Updated April 12, 2005
Last week, members of the United States House Resources Subcommittee on National Parks proposed a language change to long-standing legislation protecting archaeological resources that may well affect the way cultural resource management is handled in the United States. The main piece of US legislation that protects archaeological sites from federally funded and licensed development is called Section 106 of the National Historic Preservation Act, passed in 1966. Whenever a federally funded or licensed construction project, such as a dam or highway or cell tower, is proposed, Section 106 requires that the federal agency responsible for the project identify "historic properties" that might be damaged or destroyed by the construction project. If eligible or listed properties are found, then there is an established process to deal with the potential damage, involving consultation between involved agencies and interested persons. "Historic properties" are defined as places included in or eligible for the National Register of Historic Places: they include archaeological sites, historic buildings, battlefields, Indian sacred sites, and a wide range of other culturally important places.
Section 106 currently reads as follows:
"The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking."
The words "eligible for inclusion" were included in Section 106, because Congress understood that not all important historic places have been identified and nominated to the National Register--a list maintained by the National Park Service. In fact, the vast majority of archaeological sites--being buried in the ground--haven't been recorded. And many other kinds of historic places are also unidentified or unregistered.
At present, federal agencies, state and tribal historic preservation officers (abbreviated SHPO and THPO), and other interested parties at the local level consult together to determine whether a given property threatened by a project is eligible for the National Register. The proposed new wording would change the bolded part to read "or determined by the Secretary to be eligible for inclusion in", thus requiring that before a place could be considered eligible for the Register it would have to be approved by the Department of the Interior in Washington DC.
Tom King, a nationally-recognized expert in cultural resource management issues, believes that the changes mean one (or both) of two things:
"1. Project proponents will no longer be required to identify places threatened by their projects; it will be up to others (SHPOs, concerned citizens) to do so, and to get them formally reviewed by the Secretary, and/or
"2. If they DO identify such places, and they haven't already been registered, it will no longer be permissible for an SHPO and agency to agree about eligibility, it'll have to go to the Keeper [of the National Register], adding a minimum of 30-60 days to every project review. A strange thing for folks to propose who ostensibly want to limit the power of the federal government."
King adds, "This is not to say that the existing system is perfect; it's got a lot of problems (read my books). But this is not the way to fix it."
A committee hearing on the draft document including the new wording is scheduled for April 21st in Washington DC. If the changes are accepted, it will be presented to the House of Representatives for a vote at some point in the future and then must make it through the Senate as well. If you have views about this amendment as proposed, you should fax or email your congressman, particularly if she or he sits on the House Committee for Resources as soon as possible.
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In the interests of full disclosure, I am currently employed as a cultural resource professional for an engineering firm, that would be impacted by the legislation. Thanks to Tom King for his input on this important issue; and Tom Wheaton for details. Any errors are mine.
