R3_PA_Final_With_Appendices,Protocols.pdf

FIRST AMENDED PROGRAMMATIC AGREEMENT

REGARDING HISTORIC PROPERTY PROTECTION AND RESPONSIBILITIES

AMONG

NEW MEXICO HISTORIC PRESERVATION OFFICER

AND

ARIZONA STATE HISTORIC PRESERVATION OFFICER

AND

TEXAS STATE HISTORIC PRESERVATION OFFICER

AND

OKLAHOMA STATE HISTORIC PRESERVATION OFFICER

AND

THE ADVISORY COUNCIL ON HISTORIC PRESERVATION

AND

UNITED STATES DEPARTMENT OF AGRICULTURE

FOREST SERVICE REGION 3

WHEREAS, United States Department of Agriculture, Forest Service, Region 3, (FS) manages the resources of eleven National Forests in Arizona, New Mexico, Oklahoma, and Texas; and

WHEREAS, the FS has determined that many of its management activities are federal undertakings, pursuant to the National Historic Preservation Act (NHPA) of 1966, that may affect properties included in or eligible for inclusion in the National Register of Historic Places; and

WHEREAS, the FS has consulted with the Advisory Council on Historic Preservation (Council) and the State Historic Preservation Officers (SHPO) of the States of Arizona, New Mexico, Oklahoma, and Texas pursuant to section 800.14(b) of 36 CFR 800, the regulations implementing Section 106 of NHPA as amended (16 USC 470f), and Section 110f of the same statute; and

WHEREAS, in the development of this Agreement, the FS has consulted Federally-recognized Indian tribes with cultural affinity to historic properties in Region 3, pursuant to 36 CFR 800.2(c)(3) and 36 CFR 800.14(f), and has consulted other interested parties;

and

WHEREAS, this Agreement fully supersedes all provisions of the 1990 Programmatic Agreement Regarding Cultural Property Protection and Responsibilities Among New Mexico Historic Preservation Division and Arizona State Historic Preservation Office, Oklahoma State Historic Preservation Office, Texas State Historic Preservation Office, and The Advisory Council on Historic Preservation and United States Department of Agriculture Forest Service Region 3 whose parties agree to this amendment; and

WHEREAS, this Agreement does not affect other national Programmatic Agreements between the Forest Service, Council, and National Conference of State Historic

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Preservation Officers and does not affect Region 3’s 2001 Programmatic Agreement Among USDA Forest Service, Southwestern Region and Arizona State Historic Preservation Officer and New Mexico State Historic Preservation Officer and Advisory Council on Historic Preservation Regarding Wildland Urban Interface Hazardous Fuels Reduction Projects, WHEREAS, the consulting parties share a common desire to develop a flexible, programmatic approach for implementing Section 106 of NHPA that will satisfactorily take into account the effects of FS undertakings on historic properties, provide for appropriate tribal consultation and public participation, minimize redundant documentation, and reduce the need for case-by-case review of routine land management activities when historic properties will not be affected or when standard protocols and treatments can be applied.

NOW THEREFORE, the FS, the Council and the SHPOs agree that the FS shall administer its activities subject to Section 106 of the National Historic Preservation Act in accordance with the following stipulations:

Stipulations

I. Management of Historic Properties

A. The FS shall continue to preserve and foster appreciation for the historic properties it manages through implementation of the Forest Service’s National heritage strategy (Heritage: It’s About Time, A National Strategy, 1999) and its objectives: to protect and preserve significant historic properties; to share their values with the American people; and to contribute relevant information and historical perspectives to natural resource management.

B. The FS shall utilize the greater flexibility and efficiencies provided by this Agreement, with respect to Section 106 of NHPA, to further the implementation of Section 110, including non-project inventory, National Register evaluations and nominations, site inspections and monitoring, site stabilization and maintenance, public interpretation and outreach, and analysis and synthesis of what is being learned about the prehistory and history forest lands, including development and update of heritage and ethnographic overviews.

C. Individual National Forests in Region 3 are encouraged to develop or update Forest heritage resource management plans in response to E.O. 13287 (Preserve America) and the Forest Plan revision process. Such plans should describe each Forest’s proposed approach, priorities, and schedule for achieving measurable progress in meeting the FS Heritage Strategy, E.O. 13287, and Section 110 goals identified pursuant to Stipulation I.B.

Recommended topics include: heritage resource identification, evaluation, nomination, condition, protection, maintenance, use, research interpretation, consultation , public outreach, and community partnerships/heritage tourism opportunities. Forests should consult with the SHPO of the affected state and Indian tribes that may ascribe traditional cultural and religious significance to affected properties in developing and finalizing heritage resource management plans.

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D. The FS shall continue to manage historic properties in accordance with the direction in Forest Land Management Plans and in conformance with the standards in the Region 3 Manual Supplement (FSM 2361) and Handbook (FSH 2309.2). Copies of any proposed amendments to the manual and handbook will be forwarded to the SHPOs of the affected states, the Council, and to interested tribes if the amendment has the potential to affect properties of interest to them. These parties will be provided a minimum of 30 calendar days to comment on proposed changes. Any objections provided to the FS within the review period will be addressed in accordance with Stipulation XII.

