§ 21.66.050. Standards for archaeological and tribal cultural resource protection.
A.
Purpose: The purpose of this Section is to provide development standards which assure the maintenance and protection of the County's archaeological and tribal cultural resources. New land uses and development, both public and private, shall be considered compatible with this intent only where they incorporate all site planning and design features necessary to avoid or mitigate impacts to archaeological and tribal cultural resources to the greatest extent possible and as permitted by law.
B.
Applicability: The regulations of this Section are applicable in all zoning districts.
C.
Report Requirements:
1.
A Phase I Inventory of Archaeological Resources, meeting the standards contained in Subsection D of this Section, shall be required for any development located within the following areas:
a.
"High Archaeological Sensitivity Zone" as mapped on current County resource maps;
b.
"Moderate Archaeological Sensitivity Zone", as mapped on current County resource maps and if the development requires environmental assessment according to CEQA;
c.
"Low Archaeological Sensitivity Zone" where specific information is already known to exist which states that archaeological resources are present; and
d.
Within two hundred fifty (250) feet of a known archaeological or tribal cultural resource.
2.
Report Waiver Criteria: The Director of Planning may waive the Phase I Inventory under the following circumstances, provided the waiver is permissible under state and federal law:
a.
The development involves Routine and On-going Agricultural Activities only;
b.
A previous report was prepared for the site by a qualified archaeologist, and the report clearly and adequately included the proposed development site within the scope of its survey and the results of that survey were negative;
c.
The development is located within a previously disturbed area where substantial evidence is provided that the previous ground disturbance affected depths equal to or greater than the project being considered; or
d.
The development involves minimal soil disturbance, except as provided in Section 21.66.050.C.2.e, such as:
i.
Replacement of post holes for fences, decks and similar improvements
ii.
Repair and maintenance of underground utilities;
iii.
Well drilling, not including excavation for discharge pits;
iv.
Small ground-mounted photovoltaic systems; and
v.
Other development of a similar character to those listed above.
e.
Excepting activities described in Section 21.66.050.C.2.a, waivers pursuant to this subsection shall not be granted in circumstances where a project is located within two hundred fifty (250) feet of known archaeological resources, or where evidence exists that archaeological resources may be present on the site.
f.
In all cases, whether the Phase I report is waived or not, all state and federal laws and regulations protecting burial sites and Native American resources shall be followed. In addition, nothing in this Section is intended to supersede or in any way alter or lessen the effect of the California Native American tribal notification and consultation process required in Subsection F of Section 21.66.050.
D.
Report Standards and Contents: When a Phase I Inventory is required pursuant to Section 21.66.050, the following standards shall apply:
1.
Phase I: A Phase I Inventory of Archaeological Resources shall include, at a minimum, a records search of available resource information at the Northwest Information Center of the California Historic Resources Information System (CHRIS). This records search will, at a minimum, determine whether a part or all of the project area has been previously surveyed for archaeological resources, whether any known archaeological resources have already been recorded on or adjacent to the project area, and whether the probability is low, moderate, or high that archaeological resources are located within the project area. Following the background research, a field survey by a professional archaeologist shall be conducted in accordance with accepted standards and practices. The field survey shall include at a minimum an inspection of the site for evidence of surface and, if appropriate, subsurface archaeological resources.
a.
If the Phase I Inventory of Archaeological Resources investigation reveals that the site does not contain archaeological resources, no further review is necessary unless otherwise noted by the archaeologist.
b.
If the Phase I Inventory of Archaeological Resources investigation reveals any information indicating that the site is likely to contain archaeological resources, a Phase II Evaluation of Archaeological Resources shall be required unless either of the following apply:
i.
There is substantial evidence, absent the Phase II Evaluation, that the project will have a significant impact on archaeological resources and those impacts cannot be avoided pursuant to Section E of this Section, in which case a Phase III Plan may be prepared without a Phase II Evaluation; or
ii.
If the location of resources can reasonably be determined based on the Phase I Inventory and all development is located to avoid impacts to those identified resources, no further archaeological reports are necessary if the conditions recommended by the archaeologist are applied to the project.
2.
