Attachment 4 PPA PR NRCS PR SHPO_Appendix B Amd 2_Jan_2023.pdf

PROTOTYPE PROGRAMMATIC AGREEMENT

BETWEEN THE

UNITED STATES DEPARTMENT OF AGRICULTURE,

NATURAL RESOURCES CONSERVATION SERVICE

PUERTO RICO STATE OFFICE, AND

PUERTO RICO ST A TE HISTORIC PRESERVATION OFFICER,

REGARDING CONSERVATION ASSISTANCE

WHEREAS, the United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) administers numerous voluntary assistance programs, special initiatives, and grant and emergency response programs for soil, water, and related resource conservation activities available to eligible private producers, States, commonwealths, Federally Recognized Tribal governments, other government entities, and other applicants for conservation assistance, pursuant to the Agricultural Act of 2014 (2014 Farm Bill, Public Law 113-79); Soil Conservation and Domestic Allotment Act of 1935 (Public Law 74-46, 16 U .S.C.

590 a-f, as amended); the Flood Control Act of 1944 (Public Law 78-534, as amended); the Watershed Protection and Flood Prevention Act (Public Law 83-566, as amended, 16 U.S.C.

1001-1012); the Agricultural and Food Act of 1981 (Public Law 97-98, 95 Stat. 1213); the Agricultural Credit Act (Public Law 95-334, Title IV, Section 403); Food, Agriculture, Conservation and Trade Act of 1990 (Public Law 101-624); the Flood Control Act of 1936 (Public Law 74-738); the Food Security Act of 1985 (Public Law 99-198, as amended); the Federal Agricultural Improvement and Reform Act of 1996 (Public Law 104-127); and

J\i executive and secretarial orders, implementing regulations and related authorities; and

I . WHEREAS, NRCS, through its conservation assistance programs and initiatives, provides assistance for activities with the potential to affect historic properties eligible for or listed in the National Register of Historic Places (NRHP), including National Historic Landmarks (NH Ls) and therefore constitute undertakings subject to review under Section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, and its implementing regulations, 36 CFR Part 800, including the provisions of these regulations addressing NH Ls at 36 CFR Part 800.1 0; and

WHEREAS, NRCS has determined that the requirement to take into account the effects to historic properties of its undertakings may be more effectively and efficiently fulfilled through the use of a Prototype Programmatic Agreement (Prototype Agreement); and

WHEREAS, NRCS Puerto Rico State Office (NRCS Puerto Rico) has consulted with the Puerto Rico State Historic Preservation Officer (PRSHPO) and followed the instructions in the Advisory Council on Historic Preservation (ACHP) letter that accompanied the Prototype Agreement, dated November 21, 2014 (Appendix A); and

WHEREAS, NRCS is responsible for fulfilling the requirements of the National Environmental Policy Act (NEPA), including the use of categorical exclusions, and coordinating NEPA and Section 106 reviews, as appropriate; and

WHEREAS, NRCS developed this Prototype Agreement in consultation with the National

Conference of State Historic Preservation Officers (NCSHPO) and its members, interested Indian tribes, Native Hawaiian organizations, interested historic preservation organizations, (such as the National Trust for Historic Preservation), and the (ACHP); and

WHEREAS, in accordance with 36 CFR Part 800. l 4(b )( 4 ), the ACHP has designated this agreement as a Prototype Agreement, which allows for the development and execution of subsequent prototype agreements by individual NRCS State office(s) (State-based Prototype Agreements) to evidence compliance with Section 106; and

WHEREAS, this State-based Prototype Agreement conforms to NRCS Prototype Agreement as designated by the ACHP on November 21, 2014, and therefore, does not require the participation or signature of the ACHP when NRCS State Office and the PRSHPO agree to the terms of the State-based Prototype Agreement; and

WHEREAS, this Prototype Agreement replaces the 2002 nationwide "Programmatic Agreement among the USDA, NRCS, ACHP, and the National Conference of State Historic Preservation Officers relative to Conservation Assistance," as amended in 2011 and 2012, which expired on November 20, 2014; and

WHEREAS, NRCS Puerto Rico State Conservationist (hereby referred to as the NRCS State Conservationist, NRCS Puerto Rico State Conservationist or simply as State Conservationist) is the responsible federal agency official within the state for all provisions of Section I 06, including consultation with the PRSHPO; and

WHEREAS, Puerto Rico does not have resident Federally-recognized Indian Tribes; and

WHEREAS, this State-based Prototype Agreement does not modify NRCS' responsibilities to consult with Indian tribes on all undertakings that might affect historic properties and properties of religious and cultural significance to them, regardless of where the undertaking is located, without prior agreement by the concerned Indian tribe, and recognizes that historic properties of religious and cultural significance to an Indian tribe may be located on ancestral homelands or on officially ceded lands near or far from current settlements; and

WHEREAS, when NRCS conducts individual Section 106 reviews for undertakings under this State-based Prototype Agreement, it shall identify and invite other agencies, organizations, and individuals to participate as consulting parties; and

NOW, THEREFORE, NRCS Puerto Rico and the PRSHPO agree that undertakings in Puerto Rico shall be implemented in accordance with the following stipulations in order to take into account the effect of the undertaking on historic properties.