II. Public Participation

A. The FS shall seek and consider the views of the public in a manner that reflects the nature and complexity of each undertaking and its potential effects on historic properties and the likely interest of the public in the effects on historic properties. The FS shall use its procedures for public involvement under the National Environmental Policy Act (NEPA) to solicit information and concerns about historic properties from members of the public. The FS will ensure that an appropriate level of public involvement is provided, in accordance with 36 CFR 800.2(d)(3). The FS will ensure that environmental documents include information on historic properties that will be affected by the proposed action and alternatives, consistent with Section 304 of NHPA and Section 9 of the Archaeological Resources Protection Act (ARPA).

B. The FS shall ensure public access to findings made pursuant to this Agreement, consistent with Section 304 of NHPA and Section 9 of ARPA, and will consider comments or objections by members of the public in a timely manner.

III. Tribal Consultation

A. In accordance with Section 101(d)(6)(B) and Section 110 of NHPA, the FS shall consult with Indian tribes that attach traditional religious and cultural significance to historic properties that may be affected by FS undertakings. The FS shall use the principles in the USDA Forest Service policy, Consultation with American Indian and Alaska Native Tribes (FSM 1563.06) to guide its tribal consultation procedures and relationships. This policy underscores the unique legal and political relationship the United States Government has with federally-recognized Indian tribes, including trust responsibilities, government-to-government relationships, consultation responsibilities (E.O. 13175, “Consultation and Coordination with Indian Tribal Governments”) and protection of sacred sites (E.O. 13007, “Indian Sacred Sites”).

B. As early as possible in the planning process, but no later than the identification stage, the FS shall consult with Indian tribes to determine if any historic properties of traditional cultural or religious significance are present within an undertaking’s area of potential effect. The FS shall ensure that Indian tribes receive quarterly NEPA lists of proposed actions and that Indian tribes are maintained on NEPA mailing lists. In addition, the FS shall utilize periodic meetings, supplemental project lists, and project-specific consultation requests as needed to assure that Indian tribes have the opportunity to identify historic property concerns and to participate as consulting parties in all aspects of consultation for projects that are of interest to them.

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C. When it is determined that an undertaking may affect a property identified by a Tribe as having traditional cultural or religious significance, the FS shall consult further with the Tribe regarding the identification, evaluation, assessment of effects, and the resolution of adverse effects, if applicable, with respect to the property.

D. Indian tribes contacted and tribal concerns and recommendations derived from the consultation process shall be documented and addressed in the inventory report and NEPA project file, consistent with the confidentiality considerations in III.G.

E. In accordance with 36 CFR 800.2(c)(ii)(E), Forests are encouraged to develop consultation Memoranda of Understanding (MOU) with Indian tribes. Such MOUs will recognize government-to-government relationships and will specify how individual Indian tribes wish to be consulted in the Section 106 process. Copies of signed MOUs will be provided to the SHPOs in the affected states and the Council.

F. The FS will coordinate tribal consultation under this Agreement with its consultation responsibilities under other statutes, including the Native American Graves Protection and Repatriation Act (NAGPRA) and ARPA.

G. The FS shall be sensitive to tribal concerns and rights regarding confidentiality and privacy and shall protect sensitive information to the fullest extent permitted by law, using applicable provisions and exemptions of Section 304 of NHPA, Section 9 of ARPA, and Section (b) of the Freedom of Information Act.

H. The FS does not conduct undertakings on tribal lands; however if the FS determines that one of its undertakings may affect historic properties on tribal lands, and the tribe has assumed the responsibilities of the SHPO under Section 101(d)(2) of NHPA, the FS shall consult with the Tribal Historic Preservation Officer in accordance with 36 CFR 800.2(c)(2)(A) regarding effects on those properties and shall follow the consultation procedures in 36 CFR 800 rather than the procedures in this Agreement.

IV. Programmatic Consultation

A. Undertakings Subject to Consultation

1. Standard Consultation. The FS shall carry out the review requirements of this Agreement on all classes of undertakings that have the potential to affect historic properties and are not specifically exempted from standard review pursuant to Stipulations IV.A.2, 3, 4 and 5.

Appendix A, Section I, includes examples of undertakings that require case-by-case review.

This list is not exhaustive and may be revised or updated as needed by mutual written agreement of the FS and the SHPOs.

2. Exemptions. Those categories of undertakings listed in Appendix A, Section II,are exempt from further review or consultation. These include categories of undertakings for which the potential effects on historic properties are foreseeable and likely to be minimal. Appendix A

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Section II may be revised or updated as needed by mutual written agreement of the FS and the SHPOs. This will include consultation with Indian tribes if the proposed exemptions have the potential to affect properties of traditional cultural and religious significance. A Forest may elect to consult on an otherwise exempt undertaking.

