NMSHPO USIBWC PA Amend No.2 Final SIGNED 11-6-23.pdf

AMENDMENT #2 TO

PROGRAMMATIC AGREEMENT

BETWEEN

INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND

MEXICO, UNITED STATES SECTION

AND

THE NEW MEXICO STATE HISTORIC PRESERVATION OFFICER, REGARDING

IMPROVEMENTS TO EXISTING RIO GRANDE CANALIZATION PROJECT ALONG

THE RIO GRANDE, NEW MEXICO

(AGREEMENT)

WHEREAS, the Agreement was executed on November 28, 2017; and

WHEREAS, Amendment #1 was executed on November 14, 2022, and expires on November 14, 2023;

WHEREAS, the International Boundary and Water Commission, United States and Mexico, United States Section (USIBWC) will send a copy of this executed amendment to the Advisory Council on Historic Preservation (ACHP);

NOW THEREFORE, in accordance with Stipulation XVI.C of the Agreement, USIBWC and the New Mexico State Historic Preservation Office (NMSHPO) agree to amend the Agreement as follows:

1. Amend the Agreement so it reads as follows:

PROGRAMMATIC AGREEMENT

BETWEEN

INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND

MEXICO, UNITED STATES SECTION

AND

THE NEW MEXICO STATE HISTORIC PRESERVATION OFFICER, REGARDING

IMPROVEMENTS TO EXISTING RIO GRANDE CANALIZATION PROJECT ALONG

THE RIO GRANDE, NEW MEXICO

WHEREAS, the USIBWC will maintain, operate, or improve capabilities or functionality (“the Undertaking”) of one existing, geographically discrete levee management unit located along the Rio Grande from Percha Dam, near Arrey, New Mexico, downstream to El Paso, Texas, known as the Rio Grande Canalization Project (RGCP) (Attachment A); and

IBWC24M0001

WHEREAS, the RGCP straddles two states, New Mexico and Texas, and only the portion of the RGCP located in New Mexico (approximately 105.6 miles of levees and channels along the Rio Grande are in New Mexico) shall be included within this Programmatic Agreement (PA); and WHEREAS, the USIBWC plans to carry out the Undertaking pursuant to the USIBWC’s responsibility to provide flood protection, ensure boundary stabilization, and guarantee water delivery in the application of boundary and water treaties between the United States and Mexico and settle differences that may arise in their application, as authorized by Congress’ Act of June 4, 1936, 49 Stat. 1463, Public Law No.648 and 22 U.S.C 277, as well as pursuant to the 2009 USIBWC Record of Decision on River Management Alternatives for the RGCP, thereby making the Undertaking subject to review under Title 54 U.S.C. Section 306108 (formerly known as Section 106) of the National Historic Preservation Act (NHPA), and its implementing regulations, 36 C.F.R. Part 800; and WHEREAS, the USIBWC, in consultation with the New Mexico State Historic Preservation Officer (NMSHPO), generally defines the Area of Potential Effects (APE) to include levees and adjacent land in the floodway within the USIBWC right-of-way, whether owned or through easements, and access roads; this APE is of sufficient width to include any staging areas (including equipment yards, soil storage areas and surface mines/borrow pits) needed for construction and maintenance activities; and WHEREAS, historic properties inventory surveys (listed in Attachment B) have been conducted to identify cultural resources eligible for inclusion in the National Register of Historic Places (NRHP) and the NMSHPO has concurred on the determinations of eligibility findings in these inventories, and WHEREAS, reconnaissance surveys previously conducted in portions of the APE (listed in Attachment B) indicate the potential for historic properties to occur in areas of the APE not yet subject to intensive surveys, and some of these historic properties may be affected by the Undertaking; and WHEREAS, the USIBWC has determined that the Undertaking may have an effect upon historic properties listed on or eligible for inclusion in the NRHP and has consulted with the NMSHPO pursuant to 36 C.F.R. Part 800; and WHEREAS, in accordance with 36 C.F.R. § 800.14(b)(1), USIBWC has notified the Advisory Council on Historic Preservation (ACHP) of its intent to develop a programmatic agreement (PA) in accordance with 36 C.F.R. § 800.14(b)(1)(ii) since the effects on historic properties cannot be fully determined prior to approval of the Undertaking and they have declined to participate; and WHEREAS, the USIBWC consulted with the Fort Sill Apache Tribe, the Mescalero Apache Tribe, the White Mountain Apache Tribe, the Comanche Tribe, Isleta Pueblo, Hopi Tribe, Kiowa Tribe, the Navajo Nation, the Pueblo of Tesuque, and the Ysleta del Sur Pueblo (Tribes) for which the APE may have religious and cultural significance and has invited the Tribes to sign this PA as concurring parties; and WHEREAS, the Hopi tribe has agreed to enter this PA as a concurring party but did not sign the agreement, the White Mountain Apache Tribe has declined to enter into the agreement, and the other Tribes provided no response to the invitation to concur; and WHEREAS, the USIBWC has consulted with the Bureau of Reclamation, the Bureau of Land Management Las Cruces District Office, the U.S. Fish and Wildlife Service San Andres National

Wildlife Refuge (USFWS), the Gila National Forest, and the Elephant Butte Irrigation District, regarding the effects of the Undertaking on historic properties and has invited them to sign this PA as concurring parties, and they have declined to participate; and NOW, THEREFORE, the USIBWC and the NMSHPO agree as follows: that upon the decision by the USIBWC to proceed with the Undertaking, the USIBWC shall ensure that the following stipulations are implemented to take into account the effects of the Undertaking on historic properties, and that these stipulations shall govern the Undertaking and all of its parts until this PA expires or is terminated.

