CHAPTER 42
REVIEW AND COMPLIANCE PROGRAM
223—42.1(303) Purpose. The review and compliance program implements state historic preservation program activities to advise and assist public (federal, state, and local government) agencies in carrying out their historic preservation responsibilities broadly described and established under the National Historic Preservation Act, particularly Sections 106 and 110, as well as other state and federal historic preservation laws and regulations.
[ARC 0268C, IAB 8/8/12, effective 9/12/12]
223—42.2(303) Federal regulations and requirements. The Iowa review and compliance program shall operate in accordance with the following requirements:
	42.2(1) The National Historic Preservation Act (16 U.S.C. 470 et seq.).
	42.2(2) Title 36 of the Code of Federal Regulations Part 60 (36 CFR 60).
	42.2(3) Title 36 of the Code of Federal Regulations Part 61 (36 CFR 61).
	42.2(4) Title 36 of the Code of Federal Regulations Part 63 (36 CFR 63).
	42.2(5) Title 36 of the Code of Federal Regulations Part 800 (36 CFR 800).
	42.2(6) Contract requirements outlined in the state of Iowa’s Historic Preservation Fund grant agreement with the National Park Service, including requirements described in the Historic Preservation Fund Grants Manual, special conditions attached to the grant agreement, and any other National Park Service requirement considered a condition of receiving the annual federal grant.
	42.2(7) Nationwide Programmatic Agreements and other federal program alternatives executed or issued by the Advisory Council on Historic Preservation under 36 CFR §800.14, as applicable.
	42.2(8) State-level programmatic agreements and memoranda of agreements executed under 36 CFR §§800.6 and 800.14.
	42.2(9) Easements and covenants granted pursuant to the implementation of state historic preservation program activities.
	42.2(10) Iowa Code chapter 303.
[ARC 0268C, IAB 8/8/12, effective 9/12/12]
223—42.3(303) Professional qualifications. In keeping with federal Historic Preservation Fund grant requirements, the department shall employ a professionally qualified staff that meets the requirements set forth in 36 CFR §61.4(e).
[ARC 0268C, IAB 8/8/12, effective 9/12/12]
223—42.4(303) Definitions. Unless the context requires otherwise, the definitions provided in the National Historic Preservation Act and its implementing regulations at 36 CFR Part 60, 36 CFR Part 61, and 36 CFR Part 800 shall apply to terms as they are used through this chapter. In addition, the following definitions apply:
“Act” means the National Historic Preservation Act (16 U.S.C. §470 et seq.).
“Agency” means federal agency.
“Agreement” means any agreement executed in accordance with the regulations implementing Section 106 at 36 CFR Part 800 and any agreement authorized by Iowa Code section 28E.4.
“Area of potential effects” or “APE” means the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking (36 CFR §800.16(d)).
“Historic property” means “historic property” as defined in Section 301(5) of the National Historic Preservation Act as amended through December 22, 2006 (16 U.S.C. §470w(5)).
“Recommendations and decisions” means the actions taken by the SHPO to advise and assist federal agencies in carrying out their Section 106 responsibilities.
“Undertaking” means, as defined in Section 301 of the National Historic Preservation Act, a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including (1) those carried out by or on behalf of the federal agency; (2) those carried out with federal financial assistance; (3) those requiring a federal permit, license or approval; and (4) those subject to state or local regulation administered pursuant to a delegation or approval by a federal agency.
[ARC 0268C, IAB 8/8/12, effective 9/12/12]
223—42.5(303) Procedures.
	42.5(1) Technical assistance. The state historic preservation office (SHPO) shall advise and assist federal agencies in carrying out their responsibilities under the Act (and other federal historic preservation laws) and shall cooperate with federal agencies, state agencies, local governments, or their applicants; organizations; and individuals to ensure historic properties are taken into consideration at all levels of planning and development.
	42.5(2) SHPO review of federal undertakings.
	a. 	In accordance with applicable federal and state laws and regulations, agency officials and agency program applicants or recipients requesting the views of the SHPO on an undertaking shall submit documentation regarding the undertaking and potential effects to historic properties.
	b. 	The SHPO shall make available forms intended to assist agency officials and agency program applicants and recipients in organizing information and to allow the review and compliance program staff and other consulting parties to render informed advice on an undertaking. Forms will be made available on the state historical society of Iowa Web site. Submittals shall be directed to Review and Compliance Coordinator, State Historical Society of Iowa, Des Moines, Iowa 50319.
	c. 	The SHPO shall respond to initial determinations submitted by an applicant or groups of applicants authorized to initiate consultation by the agency pursuant to 36 CFR §800.2(c)(4) or to a final agency determination of eligibility.
	d. 	The SHPO shall apply the National Register Criteria for Evaluation when opining on determinations of National Register eligibility.
