36.2.805    POST-SURVEY CONSULTATION

(1) If the department requires a professional survey, it shall file with the SHPO all survey reports, including maps, photographs and site forms, immediately upon receipt of the final survey report. An analysis of site value must be included in the survey report. The department shall also request a written determination from SHPO of which properties, if any, identified in the survey are antiquities; which antiquities, if any, may be affected by the department action; and comments on the plan of avoidance, mitigation, or documentation.

(2) Unless the department receives comments from SHPO regarding its assessment and proposal for mitigation, avoidance, or documentation within 15 working days of the delivery of the department's assessment and proposal to SHPO, the department may consider the consultation complete and may proceed with its consideration of the proposed action. The department may extend this deadline for those assessments that involve large or complex proposals.

(3) If SHPO responds to the consultation request within the time limits and:

(a) the department's determination is to implement all SHPO's recommendations, if any, the department shall notify SHPO of its determination in writing, implement the recommendations, proceed with the department action; or

(b) the department's determination is to not implement all or part of SHPO's recommendations, the department shall notify SHPO of its determination in writing documenting therein its reasons and the level of identification and protection of antiquities that will be required. The department shall afford or require for the antiquities the highest degree of identification and protection feasible within the constraints of time, personnel, budget, and its trust responsibilities. The department may not proceed with the proposed action until five working days after delivery of written notice to SHPO. If the department receives written notice from SHPO that SHPO continues to disagree with the department's decision, the department shall consult with SHPO in person or by telephone. The department shall document the substance of SHPO's comments and the department's response and may then proceed with mitigation and the action.

(4) The determination of whether to implement SHPO's recommendations rests solely with the department.

History: 22-­3-424, MCA; IMP, 22-3-424, MCA; NEW, 1986 MAR p. 953, Eff. 5/30/86; TRANS, from DSL. 1996 MAR p. 771.