STIPULATIONS

NRCS shall ensure that the following stipulations are met and carried out:

I. Applicability.

a. Once executed by NRCS Puerto Rico and the PRSHPO, this State-based Prototype Agreement sets forth the review process for all NRCS undertakings subject to Section I 06 in Puerto Rico.

b. Execution of this State-based Prototype Agreement supersedes any existing State Level Agreement with PRSHPO executed under the previous NRCS nationwide Programmatic Agreement, but does not replace any existing project-specific Section 106 agreements (Memoranda of Agreement or Programmatic Agreements).

c. This State-based Prototype Agreement applies only when there is a Federal Preservation Officer (FPO) in NRCS National Headquarters (NHQ) or Farm Production and Conservation (FPAC) mission area who meets the Secretary of the Interior's Professional Qualification Standards ( 48 FR 44 716).

d. This State-based Prototype Agreement applies only where there is staffing or access to staffing (through contracted services or agreements with other agencies or Indian tribes) who meet the Secretary of Interior's Professional Qualification Standards in the Puerto Rico State Office.

II. Roles and Professional Qualifications.

a. The NRCS Puerto Rico State Conservationist is the responsible official for oversight of NRCS Puerto Rico's performance under this State-based Prototype Agreement and for consultation with the PRSHPO.

b. NRCS Puerto Rico shall ensure that all cultural resources personnel carrying out Section 106 historic preservation compliance work on its behalf (i.e., NRCS Cultural Resources Specialists (CRSs) detailed from other states, archaeologists, historians, professional service contractors, etc.) are appropriately qualified to coordinate the reviews of resources and historic properties as applicable to the resources and historic properties being addressed (site, building, structure, landscape, resources of significance to Indian tribes, and other concerned communities). Thus, these personnel must meet the Secretary of the Interior's Professional Qualification Standards and have the knowledge to assess the resources within an undertaking's area of potential effects (APE).

c. The NRCS Puerto Rico State Conservationist is responsible for consultation with the PRSHPO, to develop consultation protocols. These responsibilities may not be delegated to any other staff, nor carried out on behalf of NRCS by another federal agency.

d. The NRCS Puerto Rico CRS and/or professional consultants shall provide technical historic property and resource information to the State Conservationist for use in Section I 06 findings and determinations, after appropriate consultations with the PRSHPO, and discussions with the landowner. The CRS and/or professional consultants shall monitor and oversee the work and reporting of all NRCS field office personnel and professional service consultants. The CRS and/or professional consultants shall also assist the State Conservationist in determining whether an undertaking has the potential to affect historic properties, triggering Section 106 review, pursuant to 36 CFR Part 800.3(a).

e. NRCS field office personnel involved in implementing this Agreement, after completion ofNRCS' web-based training acquired through the USDA Agleam Cultural Resources Modules 1-8 training, and field awareness training shall assist the CRS by providing known information on historic properties and unevaluated cultural resources gained from interviews with the landowner and other sources, making field observations on landforms and other indications of site sensitivity, and providing field notes on any cultural resources observed.

f. The CRS shall oversee development of scopes of work for investigation of the AP Es for identified undertakings (see 36 CFR Part 800.4). NRCS Puerto Rico may use professional service contractors or consultants or partners to assist with cultural resources compliance studies. NRCS Puerto Rico shall oversee development of the scopes of work for investigation of the APEs for identification of historic properties (with the assistance of a CRS). NRCS Puerto Rico shall ensure these contractors meet the Secretary of the Interior's Professional Qualifications Standards.

g. NRCS remains responsible for all consultation with the PRSHPO and all determinations of NRHP eligibility and effect. NRCS may not delegate consultation for findings and determinations to professional services consultants or producers/applicants for conservation assistance.

h. PRSHPO, if provided sufficient data on a proposed undertaking and APE for the proposed undertaking by NRCS Puerto Rico, shall consult and provide a response to NRCS within 30 calendar days. The definition of sufficient data is provided in 36 CFR Part 800.11.

i. ACHP shall provide technical guidance, participate in dispute resolution, and monitor the effectiveness of this agreement, as appropriate.

III. Training.

a. NRCS shall require personnel conducting cultural resources identification and evaluation work to complete, at a minimum, the NRCS Web-based (in USDA Agleam) and field Cultural Resources Training in modules (Cultural Resource Modules 1-8) and the ACHP's Section 106 Essentials course.

b. NRCS shall require CRS and/or other NRCS personnel overseeing cultural resource work to take NRCS Cultural Resources Training Modules (Modules 1-8) and the ACHP's Section 106 Essentials course, or a course with similar content, if approved by NRCS/FP AC FPO. Training must be completed within the first calendar year after the execution of this State-based Prototype Agreement. NRCS personnel shall review and update training completion with their supervisors and include their training in their Individual Development Plans.

c. NRCS may invite the PRSHPO staff to participate in presentations at agency classroom or field training.

d. NRCS shall encourage all personnel conducting or overseeing cultural resources work to take additional appropriate specialized training as provided by the PRSHPO, the ACHP, and National Park Service, General Services Administration or other agencies, as feasible.