3. Screened Exemptions. Undertakings listed in Appendix A, Section III, will be reviewed by the Forest Archaeologist to determine if they have the potential to affect historic properties. If not, they shall be exempt from further review. If the Forest Archaeologist determines that a particular undertaking, because of its nature or location, has the potential to affect historic properties, that undertaking shall not be considered exempt but shall be subject to the review requirements of Stipulation V. Appendix A (III) may be revised or updated as needed by mutual written agreement of the FS and all signatory SHPOs.

4. Standard Consultation Protocols. The FS, in consultation with SHPOs and the Council, may develop standard consultation protocols for certain classes of undertakings where effects on historic properties and resulting protection and treatment measures are similar and repetitive. In such consultation protocols, the FS shall consult with Indian tribes if the proposed protocol has the potential to affect properties of interest to them, and with other parties that have a demonstrated interest in the class of undertakings or historic properties. Such protocols will specify procedures for the identification, evaluation, and treatment of historic properties with respect to Section 106. Upon mutual written agreement by the FS, the SHPOs of the affected state(s), and Council, such protocols shall be appended to this Agreement and may be followed in lieu of standard case-by-case consultation for the specified class of undertakings.

Appendix D contains a Standard Consultation Protocol for Bark Beetle Infestation Projects on Arizona National Forests.

Within 90 days of execution of the Agreement by the Council, the FS shall initiate and diligently pursue development of a standard consultation protocol for fence construction and road maintenance projects on National Forests in New Mexico. The FS will consult with the New Mexico SHPO, the Council, interested Indian tribes, and other interested parties and will make every effort to reach agreement on the protocol and append it to this Agreement by October 1, 2004.

5. Standard Treatments. The FS, in consultation with SHPOs and the Council, may develop standard treatment or mitigation measures for certain classes of undertakings where effects on historic properties are similar and repetitive. In such treatment protocols, the FS shall consult with Indian tribes if the proposed treatment has the potential to affect properties of interest to them, and with other parties that have a demonstrated interest in the class of historic properties.

Upon mutual written agreement by the FS, the SHPO(s) of the affected state(s), and Council, such standard treatments shall be appended to this Agreement and may be followed in lieu of standard case-by-case consultation for the specified class of undertakings or properties.

6. Emergency Situations. The FS will follow the procedures in 36 CFR 800.12 in responding to emergency situations unless a standard consultation protocol has been developed pursuant to Stipulation IV.A.4.

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B. Land Management Planning

The FS will continue to afford the SHPO, Council, Indian tribes, and interested organizations and individuals, as appropriate, an opportunity to provide input during development of land management planning documents developed under the National Environmental Policy Act (NEPA) pursuant to 40 USC 1500. The FS shall consult under this Agreement regarding any plans that authorize on-the-ground activities that have the potential to affect historic properties.

V. Consultation Procedures

For undertakings not exempt from standard review pursuant to Stipulations IV.A. 2, 3, 4 or 5, above, the FS shall complete the following steps. Where appropriate these steps will be carried out in consultation with Indian tribes and other consulting parties identified in consultation with the SHPO with jurisdiction.

A. Project Planning and Decisions. The FS will ensure that Section 106 consultation is completed prior to making a final decision to approve a proposed action. To the maximum extent possible, this process will be completed at the earliest stage of planning or decision-making.

B. Determination of Area of Potential Effect

The FS shall determine an undertaking’s area of potential effect taking into consideration any information provided by Indian tribes, the SHPO(s), other consulting parties, and the public. If any question exists as to an undertaking’s area of potential effect, the FS shall consult the SHPO in making this determination. The FS will consider the direct, indirect, and cumulative impacts that an undertaking may have on historic properties in the area of potential effect. The FS will consider the potential effects an undertaking may have on historic properties located on federal and non-federal land, taking into consideration the scale and nature of the undertaking, the extent of federal involvement, and the nature and extent of potential effects on historic properties.

C. Determination of Appropriate Level of Identification Efforts.

1. When the FS proposes to perform a 100% (Complete) inventory of an undertaking’s area of potential effect, no consultation with the SHPO regarding the level of inventory or extent of survey will be required.

2. Based upon existing inventory information, the FS may determine that further inventory will not be necessary for the area of potential effect if a 100% inventory has previously been performed and if the fieldwork and report are consistent with current professional standards.

Inventories more than ten years old will be evaluated and considered for re-examination if they do not reflect current standards and knowledge levels. The FS will provide references to prior reports and will document a decision not to conduct further inventory.

3. When the FS proposes to perform a less than 100% inventory of the area of potential effect, the SHPO will be given an opportunity to comment on the proposed level, extent, and design

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of inventory. The SHPO will respond within 15 calendar days of receipt of the FS’s sample inventory design. The FS will address SHPO comments in making a final determination of the design of the inventory. Alternatively, a Forest may opt to develop a Forest-wide inventory strategy or an inventory strategy for certain classes of undertakings in consultation with the SHPO. Once an inventory strategy has been approved by the SHPO(s) of the affected state(s), the FS may apply that strategy to applicable undertakings without prior consultation with the

SHPO.

