(b) Trade-offs will involve subjective judgments and must therefore reflect public preferences. Through incorporation of public inputs, the trade-off analysis should surface the alternative or alternatives which appear to be the most acceptable to major segments of the public.

§ 295.10 Designate the NED Plan and the EQ Plan.

The alternative plans which appear to best meet the criteria for the NED Plan and the EQ Plan (as stated in Part 293 of this chapter) should be designated as a basis for subsequent iterations. This requires analyzing the overall economic and environmental contributions of each alternative when compared to the "without condition." The plans that result in the maximum net economic return will be candidates for the NED Plan. The plans that emphasize environmental contributions and, at a minimum make net positive contributions to the EQ account, will be candidates for designation as the EQ Plan. If it is impossible to designate an EQ Plan that meets the specified criteria, the plan least damaging to the environment will be identified. (See Part 293 of this chapter for further guidance.) The designation of the NED Plan can be made based on analysis of the economic returns to each alternative. The designation of the EQ Plan is subjective and must reflect societal preferences for the environmental contributions of the alternative plans. The NED Plan and the EQ Plan could be similar in certain instances where both sets of criteria are met by the same measures.

§ 295.11 Procedures to be followed when reiterating planning tasks.

The results of each iteration of the planning tasks will be analyzed to establish the necessity for or direction of the next iteration. If reiteration is to be undertaken, it will be necessary to establish which plans will be carried forward and the criteria that will be applied to their reformulation. This determination will be based on the results of the evaluation activities and the public's perceptions of the alternatives. Generally, reiteration will be un

dertaken for three reasons. Principally, reiteration will be undertaken to develop more precise and detailed plans that more fully address the planning objectives within the constraints of the study. Secondly, reiterations will be undertaken to attempt to reduce the significant adverse economic, social, and environmental impacts of the alternative plans. And thirdly, reiterations may be undertaken to increase the RD and SWB benefits of alternative plans, only in those specific cases when prior approval from the Secretary of the Army has been obtained.

(a) For all alternatives to be carried through to the next iteration, the specificity of the plans should be increased. This is accomplished by more precisely defining the planning objectives and by more fully exploring the range of means for addressing them. In addition, reiterating the planning tasks should be directed toward changing "potential" benefits into "actual" benefits, as well as reducing the uncertainties associated with the alternative plans. The following criteria will be applied to the reformulation of alternatives designated as the NED Plan and the EQ Plan, including those plans which address a mix of the two national objectives:

(1) For the alternative designated as the NED Plan, add new measures or modify or delete those already employed to develop a plan which is fully implementable and represents the best plan that can be formulated on the basis of economic criteria alone. To accomplish this, the following should be carried out in sequence during the subsequent formulation activity:

(i) Attempt to increase net NED benefits by analyzing the incremental benefits and costs of each measure and by making appropriate adjustments.

(ii) Without reducing the level of net NED benefits, attempt to increase net EQ benefits taking into consideration the full range of EQ costs.

(iii) Without reducing the level of either net NED or EQ benefits, seek the best combination of SWB and RD benefits possible.

(iv) Reduce adverse effects on RD and SWB to extent possible without

incurring unreasonable losses in net NED or EQ benefits.

(2) For the alternative designated as the EQ Plan, add new measures, or modify or delete those already employed, to develop a plan which is fully implementable and represents the best plan that can be formulated on the basis of environmental criteria alone. To accomplish this, the following should be carried out in sequence during the subsequent formulation activity:

(i) Attempt to increase net EQ benefits, taking into consideration the full range of EQ costs.

(ii) Without reducing net EQ benefits or incurring additional EQ costs, attempt to increase the net NED benefits.

(iii) Without reducing either the net EQ or the level of net NED benefits, seek the best combination of SWB and RD benefits possible.

(iv) Reduce adverse effects on RD and SWB to extent possible, without incurring unreasonable losses in net NED or EQ benefits.

(3) For the alternatives that address a mix of the two national objectives, add new measures, or modify or delete those already employed, to develop plans which can be fully implemented and represent a viable mix of NED and EQ. To accomplish this, the following should be carried out in sequence during the subsequent formulation activity:

(i) Attempt to increase net EQ and/ or net NED benefits.

(ii) Without reducing the level of either net EQ or net NED benefits, achieve the best combination of SWB and RD benefits possible.

(iii) Reduce adverse effects on RD and SWB to extent possible without incurring unreasonable losses in net NED and EQ benefits. This means that net EQ or NED benefits may be reduced to offset adverse RD or SWB effects only when the NED or EQ cost incurred, or benefits foregone, are less than the RD or SWB adverse effects reduced.

(b) As stated above, and discussed more fully in Part 291 of this chapter, positive RD and SWB effects can only

be pursued when specifically approved by higher authority.

(c) When significant adverse impacts cannot be avoided, reiteration should surface viable mitigation measures. Mitigation will always be based on adverse impacts; that is, change measured from the "without condition". When mitigation is necessary, the following action must be taken:

(1) For significant water-related adverse impacts which cannot be eliminated by further planning iterations, consider mitigation actions based on the Corps' initiative rather than waiting to respond to technical questions or concerns raised by another public entity. This action is required by § 294.8 of this chapter.