IV. Lead Federal agency.

a. For any undertaking for which NRCS is the lead federal agency for Section 106 purposes per 36 CFR Part 800.2(a) (2), NRCS staff shall follow the terms of this State-based Prototype Agreement. NRCS shall notify the PRSHPO of its involvement in the undertaking and the involvement of the other federal agencies.

b. For any undertaking for which NRCS is not the lead federal agency for Section 106 purposes, including those undertakings for which NRCS provides technical assistance to other USDA or other federal agencies, the terms of this State-based Prototype Agreement shall not apply to that undertaking. If the lead federal agency agrees, NRCS may follow the approved alternative procedures in place for that agency.

V. Review Procedures.

a. In consultation with the PRSHPO, NRCS shall identify those practices which involve undertakings with little to no-potential to affect historic properties and list those undertakings in Appendix B. Upon the determination by NRCS CRS that a proposed undertaking is included in Appendix B, NRCS is not required to consult further with the PRSHPO for that undertaking.

b. The list of undertakings provided in Appendix B only apply to PRSHPO and may be modified through consultation and written agreement between NRCS State Conservationist and the PRSHPO without requiring an amendment to this Agreement. This signed modification of the undertaking list in Appendix B will be submitted to NRCS/FP AC FPO and the ACHP. NRCS Puerto Rico will maintain the master list and will provide an updated list to all consulting parties with an explanation of the rationale (metadata) for classifying the practices accordingly.

c. Undertakings not identified in Appendix B shall require further review as outlined below.

NRCS shall consult with the PRSHPO to identify and evaluate historic properties that may be affected by the undertaking, assess potential effects, and identify strategies for resolving adverse effects prior to approving the financial assistance for the undertaking.

1. After consultation with the PRSHPO, NRCS shall delineate a clearly defined Area of Potential Effects (APE) for each reviewed project.

2. NRCS personnel meeting the qualifications and training stipulated under Section III will conduct a cultural resources review of the project area. Such review will include a review of the topographic quadrangle, current historical photographs, available historic photographs, and Municipal Collection Center (CRIM) property records of the APE.

3. As part of the process, NRCS qualified personnel will also review reports, site records (site forms), GIS data and other reports of previous cultural resources work performed in order to identify reported cultural resources within and adjacent to the APE. Such data is available at the reference libraries of the PRSHPO and the Archaeology Program of the Institute of Puerto Rican Culture (lnstituto de Cultura Puertoriquefia). The cultural resources review process may also include a preliminary field inspection and interview with the property owner in order to examine the APE for evidence of cultural resources that might have not been previously documented on the consulted records.

4. If cultural resources are found to be present within an APE, or if NRCS has any other reason to suspect that cultural resources may be present NRCS can request the assistance of a qualified CRS in the project review process. The CRS will determine the potential need for further field investigation and coordinate it with the involved parties, including NRCS, property owners and PRSHPO.

5. The intensity and scale of the investigation will be tailored to the anticipated potential effect on cultural resources and/or historic properties of the proposed undertaking.

6. The CRS will draft a report of the field investigation and present it to NRCS for submittal and consultation with the PRSHPO and other consulting parties.

7. After completion of the cultural resources review and/or field investigation NRCS shall provide its proposed APE, identification of historic properties and/or scope of identification efforts, and assessment of effects in a single transmittal to the PRSHPO, provided this documentation meets the substantive standards outlined in the PRSHPO Minimum Documentation Required for Section l 06 Review memo [Appendix E] and in 36 CFR Part 800.4-5 and 800.11.

8. The NRCS shall attempt to avoid adverse effects to historic properties whenever possible; where historic properties are located in the APE, NRCS shall describe how it proposes to modify, buffer, or move the undertaking to avoid adverse effects to historic properties.

9. Where the NRCS proposes a finding of"no historic properties affected" or "no adverse effect" to historic properties, the PRSHPO who shall have 30 calendar days from receipt of this documented description and information to review it and provide comments. NRCS shall take into account all timely comments.

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i. If the PRSHPO, or another consulting party, disagrees with NRCS' findings and/or detennination, it shall notify NRCS within the 30 calendar day time period. NRCS shall consult with the PRSHPO or another consulting party to attempt to resolve the disagreement. If the disagreement cannot be resolved through this consultation, NRCS shall follow the dispute resolution process in Stipulation VIII below.

ii. If the PRSHPO does not respond to NRCS within the 30 calendar day period and/or NRCS receives no objections from other consulting parties, or if the PRSHPO concurs with NRCS' determination and proposed actions to avoid adverse effects, NRCS shall document the concurrence/lack of response within the review time noted above and may move forward with the undertaking.

d. Where a proposed undertaking may adversely affect historic properties, NRCS shall describe proposed measures to minimize or mitigate the adverse effects, and follow the process in 36 CFR Part 800.6, including consultation with other consulting parties and notification to the ACHP, to develop a Memorandum of Agreement to resolve the adverse effects. Should the proposed undertaking have the potential to adversely affect a known NHL, NRCS shall, to the maximum extent possible, undertake such planning and actions that may be necessary to minimize hann to the NHL in accordance with 54 U.S.C. 306107 of the NHPA and 36 CFR Part 800.6 and 800.10, including consultation with the ACHP and respective National Park Service, Regional National Historic Landmark Program Coordinator, to develop a Memorandum of Agreement.

