Historic Preservation Requirements

Purpose and Organization

A number of laws and Executive orders (EOs) and a Presidential Memorandum have been passed or issued during the last 100 years to help protect and preserve the nation's archaeological and historic resources.

The Antiquities Act of 1906 provided for the protection of historic and prehistoric remains and monuments on federal lands. It established a permit system for conducting scientific archaeological investigations, which could be undertaken only by recognized institutions that would report results and maintain all collections for the public.

In 1935 Congress passed the Historic Sites Act that declared it was a national policy "to preserve for public use historic sites, buildings, and objects of national significance." This act extended protection to sites on both federal and non-federal lands by giving the Secretary of the Interior the authority to survey, document, evaluate, acquire, and preserve archaeological and historical sites throughout the country. It led to the creation of the Historic Sites Surveys, the Historic American Buildings Survey, the Historic American Engineering Record (now the National Architectural and Engineering Record), and the National Historic Landmarks program.

The Archaeological Recovery Act of 1960 (also known as the Reservoir or Archaeological Salvage Act of 1960 or the Moss-Bennett Act) gave the Department of the Interior (DOI) the major responsibility for preserving archaeological data that might be lost through federal dam construction. The scope of the 1960 Act was amended and significantly expanded by the Archaeological and Historic Preservation Act of 1974 that required preservation of archaeological data affected as a result of any federal or federally related land modification activities.

The amended act gave the Secretary of the Interior responsibility for coordinating and administering a nationwide program for the recovery, protection, and preservation of scientific, prehistoric, historic, and archaeological data that would otherwise be damaged or destroyed through federal action. This act for the first time authorized up to one percent of the cost of a project to be transferred to the Secretary of the Interior for preserving archaeological data on federal construction projects, other than dam construction. The one percent limitation can be exceeded by federal agencies after obtaining concurrence from DOI and then notifying Congress.

Congress established the most comprehensive national policy on historic preservation with the passage of the National Historic Preservation Act of 1966 (NHPA). One goal of the act is for federal agencies to act as responsible stewards of our Nation's resources when their actions may affect historic properties. This act defined historic preservation to include "the protection, rehabilitation, restoration and reconstruction of districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, or culture." The act led to the creation of the National Register of Historic Places (the National Register), a compilation of cultural resources of national, regional, state, and local significance. The act also established the Advisory Council on Historic Preservation (the Advisory Council), an independent federal agency responsible for administering the protective provisions of the act.

The major provisions of the NHPA for DOE are Sections 106 and 110. Both sections aim to ensure that historic properties are appropriately considered in planning federal initiatives and actions. Section 106 is a specific, issue-related mandate to which federal agencies must adhere. It is a reactive mechanism that is driven by a federal action. Section 110, in contrast, sets out broad federal agency responsibilities with respect to historic properties. It is a proactive mechanism with emphasis on ongoing management of historic preservation sites and activities related to them at federal facilities. It calls for federal agencies to establish preservation programs that provide for careful consideration of historic properties and to designate qualified Federal Preservation Officers to coordinate their historic preservation activities.

Section 106 requires that the head of any federal agency having direct or indirect jurisdiction over a proposed federal or federally assisted undertaking in any state or having authority to license any such undertaking must ensure that the provisions of NHPA are administered. Section 106 also mandates consultation during such federal actions. It compels federal agencies to "take into account" the effect of their projects on historical and archaeological resources and to give the Advisory Council the opportunity to comment on such effects.

Section 110 of NHPA and EO 11593 (which was substantially incorporated into the NHPA amendments of 1980) require agencies to provide leadership in preserving, restoring, and maintaining the historic and cultural environment of the nation. The 1980 amendments expanded NHPA by making federal agencies responsible for identifying, preserving, and nominating to DOI all sites, buildings, districts, and objects under their jurisdiction or control that appear to qualify for listing on the National Register. It also required DOI to develop criteria and procedures for federal agencies to use in these reviews and nominations. Thus, each federal agency, in cooperation with the State Historic Preservation Officer (SHPO) in the state involved, must "establish a program to locate, inventory, and nominate to the Secretary (DOI) all properties under the agency's ownership or control by the agency, that appear to qualify for inclusion on the National Register in accordance with the regulations promulgated under Section 101(a)(2)(A)."

The 1980 amendments to NHPA also provided additional guidance on and clarification to the historic preservation program. Congress gave DOI the authority to waive the one-percent limitation on the use of project funds to defray the costs of data recovery, increased the role of SHPOs in the administration of the National Historic Preservation Program, and clarified federal agency responsibilities under E.O. 11593.