STIPULATIONS

I. USIBWC ROLES AND RESPONSIBILITIES

The roles and responsibilities apply to USIBWC personnel relative to the maintenance, operation, improvement and development activities of the flood control projects (FCP) as defined in this PA and are as follows:

A. Commissioner:

1. The Commissioner of the USIBWC, the agency official as defined under 36 C.F.R. § 800.2(a) for the undertakings subject to Section 106 of the NHPA, shall ensure USIBWC compliance with this PA.

2. The Commissioner heads the Engineering and Operations Departments that carry out the mission of the USIBWC. Both the Engineering and Operations Departments conduct project activities associated with this Undertaking.

3. The Commissioner shall designate and authorize within the Environmental Management Division (EMD) the Cultural Resources Manager (CRM) who meets the professional qualifications standards in history, archeology, architectural history, architecture, or historic architecture, as defined in the Secretary of the Interior’s Standards, to oversee and implement this PA.

B. Engineering Department:

The Engineering Department is headed by a Principal Engineer who is responsible for development of design plans and specifications for construction and rehabilitation of flood control structures in the RGCP.

C. Operations Department:

1. The Operations Department is headed by a Principal Engineer who oversees operations and maintenance activities within the RGCP to assure adherence with treaty requirements.

2. The Operations Department, through its field offices, operates and maintains hydrologic gauging stations, several hundred miles of levees, floodways, diversion dams, hydraulic structures, and right-of-way markers.

D. Environmental Management Division:

Within the Engineering Department, the EMD manages environmental and cultural resources compliance, including Section 106 of the NHPA, necessary to implement construction and renovations or maintenance and repair activities to flood control structures in the RGCP, as well as oversees the implementation of the 2009 Record of Decision.

II. PROJECT REVIEW/INITIATION

To comply with Section 106 of the NHPA, the Commissioner of the USIBWC shall ensure the following occur as part of the USIBWC internal project review/initiation process.

A. The Principal Engineers of the Engineering and Operations Departments shall ensure that all construction, restoration, renovation, maintenance, and repair activities proposed for RGCP are reviewed by the EMD and the CRM, prior to approval for implementation.

B. The EMD and CRM shall determine whether the proposed project activities may be subject to the stipulations of this PA or whether compliance will require case-by-case consultation under 36 C.F.R. Part 800 (e.g., when USIBWC is the lead agency and coordination is required with another state or federal agency such as Federal Highway Administration, Department of Homeland Security, Customs and Border Protection [DHS CBP], BLM, or Bureau of Reclamation).

C. The EMD and the CRM shall review projects for their potential effects to historic properties.

Typically, this occurs as part of environmental review process.

D. The EMD and the CRM shall determine the need for historic properties surveys, in consultation with NMSHPO, as part of the project planning process and prior to implementation of any proposed construction, renovation, maintenance, or repair projects to RGCP.

E. The CRM shall review the New Mexico Cultural Resource Information System (NMCRIS) and other records maintained by NMSHPO, including files at the Laboratory of Anthropology maintained by the Archaeological Records Management Section (ARMS) as part of the project planning process.

F. The CRM shall provide timely reviews of proposed projects consistent with the stipulations of this PA.

G. The CRM is a qualified Archeologist meeting the Secretary of the Interior Professional Qualifications Standards (48 FR 74716; 62 FR 33708; 36 CFR 61 and 36 CFR 800).

III. SPECIFIC UNDERTAKINGS EXEMPTED FROM CONSULTATION

A. Attachment C includes a list of activities associated with the Undertaking that have no or minimal potential to affect historic properties. The CRM shall determine whether the specific activity qualifies for the exemption and shall document this decision in the project file.

B. Attachment D includes a list of activities associated with the Undertaking that do not require consultation with NMSHPO when the CRM has established that the APE of the Undertaking has previously been surveyed to current standards and no NRHP-eligible or unevaluated cultural resources are present within the APE. The CRM shall review the records in NMCRIS and other records maintained by NMSHPO to determine whether the activity associated with the Undertaking qualifies for the exemption. The CRM shall document this decision in the project file.

C. The CRM shall prepare a list of activities associated with the Undertaking that qualify for exemption under Attachments C and D and include this list in the annual report provided to the signatories to this PA (Stipulation XV).

IV. STANDARDS AND GUIDELINES

A. All cultural resource work carried out pursuant to this PA on Federal lands will meet the

Secretary of the Interior’s Standards and Guidelines for Archeology and Historic Preservation (48 Federal Register 44,716 – 44,742, September 23, 1983).

B. Cultural resource work carried out pursuant to this PA will take into consideration the ACHP’s guidance found in Recovery of Significant Information from Archeological Sites, the ACHP Policy Statement Regarding Treatment of Burial Sites, Human Remains, and Funerary Objects, dated February 23, 2007, and the guidance found in the National Register Bulletin series published by the National Park Service.

C. Cultural resource work carried out pursuant to this PA on BLM-administered land will conform with BLM Manual 8110 – Identifying and Evaluating Cultural Resources, BLM Manual 8150 – Permitting Uses of Cultural Resources, and BLM Manual Supplement H- 8100-1 – Procedures for Performing Cultural Resource Fieldwork on Public Lands in the Area of New Mexico BLM Responsibilities.