Phase II Evaluation of Archaeological Resources: A Phase II Evaluation shall be prepared with the goal of determining site boundaries, an evaluation of the site's significance pursuant to Public Resources Code Section 21083.2(g), and an evaluation of avoidance measures pursuant to Subsection E.2 of Section 21.66.050, if applicable. A Phase II Evaluation may include test excavations when adequate data from previous reports are not available to assess a site's significance; however, prior to recovering any archaeological materials for testing and/or carbon dating, the archaeologist shall consider the appropriate disposition of materials in consultation with the Director of Planning and the property owner. This consultation does not relieve an owner or owner's representative from following the process mandated by law when human remains are involved.
a.
If no unique archaeological resources are found during the Phase II Evaluation, no further reports are necessary unless the Director of Planning determines that there is substantial evidence in the record that significant resources may be affected by the project despite the negative Phase II findings. Despite a negative finding in the Phase II Evaluation, conditions recommended by the archaeologist and the California Native American tribe through the consultation process shall be applied to the project as appropriate.
b.
If the Phase II Evaluation of Archaeological Resources determines that unique archaeological resources may be present, the Phase II Evaluation shall include consideration of the avoidance measures required in Subsection E.2 of Section 21.66.050. If significant resources cannot be avoided, a Phase III Data Recovery Plan shall be prepared.
c.
This Section does not prohibit the Director of Planning from making a determination, based on substantial evidence, that non-unique archaeological resources are significant tribal cultural resources. In making such a determination, the Director of Planning shall consider the importance of the resource to the California Native American Tribe.
3.
Phase III Data Recovery Plan: A Phase III Data Recovery Plan shall evaluate a project's impacts on unique archaeological resources and shall set forth the reasons, based on substantial evidence, why avoidance measures required in Subsection E.2 are not feasible under the circumstance of the case. A Data Recovery Plan shall follow the California Secretary of the Interior's Guidelines for Archeological Documentation. The Phase III Plan shall include treatment of archaeological resources with culturally appropriate dignity taking into account the tribal cultural values and meaning of the resource, including but not limited to the following:
a.
Protecting the cultural character and integrity of the resource;
b.
Protecting the traditional use of the resource; and
c.
Protecting the confidentiality of the resource.
4.
Report Format and Standards:
a.
In all cases, written reports shall be prepared consistent with the report format requirements contained in the State Office of Historic Preservation Archaeological Resource Management Reports (ARMR): Recommended Contents and Format guidelines. A single report may incorporate more than one Phase where appropriate to minimize redundancy and expense. All reports shall be filed with appropriate state agencies.
b.
Submittal of the applicable report(s), to the Director of Planning, shall be required prior to a project application being considered complete.
c.
The report(s) shall be prepared, at the applicant's expense, by a qualified archaeologist, either from the County's list of archaeological consultants or by a member of the Register of Professional Archaeologists who is familiar with California Central Coast archaeology. The applicant shall also be responsible for paying for the costs of data recovery and curation of recovered materials, if applicable.
E.
Development Standards:
1.
Impacts to unique archaeological resources and tribal cultural resources shall be avoided to the extent feasible. In all cases where unique archaeological resources or tribal cultural resources are identified, the following avoidance measures shall be considered:
a.
Avoidance and preservation of the resources in place, including but not limited to revising the project design or location to protect the resources and their natural context including through use of green spaces, parks or other open space to incorporate the resources with culturally appropriate protection and management criteria;
b.
Placing the area within a permanent conservation easement or other interests in real property, with culturally appropriate management criteria for the purposes of preserving or utilizing the resources or places;
c.
Limitation of public access; and
d.
Other feasible methods of avoidance and protection of the resource.
2.
Mitigation based on a Data Recovery Plan (Phase III Plan) is allowed only upon a showing by the project applicant, based on substantial evidence, that avoidance is not feasible. Prior to the Data Recovery Plan being accepted as complete by the Director of Planning, evidence shall be submitted demonstrating that avoidance is not feasible.
3.
The results of all data recovery activities shall be compiled into a final report. The final report shall be prepared by a qualified archaeologist and submitted to the Director of Planning for review and approval prior to final grading or building inspections.
F.
California Native American Tribal Consultation:
1.
In addition to the archaeological report requirements of this Section, the Director of Planning or his or her designee shall provide formal written notification in accordance with Public Resources Code section 21080.3.1 and the procedures in this Section to the California Native American tribe or tribes that are traditionally and culturally affiliated with the project area if that tribe(s) has requested notification from the County of proposed projects.
2.
The Director's notification of the tribe(s) shall occur as early as possible in the project review process but no later than fourteen (14) days after determining an application for a project complete. Notification pursuant to this Section shall not be required for the following types of projects:
a.