Congress passed additional amendments to NHPA in 1992 that allow federally recognized Native American Indian tribes to take on more formal responsibility for the preservation of significant historic properties on tribal lands. Specifically, Section 101(d)(2) allows tribes to assume any or all of the functions of a SHPO with respect to their land. The decision on whether to participate in the program rests with the tribe. Those tribes that have formally assumed the responsibilities of the SHPO for purposes of Section 106 compliance on their tribal lands have designated Tribal Historic Preservation Officers (THPOs). Federal agencies must consult with those THPOs in lieu of the SHPO for undertakings occurring on, or affecting historic properties on, tribal lands. Please click here to view an Information Brief on Consultation with Native Americans.

The Archaeological Resources Protection Act of 1979 was enacted to provide a comprehensive framework for protecting and regulating the use of archaeological resources on public and Native American Indian lands protected by the Antiquities Act of 1906. The act requires that a permit must be received from the federal land manager for the excavation and removal of archaeological resources on public land.

The President's 1978 Memorandum on Environmental Quality and Water Resources Management directed the Advisory Council to issue final regulations under NHPA and directed federal agencies with water resource responsibilities and programs to publish procedures implementing NHPA within three months after promulgation of the final Advisory Council regulations.

Management of Cultural Resources at DOE Facilities

On February 23, 1990, DOE issued a memorandum informing all DOE facilities and programs of the requirements for complying with the various EOs, statutes, and implementing regulations governing the management of cultural resources. Please click here to view this memorandum. An updated Information Brief on this topic was issued in July 2001. Please click here to view this Information Brief.

A DOE policy, DOE P 141.1, Department of Energy Management of Cultural Resources, was issued on May 2, 2001. The purpose of this policy is two-fold:

• to ensure that all DOE programs and field elements integrate cultural resources management into their missions and activities and
• to raise the level of awareness and accountability among DOE contractors concerning the importance of the Department's cultural resource-related legal and trust responsibilities.

This policy helps ensure that DOE maintains a program that reflects the spirit and intent of historic preservation legislation and other mandates. Please click here to view this policy.

Another DOE cultural resource document, Environmental Guidelines for Development of Cultural Resource Management Plans-Update (DOE G 450.1-3), was issued on September 22, 2004. The purpose of this document is to assist DOE managers who are responsible for the development of individual Cultural Resource Management Plans (CRMP) for each DOE facility and program. This Guide provides recommendations, alternatives, and approaches for DOE facilities and programs to implement the requirements set forth in the various EOs, statutes, implementing regulations, and DOE directives governing the management of cultural resources. As with all guidance, each site should consider its individual needs and tailor its CRMP to its unique conditions and requirements. Please click here to view this guidance document that contains details on cultural resource requirements and provides access to additional sources of information from, for example, the National Park Service and the Advisory Council.

Each year DOE must provide information to the Departmental Consulting Archeologist, National Park Service, to be included in the Secretary of the Interior's Report to Congress on federal archeological activities. This report is required by Section 5(c) of the Archeological and Historic Preservation Act and Section 13 of the Archaeological Resources Protection Act. Sections 2 and 101(h) of NHPA authorize the Secretary to collect and distribute such information to federal agencies, state and local governments, private organizations and individuals, other nations, and international organizations. DOE sites and programs are asked to provide information to DOE headquarters to be compiled in this report. The resulting annual compilation is posted on the HS-21 web site after it is sent to the National Park Service.

Relationship of NEPA to Historic Preservation Activities

Federal agencies should coordinate National Environmental Policy Act (NEPA) compliance with the responsibilities of NHPA to ensure that historic and cultural properties are given proper consideration in the preparation of environmental assessments (EAs) and environmental impact statements (EISs). However, agency obligations under NHPA are independent from NEPA and must be complied with even when an EA or EIS is not required. That is, for proposed projects that are not classified as major federal actions with potentially significant environmental impacts, DOE must still consider impacts to historic properties and sites. Where both NEPA and NHPA are applicable, draft EISs must integrate NHPA considerations along with other environmental impact analyses and studies. (See 40 CFR 1502.25.)

To coordinate the independent responsibilities of NEPA and NHPA, DOE should undertake compliance with NHPA regulations as soon as it is determined that a National Register-listed or -eligible property may be affected by a proposed project or program. DOE can request Advisory Council comments on a proposed project by so stating in the cover letter used to distribute a draft EIS for comment.

The regulations implementing these Historic Preservation Requirements are found in Titles 36 and 43 of the CFR.