Introduction
The term cultural resources is used to describe all aspects of prehistoric and historic human activities, including material remains of the past, as well as beliefs, traditions, rituals, lifestyles, habits, arts, and cultures of the present. Historic properties are cultural resources and include any historic or prehistoric district, site, building, structure or object included in or eligible for inclusion in the National Register of Historic Places. The term includes artifacts, records and remains that are related to and located on such properties. Archeological resources can be one type of historic property and include materials of past human life or activities that are at least 100 years of age and that are capable of providing scientific or humanistic understandings of past human behavior and cultural adaptations. This fact sheet provides an overview of Federal legislation and Department of Defense (DoD) directives, policies, and procedures for archeological and cultural resource preservation. In this fact sheet, many applicable Federal and military laws and regulations governing archeological and historic resource preservation are discussed. Air Force Cultural Resources Managers and Historic Preservation Officers use these laws and regulations to:
- Manage and maintain historic properties and cultural resources;
- Emphasize the goals of historic preservation laws and regulations;
- Regulate the disturbance of cultural resources; and
- Establish landmarks on lands which are under their jurisdiction.
As early as the turn of the 20th century, cultural resource preservation has been a goal of the U.S. Government. However, early Federal laws were applicable to only a small number of nationally significant historic properties. As a result, many archeological and historic resources not identified as being nationally significant were not preserved for future generations. With this observation, Congress realized the need for legislation to ensure Federal agencies consider and include archeological and historic resource preservation in their project planning. Today, Air Force personnel are required to take proactive roles and be stewards in the maintenance, preservation and protection of cultural resources on military lands.
Department of Defense and Air Force Guidance
The DoD and the Air Force have published guidance to assist personnel in archeological and historic resource preservation. They are to be used along with applicable Federal, state and local laws and regulations for managing archaeological and historic resources on DoD administered lands.
"Archeological and Historic Resources Management"
Department of Defense Directive 4710.1 establishes the policy, procedures and responsibilities of all military personnel for the management of archeological and historic resources under the jurisdiction of the DoD. Specifically, the directive states it is the DoD's policy to integrate archeological and historic preservation requirements in the planning and management of all DoD activities. The directive reinforces the DoD's responsibilities to comply with Federal laws and regulations, assigns specific responsibilities to department heads, and lists management procedures that mirror the Federal laws and regulations for archeological and historic resources.
"Environmental Quality"
Air Force Policy Directive 32-70 - "Environmental Quality," establishes Air Force policies for achieving and maintaining environmental quality and compliance with Federal environmental laws and standards. The provisions of the policy directive include the clean up of damage from past activities and complying with environmental standards on future activities. The policy directive states future activities will use environmental planning to conserve resources and eliminate pollution. To comply with this policy directive, Air Force Historic Preservation Officers and Cultural Resources Managers are to be included in environmental planning to ensure archeological and historic resources are considered.
"Cultural Resources Management"
Air Force Instruction 32-7065 - "Cultural Resources Management," provides guidelines for the protection and management of cultural resources on Air Force lands and implements Air Force Policy Directive 32-70. The instruction encompasses all aspects of cultural resource management including federal legislation, archeological permits, cultural resources budgeting, personnel, and training. Further, the instruction links the responsibilities under Federal legislation with the processes of the Air Force.
"Air Force Guidelines of Archeological and Historical Data"
Air Force Policy Letter, Department of the Air Force, 13 May 1992 - The Air Force Policy Letter, "Air Force Guidelines of Archeological and Historical Data" was written to inform Air Force personnel of the provisions of Title 36 Code of Federal Regulations (CFR) Part 79, "Curation of Federally-Owned and Administered Archeological Collections." The letter describes the process Air Force installations should follow to comply with the provisions of Title 36 CFR Part 79. The letter is not intended to affect collections housed as part of the U.S. Air Force Museum Program that do not meet the definition in Section 79.4 of the regulation.
Title 36 CFR 79 establishes definitions, standards, procedures, and guidelines to ensure the preservation of collections of prehistoric and historic material remains (and associated records) recovered from Federal lands. Part 79 establishes:
- Procedures and guidelines to manage and preserve collections;
- Terms and conditions for Federal agencies to include in contracts, memoranda, agreements or other written instruments with repositories for curational services;
- Standards to determine when a repository has the capacity to provide long -term curational services; and
- Guidelines to provide access to local and other uses of collections.