D. Cultural resource work carried out under this PA on property owned, controlled, or operated by a department, agency, institution, or political subdivision of the State of New Mexico will be consistent with the New Mexico Cultural Properties Act (CPA) (Sections 18-6-1 et seq.

NMSA 1978), and with the and with New Mexico standards for archaeological survey (4.10.15 NMAC), excavation (4.10.16 NMAC), excavation of unmarked human burials (4.10.11 NMAC), mechanical excavation on private lands (4.10.14 NMAC), and monitoring (4.10.17 NMAC). Qualified individuals shall hold the appropriate permit issued by the Cultural Properties Review Committee (CPRC) to conduct such work.

V. IDENTIFICATION OF HISTORIC PROPERTIES

Unless a specific activity qualifies for an exemption as provided in Stipulation III, USIBWC will make a good faith and reasonable effort to identify and evaluate historic properties before project activities associated with this Undertaking commence and provide this information and/or survey reports to the NMSHPO, Tribes, and consulting parties through the implementation of historic properties surveys. For previously unsurveyed areas that will be subject to activities identified in this PA, surveys will be conducted as part of project planning and implementation of other environmental review requirements (Stipulation II). The USIBWC will ensure that the following measures to identify historic properties are implemented:

A. The USIBWC will first define the APE for a specific activity associated with the Undertaking, in keeping with the parameters identified in the preamble and in consultation with the

NMSHPO.

B. The USIBWC will document recent and modern ground disturbances and/or historic use and determine, in consultation with the NMSHPO, the potential for historic properties to be affected by the Undertaking. If there is low potential for the presence of historic properties in the APE, then no further identification efforts are required.

C. If there is a medium or high potential for the presence of historic properties, then survey methods will be developed in consultation with the NMSHPO. The USIBWC will conduct geoarchaeological investigations where appropriate, and intensive historic properties surveys, including architectural and archaeological surveys for the following:

1. Any segments of RGCP that have not been previously subject to intensive historic properties survey (architecture and archaeology) (Attachment B), or where surveys were not conducted to current standards;

2. Any undertakings, planned or proposed by the USIBWC in the State of New Mexico along segments of the RGCP, Rio Grande or tributaries where levee gaps exist but are proposed for development by the USIBWC;

3. Other USIBWC planned improvements beyond routine dredging, and maintenance (e.g., significantly widening or changing the existing course of the Rio Grande within the

RGCP);

4. All future canal or canal extension projects that are managed within the existing RGCP [e.g., projects in the Elephant Butte Irrigation District (EBID)];

5. Any proposed excavation or levee expansion in areas determined to retain medium or high archaeological potential;

6. All new wetlands areas (e.g., creation of new wetlands that may serve as mitigation for actions that disturb existing wetlands);

7. All new USIBWC planned habitat restoration sites;

8. Any new USIBWC planned recreational use changes within the RGCP;

9. All Rio Grande and tributary shoreline stabilization activity areas not previously subject to intensive survey done to current standards (e.g., portions of the RGCP); and

10. All other areas indirectly and directly affected by construction (i.e., borrow sites, staging areas, and new or expanded access [haul] roads), use, maintenance, and operation during implementation of the Undertaking.

D. The USIBWC will ensure that all geoarchaeological investigations and intensive historic properties (archaeological and architectural) surveys are conducted in a manner consistent with the Secretary of Interior’s Standards and Guidelines for Archeology and Historic Preservation (48 Federal Register [FR] 44720-23) and the State of New Mexico’s Standards for Survey (4.10.15 NMAC [New Mexico Administrative Code]). All historic properties investigations will be registered in the New Mexico Cultural Resource Investigation System (NMCRIS) and forms and related documents completed consistent with the current release of the User’s Guide for NMCRIS.

E. Identification of archaeological sites may require test excavations when necessary to determine the nature, extent, and integrity of cultural deposits at the sites. The USIBWC will ensure that all test excavation investigations are conducted in a manner consistent with current New Mexico standards (4.10.16 NMAC).

F. The USIBWC will ensure that historic properties surveys and test excavations are implemented on a schedule established as part of project planning and prior to the initiation of project implementation/construction. Historic properties survey schedules will accommodate time for all field investigations, artifact analyses, technical report preparation, and NMSHPO, Tribal, and consulting party review.

G. The USIBWC will ensure that historic properties surveys are conducted of all buildings, structures, objects, and districts that are of historic-age (i.e., 50 years old or older) and consider the potential for identification and evaluation of historic districts and cultural landscapes.

H. If properties of religious or cultural significance to Tribes and/or Consulting parties are identified, the USIBWC shall consult with Tribes, NMSHPO, and consulting parties in accordance with Stipulation VIII (B).

VI. EVALUATION OF HISTORIC PROPERTIES

The USIBWC, in consultation with the NMSHPO, Tribes, and consulting parties, as appropriate, will evaluate all identified cultural resources, 50 years old or older, by applying NRHP criteria (36 C.F.R. § 60.4).

A. The USIBWC will ensure that the NMSHPO, Tribes, and consulting parties will have 30 calendar days upon receipt of the investigations technical report for review and comment and concurrence with the report recommendations. The USIBWC will also provide NMSHPO with copies of all NMCRIS forms and related documents for review at the same time as the technical report.

B. For those resources that the USIBWC, the NMSHPO, Tribes, and consulting parties agree are not eligible for inclusion in the NRHP, no further cultural resources investigations will be required and the Undertaking may proceed in those areas.