4. The Forest Archaeologist or FS professional cultural resource specialist with delegated report review responsibilities shall ensure that all identification activities and inventory reports reasonably conform to the Secretary of the Interior’s Standards and Guidelines for Archaeology and Historic Preservation (48 FR 44720-44723) and meet FS guidelines and any guidelines mutually agreed to with the SHPO(s).

D. Determination of Eligibility

1. Cultural materials that do not meet the site definition contained in the Region 3 Handbook (FSH 2309.24) will be recorded as isolated occurrences. Isolated occurrences will not be evaluated as historic properties under these procedures and will not constrain management of the location where they were found. Isolated occurrences will be recorded in a manner consistent with Forest procedures.

2. The FS and the SHPOs agree that certain classes of properties (Appendix B) may be determined eligible for the National Register of Historic Places for Section 106 purposes based on survey information without further case-by-case SHPO consultation and concurrence.

Appendix B may be revised or updated as needed by mutual written agreement among the FS and the SHPOs.

3. The FS shall ensure that properties that will be affected by an undertaking are evaluated conclusively for eligibility for inclusion in the National Register by applying the National Register criteria (36 CFR 63) in consultation with the SHPO and any Indian tribe that attaches religious and cultural significance to the properties. Forests are encouraged to make eligibility determinations for other properties in consultation with the SHPO when possible; however, the eligibility of a property may remain unresolved, provided it is treated as eligible and the property will not be affected by the undertaking.

4. If the FS and SHPO with jurisdiction cannot agree on the eligibility of a property, or if the Council so requests, the FS will obtain a formal determination of eligibility from the Keeper of the National Register, whose decision shall be final.

E. Determination of Effect

1. No properties. When the agreed-upon level of inventory is completed and no properties are present in the area of potential effect, the FS shall document a finding of “no historic properties affected”. Except as specified in Stipulations V.E.6 and E.7, the undertaking may proceed following approval of the inventory report by the Forest Archaeologist or other

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authorized FS professional cultural resource specialist and approval of the undertaking by the Forest Supervisor. Inventory documentation will be provided to the SHPO as follows:

Arizona, annual listing; New Mexico, transmittal of inventory reports and associated documentation within 30 calendar days; Oklahoma, annual listing; and Texas, annual listing.

This submittal schedule may be amended by written agreement between the FS and individual SHPOs. Such agreements once signed shall be appended to and made part of this Agreement and shall supercede the schedule detailed in this paragraph. Copies of the inventory reports will also be available for inspection by Indian tribes and by the public, consistent with the provisions of Section 304 of NHPA and Section 9 of ARPA

2. Properties present, but not affected. When the agreed upon level of inventory is completed and eligible or unevaluated properties are present in the area of potential effect, and the FS determines that the undertaking will not have an effect on any such properties, the FS shall document a finding of “no historic properties affected”. Except as specified in Stipulations V.E.6 and E.7, the undertaking may proceed following approval of the inventory report by the Forest Archaeologist or other authorized FS professional cultural resource specialist and approval of the undertaking by the Forest Supervisor. Inventory documentation will be provided to the SHPO as follows: Arizona, annual listing; New Mexico, transmittal of inventory reports and associated documentation within 30 calendar days; Oklahoma, transmittal within 30 calendar days; Texas, transmittal within 30 calendar days. This submittal schedule may be amended by written agreement between the FS and individual SHPOs. Such agreements once signed shall be appended to and made part of this Agreement and shall supercede the schedule detailed in this paragraph. Copies of the inventory reports will also be available for inspection by Indian tribes and by the public, consistent with the provisions of Section 304 of NHPA and Section 9 of ARPA

3. The SHPOs may review a sample of undertakings covered by Stipulations V.E.1 and E.2 and may report the results of such monitoring at the annual meeting or in an annual report to the FS. If problems are found, the SHPO will present recommendations which the FS will consider implementing the following year.

4. No adverse effect. When the FS determines that one or more historic properties may be affected by an undertaking it will apply the criteria of adverse effect from the Council’s regulations (36 CFR 800.5[a]) to determine if the effect will be adverse. If the effect will not be adverse, the FS shall provide the inventory documentation and proposed “no adverse effect” finding to the SHPO and other consulting parties. The SHPO shall have 30 days from receipt to review the finding. If the SHPO agrees with the finding the FS may proceed with the undertaking in accordance with the proposed conditions or treatment measures. If the SHPO fails to respond within the 30-day review period, the FS may proceed with the undertaking in accordance with the proposed conditions or treatment measures provided there are no unresolved objections from other consulting parties. If the SHPO objects and the objection cannot be resolved, or if the SHPO fails to respond and unresolved objections from other consulting parties exist, the FS shall seek the views of the Council to resolve the objection.

