether measures may be taken to effectively mitigate
the undue adverse effect to the extent that it is no longer
undue. The SHPO's evaluations shall be submitted to
the District Commission or Environmental Board which shall
make the final determination.
4.10.1 The SHPO shall use the Secretary of the
Interior's Standards (Standards) and accompanying Guidelines
to determine adverse effect to buildings, structures, and
historic districts and areas.
4.10.2 The SHPO shall notify the applicant
of his or her determination within 45 days of receiving
sufficient information in accordance with Rule 4.1.5 to
make the determination, unless Rule 4.10.3 applies.
4.10.3 If an applicant asks the Council to determine
if any part of the area of potential effects has historic
significance, the SHPO shall determine effect and notify
the applicant in writing of its determination within 15
days after the Council makes its determination.
4.11 Determination of No Adverse Effect.
4.11.1 If after applying the criteria of adverse
effect, as defined at Rule 2.2, and, if appropriate, the
Secretary of the Interior's Standards, the SHPO determines
that the undertaking does not cause an adverse effect on
the Historic Site, the SHPO shall notify the applicant in
writing of the determination.
4.11.2 If the Historic Site is a building, structure,
or district, and proposed plans meet the Standards, the
SHPO shall make a determination of no adverse effect.
4.12 Determination of No Adverse Effect with Conditions.
4.12.1 If after applying the criteria of adverse
effect, as defined at Rule 2.2, the SHPO finds that the
undertaking as proposed would not be adverse if one or more
minor changes were made, or if specific performance standards
were met, the SHPO may propose conditions to include in
the permit to ensure that the undertaking will not have
an adverse effect on the Historic Site or the potentially
significant property or resource.
4.12.2 If the SHPO finds that the undertaking
as proposed would be adverse, and if applicable, does not
meet the Standards, the SHPO may recommend to the District
Commission or Environmental Board that it require the applicant
to identify alternatives, may recommend to the applicant
that it hire a qualified professional to identify alternatives,
or may negotiate with the applicant to find a way to modify
the undertaking to avoid an adverse effect, and if applicable,
meet the Standards.
4.13 Determination of Adverse Effect.
4.13.1 If the SHPO determines that the undertaking
will result in an adverse effect as defined in Rule 2.2,
the Division will inform the applicant in writing in
accordance with Rule 4.1.5.
4.13.2 The SHPO shall invite the applicant to
provide changes or alternatives to the undertaking to eliminate
or reduce the adverse effect, or to develop measures that
would mitigate the adverse effect. The applicant, if agreeable
to mitigation or avoidance, shall notify the SHPO in writing
of proposed changes or alternatives to the undertaking,
or proposed mitigation measures to eliminate or reduce the
adverse effect.
4.13.3 If the SHPO is agreeable to the applicant's
proposed changes, alternatives, or mitigation measures,
the SHPO shall concur in writing within 15 days of receiving
such information, or shall prepare a letter that clearly
states all changes, alternatives, or mitigation measures
to which the applicant and the SHPO have agreed, and requests
that the District Commission or the Environmental Board
recognize such agreement and include such measures as conditions
in any permit that is issued. The SHPO and the applicant
shall appropriately memorialize any such agreement.
4.13.4 If the applicant and the SHPO do not
agree on mitigation measures, the SHPO shall notify the
District Commission or the Environmental Board in writing
and may recommend specific project changes, alternatives
or mitigation measures that should be included as conditions
in the permit to eliminate or reduce the adverse effect
to an Historic Site.
4.14 Determination of Undue Adverse Effect.
4.14.1 Undue adverse effects identified by the
SHPO may be eliminated or reduced through appropriate mitigation
measures. Undue adverse effects that cannot be mitigated
through appropriate measures remain "undue."
4.14.2 The SHPO may make a determination that
the undertaking will result in an undue adverse effect and
may recommend to the District Commission or Environmental
Board in writing that it make such a finding and conclusion.
The SHPO's evaluations and recommendations with respect
to undue adverse effect in Act 250 proceedings shall be
made in accordance with Vermont law, including Environmental
Board case law, as periodically summarized in guidance materials
published by the Division.
4.15 Council Testimony. If a party challenges the
Council's evaluation concerning whether or not the area of
potential effects contains an Historic Site, the Council may
select, at its sole discretion, a Council member to provide
testimony before the District Commission or the Environmental
Board about the Council's determination. Alternatively, the
Council may designate the SHPO or Division to provide testimony
on the Council's behalf.
Rules 8 - 11 : Designation of Historic and
Archeological Resources
The Division for Historic Preservation identifies and designates
historic and archeological resources in five programs: the
Vermont Historic Sites and Structures Survey (VHSSS); the
Vermont Archeological Inventory (VAI); the State Register
of Historic Places (SR); the National Register of Historic
Places (NR); and, State Archeological Landmarks. The VHSSS
and the VAI are inventory programs. The Vermont Advisory Council
on Historic Preservation reviews VHSSS and VAI Sites and places
eligible sites on the State Register. The National Register
is a federal program administered in partnership with State
Historic Preservation Offices like the Division. The Division,
SHPO, and Advisory Council nominate historic and archeological
resources to the National Register, and forward nominations
to the National Park Service for final review and official
listing in the National Register. In municipalities that are
Certified Local Governments, the CLG commission and chief
elected local official review and approve all nominations
for historic properties within the municipality before they
are submitted to the Advisory Council and NPS. The State Archeologist
and the SHPO may designate State Archeological Landmarks,
with the approval of a property owner.
Rule 8. PROCEDURES FOR UNDERTAKING A STATEWIDE SURVEY: THE
VERMONT HISTORIC SITES AND STRUCTURES SURVEY AND THE VERMONT
ARCHEOLOGICAL INVENTORY.
(Reserved)
Rule 9. THE STATE REGISTER OF HISTORIC
PLACES.
Rule 9 addresses the roles and responsibilities of the Division
for Historic Preservation (Division), the State Historic Preservation
Officer (SHPO), the Vermont Advisory Council on Historic Preservation
(Council) and the public in carrying out the State Register
of Historic Places program, as set forth in the Vermont Historic
Preservation Act (VHPA), 22 V.S.A. §§ 723(a)(1) - (3), 723(11),
742(a)(1), and 742(a)(4).
The VHPA directs the SHPO to adopt standards for the listing
of a property on the State Register, and to prepare and maintain
the State Register. The law also requires a public notice
policy for the owners of properties being considered for inclusion
in the State Register. The Advisory Council must approve nominations
to and removals from the State Register.
Inclusion in the State Register is one threshold for consideration
as an historic site under Criterion 8 of Act 250, a threshold
for possible protection of properties owned, funded or permitted
by the State of Vermont, a criteria for increased flexibility
in application of state building and accessibility codes,
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