National Historic Preservation Act of 1966
Perhaps the most important Federal statute for the Air Force to consider in the area of cultural resources is the National Historic Preservation Act (NHPA) of 1966 (as amended). The NHPA, and its amendments, establish historic preservation as a national policy and defines it as the protection, rehabilitation, restoration, and reconstruction of districts, sites, buildings, structures, and objects which are significant in American history, architecture, archeology, or engineering. The Act also expands the National Register of Historic Places (NRHP) to include resources of state and local significance and establishes the Advisory Council on Historic Preservation (Council). The amendments of 1980 and 1992 direct the Secretary of the Interior to establish guidelines for nationally significant properties, curation of artifacts, documentation of historic properties, and preservation of Federally-owned historic sites. They also require designation of a Federal Historic Preservation Officer in each Federal agency; authorize the inclusion of historic preservation costs; and authorize the withholding of sensitive data on historic properties when necessary. Section 110 of the NHPA requires Federal agencies to identify, evaluate, and nominate historic property under agency control to the National Register of Historic Places. Section 110 also requires Federal agencies to have in place Section 106 compliance procedures.
Section 106 of the NHPA
Section 106 of the NHPA provides legislative requirements for Federal agencies to consider the effects of proposed undertakings on historic properties listed or eligible for listing in the NRHP. Furthermore, the Federal agency must allow the Council an opportunity to comment on any planned undertaking that could affect historic properties.
The Section 106 compliance is accomplished through a five step process which includes:
- identification and evaluation of historic properties;
- assessing the effects of the agency's proposed undertaking on historic properties;
- consultation, with the State Historic Preservation Officer (SHPO), Council, and interested parties, about ways to avoid, reduce, or mitigate the harm;
- Council comment; and
- proceeding with the undertaking.
Five Steps of the Section 106 Process
The five step Section 106 review process is summarized below and illustrated in Exhibit 1 (see Exhibit 1 on Page 4).
Step 1: Identify and Evaluate Historic Properties
- The Federal agency responsible for the undertaking identifies and evaluates historic properties that the undertaking may affect;
- The Federal agency reviews background information and consults with the SHPO and others who may provide information to help evaluate resources; and
- If the agency finds resources that might be eligible for inclusion, but are not yet included on the NRHP, the agency may seek formal determination of eligibility from the Secretary of the Interior. Typically, the Secretary of the Interior is asked to reach such a determination when the Federal agency disagrees with the SHPO or others about the site's eligibility. If the Federal agency and the SHPO agree on eligibility, there is no need to seek a determination from the Secretary of the Interior.
Step 2: Assess Effects
- The agency assesses the effects an undertaking will have on the historic properties;
- Federal agency consults with the SHPO; and
- Federal agency makes assessment based on criteria found in the Council's regulations and can make one of three determinations:
- No effect - the undertaking will not affect historic properties;
- No adverse effect - the undertaking will affect one or more historic properties, but will not be harmful; or
- Adverse Effect - the undertaking will harm one or more historic properties.
Step 3: Consultation
- If an adverse effect will occur, the agency consults with the SHPO and others to find ways to make the undertaking less harmful;
- Consultation is designed to result in a Memorandum of Agreement (MOA) or a Programmatic Agreement (PA), outlining the measures agreed upon by all parties, which the agency will take to reduce, avoid, or mitigate the adverse effect; and
- If consultation proves unproductive, the agency, SHPO, or Council may terminate consultation.
Step 4: Council Comments
- The Council may comment during step 3 of the process by participating in consultation and signing the MOA or PA. Otherwise the agency obtains the Council comments by submitting the MOA or PA to the Council for review and acceptance; and
- The Council can accept the MOA or PA, request changes, or opt to issue written comments.
Step 5: Proceed
- If a MOA or PA is executed, the agency proceeds with its undertaking under the terms of the MOA; and
- In the absence of a MOA or PA, the agency head must take into account the Council's written comments in deciding whether and how to proceed.
Advisory Council on Historic Preservation
The Council seeks, through the Section 106 Process, to accommodate historic preservation concerns with the needs of Federal undertakings. The Council encourages this accommodation through consultation among the Federal agency, the SHPO, and other interested persons during the early stages of planning. The Council regards the consultation process as an effective means for reconciling the interests of the consulting parties. Integration of the Section 106 review process into the normal administrative process used by agencies for projects planning ensures early, systematic consideration of historic preservation issues. To this end, the Council encourages agencies to examine their administrative processes to ensure they provide adequately for the efficient identification and consideration of historic properties, for participation by the SHPO and others interested in historic preservation, for timely requests for Council comment, and to promote cost-effective implementation of the Section 106 review process.
Maintenance Agreements
There are two types of agreements that Air Force installations generally enter with SHPO and Council. These agreements include MOAs, and PAs. These maintenance agreements are usually signed by the Federal agency, the SHPO, and the Council. A Memorandum of Agreement is an agreement, resulting from consultation, stating measures the agency will take to avoid or reduce effects on historic properties as the agency carries out its undertaking.