5. Adverse effect. If the FS finds, in consultation with the SHPO that the undertaking will have an “adverse effect” on historic properties, the FS shall notify the Council as specified in

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Section VII and shall resolve adverse effects following the procedures in 36 CFR 800.6 or any applicable standard treatment or standard consultation protocol developed pursuant to Stipulations IV.A.4 or IV.A.5 of this Agreement.

6. Notwithstanding the provisions in Stipulations V.E.1 and E.2, the FS shall submit for case-by-case SHPO review, prior to approval of the undertaking, inventory reports for any undertaking where:

a. the FS chooses to consult case-by-case,

b. a substantial public concern exists about effects of the project on historic properties such that the expedited review procedures in this Agreement cannot ensure that those concerns will be adequately considered,

c. a disagreement exists with an Indian tribe concerning effects on a property of traditional cultural or religious significance to the tribe,

d. a SHPO or the Council requests that the FS consult case-by-case based on a substantial concern that historic properties may be adversely affected, or

e. a National Historic Landmark may be affected.

7. Reports for any inventory comprising more than 50 acres performed by an unsupervised paraprofessional will be reviewed and approved by the Forest Archaeologist and submitted to the SHPO for review prior to approval to implement the undertaking. Paraprofessionals will only perform surveys over 100 acres if directly supervised by a professional cultural resource specialist.

8. The FS will suspend any undertaking that does not conform to the conditions of this agreement and will consult as needed with the SHPO, the Council, and others if applicable, to bring the undertaking into conformance.

VI. Post-review Discoveries

The FS shall follow the procedures in 36 CFR 800.13 for post-review discoveries if historic properties are discovered or if unanticipated effects on historic properties are found after the FS has completed Section 106 consultation for the undertaking.

VII. Council Participation

A. The FS and SHPOs may seek advice, guidance and assistance from the Council concerning the application of this Agreement to specific undertakings, including the resolution of disagreements, whether or not the Council is formally involved in the review of the undertaking.

B. The FS shall notify and afford the Council an opportunity to participate in consultation to resolve adverse effects pursuant to the procedures in the Council’s regulations (36 CFR 800.6(a)(1)), and when it proposes to develop a Programmatic Agreement for one or more undertakings.

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C. In deciding whether to enter the consultation process, the Council will be guided by the criteria found in 36 CFR 800, Appendix A. For adverse effect findings that the Council declines to participate in, the FS and the SHPO may execute a Memorandum of Agreement (MOA) without Council participation and file the executed MOA with the Council prior to proceeding with the undertaking to document completion of the consultation process.

D. When the FS and the SHPO cannot reach agreement on the resolution of adverse effects for an undertaking, the FS shall request that the Council enter the Section 106 process.

E. When the SHPO and FS do not agree on a proposed “no historic properties affected” or “no adverse effect” finding, the FS shall request that the Council review the proposed finding and notify the FS and SHPO of its opinion regarding the finding. Additionally, participants in the Section 106 process may seek advice, guidance and assistance from the Council pursuant to 36 CFR 800.2(b)(2) on the application of this Agreement to specific undertakings, including the resolution of disagreements, whether or not the Council is formally involved in the review of the undertaking. The FS shall take into account any views provided by the Council, to the extent it can, in reaching a final decision on the undertaking.

VIII. SHPO Participation

A. The State Historic Preservation Officer (SHPO) reflects the interests of the State and its citizens in the preservation of their cultural heritage. In accordance with Section 101(b)(3) of the NHPA, the State Historic Preservation Officer (SHPO) shall advise and assist the FS, local governments and organizations and individuals in carrying out its Section 106 responsibilities and shall cooperate with the FS to ensure that historic properties are taken into consideration at all levels of planning and development.

B. Except as provided elsewhere in this Agreement, SHPO will provide comments within 30 calendar days of receipt of a request to consult on FS undertakings. If the SHPO fails to respond within 30 calendar days of receipt of a request for review of a finding or determination under the terms of this Agreement, the FS may assume concurrence with the finding or determination and proceed accordingly. If the SHPO reenters the Section 106 process, the FS will not be required to reconsider previous findings and determinations.

IX. Data Sharing

A. The FS will maintain spatial and tabular site and survey data in its corporate database and GIS systems and will provide information in a compatible format to the SHPO, State agency or institution that maintains the statewide database. The FS will also ensure that inventory reports prepared in accordance with Stipulation V.E.1 and E.2 are transmitted to the State archaeological records repository if applicable. The FS and SHPO or state agency may enter into a data-sharing agreement to ensure timely and efficient data exchange and update. It is anticipated and understood that electronic databases and electronic data-sharing capabilities may take several years to fully develop.

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B. The FS and the SHPOs will ensure that site locations and other confidential information are protected and made available only to qualified persons in accordance with state and federal guidelines, including Section 304 of NHPA and Section 9 of ARPA.

