This law and its implementing regulation codified at
36 CFR Part 800 require Federal agencies with
jurisdiction over a federal, federally assisted, or federally licensed undertaking to take into
account the effects of the agency's actions on properties included in or eligible for the National
Register of Historic Places and, prior to approval of the undertaking, to afford the Advisory
Council on Historic Preservation a reasonable opportunity to comment on the undertaking. The State
Historic Preservation Officer, which in Virginia is the director of DHR, coordinates state
participation in the implementation of the National Historic Preservation Act and is a key participant
in the Section 106 process. DHR performs the primary review of federally-assisted projects
and provides guidance to Federal agencies and their designees in carrying out their
responsibilities under Section 106 and its associated regulations. Top
Law applies to: All Federal agencies. Regulating agencies: National Park Service and the Advisory Council on Historic
Preservation. Who is responsible for compliance: All Federal agencies who may own historic
The purpose of Section 110 is to ensure that historic preservation is fully integrated into
the ongoing programs and missions of Federal agencies. This regulation requires a Federal
agency head with jurisdiction over properties that may contain historically significant
resources to identify and protect those resources. It requires that Federal agencies use and
preserve their historic properties. Top
Law applies to: All Federal undertakings. Regulating agencies: Environmental Protection Agency and the Council on
Who is responsible for compliance: The sponsoring Federal agency
Under NEPA and its implementing regulations codified at
40 CFR Parts 1500-1508, Federal
agencies have broad responsibilities to consider the impacts of their activities on the environment,
including historic properties. To an extent, NEPA addresses some of the same concerns as NHPA,
for instance regarding identification of irreversible effects. Although NEPA is a totally separate
authority from Section 106, and is not satisfied simply by complying with NHPA, it is perfectly
reasonable for agencies to coordinate studies done and documents prepared under Section 106
with those done under NEPA. TheACHP's regulations provide
guidance on how the NEPA and Section 106 processes can be coordinated and set forth the
manner in which a Federal agency can use the NEPA process and documentation to comply with
Section 106. Top
Section 4(f) of the
Department of Transportation Act of 1966 [49 U.S.C. 303] Law applies to: All agencies within the U.S. Department of Transportation. Regulating agencies: DHR, Advisory Council on Historic Preservation, and the
National Park Service. Who is responsible for compliance: U.S. Department of Transportation.
Section 4(f) of the U.S. Department of Transportation Act of 1966, as amended, and its
implementing regulations at
23 CFR Part 774 requires USDOT agencies, such as the Federal Highway Administration and the
Federal Transit Administration, to consider the impacts of transportation projects funded
or approved by such agencies on specific categories of properties which include park and
recreational lands, wildlife and waterfowl refuges, and historic properties eligible or
listed in the National Register of Historic Places. Before approving or funding a project
that will have an adverse effect on a qualifying resource, the USDOT agency must find that there
is no prudent and feasible alternative AND that the selection alternative minimizes harm to
the resource. If there exists a prudent and feasible alternative that completely avoids the
qualifying resource, it must be selected. The role of DHR is to comment on the identification
of historic properties and effect that the project will have on them, if present, review and
comment on the draft Section 4(f) and least harm analyses, and to review the finding by the
USDOT agency that an archaeological resource is important chiefly because of what may be learned
through its data recovery.
Law applies to: All public accommodations, commercial facilities,
and state and local government entities. Regulating agencies: U.S. Department of Justice and DHR. Who is responsible for compliance: Anyone who owns or operates a public
accommodation, a commercial facility, or buildings owned or leased by a state or local government
The ADA requires that new buildings and facilities and altered portions of existing
buildings and facilities be readily accessible. For existing buildings and facilities, the
ADA requires that all barriers to accessibility be removed when it is "readily achievable" to do so.
In the case of historic properties, the ADA provides for the following: if making a "qualified
historic building" accessible would threaten or destroy the historic significance of that building
or facility, certain alternative minimum accessibility standards may be applied. If the alteration
is part of a Federal undertaking, the responsible Federal agency should contact both DHR and the
Advisory Council on Historic Preservation. If the alterations to the historic property are not
federally sponsored, and the responsible party believes that full compliance with the ADA would
threaten or destroy the building's or facility's historic significance, he should consult
with the Department of Historic Resources. If the department agrees, the alternative
minimum standards may be used.
Law applies to: Objects of antiquity located on archaeological sites
on state-controlled land (§ 10.1-2302) and human burials located in the Commonwealth (§ 10.1-2305). Permitting agency: Department of Historic Resources Party responsible for compliance: The state agency or individual initiating
the archaeological field investigation or removal of human remains from archaeological sites.
The Virginia Antiquities Act prohibits damage to or removal of objects of antiquity from
archaeological sites on all state-controlled land. This act does not restrict a state agency from
construction or other land disturbing activities on its own land, but does prohibit
all "relic hunting" or any archaeological field investigations without a permit from DHR.
DHR is charged with coordinating all archaeological field investigations and surveys conducted
on state-controlled lands (§10.1-2301; 1, 2). The department is given exclusive right and privilege
to conduct field investigations on state lands, but may grant those privileges to others
through a permit process (§10.1-2302 and 2303). The department also has final authority to identify
and evaluate the significance of sites and objects of antiquity found on state lands (§10.1-2301; 3).
Permits are issued through the department's Office of
Review and Compliance.