(2) For significant non-water related adverse impacts outside the normal range of Corps' planning, assistance from other Federal, State and local agencies is to be sought regarding pertinent means to address or mitigate the adversity in question.

305.19 Report Control (RCS DAEN-CWP10).

305.20 Effective date.

AUTHORITY: Pub. L. 93-251, Preservation of Historic and Archeological Data (88 Stat. 174, 24 May 1974; and Pub. L. 89-655, National Historic Preservation Act of 1966 (80 Stat. 915), 15 October 1966.

SOURCE: 43 FR 13990, April 3, 1978, unless otherwise noted.

§ 305.1 Purpose.

This regulation provides guidance to field operating agencies of the Corps of Engineers for the identification, preservation and mitigation of losses of cultural resources associated with Federal water resource developments. This regulation does not apply to Regulatory Programs administered by the Corps of Engineers pursuant to 33 CFR 320-329.

§ 305.2 Applicability.

This regulation is applicable to all OCE elements and all field operating agencies having Civil Works responsibilities.

§ 305.3 Reference.

(See EP 310-1-1 for index of Corps regulations.)

(a) Pub. L. 59-209, Antiquities Act of 1906 (34 Stat. 225).

(b) Pub. L. 74-292, Historic Sites Act of 1935 (49 Stat. 666).

(c) Pub. L. 89-655, National Historic Preservation Act of 1966 (80 Stat. 915). (d) Pub. L. 91-190, National Environmental Policy Act of 1969 (83 Stat. 852).

(e) Pub. L. 93-291, Preservation of Historic and Archeological Data (88 Stat. 174)-amending Pub. L. 86-523, the Reservoir Salvage Act of 1960 (74 Stat. 220).

(f) Executive Order 11593, Protection and Enhancement of the Cultural Environment, 13 May 1971 (36 FR 8921, 15 May 1971).

(g) National Register of Historic Places published 1978 (FR 7 Feb. 1978, Vol. 43 No. 26, Part II), annually and supplemented on the first Tuesday of each month.

(h) Procedures for the Protection of Historic and Cultural Properties (36

CFR Part 800) (FR 25 Jan. 1974, Vol. 39, No. 18).

(i) National Register of Historic Places, “Nominations by States and Federal Agencies” (36 CFR 60) (FR 9 Jan. 1976, Vol. 41, No. 6).

(j) National Register of Historic Places, Determinations of Eligibility for Inclusion (36 CFR 63) (6 FR 27 April 1976, Vol. 41, No. 82).

(k) TM 5-801-1, Historic Preservation, Administrative Procedures.

(1) ER 10-1-3, Divisions and Districts.

(m) ER 37-2-10, Chapter 8, Accounting and Reporting, Civil Works Activities.

(n) ER 405-1-875, Permits to Other Federal Government Agencies.

(0) ER 1105-2-50, Continuing Authorities Program (33 CFR 263).

(p) ER 1105-2-507, Preparation and Coordination of Environmental Statements (33 CFR 209.410).

(q) ER 1130-2-401, Visitor Center Program.

(r) ER 1180-1-1, Engineer Contract Instructions.

(s) Engineer Regulations in the 1105-2-200 series, 10 November 1975, implementing the "Principles and Standards for Planning Water and Related Land Resources" (33 CFR Parts 290-295, 393).

§305.4 Definitions.

The following definitions are applicable to this regulation:

(a) "Advisory Council." The Advisory Council on Historic Preservation, established pursuant to Title II of the National Historic Preservation Act of 1966 (16 U.S.C. 470i).

(b) "Agency Official." For purposes of this regulation, normally the district engineer under whose jurisdiction actions are taken or recommended.

(c) “Appropriate historical or archeological authorities." The Secretary of the Interior or his designated representative, the State Historic Preservation Officer, the State Archeologist and the State Historian.

(d) “Cultural resource.” Any building, site, district, structure, object, data or other material significant in history, architecture, science, archeo

logy or culture. (Also see paragraph (h) of this section.)

(e) "Cultural resources reconnaissance." A literature search and records review plus an on-the-ground surface examination of selected portions of the area to be affected, adequate to assess the general nature of the resources probably present and the probable impact of alternative plans under consideration. For archeological reconnaissance, test excavations may be required at some sites so that evaluations may be adequately accomplished. This level of investigation is appropriate to preliminary planning decisions and will be of assistance in determining viable alternative plans in feasibility studies during General Investigations. Normally, a reconnaissance level investigation will not yield information of adequate scope to serve as the basis for requesting determinations of eligibility for the National Register of Historic Places. Should such determinations be deemed necessary by reporting officers, they should be sought from the Keeper of the National Register after consultation with the State Historic Preservation Officer as prescribed in § 305.17(c).

(f) "Cultural resources survey." An intensive, on-the-ground survey and testing of an area sufficient to determine the number and extent of the resources present, their cultural and scientific importance, and to estimate the time and cost for preserving, recovering or otherwise mitigating adverse effects on them. This level of investigation is appropriate when the project has been authorized and finally formulated, and will thus be accomplished during the Phase II GDM stage of project planning. A survey level investigation will result in data adequate to determine resources eligibility for the National Register of Historic Places.