	e. 	With respect to the determination of whether a property is eligible for listing, in the event that the SHPO and the agency official do not agree as to the determination of eligibility, the SHPO shall include an explanation of its opinion which shall be based on the National Register criteria and relevant National Park Service guidelines for evaluation of historic properties.
	f. 	The SHPO may respond to agency determinations and findings of effect.
	g. 	A SHPO nonconcurrence with an agency finding of effect shall include an explanation based upon the Advisory Council’s criteria of adverse effect in accordance with 36 CFR §800.5(a).
	h. 	If the SHPO elects to consult, the SHPO shall respond within 30 calendar days of receipt of an agency’s request for review of a finding or determination in accordance with 36 CFR §800.3(c)(4) and the National Park Service’s applicable requirements. The SHPO shall base any recommendations upon consideration of all of the factors enumerated in 36 CFR §800.4(b)(1).
	i. 	The recommendations and decisions of the SHPO are subject to the review and approval of the director. This review may be initiated by the director for any reason or may be requested in the manner described in rule 223—42.7(303). To facilitate this opportunity for review, the SHPO will generally submit its recommendation to the director within 14 calendar days of receipt.
	j. 	If the director is unable to make a determination regarding the request for review within the federally mandated 30-day consultation period, the director may, upon advising the applicant, request that the federal agency extend the consultation period for such time as the director requires to make such a determination.
	42.5(3) Resolution of adverse effects. The SHPO shall participate in the consultation to develop and evaluate alternatives or modifications to undertakings that could avoid, minimize, or mitigate adverse effects on historic properties in accordance with the provisions of 36 CFR §800.6 or the terms of executed agreements, easements and covenants.
	42.5(4) Emergency procedures. The SHPO shall abide by the procedures that govern an agency’s historic preservation responsibilities during any disaster or emergency in lieu of 36 CFR §§800.3 through 800.6.
[ARC 0268C, IAB 8/8/12, effective 9/12/12]
223—42.6(303) Level of effort required to identify historic properties.
	42.6(1) The level of effort required to meet the “reasonable and good faith” standard in Section 106 review is set forth in 36 CFR §800.4. The level of effort required shall be based on past planning, research and studies; the magnitude and nature of the undertaking and the degree of federal involvement; the nature and extent of potential effects on historic properties; and the likely nature and location of historic properties within the APE and may consist of any combination of background research, consultations, oral history interviews, sample field investigations and field surveys. In order to balance the mission and needs of a federal agency and its proposed project, the SHPO shall balance the level of effort and resources necessary to identify and preserve archaeological sites with the project benefits, costs, schedules and local issues that, in part, comprise the broader public interest.
	42.6(2) In response to the agency’s request for consultation, the SHPO shall base any recommendation for the identification of historic properties upon a review of the documentation provided by an agency pursuant to the reasonable and good-faith standard in conformance with the factors set forth in 36 CFR §800.4(b)(1).
	42.6(3) It is the statutory obligation of the federal agency to fulfill the requirements of Section 106.
	42.6(4) The level of effort required of rural electric cooperatives and municipal utilities shall be consistent with the requirements set forth in 2011 Iowa Code Supplement section 303.18.
[ARC 0268C, IAB 8/8/12, effective 9/12/12]
223—42.7(303) Review and appeal of the recommendations and decisions of the state historic preservation officer.
	42.7(1) In addition to any other review or appeal process afforded under federal or state law and regulations, the recommendations and decisions of the state historic preservation officer are subject to the review and approval of the director. This review may be initiated by the director for any reason or may be requested in the manner described in this rule.
	42.7(2) A person, as defined in Iowa Code section 4.1(20), requesting the review of a recommendation or decision of the state historic preservation officer directly affecting that person shall provide the director with the following information, orally or in writing:
	a. 	Name and address of the requester.
	b. 	A description of the action of the SHPO requested to be reviewed.
	c. 	A short and plain statement of the reasons the review is requested.
	42.7(3) Within 15 days following receipt of a request for review, the director shall notify the requester of the disposition of the request or of the need for additional information. Within 30 days following the receipt of the requested additional information, the director will notify the requester in writing of the disposition of the request for review.
	42.7(4) A decision of the director is final. Judicial review of the actions of the director may be sought in accordance with the terms of the Iowa administrative procedure Act, Iowa Code chapter 17A.
[ARC 0268C, IAB 8/8/12, effective 9/12/12]
These rules are intended to implement Iowa Code section 303.2 and Iowa Code chapter 303, subchapter II.
[Filed without Notice 5/12/89—published 5/31/89, effective 7/5/89]
[Filed emergency 12/2/93—published 12/22/93, effective 12/2/93]
[Filed 1/27/94, Notice 12/22/93—published 2/16/94, effective 3/23/94]
[Filed ARC 0268C (Notice ARC 0103C, IAB 4/18/12), IAB 8/8/12, effective 9/12/12]