VI. Emergency and Disaster Management Procedures (Response to Emergencies)

a. NRCS shall notify the PRSHPO immediately or within 48 hours of the emergency determination, following NRCS' Emergency Watershed Protection Program (EWPP) final rule (see Section 216, P .L. 81-516 Final Rule, 7 CFR Part 624 (April 2005).

b. NRCS State office shall prepare procedures for exigency (following the rules for NRCS' (EWPP) regarding immediate threat to life and property requiring, response within 5 days) in consultation with the PRSHPO. These procedures are outlined in Appendix C and may be modified for event-specific procedures through consultation and written agreement between NRCS State Conservationist and the PRSHPO in Appendix D without requiring an amendment to this State-based Prototype Agreement.

c. IfNRCS State office has not developed specific procedures (i.e., Emergency Recovery Plan) for responding to exigencies, NRCS shall follow the guidelines for Unified Federal Review issued by the Department of Homeland Security, Federal Emergency Management Service (DHS, FEMA), the Council on Environmental Quality (CEQ), and the ACHP in July 2014, or the procedures in 36 CFR Part 800.12(b).

VII. Post-review discoveries of cultural resources or historic properties and unanticipated effects to historic properties.

a. Where construction has not yet begun and a cultural resource is discovered after Section106 review is complete, NRCS shall consult to seek avoidance or minimization strategies in consultation with the PRSHPO, and/or to resolve adverse effects in accordance with 36 CFR Part 800.6

b. NRCS shall ensure that every contract for assistance includes provisions for halting work or construction in the area when potential historic properties are discovered or unanticipated effects to historic properties are found after implementation, installation, or construction has begun. When such a discovery occurs, the producer who is receiving financial assistance or their contractor shall immediately notify NRCS State Conservationist's Office, Supervisory NRCS personnel for the area, and the landowner or applicant.

I. NRCS CRS shall inspect the discovery within 24 hours, if weather permits, and in consultation with the local NRCS Personnel, the PRSHPO, NRCS State engineering staff (or program supervisor, as appropriate), the landowner/producer (whomever NRCS is assisting and has appropriate authority to make decisions on the land), the CRS shall establish a protective buffer zone surrounding the discovery and recommend any other applicable mitigation practices.

2. All NRCS contact with media shall occur only under the direction ofNRCS Public Affairs Officer, as appropriate, and the Puerto Rico State Conservationist.

3. Security shall be established to protect the resources/historic properties, workers, and private property. Construction and/or work may resume outside the buffer only when the State Conservationist determines it is appropriate and safe for the resources and workers.

4. NRCS CRS shall notify the PRSHPO no later than 48 hours after the discovery and describe NRCS' assessment of the National Register eligibility of the property, as feasible and proposed actions to resolve any adverse effects to historic properties. The eligibility determination may require the assessment and advice of the PRSHPO, and technical experts (such as historic landscape architects) not employed by NRCS.

5. PRSHPO shall respond within 48 hours from receipt of the notification with any comments on the discovery and proposed actions.

6. NRCS shall take any comments provided into account and carry out appropriate actions to resolve any adverse effects.

7. NRCS shall provide a report to the PRSHPO and ACHP of the actions when they are completed.

c. When human remains are discovered, NRCS shall follow all applicable federal, and state laws, ordinances, and related regulations pertaining to public safety, human rights, and health statutes, where appropriate. The following steps will be taken:

VIII.

1. Puerto Rico State Police will be contacted to determine whether the remains are part of or might become part of an ongoing investigation.

2. NRCS will notify the PRSHPO of the discovery within 48 hours.

3. If the remains are not part of a police investigation, NRCS shall consult with the PRSHPO to develop a management plan for the human remains discovery referencing to the ACHP's Policy Statement regarding Treatment of Burial Sites, Human Remains and Funerary Objects and the ACHP's Section 106 Archaeology Guidance. NRCS shall also follow NRCS National policy on treatment of human remains and consultation.

4. NRCS personnel and contractors involved will take appropriate measures to protect the discovery in place. Such measurements will include but not be limited to halting all work in the area, erecting protective barriers, restricting access and visitation to the area, and monitor and protect the discovered remains until a plan for treatment is agreed on and implemented.

Dispute resolution.

a. Should any consulting or signatory party to this State-based Prototype Agreement object to any actions proposed or the manner in which the terms of the agreement are implemented, NRCS State Conservationist and CRS shall consult with such party to resolve the objection. If the State Conservationist determines that such objection cannot be resolved, they will:

1. Forward all documentation relevant to the dispute, including the State Conservationist's proposed resolution, to NRCS/FPAC FPO and Senior Policy Official (SPO Deputy Chief for Science and Technology) and the ACHP. The ACHP shall provide the FPO, SPO, and State Conservationist with its advice on the resolution of the objection within thirty (30) days of receiving adequate documentation. Prior to reaching a final decision on the dispute, NRCS shall prepare a written response that takes into account any timely advice or comments regarding the dispute from the ACHP and any signatory or consulting parties, and provide them with a copy of this written response. NRCS will then proceed according to its final decision.