X. Personnel

A. To participate in this Agreement, each Region 3 National Forest shall employ a Forest Archaeologist with delegated Forest-wide responsibility in the Forest Supervisor’s Office or in a field office. The Forest Archaeologist shall meet the professional standards established for archaeologist, as outlined in 36 CFR 296.8 or in the Secretary of the Interior’s Standards and Guidelines for Professional Qualifications (48 FR 44738-44739) and the OPM X-118 Standards for fully professional level/journeyman level (GS-0193 series). The Forest Archaeologist shall be responsible for the quality of work and the professional judgments required in the implementation of this Agreement and for overall coordination of the Forest heritage program. If recommended by the Forest Archaeologist and requested by the Forest Supervisor, the Regional Forester may delegate certain report review responsibilities to other FS archaeologists who meet the above qualifications. The responsible Line Officer will consider the professional judgments and recommendations of the Forest Archaeologist or other delegated professional in his/her decision-making.

B. Archaeological inventories will be conducted by:

1. A professional cultural resource specialist who meets the standards established for archaeologist in the OPM X-118 professional (GS-0193) or technician (GS-0102) series.

2. A qualified paraprofessional cultural resource specialist trained, certified, and working in accordance with the standards specified in the FS Region 3 Manual Supplement (FSM 2361) and Handbook (FSH 2309.24). Such individuals must have completed the specialized training defined in FSM 2361.42, and must work under the guidance of professional cultural resources specialist, who will evaluate cultural properties, supervise all activities that might adversely affect historic properties (e.g., surface collecting, testing, data recovery, and stabilization), assess effects, and sign formal documents related to Section 106 compliance.

3. A professional consultant who meets the professional standards of 36 CFR

296.8, or the Secretary of the Interior’s Standards and Guidelines for Professional Qualifications (48 FR 44738-44739).

XI. Training

A. The FS, with the SHPOs’ assistance, shall design and administer training to facilitate implementation of this Agreement. The training will include detailed explanation of the procedures in the Agreement and the roles of the consulting parties. Training will be for FS line and staff and will be initiated within 12 months from the effective date of the

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Agreement. Indian tribes will be invited to participate in the training to facilitate future coordination and consultation.

B. New Region 3 employees who will consult with SHPO (Forest Archaeologists and any other archaeologist with delegated report review responsibilities) will undergo a minimum six-month period of orientation to this Agreement. This will include a mechanism for internal FS guidance and oversight during this period.

C. The FS may from time to time invite the SHPO to cooperate and participate in training opportunities for forest and district personnel on historic preservation topics.

XII. Dispute Resolution

Should any signatory to this Agreement object within the time frames allowed under the Agreement to any finding, proposed action or determination made pursuant to this Agreement, the FS will consult with the objecting party to resolve the objection. If the FS or the objecting party determines that the objection cannot be resolved, the FS will forward all relevant documentation to the Council in accordance with 36 CFR Section 800.2(b)(2).

A. Upon receipt of adequate documentation, the Council shall review and advise the FS on the resolution of the objection within 30 days. Any comment provided by the Council, and all comments from the parties to the Agreement, will be taken into account by the FS in reaching a final decision regarding the dispute.

B. If the Council does not provide comments regarding the dispute within 30 days after receipt of adequate documentation, the FS may render a decision regarding the dispute.

In reaching its decision, the FS will take into account all comments regarding the dispute from the parties to the Agreement.

C. The FS’s responsibility to carry out all other actions subject to the terms of this Agreement that are not the subject of the dispute remain unchanged. The FS will notify all parties of its decision in writing before implementing that portion of the Undertaking subject to dispute under this stipulation. The FS’s decision will be final.

XIII. Monitoring

A. The Council, SHPO or the FS, or one or more of the parties in cooperation, may monitor activities carried out pursuant to this Agreement and will cooperate in recommending improvements in implementation.

B. The FS shall use its administrative review system to monitor the performance of individual forests under this Agreement and the overall effectiveness of the Agreement.

Review findings shall be summarized in the Annual Report.

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C. Annual Report. By March 1st of each year, the FS shall prepare an annual monitoring report for the SHPOs and the Council that covers the previous Fiscal Year. The report shall summarize the results of consultation under this Agreement, including:

1. A tabular listing, by Forest, of the number of undertakings within each of the categories in Stipulation V.E.

2. A list of individual undertakings determined to have an adverse effect on historic properties, including a summary of the resolution of adverse effects and reference to associated MOAs.

3. A listing by Forest of inventory reports handled under the provisions of Stipulations V.E.1 and V.E.2, if inventory documentation is to be provided in the annual report rather than through submission of individual reports.

4. A general summary of tribal consultation and cooperation, including a list of tribal MOUs executed during the Fiscal Year.

5. A summary by Forest of acres surveyed, sites inventoried, and sites evaluated under the terms of the Agreement.

6. A list of properties nominated to the National Register.

7. An assessment of the overall effectiveness of the Agreement including the resolution of any issues that arose regarding implementation of the Agreement and recommendations for improvement.