General cemetery protection laws make it a felony to remove human remains from a grave without
a court order or appropriate permit. Section 2305 of the Virginia Antiquities Act provides a permit
process for archaeological field investigations involving the removal of human remains and
artifacts from graves. These
permits are issued through the DHR’s Office of
Review and Compliance.
Law applies to: Major construction initiated by a state agency. Coordinating agency: Department of Environmental Quality. Party responsible for compliance: The state agency initiating the construction
The Department of Environmental Quality provides comments on the environmental
impacts of all major state projects (state facility construction, or acquisition of land interests
for purposes of construction costing more than $500,000 with exceptions specified by law). These
comments go to the Governor through department secretaries as well as to the project proponent
agency and reviewing agencies. The comments represent the findings of all state agencies with
applicable responsibilities or interests. Comments are provided to the sponsoring agency in time
to permit modifications necessary because of environmental impact. DHR is invited to submit
comments to the Department of Environmental Quality when an environmental impact report describes
a project that might affect historic properties or archaeological sites. The Secretary of
Administration has approval authority as delegated by the Governor through Executive Order.
Law applies to: Proposed demolitions of state-owned buildings. Reviewing agencies: Department of Historic Resources, Art and Architecture
Review Board, Division of Engineering and Buildings. Party responsible for compliance: The state agency initiating the demolition.
The regulation provides that no building or appurtenant structure shall be removed
from state-owned property unless approved by the Governor upon the advice of the Art and
Architecture Review Board. The Governor further conditions approval upon the recommendation
of DHR and the Department of General Services. Top
Law applies to: Sale or lease of surplus property by a state agency. Coordinating agency: Secretary of Natural Resources. Party responsible for compliance: Department of General Services.
The Department of General Services shall request the written opinion of the Secretary of
Natural Resources regarding whether the sale of a state-owned property is a significant
component of the Commonwealth’s natural or historic resources, and if so how to protect the
resource in the event of its sale. The DHR, through the Secretary of Natural Resources, shall
provide comments regarding the affect that the transfer of state-owned property will have on
historic and archaeological resources significant to the Commonwealth. The Department of
General Services shall make the comments of the Secretary of Natural Resources known to the
Governor who shall provide prior written approval before the Department may proceed to sell
Law applies to: Projects or undertakings that will affect state-owned landmarks
listed on the Virginia Landmarks Register. Reviewing agencies: Department of General Services and DHR. Party responsible for compliance: The state agency initiating the project.
The specific provisions for review of rehabilitation and restoration projects on state-owned
Registered Historic Landmarks are in the biennial Budget Bill. Guarantees that the historical
and/or architectural integrity of any state-owned properties listed on the Virginia
Landmarks Register and the knowledge to be gained from archaeological sites will not be
adversely affected because of inappropriate changes, the heads of those agencies in charge of
such properties are directed to submit all plans for significant alterations, remodeling,
redecoration, restoration or repairs that may basically alter the appearance of the structure,
landscaping, or demolition to DHR. Such plans shall be reviewed within thirty days
and the comments of that department shall be submitted to the Governor through the Department
of General Services for use in making a final determination. Top
Law applies to: Construction or rehabilitation of any building or structure
to be sited on state-owned property. Regulating agencies: Department of General Services. Who is responsible for compliance: The state agency initiating the project.
The director of the Department of Historic Resources sits on the Art and Architecture
Review Board (Department of General Services) and, as an ex officio member of that board,
comments on all projects brought to the board for review and comment.
Law applies to: Caves and rockshelters located in the Commonwealth. Regulating agencies: Department of Conservation and Recreation (Natural Heritage
Division). Party responsible for compliance: Any agency or individual involved in the research
within caves in the Commonwealth.
The Cave Protection Act protects from vandalism all geological, biological, and historic
features in caves regardless of ownership. A permit is required from the Department of Conservation
and Recreation, Natural Heritage Division, for research within caves and rock shelters. The
concurrence of DHR is required before the issuance of a permit.
Law applies to: All underwater properties on bottomlands owned by the
Commonwealth. Regulating agencies: Virginia Marine Resources Commission. Party responsible for compliance: Any agency or individual planning to
explore or recover objects underwater.
The permitting process protects underwater historical properties, including shipwrecks and
submerged terrestrial sites. Permits for either exploration or recovery are required from
Virginia Marine Resources Commission. DHR is consulted prior to issuance of the permits and
determines which properties are historic.
Top State Burial Law
A permit from the Director of the Department of Historic Resources is required for archaeological
recovery of all human skeletal remains and associated artifacts from any unmarked grave,
regardless of the age of the burial or archaeological site or ownership of the property.
If the grave is part of a formally chartered cemetery, the recovery must also conform to
the requirements of § 57-38.1
(“Proceedings by landowner for removal of remains from abandoned family graveyards”) and §
by heir at law or descendants for removal of ancestor’s remains from abandoned family graveyard”).
If the grave is not part of a formally chartered cemetery, the recovery is exempt from these
requirements. The Department shall also be considered an interested party in any court proceedings
considering the abandonment of historically significant, legally constituted cemeteries and
burial grounds. A permit from the Director of DHR will be required if such proceedings
result in a court-ordered removal involving the use of archaeologists.
Landowners may petition the county or city circuit court for permission to remove
and relocate human burials located in cemeteries in which there have been no burials for at
least 25 years and upon which there are no reservations of rights.
Owners or trustees of neglected or disuses cemeteries and potter’s fields may petition
the county or city circuit court for permission to relocate the remains and sell the property. In
the case of a potter’s field, the court may mandate that the proceeds be used for charitable purposes.