(g) "Mitigation." The amelioration of losses of significant paleontological, scientific, prehistorical, historical, architectural or archeological resources which will be accomplished through preplanned actions to preserve such resources or recover the data they contain by application of professional techniques and procedures. Mitigation

measures will only be accomplished during the actual construction or operational phases of Civil Works projects except in unusual circumstances requiring prior approval by the Chief of Engineers. Requests for approval shall be transmitted to HQDA (DAENCWP-P) WASH DC 20314. Mitigation of losses of cultural resources includes, but is not limited to, such measures as:

(1) Recovery and preservation of an adequate sample of archeological data to allow for analysis and published interpretation of the cultural and environmental conditions prevailing at the time(s) the area was utilized by man;

(2) Recording, through architectural quality photographs and/or measured drawings of buildings, structures, districts and objects, and deposition of such documentation in the Library of Congress as a part of the Historic American Buildings Survey or the Historic American Engineering Record;

(3) Relocation of buildings, structures and objects;

(4) Adoption of alternative plans to allow cultural resources to remain in place (also see § 305.17(c)); and

(5) Reduction or elimination of impacts by engineering solutions to avoid mechanical effects of wave wash, scour, sedimentation and related processes and the effects of saturation.

(h) "National Register." The National Register of Historic Places is a register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology and culture, maintained by the Secretary of the Interior under authority of Section 2(b) of the Historic Sites Act of 1935 and Section 101(a)(1) of the National Historic Preservation Act. The National Register is published in its entirety in the FEDERAL REGISTER each year in February. Addenda are usually published on the first Tuesday of each month.

(i) "One per centum of the total amount authorized to be appropriated for such project," as given in Section 7(a) of the Reservoir Salvage Act of 1960, as amended (16 U.S.C. 469), is the dollar limitation for activities involving the recovery, protection and preservation of cultural resources. This amount shall be determined by

computing one percent of the Federal appropriation requirement reflected in the latest approved estimate of project first costs for projects in advance engineering and design or under construction, and one percent of the total Federal appropriations for construction for completed projects. In the case of comprehensive systems of projects in a basin or on a river, the one percent shall be computed based on the individual projects or segments of the system where such projects or segments have been assigned separate CWIS numbers and have been issued separate work allowances during their construction. Congressional authorization is required to exceed the dollar limitation defined in this paragraph. (See also § 305.6(a) for policies on expenditures for cultural resource activities.)

(j) "Principal Investigator." An individual acting personally, or an individual designated by a contractor, to accomplish cultural resource studies or data recovery.

(k) "Significance." Attributable to districts, sites, buildings, structures and objects of historical, architectural, and archeological (cultural) value when such properties are included in or have been determined by the Secretary of the Interior to be eligible for inclusion in the National Register of Historic Places after evaluation against the criteria contained in 36 CFR 60.6 (reference § 305.3(i)).

(1) "State Historic Preservation Officer." The official within each State, authorized by the State at the request of the Secretary of the Interior, to act as liaison for purposes of implementing the National Historic Preservation Act. In many States there are also officially designated State Historians and State Archeologists. Further references to the State Historic Preservation Officer incorporate these officially designated offices and/or individuals of State government.

§305.5 Background.

Prior to 1966, primary responsibility for actions pertaining to cultural resources associated with Federal programs and projects was delegated by statute to the Secretary of the Interi

or. With enactment of the National Historic Preservation Act of 1966, the National Environmental Policy Act of 1969 and promulgation of Executive Order 11593 in 1971, additional responsibility for cultural resources was given to Federal agencies having jurisdiction or control over those resources. As a result, it is now necessary that the Corps of Engineers conduct its activities in accordance with these policies and consult as appropriate with the Department of the Interior, the Advisory Council on Historic Preservation and the State Historic Preservation Officer(s).

§ 305.6 General poficy.

(a) From the initiation of preauthorization planning through post authorization planning and design, construction, and operation and management, all Corps of Engineers actions will be evaluated in terms of their effect on cultural resources within the overall policy provisions of this regulation. Those actions having an effect on significant cultural resources will be fully coordinated with the Heritage Conservation and Recreation Service, State Historic Preservation Officer, and the Advisory Council on Historic Preservation. Appropriate actions will be taken to discharge all Corps responsibilities involved in a spirit of proper stewardship of these resources for the benefit of present and future generations.

(1) At each stage of Corps planning, design and construction, the degree and scope of cultural resource investigations shall be conducted and displayed at the same level of precision as other related studies, i.e., economics, hydrology, geology, biology, etc.

(2) The provisions of the Reservoir Salvage Act of 1960, as amended (16 U.S.C. 469), shall be utilized as the authority for the conduct of recovery, protection and preservation activities and any related and necessary cultural resources surveys at authorized projects. If the reporting officer determines from a cultural resources reconnaissance or survey that this authority may not suffice for anticipated cultural resource work in connection with a recommended plan, the should seek specific Congressional authorization to