C. For those resources that the USIBWC, the NMSHPO, Tribes, and consulting parties agree are eligible for inclusion in the NRHP (i.e., historic properties), the USIBWC shall treat such properties in accordance with Stipulations VII and VIII below.

D. If the USIBWC and the NMSHPO do not agree on NRHP eligibility, or if the ACHP so requests, the USIBWC will request a formal determination of eligibility from the Keeper of the NRHP in accordance with 36 C.F.R. Part 63, whose determination shall be final.

VII. FINDING OF EFFECT

A. No Historic Properties Affected (exempt from consultation)

1. The USIBWC will make a determination of “No Historic Properties Affected” for each activity associated with the Undertaking that qualifies for the exemption in Attachments C and D. These activities have little if any potential to affect historic properties.

2. The USIBWC will make a determination of “No Historic Properties Affected” for activities associated with the Undertaking when no historic properties are present in the APE based on an intensive survey of the APE conducted to current standards.

3. The USIBWC will seek concurrence with the signatories for a finding of “No Historic Properties Affected” for all other activities associated with the Undertaking where historic properties have been identified in the APE but when historic properties may be subject to direct, indirect, or cumulative effects.

4. The USIBWC will maintain a written record of all activities associated with the Undertaking warranting a finding of “No Historic Properties Affected.” The USIBWC will make this record available to the NMSHPO in the annual report in accordance with Stipulation XV, or sooner as requested.

B. No Adverse Effect (exempt from consultation)

1. The USIBWC will make a determination of “No Adverse Effect” for activities associated with the Undertaking that are in-kind, in-place replacement/repair of modern (i.e. non-historic age) structures and/or routine operations. These activities are listed in Attachment D, Part 1, and if cultural resources are not found as stipulated in Part 2, are exempt from consultation with NMSHPO.

2. In addition, USIBWC will maintain a written record of all activities associated with the Undertaking warranting a finding of “No Adverse Effect.” The USIBWC will make this record available to the NMSHPO in the annual report in accordance with Stipulation XV, or sooner as requested.

C. No Adverse Effect (not exempt from consultation)

1. The USIBWC will seek concurrence with the signatories for a finding of “No Adverse

Effect” for activities associated with the Undertaking that may have an effect upon historic properties but the effects do not meet the “Criteria of Adverse Effect” (36 C.F.R. § 800.5(a)(1) or adverse effects are avoided through modification of the Undertaking or the imposition of certain conditions.

2. The USIBWC will consult with the NMSHPO for each finding of No Adverse Effect for any activity associated with the Undertaking listed in Attachment D, Part 2 (if cultural resources are found) and Attachment E or for any other activities associated with the Undertaking with a finding of “No Adverse Effect.” The USIBWC will provide documentation pursuant to 36 C.F.R. § 800.11(e). If the NMSHPO wishes to comment, it must do so within 30 calendar days upon receipt of the documentation on the activity associated with the Undertaking.

D. Adverse Effect (not exempt from consultation)

1. The USIBWC will consult with the NMSHPO, Tribes, and consulting parties, except for the ACHP, pursuant to 36 C.F.R. § 800.5 and § 800.6 when the USIBWC applies the “Criteria of Adverse Effect” and finds that the activity associated with the Undertaking may constitute an “Adverse Effect.” Examples of activities that may result in a finding of “Adverse Effect” include those listed in Attachments D, Part 2 and Attachment E.

2. Adverse effects will be resolved according to the process outlined in Stipulation VIII.

E. Special Considerations If properties of religious or cultural significance to Tribes are identified, (Stipulation IV [H]) the USIBWC shall consult with NMSHPO, Tribes, Concurring parties and ACHP regarding any such property, in accordance with Stipulation IX (B), regardless of the effect.

VIII. TREATMENT OF HISTORIC PROPERTIES

Those individual historic properties that will be adversely affected by the Undertaking will be treated by the USIBWC in the following manner:

A. Avoidance through project redesign and preservation in place or revision of work to meet the

Secretary of the Interior’s Standards for the Treatment of Historic Properties.

B. Although avoidance and preservation are preferred, if the USIBWC determines, in consultation with the NMSHPO, Tribes, and Consulting parties that no other actions are feasible to avoid effects to historic properties, then the USIBWC and the NMSHPO, in consultation with Tribes and other consulting parties and the public, except for the ACHP, will determine the appropriate treatment measure(s) to resolve the “Adverse Effect” to historic properties.

Treatments may include, but are not limited to:

1. Data recovery investigations for NRHP-eligible archaeological sites.

2. Cultural resources monitoring for USIBWC activities for areas beyond existing archaeological surveys with medium and/or high site sensitivity.

3. Additional archival research, development of historic contexts, and a technical report synthesizing the history of the USIBWC historic districts and associated local irrigation historic districts (e.g., construction, operations, and maintenance of RGCP; changes to international treaties, flood control requirements, organizational policies, and procedures through time; use and adaptation of architectural/structural contributing features through time; and technologies employed).

4. Documenting whole systems or representative components that are contributing elements to the various NRHP-eligible or listed historic districts such as gatewells and culvert/pipe components through photography, historical research and/or measurements to meet Documentation Level II Historic American Engineering Record (HAER) standards.

C. The USIBWC will, in consultation with the Consulting parties, develop treatment plans that specify the property, properties, or portions of properties where the treatment plan is to be carried out.