8. A discussion of any savings or efficiencies resulting from implementation of the Agreement and a description of NHPA Section 110 efforts and accomplishments.

D. Annual Review

The FS, SHPOs, and the Council if it chooses to attend, shall meet on an annual basis prior to May 1st of each year to review the effectiveness of the Agreement, its terms, the need for any amendments, and the need for revision or addition to the Appendices.

XIV. Amendments

Any signatory to this Agreement may request that it be amended, whereupon the parties will consult to consider the amendment.

XV. Suspension for Cause

The Regional Forester shall monitor compliance with the terms of this Agreement by individual Forests and may upon his or her own initiative or upon written notification from the SHPO or the Council, suspend a Region 3 National Forest from participation in

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this Agreement. Suspension from the Agreement requires the affected National Forest to comply with 36 CFR 800.3 through 36 CFR 800.6 with regard to all undertakings.

Suspension of a National Forest may be lifted by the Regional Forester after that National Forest has demonstrably corrected the problem or deficiency that led to the suspension.

The Regional Forester shall notify, and consult with, as needed the SHPO and the Council prior to either suspending a National Forest or lifting a suspension.

XVI. Termination

Any signatory to this Agreement may terminate it by providing sixty (60) days written notice to the other parties, provided that the parties will consult during the period prior to termination to seek agreement on amendments or other actions that would avoid termination. Termination of this Agreement, or failure to abide by its terms shall require the Forest Service to comply with 36 CFR 800 with respect to undertakings that otherwise would be reviewed under this Agreement.

XVII. Execution

Execution and implementation of this Agreement satisfies the FS’s Section 106 responsibilities for all individual undertakings in Region 3 that are treated in conformance with the stipulations herein.

XVIII. Implementation

This Agreement becomes effective on the date of the last signature below and will be implemented immediately.

Lucia M. Turner___________________________ November 10, 2003 Harv Forsgren Date Regional Forester, USDA Forest Service, Region 3

James W. Garrison___________________________ November 17, 2003 James W. Garrison Date Arizona State Historic Preservation Officer

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Katherine Slick______________________________ November 13, 2003 Katherine A. Slick Date New Mexico State Historic Preservation Officer

Bob Blackburn______________________________ November 26, 2003 Bob L. Blackburn Date Oklahoma State Historic Preservation Officer

F. Lawrence Oaks__________________________ December 5, 2003_ F. Lawrence Oaks Date Texas State Historic Preservation Officer

John M. Fowler_____________________________ December 24, 2003 John M. Fowler, Executive Director Date Advisory Council on Historic Preservation

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APPENDIX A

CONSULTATION REQUIREMENTS

I. Undertakings Subject to Standard Consultation

The FS and the SHPOs agree that the following activities have the potential to affect historic properties and will normally require consultation. This list is not exhaustive and there may be other undertakings not listed here that require case-by-case review and consultation. This list may be revised or updated as needed by written agreement of the FS and SHPOs. If Consultation Protocols are developed for any of these activities, in accordance with Section IV.A.4, the protocols may be followed in lieu of standard consultation.

A. Timber sales and associated activities

B. Land exchanges, transfers, leases, or sales.

C. Permits, easements and right-of-way grants that authorize surface disturbance or have the potential to affect historic structures or traditional cultural properties.

D. Prescribed burns and prescribed natural fire, and burn area emergency rehabilitation.

E. Demolition or construction of facilities including recreation sites, buildings, etc.

F. Chaining and other ground disturbing range management activities

G. OHV designations of intensive use areas

H. Mine operating plans

I. Oil and gas applications to drill

J. Geothermal applications to drill

K. Coal and similar solid mineral lease applications

L. Site and historic building stabilization, rehabilitation, and restoration

M. Archaeological data recovery, excavation

N. Water distribution facilities

O. Range and wildlife improvement projects

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P. Trail construction

Q. Seismic operations other than those listed in II.

R. Wilding sales other than those listed in II.

S. Fuelwood permits other than those listed in II.

T. Alteration of or additions to structures more than 40 years old

U. Mechanized site preparation and fuels reduction treatments

V. Restoration and repair of damaged archaeological resources (ARPA)

W. Allotment Management Plans

II. Exemptions

The following FS activities are exempt from further review and consultation. The FS and SHPOs agree that these classes of undertakings have predictable effects and a very low likelihood of affecting historic properties.

A. Permits, easements, rights-of-way, and leases that do not authorize surface disturbance or have the potential to affect historic structures or traditional cultural properties.

B. Activities where previous natural or human disturbance has modified the landscape so extensively that the likelihood of finding historic properties is negligible (for example, vertical expansion of existing pits).

C. Easement acquisitions

D. Land acquisitions

E. Maintenance of existing structural improvements (e.g., cattleguards, gates, fences, signs, stock tanks) that do not involve additional ground disturbance.

F. Tenant-type maintenance of historic buildings, i.e. routine maintenance and repair of historic buildings entailing no structural change, or any change of color, form, function or materials.