Ministerial projects that are not subject to the California Environmental Quality Act (CEQA);
b.
Projects that are statutorily exempt from CEQA; and
c
Projects that have filed a notice of preparation of an environmental impact report or a notice of intent to adopt a negative declaration or mitigated negative declaration on or before June 30, 2015.
3.
For the purposes of this Section, the County will rely upon the list maintained by the California Native American Heritage Commission to identify the California Native American tribe or tribes that are traditionally and culturally affiliated with the project area.
4.
Formal written notification shall include at a minimum the following:
a.
A description of the proposed project and its location;
b.
The planner's contact information, and
c.
A notification to the tribe(s) that they have thirty (30) days from the date of receipt of the notice to request formal consultation.
5.
This Section does not prohibit any California Native American tribe or individual from participating in the project review process, apart from the consultation process, on any issue of concern as an interested California Native American tribe, person, citizen, or member of the public.
6.
If the California Native American tribe requests consultation within thirty (30) days of the notification, the County shall consult with the designated tribal representative within thirty (30) days of the request for consultation. Consultation, if requested, shall be carried out prior to the release of any document required to be prepared under the California Environmental Quality Act and prior to any final determination by the Appropriate Authority to approve the project.
7.
The purpose of the consultation shall be to determine if the project may have a significant effect on a tribal cultural resource and, if the project is determined to have a potentially significant effect on tribal cultural resources, to discuss appropriate avoidance, minimization, and mitigation measures.
8.
As part of the consultation, the parties may propose mitigation measures capable of avoiding or substantially lessening potential significant impacts to a tribal cultural resource. The consultation may include discussion concerning the type of environmental review necessary, the significance of tribal cultural resources, the significance of the project's impacts on the tribal cultural resources and, if necessary, project alternatives or appropriate measures for preservation of tribal cultural resources or mitigation of impacts upon those resources.
9.
All parties to the consultation shall act in good faith and with appropriate dignity and respect for other parties involved.
10.
Any mitigation measure(s) agreed upon in the consultation shall be discussed in the environmental document prepared for the project pursuant to the California Environmental Quality Act and included in the mitigation monitoring and reporting plan if applicable. If no environmental review is required, the measures shall be incorporated in the design of the project or as conditions of approval if feasible.
11.
Consultation shall be considered concluded when either of the following occur:
a.
The parties agree to measures to mitigate or avoid a significant effect, if a significant effect exists, on a tribal cultural resource; or
b.
A party, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached.
12.
If measures are not identified in the consultation process and the project may cause a substantial adverse change to a tribal cultural resource, mitigation measures that avoid or minimize adverse impacts shall be considered. Mitigation measures that, if feasible, may be considered include:
a.
Avoidance and preservation of the resources in place, including but not limited to, planning and construction to avoid the resources and protect the cultural and natural context;
b.
Permanent conservation easements or other interests in real property, with culturally appropriate management criteria for the preservation and utilization of resources or places.
c.
Treating the resource with culturally appropriate dignity taking into account the tribal cultural values and meaning of the resource, including, but not limited to:
i.
Protecting the cultural character and integrity of the resource;
ii.
Protecting the traditional use of the resource; and
iii.
Protecting the confidentiality of the resource.
G.
Regulations Applicable to All Development: If at any time during the course of construction, previously unidentified archaeological resources are discovered, earth-disturbing activities shall stop within the vicinity of the find, and the project planner and a qualified archaeologist shall be contacted to assess the appropriate course of action. Where human remains are involved, the County Coroner shall also be contacted as required by law. Work shall not resume in the area until the find can be evaluated and an appropriate mitigation plan is developed.
H.
Prior to adoption of any General Plan or Specific Plan or an amendment thereto, consultation with Native American representatives shall be carried out consistent with California Government Code Section 65352.3 and the Tribal Consultation Guidelines published by the Governor's Office of Planning and Research.
I.
Nothing in this Section shall be interpreted to supersede or in any way alter or lessen the effect of any state or federal laws governing the protection of human remains or the California Environmental Quality Act.
(Ord. No. 5135, § 145, 7-7-2009; Ord. No. 5253, § 2, 4-28-2015)
Editor's note
Ord. No. 5253, § 2, adopted April 28, 2015, changed the title of Section 21.66.050 from "Standards for archaeological resource areas" to read as herein set out.