1. If the affected property is archaeological and data recovery is the agreed upon treatment, the data recovery plan will address substantive research questions developed in consultation with the NMSHPO and Tribes, as appropriate. The treatment plan shall be consistent with the New Mexico’s current standards (see Title 4. Chapter 10 NMAC), the NMCRIS User’s Guide, and the Secretary of the Interior’s Standards and Guidelines for Identification and Evaluation (48 FR 44720-23) and take into account the ACHP’s publication Treatment of Archaeological Properties. The data recovery plan shall specify, at a minimum, the following:

a. The research questions to be addressed, with an explanation of research relevance and importance;

b. The methods to be used, with an explanation of methodological relevance to the research questions;

c. Proposed methods of disseminating results of the work to the interested public; and

d. A proposed schedule for the submission of progress reports to the NMSHPO.

2. If the affected historic property is a building, structure, object, or district, USIBWC will prepare a treatment plan.

D. The USIBWC shall submit the treatment plan to the NMSHPO and the Tribes for a 30-calendar day period review and comment. The USIBWC will take into account the concurring parties comments.

E. The USIBWC will ensure that the treatment plan is carried out, by or under the direct supervision of an archaeologist(s), architectural historian(s) and/or other appropriate cultural resources specialist. This person will meet, at a minimum, Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation [As Amended and Annotated].

F. The USIBWC will ensure that adequate provisions, including personnel, time, and laboratory space, are available for the analysis and curation of recovered materials from historic properties.

G. The USIBWC will develop and implement an adequate program in consultation with the NMSHPO to secure historic properties from vandalism during data recovery.

H. Should there be a disagreement between the USIBWC and the NMSHPO that cannot be resolved, the USIBWC shall contact the ACHP and request comment on the dispute in accordance with Stipulation XVI(A) of this PA.

IX. TREATMENT OF HUMAN REMAINS AND ITEMS OF RELIGIOUS AND

CULTURAL IMPORTANCE

A. If human remains are encountered on federally owned land, either during data recovery or during any undertaking, the USIBWC shall consult with the Tribes, as appropriate, regarding the treatment of human remains and will comply with all provisions and standards outlined in the appropriate federal statutes (Native American Graves Protection and Repatriation Act; 25 U.S.C. 3001 et seq. [NAGPRA]), rules, policies, and guidance.

B. If human remains are encountered on State or privately owned land, either during data recovery or during any construction activities, the USIBWC shall follow procedures for unmarked human burials described in 4.10.11 NMAC.

C. If items of religious and cultural importance to Native American groups or Consulting parties are encountered or collected, the USIBWC shall consult with Tribes or Consulting parties, as appropriate, and the NMSHPO regarding the treatment of any item of religious or cultural significance to Tribes and/ or Consulting parties and will comply with all provisions outlined in the appropriate federal statutes (NAGPRA), rules, guidance, policies, etc., for items of religious and cultural importance to Native American groups and/or consulting parties encountered on federal lands, and with any applicable Federal and state laws for items of religious and cultural importance to Native American groups and/or consulting parties encountered on State or private lands.

X. REPORTS

A. The USIBWC will ensure that all historic properties reports (e.g., reconnaissance or intensive surveys, evaluation reports, treatment plans and data recovery reports) are consistent with current state standards (Title 4, Chapter 10 NMAC), the Secretary of the Interior’s Standards and Guidelines, and to the Department of the Interior’s Format Standards for Final Reports of Data Recovery (42 FR 5377-79). All historic properties reports will be submitted to the NMSHPO, Tribes, and Consulting parties for review and concurrence prior to implementation of the activity associated with the undertaking. The NMSHPO will have 30 calendar days upon receipt of the document for review and comment.

B. The USIBWC will ensure that all final cultural resources records resulting from the actions pursuant to this PA will be provided in formats acceptable to the NMSHPO.

1. Laboratory of Anthropology Site Record Forms will be completed for all archaeological sites revisited or discovered during survey. These forms are submitted in the NMCRIS database and NMSHPO consistent with Title 4, Chapter 10 NMAC and guidance in the current release of the NMCRIS User’s Guide.

2. Historic Cultural Properties Inventory (HCPI) Forms will be completed for all historic structures/architectural resources identified during survey. The HCPI forms are submitted in the NMCRIS database and NMSHPO consistent with Title 4, Chapter 10 NMAC and guidance in the current release of the NMCRIS User’s Guide.

C. If it appears that release of this data could cause a significant invasion of privacy, risk or harm to the historic property; impede the use of a traditional religious site by practitioners, jeopardize the physical integrity of historic properties (i.e., through looting and vandalism), or violate any applicable laws, including but not limited to § 18-6-11.1 NMSA 1978, the precise locations of historic properties may be provided to the SHPO only in a separate attachment clearly marked “Not for Public Dissemination.”

D. Precise location data of traditional cultural properties or sacred sites, consisting of architectural, landscapes, objects, and surface or buried archaeological sites, identified in accordance with the Tribe(s), will be considered to be sensitive information pursuant to 16 U.S.C. 4702 (formerly known as Section 304 of the NHPA). Unless otherwise required by law, the USIBWC will not make this information available for public disclosure and this type of information will be safeguarded within the USIBWC project files on a need-to-know basis only.

E. The USIBWC will provide all public meeting announcements, special releases, and notifications of the availability of report(s), including all draft agreement documentation to the Tribes and consulting parties via written correspondence, and to the public via public notices in newspapers and/or posted on the USIBWC or project-specific website.

F. Minus the precise aforementioned location data and sensitive information, the USIBWC will ensure public dissemination of the reports and associated data as appropriate, as part of the public comment period associated with other environmental compliance processes (NEPA) and will post the reports on the USIBWC or project-specific website.