G. Seismic activities on surfaced or regularly maintained roads (e.g., within existing road prism) that do not affect known sites

H. Pesticide spray projects that will not affect known properties of traditional cultural and religious value.

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I. Special legislation that specifically excludes compliance with NHPA

J. Withdrawal revocations

K. Activities limited within stream channels, not including terraces, cutbanks, etc.

L. Activities that involve less than 1 square meter of cumulative ground disturbance, unless within known sites

M. Installation of sign posts and monuments unless within known sites

N. Routine foot trail maintenance that does not involve new ground disturbance or known sites

O. Personal use, hand wilding permits that cover large areas, for example, District-wide

P. Personal use fuelwood permits that cover large areas, for example, District-wide or land management planning area wide

Q. Activities not involving ground or surface disturbance (e.g., timber stand improvement and precommercial thinning by hand)

R. Alteration of structures less than 40 years old

S. Mining and mill site patent applications

III. Screened Exemptions

The Forest Archaeologist shall review the following actions to determine whether they have the potential to affect historic properties. Screened exemptions for fence construction and road maintenance will expire on October 1, 2004 in New Mexico.

A. Fence Construction. Hand construction of fences where there is little likelihood of affecting historic properties. In reviewing fence construction projects, Forest Archaeologists will consider:

1. the nature and location of the fence

2. the construction method (no blading or use of mechanized equipment)

3. the presence or absence of known sites

4. the potential for disturbance due to cattle congregation or trailing

5. site density, cultural landscape considerations, or other local factors that might raise historic property concerns about a specific project.

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B. Road maintenance. Routine road maintenance in the existing road prism where work is within previously maintained surfaces, ditches, culverts, and cut and fill slopes and where there are no known historic properties or historic properties would not be affected because proposed work is clearly within disturbed contexts. In reviewing road maintenance projects, Forest Archaeologists will consider:

1. the nature and location of the road

2. the specific maintenance activities proposed

3. the presence or absence of known sites within or immediately adjacent to the road right-of-way

4. site density or other local factors that might raise historic property concerns about a specific project

C. Hand planting may or may not require consultation, based on location.

D. Heliportable seismic operations may or may not require consultation, based on location.

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APPENDIX B

LIST OF PROPERTIES THAT MAY BE CONSIDERED ELIGIBLE

FOR PURPOSES OF THIS AGREEMENT

For eligibility determinations under this Agreement, the following types of heritage resources, provided they are 50 years old or older and clearly retain integrity, may be considered eligible for the National Register of Historic Places under criterion (d) without further SHPO consultation or concurrence:

Properties with clear evidence for the presence of structures (historic structures, pueblos, pithouses, teepee rings, etc.)

Properties with hundreds of surface artifacts Properties with clearly visible evidence of buried cultural deposits Properties with rock art Properties that clearly meet the National Register listing requirements in State historic contexts, existing multiple-property contexts, or SHPO-approved Forest-level historic contexts

Other properties will be treated as if eligible, unless the FS chooses to make a determination of eligibility in consultation with the SHPO. The SHPO will monitor eligibility determinations and discuss any problems at the annual meeting.

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APPENDIX C

DEFINITIONS

All of the definitions included in 36 CFR 800 apply to this Agreement, some of which are included here for easy reference.

A. “Undertaking” means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of the agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license, or approval.

B. “Emergency Undertaking” is a Region 3 undertaking proposed by the Regional Forester, Forest Supervisor, or District Ranger as an essential and immediate response to a disaster or emergency declared by the President, a tribal government, or the Governor of a State or another immediate threat to life or property (36 CFR 800.12).

C. “Exemptions” includes those undertakings, which because of their nature and scope, have predictable effects and a very low likelihood of affecting historic properties. These classes of undertakings shall be exempt from further Section 106 review and consultation under this Agreement (Appendix A, Section II).

D. “Screened Exemptions.” Some types of undertakings, by their nature, usually have little potential to affect historic properties, but may have such potential under certain circumstances and contexts. This agreement includes a process of internal FS review to identify whether specific undertakings may be exempt from further review and consultation (Appendix A, Section III).

E. “Standard Consultation Protocols” are new consultation protocols, which may be developed in consultation with the SHPOs, for specific classes of FS undertakings that will streamline consultation procedures outlined in this Agreement or under 36 CFR 800.

F. “Standard Treatments” are standard treatment or mitigation measures for specific types of historic properties, which may be developed in consultation with the SHPOs;

G. “Area of Potential Effects” (APE) means the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist.

H. “100 % or Complete Inventory” is a comprehensive, systematic, intensive examination of an area designed to gather information about the number, location, condition, and distribution of historic properties within an undertaking's APE.

K. “Sample Survey” is designed to estimate characteristics, density and/or distribution of the population of sites or historic properties in an area based on a sample. Only professional

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archaeologists, or consultants meeting professional standards, pursuant to 36 CFR 296.8, may design a sample survey or less than 100% (complete) survey;

L. “Historic…