2. If the ACHP does not provide its advice regarding the dispute within the thirty (30) day time period, NRCS may make a final decision on the dispute and proceed. Prior to reaching such a final decision, NRCS shall prepare a written response that takes into account any timely comments regarding the dispute from the signatories and consulting parties and provides them and the ACHP with a copy of the written response.

b. NRCS is responsible to carry out all other actions subject to the tenns of this agreement that are not the subject of the dispute remains unchanged.

c. Any consulting party to State-based Prototype Agreement may request the ACHP provide its advisory opinion regarding the substance of any finding, detennination, or decision regarding compliance with its tenns.

d. At any time during the implementation of the State-base Prototype Agreement, a member of the public may submit an objection pertaining to this agreement to NRCS State Conservationist, in writing. Upon receiving such an objection, the State Conservationist shall notify NRCS SPO and FPO, and the PRSHPO, take the objection into account and consult with other consulting parties as appropriate to resolve the objection. NRCS State Conservationist shall notify the SPO, FPO, PRSHPO, and ACHP.

IX. Public Involvement

a. The NRCS State Conservationist ensured public participation in the development of this State-based Prototype Agreement by making the draft document available for review and by requesting comments from the public. The PP A was made available for review by publishing it in the NRCS Caribbean Area website (www.nrcs.usda.gov/wps/portal/nrcs/main/pr/newsroom/pnotice/) and social media pages (Twitter & Facebook) on January 16, 2019. A public commenting period was stablished starting on that date, lasting 30 calendar days. During the commenting period the public was allowed to submit comments and concerns to: ricardoj.colon@usda.gov. All input received during the 30-day comment period was considered and addressed.

b. NRCS State Conservationist will seek and consider the views of the public, as provided for in 36 CFR 800.2(d) for all undertakings requiring Section 106 consultation and those not exempted under this PPA (Appendix B). Additional consulting parties may also participate, as provided for in 36 CFR 800.2(c)(5) and 36 CFR 800.3(f)(3), as set forth above in Section V (reference to other parties).

X. Annual reporting and monitoring.

a. Every year following the execution of this agreement, until it expires or is tenninated, NRCS Puerto Rico State Conservationist shall provide all consulting parties (including those parties who participate in the consultation but do not sign the agreement) and the FPO a summary report detailing work undertaken pursuant to its terms, including a list of undertakings falling under Appendix [B] as well as undertakings that required further review; a summary of the nature and content of meetings held with PRSHPO; and an assessment of the overall effectiveness of the State-based Prototype Agreement. Such report shall include any scheduling changes proposed, any problems encountered, and any disputes and objections received in NRCS' efforts to carry out the tenns of this agreement.

I. The NRCS/FP AC FPO shall use the state reports to provide, through NRCS SPO, an annual report to the ACHP.

2. The NRCS State Conservationist shall use the state report to assess the need for annual meetings with the PRSHPO each fiscal year.

b. The State Conservationist will participate in an annual review with NRCS Regional Conservationist regarding the effectiveness of the prototype agreement and submit a written or electronic version ( email) of the report following this review to NRCS SPO (Deputy Chief for Science and Technology).

c. NRCS State Conservationist or PRSHPO may request that the ACHP participate in any annual meeting or agreement review.

XI. Compliance with applicable State law.

NRCS shall comply with relevant and applicable state law, including permit requirements on state land.

XII. Duration of Prototype Agreement.

This State-based Prototype Agreement will be in effect for 10 years from the date of execution unless amended or terminated pursuant to Stipulation XIII below.

XIII. Amendment and termination.

a. This State-based Prototype Agreement may be amended if agreed to in writing by all signatory officials. The amendment will be effective on the date a copy, signed by all of the signatory officials and is filed with NRCS FPO, SPO, and the ACHP.

b. If any signatory to this State-based Prototype Agreement, or the ACHP, determines that its provisions will not or cannot be carried out, that party shall immediately consult with the other parties to attempt to develop an amendment per Stipulation XIII.a. If within 30 calendar days, or other time period agreed upon by the signatory officials, an amendment cannot be agreed upon, any signatory official or the ACHP may terminate the agreement upon written notification to the other signatory officials.

c. If this State-based Prototype Agreement is terminated or expires without being extended via the amendment process described above, and prior to continuing work on any undertaking, NRCS shall comply with 36 CFR Part 800 for all individual undertakings in Puerto Rico.

d. NRCS will consider requests from other USDA agencies to become a signatory to the State-based Prototype Agreement following formal written requests and appropriate discussion with and approval by NRCS FPO and SPO, and joint USDA Agency - NRCS State Office consultation with the ACHP, NCSHPO, and Indian tribes/THPOs or NHOs, and other consulting parties, as appropriate. Such inclusion of the USDA agency may require an amendment to this State-based Prototype Agreement.

Execution of this State-based Prototype Agreement by NRCS and PRSHPO and implementation of its terms evidence that NRCS has taken into account the effects of its undertakings in Puerto Rico on historic properties and afforded the ACHP a reasonable opportunity to comment.

IX. Signatory Parties.

~ ALMODOVAR DATE

NRCS State Conservationist & Director, Caribbean Area

CARLOS RUBIO-CANCELA DATE

State Historic Preservation Officer, Puerto Rico

APPENDIX A

NOVEMBER 21, 2014 ACHP LETTER AUTHORIZING THE USE OF THIS PROTOTYPE

AGREEMENT

M,lford Wa)Vm Oonill&,011 !'NJ\ Chmrman

Cierne<1l A Pr ce ~ D V1r. o C llairmnn

John M Fowle· £;(et.:lJLtve D recrnr

No\-ember 21. 2014

Jason Weller. Chief Natural Resow-ces Conservahon SeMce Uruted States Department of Agnculture

I lul

1400 Independence Avenue. SW, Room 5105-A \Vashmgton, DC 20250

Ref Prototype Progr81111D3ttc Agreement for NRCS

Dear Cluef\Veller.