XI. CURATED ITEMS

A. In consultation with the NMSHPO, the USIBWC will ensure that all publicly owned (federal or state) materials and records resulting from the historic properties studies are curated at a repository within the State of New Mexico and in accordance with 36 C.F.R. 79, currently designated as the Museum of Indian Arts and Culture – Laboratory of Anthropology (MIAC) for collections generated from projects conducted by USIBWC.

B. Any archaeological collections obtained as part of an USIBWC undertaking conducted on non-federal public lands, including lands owned by the state of New Mexico or by political subdivisions of the state, such as cities, counties, school districts and other special districts (e.g., county or city irrigation districts), will be curated at a repository within the State of New Mexico and in accordance with 36 C.F.R. 79, currently designated as MIAC, for collections generated from projects conducted by USIBWC. Private landowners retain ownership of all artifacts recovered from private property during USIBWC undertakings.

XII. UNANTICIPATED DISCOVERY OF HISTORIC PROPERTIES

Should historic properties be unexpectedly identified during the implementation of the Undertaking, the USIBWC shall ensure that reasonable efforts are made to assess effects and avoid, minimize, or mitigate adverse effects to such properties, and shall consult with NMSHPO to resolve any unavoidable adverse effects pursuant to 36 C.F.R. § 800.6.

A. In accordance with 36 C.F.R. § 800.13(b)(3), if previously undetected or undocumented historic properties are discovered during project activities, the USIBWC will cease, or cause to stop, any activity having an effect and consult with the NMSHPO to determine if additional investigation is required. USIBWC will consult with Indian tribes with ancestral ties and interests in the vicinity of the discovery.

B. If both the USIBWC and the NMSHPO determine that further investigation is not necessary or warranted, activities may resume with no further action required. Any disagreement between the USIBWC and the NMSHPO concerning the need for further investigations will be handled pursuant to Stipulation XVI (A), Dispute Resolution, of this PA.

C. If further archaeological investigations or other studies are warranted or required, the USIBWC will ensure that additional investigations are performed in consultation with the NMSHPO and Tribes, and other Consulting parties, as appropriate, prior to the commencement of project activities.

XIII. EMERGENCY SITUATIONS

For the purpose of this PA, emergencies are defined as occurrences which require emergency levee system repairs that are necessary to:

A. Protect the life, safety or health of the public;

B. Minimize the extent of damage to levees and flood control structures (e.g. dams), as well as non-USIBWC owned adjacent parcels;

C. Protect remaining levees and flood protection controls; and D. Restore essential flood protection These repairs can occur regardless of finding category, and regardless of declarations made by federal, state, or local agencies. These emergency repairs, including temporary levee repairs (e.g.

sand bagging, slope stabilization), are typically undertaken during or immediately following the occurrence that necessitated the action (e.g., flood).

A. The USIBWC will notify NMSHPO of repairs or modifications to NRHP-eligible resources that occurred as a result of emergency situations within 30 calendar days of occurrence.

B. For projects taking longer than 30 calendar days of repair, USIBWC will comply with the requirements of Stipulations VI and VII.

XIV. CONSTRUCTION CONTRACT REQUIREMENTS

The USIBWC will ensure that all construction contracts related to the Undertaking shall include the following appropriate language, as necessary:

A. Should any archaeological materials, including human burials, be encountered during construction activities, the construction contractor(s) will immediately cease work in that area, secure the location from further disturbance and possible vandalism, and notify the USIBWC Contracting Officer (CO) and Contracting Officers Representative (COR) immediately.

XV. MONITORING AND REPORTING

USIBWC will prepare and submit to the NMSHPO an annual report on December 1 of each year that shall include, but not be limited to, the following:

A. The type of cultural resources investigations conducted during the year, the name of the consultant, and the title of the report.

B. The number and types of cultural resources located through identification surveys and the number and type of cultural resources evaluated and their NRHP eligibility.

C. The number and type of historic properties (i.e., NRHP-eligible resources) that were stabilized.

D. The number and type of historic properties (i.e., NRHP-eligible resources) that were mitigated through data recovery or other forms of treatment.

E. The number and types of historic properties (i.e., NRHP-eligible resources) visited during the annual monitoring program, their current physical condition, and recommendations for treatment or stabilization.

XVI. GENERAL PROVISIONS

A. Dispute Resolution

1. Should any signatory or concurring party to this PA object at any time to any actions proposed or the manner in which the terms of this PA are implemented, USIBWC shall consult with such party to resolve the objection. If USIBWC determines that such objection cannot be resolved, USIBWC will:

a. Forward all documentation relevant to the dispute, including the USIBWC’s proposed resolution, to the ACHP. The ACHP shall provide USIBWC with its advice on the resolution of the objection, if any, within 30 calendar days of receiving adequate documentation. Prior to reaching a final decision on the dispute, USIBWC shall prepare a written response that takes into account any timely advice or comments regarding the dispute from the ACHP, signatories and concurring parties, and provide them with a copy of this written response. USIBWC will then proceed according to its final decision.

b. If the ACHP does not provide its advice regarding the dispute within the 30-calendar day period, USIBWC may make a final decision on the dispute and proceed accordingly. Prior to reaching such a final decision, USIBWC shall prepare a written response that takes into account any timely comments regarding the dispute from the signatories and concurring parties to the PA and provide them and the ACHP with a copy of such written response.

