LEGISLATION AND REGULATIONS REGARDING SUBMERGED CULTURAL RESOURCES

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A treatise on the management and ownership of shipwrecks and shipwreck artifacts

 

Federal legislation pertaining directly or indirectly to archaeological and historic resources spans a period of more than 80 years. Taken as a whole, this legislation shows a steady trend toward placing responsibility for preserving and conserving the nation's archaeological and historical heritage under the umbrella of Federal control.

THE ANTIQUITIES ACT OF 1906

The 1906 Antiquities Act establishes the Federal Government as the protector of archaeological and historical sites and objects. It also mandates the government to work actively for the preservation of cultural resources and for the public's access to them. This legislation has served as the basic guideline for most state regulatory legislation.

The same legislation provides for a system of permits, obtained from the chief archaeologist of the National Parks Service, which allow for scientific investigation of specific sites, provided artifacts from the investigation are preserved in a public museum. It also provides for a system of fines (and imprisonment) for unauthorized excavation, removal of objects and/or vandalism of an archaeological or historical site which is situated on government lands.

HISTORIC SITE ACT OF 1935

The 1935 Historic Site Act declares as national policy the government's interest in the preservation of historic sites, buildings and objects which are of national significance. The act directs the National Park Service to investigate and assess historical and archaeological sites, and provides the basis for the National Parks Service's archaeology program. This act extends the Antiquities Act of 1906 by charging the National Parks Service with a nationwide responsibility, which is in no way restricted to areas owned by the federal government or impacted by federal government activities.

SUBMERGED LANDS ACT OF 1953

The Submerged Lands Act of 1953 affirms state ownership of all constantly submerged land within the individual states' navigable bodies of water. The term submerged archaeological historic property under Section 54-7-620 of the act means any site, vessel, structure, object, or remains which: yields or is likely to yield information of significance to scientific study of human prehistory, history, or culture and is embedded in or on submerged lands and has remained unclaimed for fifty years or longer. This term includes, but is not limited to, abandoned shipwrecks and their contents, as well as individual assemblages of historic or prehistoric artifacts.

RESERVOIR SALVAGE ACT OF 1960

The 1960 Reservoir Salvage Act extended the Historic Sites Act of 1935. It directs that attempts will be made to recover historical and/or archaeological information which will be affected by the construction of any dam by a federal agency.

HISTORIC PRESERVATION ACT OF 1966

The 1966 Historic Preservation Act provides for an expanded National Register of Historic Places and encompasses local, state and regional sites of significance. This act provides matching funds to state and local governments to conduct surveys and develop preservation plans for specific projects which are designed to protect or preserve sites of significance in American history.

The legislation requires states to survey culturally significant sites, designate a liaison officer for the state's archaeological program and establish a state review committee to recommend sites to the National Register. In addition, the act provides grants to the National Trust for Historic Preservation and establishes matching grants to encourage states to obtain and preserve sites on the National Register. Contained within the act is a specific statement prohibiting the use of Federal authority to adversely affect sites listed on the National Register if alternatives are feasible.

NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

This act states, as a matter of federal policy, the responsibility of the Federal Government to preserve important historical, cultural and natural aspects of our national heritage. One of its most significant aspects is the requirement that all government programs and projects must formulate an environmental impact analysis which encompasses an examination of the historic, archaeological and cultural data affected.

ARCHAEOLOGICAL RESOURCE PROTECTION ACT OF 1979

This act establishes regulations concerning the necessity of resource preservation. It requires surveys to determine the potential archaeological value of a site considered for development. This survey and ancillary work must meet specific federal guidelines. The act also identifies certain portions of every agency budget that can be allocated for archaeological research.

ABANDONED SHIPWRECK ACT OF 1987

This act asserts the Federal Government's title to any abandoned shipwreck that meets criteria for inclusion in the National Register. It stipulates that title to these shipwrecks will be transferred to the states in whose waters they lie, thus removing them from the jurisdiction of the Federal Admiralty courts. Incumbent on the states is the responsibility to formulate a plan to manage the wrecks which follow the guidelines established by the Advisory Council on Historic Preservation. These guidelines address the need to allow access to the sites by the general public while preserving the historical and environmental integrity of the site for scientific investigation. The act specifically calls for the establishment and management of underwater parks for the purpose of providing such protection.

POSSESSION AND OWNERSHIP OF SUBMERGED CULTURAL RESOURCES

Ownership of submerged cultural resources in Virginia has been addressed in both state and Federal law. In the first instance, ownership of resources such as shipwrecks, is dependent upon whether the vessels in question are located within a states boundary. Virginia claims ownership of any cultural material located within the states navigable water and territorial boundaries that include a zone extending three miles offshore.

Three legislative acts, the Abandoned Shipwreck Act, 43 U.S.C. S 2105, the Historic Preservation Act, and the Submerged Lands Act, provide states with rights to submerged materials within their waters. For example, under the Abandoned Shipwreck Act, a shipwreck belongs to the State of Virginia if it is: 1) embedded in submerged lands of the state or, 2) included in or determined eligible for inclusion in the National Register. The Historic Preservation Act established a State Historic Preservation Officer to help protect each states historical and archaeological resources.

Under the Abandoned Shipwreck Act, the Department of the Interior and National Park Service have issued a set of final guidelines to help states manage shipwrecks in their waters. Those advisory guidelines state the following:

Abandoned shipwreck means any shipwreck to which title voluntarily has been given up by the owner with the intent of never claiming a right or interest in the future and without vesting ownership in any other person. By not taking any action after a wreck incident either to mark and subsequently remove the wrecked vessel and its cargo or to provide legal notice of abandonment to the U.S. Coast Guard and U.S. Army Corps of Engineers, as is required under provisions in the Rivers and Harbors Act (33 U.S.C. 409), an owner shows intent to give up title. Such shipwrecks ordinarily are treated as being abandoned after the expiration of 30 days from the sinking. (a) When the owner of a sunken vessel is paid the full value of the vessel (such as receiving payment from an insurance underwriter) the shipwreck is not considered to be abandoned. In such cases, title to the wrecked vessel is passed to the party who paid the owner.

An additional level of protection is afforded submerged cultural resources that qualify for inclusion on the National Register of Historic Places. Sites determined eligible or included on the National Register are specifically protected by Federal legislation. Site disturbing activities that are related to state and Federal agency responsibilities, or are permitted by state and Federal agencies, are specifically regulated.

To qualify for the National Register of Historic Places, a shipwreck "must be significant in American history, architecture, archaeology, engineering, or culture, and possess integrity of location, design, setting, materials, workmanship, feeling, and association." To be considered significant the vessel or shipwreck must meet one or more of four National Register criteria. These criteria include: A. Association with events that have made a significant contribution to the broad patterns of our history; or B. Be associated with the lives of persons significant in our past; or C. Embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or D. Have yielded, or may be likely to yield, information important in prehistory or history. It is apparent that even without positive identification, a wreck under investigation can meet the qualifications listed above and therefore should be considered potentially eligible for nomination to the National Register of Historic Places (National Register Bulletin 20). Not all shipwrecks in Virginia waters fall under the jurisdiction of the Commonwealth of Virginia. Warships and vessels with sovereign immunity and the remains of Federally owned vessels (e.g. United States Navy vessels and vessels owned by the Confederate States of America) do not meet the criteria of abandonment as established in the Abandoned Shipwreck Act of 1987. Title to those shipwreck remains rests with other nations or with one or more Federal agencies. The remains of U. S. Navy vessels and vessels owned by the Confederate States of America are owned by the United States Navy or the General Services Administration.