Archaeology Laws 101: How sites get protected through federal, state and local regulations

At FPAN, we get quite a few inquiries about construction projects that could affect archaeological sites. There is a network of local, state and federal laws in place that offer protection for historic and archaeological sites. However, they can be confusing! Which laws apply really depend on the type of project and where it is located. Below are a few frequently asked questions that can help you navigate the world of archaeological regulations.

image from nyhabitat.com

Q: Shouldn’t they do an archaeological survey before this development project?

A: Maybe. Many construction projects that involve federal lands, funding or agencies must test the area of impact before work begins to see if cultural resources will be affected. (Section 106 of the National Historic Preservation Act: Full Text here; Citizen's Guide here; also see the Archaeological Resource Protection Act which gives more effective law enforcement for protecting sites). Florida has laws that mirror this federal law for projects involving state lands, funding or agencies (Florida Statutes Chapter 267). Additionally, there are also federal environmental regulations that require some private development to undergo environmental review, which can include looking at the cultural resources in the impacted area (National Environmental Protection Act).

At the local level, some counties and cities have ordinances that require construction to take cultural resources into account. Some municipalities have ordinances that require archaeological survey or salvage projects on public property. For example in the City of St. Augustine, projects on both public and private property within designated archaeological zones are subject to archaeological testing and salvage.

Archaeologists with NPS SEAC test an area at the Castillo de San Marcos before the placement of temporary office buildings after Hurricane Matthew.

Q: Who conducts archaeological surveys to meet with state and federal regulations?

A: Some state and federal agencies have staff archaeologists who are able to conduct surveys required to meet regulations. For instance, the National Park Service’s Southeastern Archaeological Center has conducted many surveys on Park Service land. However, most do not. To get this work done, a large field of private sector archaeology has developed, commonly referred to as “cultural resource management” or “CRM.” These companies, or sometimes sections of larger environmental or engineering consulting firms, are dedicated to providing archaeological surveys for private clients or government agencies. The American Cultural Resources Association is the national trade association for these companies. You can find a list of companies in your area or find out more about the industry on their website.

Q: Can I see the report from the survey?

A: Maybe. The reports produced by these CRM firms are technically the property of the client. In cases with private developers, they do not have to release the report to the public. For many government contracts, these can be obtained from the agency office who required the work or through Freedom of Information requests. Many of the reports are also sent to the Florida Master Site File and can be obtained via a request to their office.

Q: If they find an archaeological site, will that stop construction?

A: Finding an archaeological site does not mean that an area cannot be developed. For federal projects, a site must be deemed “significant” for it to be a major concern. Florida statues follow similar guidelines. Projects like cell phone towers, pipelines, roads and drainage ponds can often be moved or rerouted to lessen impacts on cultural resources.

Even if a site is deemed important, developers and agencies can opt to mitigate the damages construction will cause to a site. This is the same idea as when companies buy carbon credits to offset their environmental impacts. Mitigation often will involve doing intensive excavation at a site in order to collect the information from the site before it is impacted. Sometimes mitigation will also include public archaeology components such as museum displays or interpretive panels.

Q: What makes a site “significant?”

A: Significance is determined by a site’s eligibility for the National Register of Historic Places. The four criteria for listing a site on the Register are: a) the site is associated with an important historic event, b) the site is associated with an important historic figure, c) the site represent a specific art/architecture style or work of a master, or d) the site has the potential to yield information. Most archaeological sites will fall under Criteria D. Florida regulations also use this same standard for determining site significance

Q: What if human remains are found?

A: Florida has pretty strict laws on human remains. It is unlawful to knowingly and willingly disturb any human burial site in the state. Any ground-moving activities must be stopped if remains are encountered and a protocol for how to handle the situation is laid out in Florida Statues Chapter 872. Construction can still occur even if an area is determined to have human remains. Historic cemeteries can be moved by developers or government agencies, generally working closely with any descendant communities. If a site contains prehistoric burials, the State Archaeologist will consult with the closest tribe and determine the best course of action.

The Town of Ponce Inlet monitoring during the construction of a retention wall on one side of a historic cemetery.

Q: What about shipwrecks and underwater sites?

A: These sites fall under many of the same regulations as sites on the land because many of the sites are on State-owned lands or are a part of navigable waterways maintained by the US Army Corps of Engineers. Any construction project would have to undergo the same process to assess the impacts to historic and archaeological sites. Additionally, the Abandoned Shipwreck Act strengthens the ability for the State and Federal governments to protect shipwrecks as cultural and historic places. More on underwater laws in Florida can be found on the Division of Historic Resource's website.

For more on the regulations and guidelines in Florida, check out the Division of Historic Resource's website.

Check out Preservation 50’s Making Archaeology Public Project to see examples of how these laws and regulations have helped add to our understanding of the past.

Text and images by Emily Jane Murray, FPAN Staff, unless otherwise noted.