B. The USIBWC’s responsibility to carry out all other actions under this PA not under objection or in disagreement will remain unchanged.

C. Amendments

1. This PA, attachments, and addenda to this PA may be amended when such an amendment is agreed to in writing by all signatories. The amendment will be effective on the date a copy signed by all of the signatories is filed with the ACHP.

2. The Signatories may amend attachments, addenda to this PA, or documents referenced in this PA, without amending the PA.

D. Termination

1. Any Signatory to this PA may terminate it by providing 30 calendar days written notice to the other Signatories, provided that the Signatories will consult during the period prior to termination to seek agreement on amendments or other actions that would avoid termination. Termination of this PA would require compliance with 36 C.F.R. Part 800 for any outstanding Undertaking. This PA may be terminated by the execution of a subsequent PA that explicitly terminates or supersedes its terms when all signatories to this PA execute the subsequent PA.

E. Duration of this PA

1. Unless terminated pursuant to Stipulation XVI(D), this PA will be in effect for 10 years with the option to renew in 5-year intervals, or until the USIBWC, in consultation with the Signatories and Consulting Parties, determines that all of its terms have been satisfactorily fulfilled. Upon this determination, the PA will terminate and have no further force or effect.

The USIBWC will provide the Signatories and Consulting Parties with written notice of its determination and termination of this PA. This PA shall be null and void if its terms are not carried out within 10 years from the date of its execution, unless the Signatories agree in writing to an extension for carrying out its terms.

EXECUTION of this PA by the USIBWC, NMSHPO, and the Hopi Tribe and implementation of its terms evidence that USIBWC has taken into account the effects of this Undertaking on historic properties and afforded all parties an opportunity to comment.

SIGNATORIES:

UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND WATER

COMMISSION

Technical Advisor

Gilbert G. Anaya Date Chief, Environmental Management Division

Agency Authorization Authority

Jamie Edmunds Date Chief Administrative Officer

Philip Johnson Date Lead Contracting Officer

NEW MEXICO STATE HISTORIC PRESERVATION OFFICER

Jeff Pappas, PhD., Executive Director Date State Historic Preservation Officer

10/31/2023

11/6/2023

11/6/2023

11/6/2023

NEW MEXICO RIO GRANDE CANALIZATION PROJECTS PROGRAMMATIC

AGREEMENT ACRONYMS AND GLOSSARY

Acronyms ACHP Advisory Council on Historic Preservation APE Area of Potential Effect BLM Bureau of Land Management CFR. Code of Federal Regulations CBP Customs and Border Protection CPA Cultural Properties Act, New Mexico CPRC Cultural Properties Review Committee CRM Cultural Resources Manager DHS Department of Homeland Security EBID Elephant Butte Irrigation District EMD Environmental Management Division FCP Flood Control Projects NAGPRA Native American Graves Protection and Repatriation Act NHPA National Historic Preservation Act NMAC New Mexico Administrative Code NMSA New Mexico Statutes Annotated 1978 NMSHPO New Mexico State Historic Preservation Office NPS National Park Service NRHP National Register of Historic Places PA Programmatic Agreement RGCP Rio Grande Canalization Project RGRP Rio Grande Rectification Project STE Survey, Testing and Excavation USC U.S. Code USFWS United States Fish and Wildlife Service, San Andres National Wildlife Refuge USIBWC United States Section, International Boundary and Water Commission

Glossary Area of Potential Effect – 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. The area of potential effect is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertakings (36 C.F.R. § 800.16 (d)).

Consulting Parties - are participants in the Section 106 process and in addition to the federal agencies (here the USIBWC and USFWS), include the New Mexico State Historic Preservation Officer (NMSHPO), Native American (Indian) Tribes, local government representatives, and the public (36 C.F.R. § 800.2).

Historic Property - any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian Tribe or Native Hawaiian organization and that meet the National Register criteria. The term eligible for inclusion in the National Register includes both properties formally determined as such in accordance with regulations of the Secretary of the Interior and all other properties that meet the National Register criteria (36 C.F.R. § 800.16(l)).

Intensive Survey means a visual inspection conducted on foot that examines, identifies, records, evaluates and interprets all surface-visible cultural properties 50 or more years old located in an APE or project area or located in an APE or project area.

Programmatic Agreement - the document that records the terms and conditions agreed upon to resolve the adverse effects of an undertaking upon historic properties (36 C.F.R. § 800.16(o)).

Signatories - the signatories to a PA have the sole authority to execute, amend or terminate the PA and assume legal responsibilities for implementation of the PA conditions.

Undertaking - 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 a Federal agency;

those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and those subject to State or local regulation administered pursuant to a delegation or approval by a federal agency (36 C.F.R. § 800.16(y)).

A-1

ATTACHMENT A

CANALIZATION LOCATION MAP

B-1

ATTACHMENT B

CULTURAL RESOURCES INVESTIGATIONS CONDUCTED IN USIBWC

CANALIZATION PROJECT AREAS IN NEW MEXICO AND TEXAS

Organized by Flood Control Project

Rio Grande Canalization Project (RGCP) (a portion in Texas)

Brown, Kenneth L, James D. Gallison, Daniel H. Wells and David Wilcox 2001 Cultural Resource Class I Survey and Geoarchaeological Study – USIBWC Rio Grande

Canalization Project, Sierra and Dona Ana Counties, NM and El Paso County, Texas.

Prepared for United States Section International Boundary and Water Commission, El Paso, Texas. Prepared by Ecosystem Management, Inc., Albuquerque, New Mexico.