Smee 2009. the Nah1Jal Resources Conservatton Sernce (NRCS). an agency of the Uruted States Department of Agnculture (USDA), has been work mg with the AdVJsory Co11Dcl1 on H1stonc Presm'llhon (ACHP) to develop a prototype programmabc agreement (PPA) lhat would pro\ide NRCS Mlh the ability to comply with the requirements of Section I 06 of the National Historic Presm;abon Act (NHPA) whlle CaJl)ing out NRCS' D11ss1on of providing financial and ~chmcal assistance to agnculhual producers (fmners. ranchers, ond forest landowners) who vohmtanly seek such assistance m order to make cono;em11ton 1mproveruents and addnu conservation concerns on their land The PPA prornlts a framework for NRCS to develop stale by state agreements that would ex~dite Section 106 compliance for routme achv1ties. wlule sttll providing flexibility for consen·ahon parttms and stakeholders m coordmatmg lustonc pre..ervabon reVJews

Accordmgly, I hffeby designate the attached document as a PPA under 36 CFR § 800 14(b)(4) of the regulahons 1mplementmg Secllon 106, "Protection of Historic Pro~mes" (36 CFR Part 800) The PPA was de\-elo~d by ?,,'RCS with mput from the ACHP, the National Confe~nce of State Histonc Presm'lllton Officers (NCSHPO). mdividual Stale Histonc Presm·atton Officers (SHPOs), Tribal H1stonc Pre;ervatton Officers (fHPOs). federally recognized Indian tnbes, Natl\-e Hawauan organ1zaltons (NHOs), and luslonc preservabon organizaboru (e g., the Nabonal Trust for H1stonc Presm"alion, the Society for Historical Archaeology, the Society for Amencan Archaeology), tn'bal memberslup orgaruz.ahons (e g , the Uwted South and Eastern Tnbes), and other mterested pubes It addresses ?.'RCS ' respons1b1hbes under Secbon 106 for its conser\>a!lon programs. and enables streaml1D1Dg ofSechon 106 reVJews by establishing review protocols, creates gruter predictabtht}' m cosu and bme for consultabon, and provides the flexibility to address ~c1fic situaltons and condihons to resoke adverse effects to lustonc propemes Tlus PPA provides NRCS with a\ aluable tool to assist 11 m meebng tis 1upons1bihbes under Sechon 106 as 11 conbnues to provide asStStance and funding to fannrrs .

ranchers, and forest landowners for their conservation irupro\·ements

Tlus PPA replaces the 2002 nabon\vide "Programmaltc Agreement among the Umted States Department of Agnculture Nall.ual ~ource~ Conservabon Sernce, the Advisory Council on H1stonc Presef\•abon.

J\DVISOllY COUNCIi ON H,S romc PIH ~fll'IJ\I ON

-101 r S'.lret NW .. iu,· •. 3 • Wnshin\Jtori IJC ;,0001 Phone 20] ~ J I 01.00 • F fU l0,1 ~ I / (j)O I • .1chp ~achp ~JO-.' • .,N.w achp go..r and lhe Nabonal Confertnce of State H1stonc Presen:alJon Officers relah,·e to Conser\'abon Asmtance: · as amended m 2011 and 2012, which will exp11e on November 20. 2014. Existing State u,-el Agreemtnts with SHPOs and Consultation Protocols Wlth Tnbal Nanons. THPOs or NHOs de,'eloped pursuant to the 200~ amended nat1onw1de Programmatic Agreement shall be ,·01d upon expuanon of the nabon1\1de Programnubc Agreement

NRCS has many programs, practices. acb\1t1es. and special IDlbatn-es that are unplemented to addrHs specific conser\"ahon mues Not all states use the same programs and practices. acb\.11Jes and special wnati\oes: therefore, pro,u1ons ,vitlun the PPA may be modJfied to allow states to focus on specific concerns and impro,·e the management of effects to lustonc propenies When modLfymg the PPA at the state le\'el. NRCS. SHPOs. THPOs. tnbes. and NHOs should focus only on modificabous that would further tailor lustonc preservation re\lews to uruqt1e cucumstances w1tlun a specific state I'Mse areas mclnde

• TIIDl'frames and commumcahon methods,

• The roles and responsibil111es oflhe PPA 's signatones.

• References to appltcable local and state laws. and

• A It.st ohmdertakwis with I.title or no potential to affect lustonc properties. thus reqwrwg no fiather Sechon 106 consultabon with the relevant SHPOilndian tnbe 'NHO

The mttoductory · Wherea~ clauses"' should remam unchanged and othtr s11pulat1ons \\1th.ID lhe PPA should be retained, with appropnate details added, as they reflect understandmgs betwttn NRC'S and the ACHP that were cnbcal w developing the framework for tlus tool Modificabons to those SKtions in the attached PPA 1denbfied above Will not change the status of the document as a PPA. so long as the modifications (1) are agrttd to byNRCS and the relevant SHPO IndJan tnbe/IHPO'NHO. and (1) do not substantially change the consultah\'e role gi\'en lo other consnlbng partners

Adoption ofa PPA by a state 1s vohmtary. That 1s, states may elect to miplement the PPA or comply mth the Section 106 rtgula!ions. 36 CFR Part 800 \Vlule the PPA offers a number of efficiencies to NRCS.

