Policy Guidance on the Unanticipated Discovery of Underwater Archaeological Resources

Find guidance on the unanticipated discovery of underwater archaeological resources

Introduction

The Massachusetts Board of Underwater Archaeological Resources (BUAR) is the state agency charged with the identification, preservation and protection of the Commonwealth’s underwater archaeological resources. The purpose of archaeological investigations performed during the planning process for a proposed project is to determine the presence or absence of culturally related materials and resources within a proposed project’s area of potential effect (APE) and to determine or assess eligibility for listing in the National Register of Historic Places (National Register) of identified resources. These archaeological investigations are conducted to comply with the National Environmental Policy Act of 1969 (NEPA), Section 106 of the National Historic Preservation Act of 1966, as amended (NHPA), the implementing regulations of the Advisory Council on Historic Preservation (Advisory Council), and pursuant to Massachusetts General Laws and Regulations pertaining to the cultural resources of Massachusetts, the BUAR, and the Massachusetts Historical Commission (MHC).

The BUAR recognizes that despite intensive background research, remote sensing surveys, and field investigations, it is always possible that cultural resource deposits, such as shipwrecks, may still be discovered during the course of construction activities on or below state bottomlands, particularly during excavation. BUAR procedures that should be followed in the event of an unanticipated discovery of underwater archaeological resources during BUAR-permitted and non-BUAR-permitted activities are outlined below. NOTE: BUAR permittees must also adhere to any general and special conditions placed on their permit.

In the event suspected human remains are encountered, you are also directed to follow the BUAR Policy Guidance on the Unanticipated Discovery of Human Remains.

Procedures

Below are steps that should be followed in the event that an unanticipated discovery of an underwater archaeological resource (e.g., an unrecorded shipwreck or other type of submerged cultural resource) is made during a project.

1. In the event that a suspected underwater archaeological resource is encountered as an unanticipated discovery during construction activity, that activity shall be halted immediately in the area of the find until it can be determined whether the find is an underwater archaeological resource and whether or not it is an historically significant feature or site.
2. The project field staff will notify the project proponent immediately upon the suspension of work activities in the area of the find. Notification will include the specific location in which the potential feature or site is located.
3. The project proponent will contact its cultural resource management consultant immediately to review available the information on the unanticipated discovery. On-site personnel will provide information on the location and any discernable characteristics of the potential submerged cultural resource, and any survey data depicting the find. This information will be forwarded for review to the cultural resource management consultant’s project archaeologist.
4. If the project archaeologist concludes that the site, feature, or remote sensing feature is not cultural in nature, the project field staff, through the project proponent, will be notified by the project archaeologist that work may resume. The project archaeologist will also notify BUAR of this conclusion.
5. If, based upon previously acquired and current remote sensing survey data, or other indications (e.g., visual site inspection results), it is concluded that the unanticipated discovery is an underwater archaeological resource, the project archaeologist will inform the project proponent, who will then inform the project field staff that work may not resume at the given location until they are notified by the project proponent in writing to resume working in the area of the find. The cognizant federal and state review agencies, BUAR, MHC/SHPO (State Historic Preservation Officer), and Advisory Council (if applicable) will be notified of this conclusion within two working days.
6. A visual inspection by archaeological divers or remotely operated vehicle (ROV) will be conducted to evaluate whether or not the site is potentially eligible for listing in the National Register. The results of the survey will be formally submitted to cognizant federal and state review agencies, MHC/SHPO, BUAR and the Advisory Council (if applicable) for final review and comment. The MHC/SHPO and BUAR will endeavor to respond within two working days of receiving the inspection results and recommendations.
7. a. If it is determined that the feature, or site does not represent a National Register-eligible resource, and the project proponent is in receipt of written comment from the review agency(s), work may resume in that area.
   
   b. If a National Register determination cannot be made in accordance with Step 6, the project proponent may either undertake additional research to satisfy Step 6 or exercise Step 8 (avoidance).
8. If agency review results in the concurrence or determination that the site is National Register eligible, the project proponent will develop avoidance measures to eliminate the site from the project's APE. Any proposed avoidance measures will be made available to the cognizant federal and state review agencies, MHC/SHPO, BUAR, and Advisory Council for review and comment.
9. If avoidance measures cannot be developed and executed, the resource may be excavated and/or removed only under a memorandum of agreement with all interested parties, including the State Archaeologist/MHC/SHPO, BUAR Director, BUAR permittee and/or project proponent, and, if applicable, the Advisory Council, subject to appropriate state permits. This memorandum will outline a data recovery plan that specifies a qualified research team and an appropriate research design. The appropriate permits must also be secured from BUAR (if not already a permittee of BUAR) and the MHC prior to conducting any further disturbance to the site. In the event that human remains are associated with other cultural resources, see BUAR’s Policy Guidance on the Discovery of Unanticipated Human Remains for required procedures.

Applicable State and Federal Laws

MGL Chapter 9, § 26-27C - MHC review of state projects, State Archaeologist’s Permits

MGL Chapter 91, §63 – Underwater Archaeological Resources Permits

312 CMR 2.00:  Board of Underwater Archaeological Resources

950 CMR 70.00:  Massachusetts Historical Commission

Section 106 of the National Historic Preservation Act of 1966 (16 USC 470f), as amended (1976, 1980, 1992, 1999)

National Environmental Policy Act of 1969 (“NEPA”)

List of Contacts

Federal

To be named based on applicable federal jurisdiction

State

State Archaeologist/Massachusetts Historical Commission/SHPO
220 Morrissey Boulevard
Boston, Massachusetts 02125
Contact: Brona Simon, State Archaeologist/Acting Executive Director
[phone]; FAX: [phone]
[e-mail]; [e-mail]

Massachusetts Board of Underwater Archaeological Resources
Executive Office of Energy and Environmental Affairs
100 Cambridge Street, Suite 900
Boston, Massachusetts 02114
Contact: David S. Robinson, Director & Chief Archaeologist
[phone]
[e-mail] 

Others to be named based on applicable state jurisdiction, such as the Massachusetts Department of Conservation and Recreation, the Massachusetts Commission on Indian Affairs, and Tribal Historic Preservation Officers.

Short list of potential federal agencies and offices with applicable jurisdiction (not comprehensive):

Advisory Council on Historic Preservation
Army Corps of Engineers
Coast Guard
Federal Energy Regulatory Commission
Fish and Wildlife Service
National Park Service
Tribal Historic Preservation Officers