Forbes, Jessica, Ann Keen, Lena Sweeten, Don Burden, Jennifer Mastri, and Michelle D. Wurtz 2009 Architecture Investigations for the Rio Grande Canalization Project, United States

International Boundary and Water Commission (USIBWC), Texas and New Mexico.

Prepared for United States Section, International Boundary and Water Commission, El Paso, Texas. Prepared by Geo-Marine, Inc., Plano, Texas in coordination with CDM, Albuquerque, New Mexico.

Gibbs, Victor, Michael A. Stowe, Daron Duke, Regan Griese and Mark C. Slaughter 2000 Cultural Resources Survey and Planning Report: El Paso–Las Cruces Regional

Sustainable Water Project. Prepared for CH2M Hill and New Mexico – Texas Water Commission by Geo-Marine, Inc., El Paso, Texas.

Gibbs, Victor, David D. Kuehn, and Christine G. Ward 2005 Cultural Resources Overview for the Rio Grande and Tijuana River Flood Control

Projects. Prepared for United States Section International Boundary and Water Commission, El Paso, Texas. Prepared by Geo-Marine, Inc., El Paso, Texas.

Goar, Toni R., Amador Minjares, Michael Kennedy and Maria E. Hroncich 2010 Data Recovery and Monitoring at Six Sites and Archival Research at One Site along the

SFPP El Paso to Phoenix Expansion Project, Texas Portion. Prepared for William Self Associates by TRC, Albuquerque, New Mexico.

2010 Data Recovery and Monitoring Results along the SFPP, LP, El Paso to Phoenix Expansion

Project, New Mexico Portion. Prepared for William Self Associates by TRC, Albuquerque, New Mexico.

B-2

Karbula, James W., Erin K. Stinchcomb, James W. Karbula, Carole Leezer, Damon Stone, Charles Frederick, and Scott O’Mack 2009 Archaeological Investigations of the USIBWC Rio Grande Canalization Project, El Paso

County, Texas and Dona Ana County, New Mexico. Prepared for United States Section International Boundary and Water Commission, El Paso, Texas. Prepared by William Self Associates, Inc., Austin, Texas.

Kirkpatrick, David T.

2014 An Archaeological Survey of 0.69 Acres (0.28 Hectares) with Limited Testing at Three

Proposed Locations for New Steel Structures for El Paso Electric Company, Sunland Park, Doña Ana County, New Mexico. Prepared for El Paso Electric Company, El Paso, Texas by Human Systems Research, Inc., Las Cruces, New Mexico.

Komulainen-Dillenburg, Nancy, Geoffrey Henry, Charles Frederick, Elia Perez and Javi Vasquez 2011 USIBWC Rio Grande Canalization Project River Restoration Implementation Plan:

Cultural Resources Management Task. Prepared for United States Section International Boundary and Water Commission, El Paso, Texas by TRC, El Paso, Texas.

Komulainen-Dillenburg, Nancy, Geoffrey Henry and Elia Perez 2011 Archaeological and Architectural Investigations for the River Restoration Implementation

Plan, Rio Grande Canalization Project, USIBWC: Sunland Park and Mesilla Phase II Levee Improvement Project. Prepared for United States Section International Boundary and Water Commission, El Paso, Texas by TRC, El Paso, Texas.

Rio Grande Rectification Project (RGRP) Ackerly, Neal W.

1999 Controlling Water on the Border: The American Canal System, International Boundary and Water Commission, El Paso, Texas. Prepared for United States Section, International Boundary and Water Commission. Prepared by Human Systems Research, Inc., Tularosa, New Mexico.

Brown, Kenneth L., Jack L. Young, Catherine M. Heyne, Ariane Pinson, and William D.

Jones 2003 Final Cultural Resource Class I Survey and Geoarchaeological Study, USIBWC Rio

Grande Rectification Project, El Paso and Hudspeth Counties, Texas. Prepared for United States Section International Boundary and Water Commission, El Paso, Texas. Prepared by Ecosystem Management, Inc. Albuquerque, New Mexico.

Comer, Christy S.

1997 Mitigation Report, Rio Grande American Canal Extension Project, Enlargement of Reach

D, Franklin Canal, El Paso, El Paso County, Texas. Prepared for United States Section International Boundary and Water Commission, El Paso, Texas. Submitted by Meade F.

Kemrer, PhD., Human Systems Research, Inc., Tularosa, New Mexico.

B-3

ENCON International Inc.

2001 Final Environmental Assessment for “Replacement of the Old American Canal” Located in El Paso, Texas. Prepared for United States Section International Boundary and Water Commission, El Paso, Texas. Prepared by ENCON International Inc., El Paso, Texas.

Gibbs, Victor, David D. Kuehn, and Christine G. Ward 2005 Cultural Resources Overview for the Rio Grande and Tijuana River Flood Control

Projects. Prepared for United States Section International Boundary and Water Commission, El Paso, Texas. Prepared by Geo-Marine, Inc., El Paso, Texas.

Mangum, Rachael E. and Susan L. Bupp 2009 Final Cultural Resources Reconnaissance Survey, Rio Grande Rectification Project, El

Paso and Hudspeth Counties, Texas. Prepared for United States Section International Boundary and Water Commission, El Paso, Texas. Prepared by Parsons, Austin, Texas.

Parsons Engineering Science 2000 Supplemental Report, Controlling Water on the Border: The American Canal System, International Boundary and Water Commission, El Paso,…