SHP<x. and THPOs, if the req1ured signatories in a given state choose not to adopt the PPA NRCS must fulfill Its Secuon 106 responsibilities for us indh1d11al 1mdertak1Dl,!S through comphance with the reqwrelllt'nts of 36 CFR Part 800

NRCS must pro,ide a signed copy of each state PPA to lhe ?\"RCS Federal Preser\'abon Officer (FPO).

SHPO Indian n,be·'IHPO'r'-11-iO, and any other s1gnatones to the PPA. The ACHP 1s not reqwred sign the PPA however, all executtd PPAs must also be filed with the ACHP pnor lo theuuse This will enable the ACHP to morutor the effech,•eness of the PPA and engage NRCS m futwe diicusSJons re1ardwg any necessary changes or additions to the PPA bast<! on pattems and ttenlk

\\'e apprecute !',;"RCS ' cooperation and ongowg support oflustonc presen11tion iwbaD\'t!S \\'e are particululy apprec,ab\·e oftht efforts ofNRCS" Senior Poltcy Offinal Dr. Wayne Honeycutt. Ecological Sciences Duector. Tmell Enckson, FPO, Sarah Bndges. md NRcs· Culniral Rewurces Specuihsts and C'oordmalors. parncularly w Wyommg and South Dakota The11 contribuuons were m,11l11able

\Ve look fo1w:ird to worl,ang with NRCS as a partner m th.ts 1mportant mteragency agreement

!>mcerely.

Milford Wayne Donaldson. F AIA Chaum;m

Enclosure cc mth enclosure Dr Wayne Honeycutt. 5.PO and Deputy Clnef for Science and Technology Sarah Bndges FPO and National Cultural Reso1uces 5.peciahst

APPENDIX 8 (MODIFICATION 2)

LIST OF UNDERTAKINGS REQUIRING NO FURTHER SECTION 106 REVIEW IN NRCS

PUERTO RICO

Pursuant to Stipulation V.a. above, in consultation with the PRSHPO, NRCS, through the qualified staff as described in Stipulation 11.b., has determined that certain undertakings (practices) have little or no potential to affect historic properties in either 'All conditions" or when certain conditions identified below are met. On those undertakings, NRCS is not required to consult further with the PRSHPO under Section 106.

STANDARD EXCLUDED ONLY UNDER

IDNUM PRACTICE NAME PRACTICE DESCRIPTION THE FOLLOWING

CONDITIONS

472 Access Con1rol The lemporary or permanenl exclusion With no new conslruclion or soil of animals, people, & vehicles from an disturbance or when non-barrier area. methods are used, such as posling of siizns, oa1rollin2 and oermils.

309 Agrichemical A facili1y wilh an impermeable Only wi1hin an existing building or

Handling Facility surface to provide an environmenlally dwelling less than 45 years old.

safe area for the handling of on-farm a2richemicals.

136 Agricultural Energy Plan 10 advise an agricuhural producer All condi1ions.

Design Plan - on energy conservation through an Written EQIP con1rac1 with at least one energy oractice scenario.

128 Agricultural Energy Plan for the improvement on !he All conditions.

Management Plan - energetic use of resources wi1hin an Wriuen agricuhural operalion and incorpora1es recommenda1ions to maximize energy conserva1ion and efficiency.

311 Alley Cropping Trees or shrubs planted in a sel or Wi1hin exisling or previously tilled series of single or multiple rows with cropland and excluding the planting agronomic, horticultural crops or of trees.

forages cultiva1ed in the alleys between 1he rows of woody olants.

333 Amending Soil Using gypsum- (calcium sulfate di- Within existing or previously tilled Properties with hydrate) derived products to change cropland and 10 within the same Gypsum Products the physical and/or chemical deplh horizon of previously orooerties of soil. disturbed.

591 Amendmenls for The use of chemical or biological All conditions.

Treatment of additives to change the properties of Agricultural Waste manure, process wastewater, contaminated storm water runoff and other wastes.

450 Anionic Application of water-soluble Anionic Within existing or previously tilled Polyacrylamide Polyacrylamide (PAM) to meet a cropland.

Erosion Control resource concern.

310 Bedding Plowing, blading, or otherwise Within existing or previously tilled elevating the surface of tlat land into a cropland and within the same depth series of broad, low ridges separated horizon of previously disturbed.

by shallow, parallel channels with oositive drainage.

400 Bivalve Aquaculcure Actions that reduce, clean or remove All conditions.

Gear and Bio-fueling biofouling organisms and other waste Control from bivalve production areas while minimizing environmental risk.

314 Brush Management The management or removal of Hand culling only or chemical woody (non-herbaceous or succulent) treatment only.

plants including those that arc invasive and noxious.