A PA is a type of MOA typically developed for a large or complex project or a class of undertakings that would otherwise require numerous individual requests for Council comments under Section 106 of the NHPA. Thus, a PA supercedes the usual Section 106 process. Prior to entering a PA, it is helpful for Federal agencies to have a Cultural Resources Management Plan (CRMP) in place. However, a PA may be created for the development and implementation of a CRMP or similar document. The CRMP details all historic properties and cultural resources that are listed in or are eligible for listing in the NRHP. Also, the CRMP outlines the installation's policies and procedures for the protection, management and preservation of historic properties and cultural resources. The following are two examples of formal agreements.
Programmatic Memorandum of Agreement Among the United States Department of Defense, the Advisory Council on Historic Preservation, and the National Conference of State Historic Preservation Officers, as Amended
The U.S. Senate Armed Services Committee Report 97-440 to the Military Construction Authorization Bill for 1983 instructed this Programmatic Memorandum of Agreement (now called merely a PA) be established to define procedures to follow before demolishing temporary World War II buildings. Under the terms of the agreement, the DoD will complete studies to establish a historical context around the construction of these buildings. Also, studies will be undertaken at individual installations to identify the installation's World War II development. Upon completion of the studies, some examples of these property types will be treated and preserved in accordance with Historic Preservation Plans developed by the DoD and approved by the Council. All other temporary buildings may be demolished without further consultation. As long as the provisions of this agreement are carried out, the DoD meets its consultation requirements with the Council on the treatment of all World War II temporary buildings.
Memorandum of Agreement for Cooperative Actions in Cultural Resource Management on Military Lands Between the Department of Defense and the National Trust for Historic Preservation
This MOA reemphasizes the DoD's commitment to cultural resources protection and compliance. Under this agreement, the DoD agrees to have an Historic Preservation Officer or Cultural Resources Manager at each military installation and that an historic preservation plan will be implemented at each installation. In turn, the National Trust for Historic Preservation agrees to provide assistance to military installations and the DoD to aid in meeting their cultural resource protection goals and mission.
Highlights of Pertinent Laws
Antiquities Act of 1906, Public Law 59-209
The Antiquities Act of 1906 was enacted to give the President of the United States authority to set aside Federally-owned land containing historic and/or prehistoric structures and objects of historic or scientific interest as historic landmarks. Also, private lands may be relinquished to the Federal Government for similar preservation. Under this Act, the Secretaries of the Interior, Agriculture, and War could issue permits for the examination of ruins, excavation of archeological sites, and collection of objects of antiquity on lands they administer. Permit requirements under the Act are still in effect; however, most provisions of the Act have been superseded by the permit requirements of the Archeological Resource Protection Act of 1979 (ARPA).
Historic Sites Act of 1935, Public Law 100-17
When enacted, the primary goal of the Historic Sites Act of 1935 was to provide for the establishment and maintenance of historic sites. Furthermore, the Act was enacted to provide for the preservation of historic buildings, sites, objects, and antiquities of national significance. The Act provides a list of specific National Historic Sites. The Secretary of the Interior, through the National Park Service (NPS) has the authority to secure data relating to historic and archeological sites; make surveys of sites and buildings to determine those that are significant to the United States; acquire, reconstruct and manage historic properties; and develop educational programs to inform the public of historic and prehistoric sites. In addition, the NPS administers the National Historic Landmarks Program on behalf of the Secretary of the Interior.
Protection of Natural and Historic Features on Military Installations Act of 1993, Public Law 100-526 and 100-510
The Protection of Natural and Historic Features on Military Installations Act was enacted to identify and protect exceptional natural and cultural resources on closed or realigned military installations. The Act states that prior to the disposal of real property or the transfer of a facility at a military installation scheduled for realignment or closure, the Secretary of Defense must identify all areas of exceptional natural or historic character. The Act gives the Secretary of Defense authority to transfer these properties or facilities to the Secretary of the Interior or Agriculture, state or local governments, or other departments within the Department of Defense. The agency accepting the resource must agree to preserve the resource for public use.
Executive Order 11593, "Protection and Enhancement of the Cultural Environment," 13 May 1971
Executive Order 11593 was codified as Section 110 of the NHPA in 1992, and directs Federal Agencies and the Secretary of the Interior to encourage and carry out preservation of Federally-owned sites, structures and objects of historical, archaeological, or architectural significance. Under the order, Federal agencies must locate, inventory and nominate all potentially eligible sites, buildings, districts, and objects under their jurisdiction to the NRHP. Further, Federal agencies are to take proactive measures to ensure historic properties and cultural resources are not sold, transferred, or demolished and must provide for the preservation and maintenance of historic properties and cultural resources that they administer. The Secretary of the Interior develops criteria and procedures that Federal agencies must follow in their preservation duties. Also, the Secretary of the Interior reviews and comments on Federal preservation procedures.
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