326 Clearing and Removal of vegetation along the bank When removing recently deposited Snagging (clearing) and selective removal of sediments. When performed by snags. drifts, or other obstructions hand. When performed with heavy (snagging) from natural or improved machinery positioned and/or channels and streams. moving over a previously constructed or compacted surface.

When there is no structure or building in the Area of Potential Effects older than 45 years old.

317 Composting Facility A structure or device to contain and Only within existing building or facilitate an aerobic microbial dwelling ecosystem for the decomposition of manure and/or other organic material into a final product sufficiently stable for storage, on farm use and application to land as a soil amendment.

102 Comprehensive Plan for the distribution of manure All conditions.

Nutrient from a husbandry farm to a crops farm Management Plan- with the intent of enriching the Written cultivation soil naturallv.

327 Conservation Cover Establishing and maintaining Within existing or previously tilled perennial vegetative cover to protect cropland.

soil and water resources on land retired from aaricultural production.

328 Conservation Crop Growing crops in a recurring sequence Within existing or previously tilled Rotation on the same field. cropland.

138 Conservation Plan Plan to advise an agricultural producer All conditions.

Supporting Organic on the transition from traditional Transition - Written pesticide and chemical fertilizer-based agriculture to organic agricultural methods to meet USDA National Onzanic Program (NOP) requirements.

332 Contour Buffer Strips Narrow strips of permanent, Within existing or previously tilled herbaceous cover established across cropland.

the slope and alternated down the slope with paralh:I, wider cropped strips.

330 Contour Farming Farming sloping lands so that Within existing or previously tilled preparing, planting, and cultivating are cropland.

done on the contour.

331 Contour Orchard and Planting orchards and vineyards, or Within existing or previously tilled Other Perennial small fruits so that all ·cultural cropland.

Crops ooerations are done on the contour.

340 Cover Crop A crop of close growing grasses, Within existing or previously tilled legumes, or small grain grown cropland.

primarily for seasonal protection and soil improvement.

342 Critical Area Planting Planting vegetation, such as trees, Within existing or previously tilled shrubs, vines, grasses, or legumes, on cropland and excluding the planting highly erodible or critically eroding of trees.

areas.

S89C Cross Wind Trap Herbaceous vegetation established in Within existing or previously tilled Strips rows or narrow strips across the cropland and within the same depth prevailinit wind direction. horiLon of previously disturbed.

S54 Drainage Water Controlling the removal of surface or All conditions.

Management subsurface runoff, primarily through the operation of existing water control structures.

130 Drainage Water Plan to improve water runoff on a All conditions.

Management Plan - relatively flat crop field with a Wrinen pallerned drainage system.

37S Dust Control from Reducing or preventing the emission!> With no new construction or soil Animal Activity on of particulate mailer arising from disturbance.

Open Loi Surfaces animal activity on open l01 surfaces al animal feeding operations through the frequent removal of manure and the aoolication of water.

373 Dust Control on Controlling direct particulate mailer All conditions.

Unpaved Roads and emissions produced by vehicle and Surfaces machinery traffic or wind action from unpaved roads and other surfaces by aoolvin2 a oalliative on the surface.

647 Early Successional Manage plant succession to develop Within existing or prt:viously tilled Habi1a1Developrncnt/ and maintain early successional cropland or when accomplished Manage men I habitat 10 benefit desin:d wildlife with no ground disturbance or and/or natural communities. Can burning.

include liming hay culling, harvest, and 2razin2 as well as new olantin2s.

201 Edge-of-Field Water Plan to provide for the use of an edge- All conditions.

Quality Monitoring- of-field WQ monitoring station(s) for Data Collection and surface run-off for one control and one Evaluation - Wriuen treatment site.

368 Emergency Animal A means or method for the When located within previously Mortality management of animal carcasses from designated/previously used for same Management catastrophic mortality events. purposes areas. When ground disturbance is performed within the same depth horizon of previously disturbed.

374 Farmstead Energy Plan for the replacement of a All conditions.

Improvement - conventional exhaust fan with high Wrinen volume, low speed, and efficient exhaust fans in an aaricultural facility.

S92 Feed Management Manipulating and controlling the All conditions.

quantity and quality of available nutrients. feedstuffs, or additives fed to livestock and ooultrv.

108 Feed Management Plan for feed management including All conditions.

Plan - Wriuen management and conservation practices for proper quantity and quality of available nutrients, feedstuffs, and/or additives fed to livestock or poultry that may be oresent on the ooeration.

382 Fence A variety of fence types constructed as Within existing or previously tilled a barrier to livestock, wildlife, or cropland, or within the existing people. fence line.

386 Field Border A strip or perennial vegetation Within existing or previously tilh:d established at the edge of a field by cropland and excluding the planting planting or by converting it from trees of trees.

to herbaceous vegetation or shrubs.

376 Field Operations Adjusting field operations and Within existing or pn:viously tilled Emissions Reduction technologies to reduce particulate cropland and 10 within the same matti:r (PM) emissions from field depth horizon of previously ooerations. disturbed.

393 Filter Strip A strip or area of vegetation for Within existing or previously tilled removing sediment, organic matter. cropland.

and other pollutants from runoff and wastewater.

394 Firt:break A strip of bare land or fire-retarding Within the length and width of vegetation. existing or previous firebreak.

142 Fish and Wildlife Plan to advise an agricultural producer All conditions.

Habitat Plan - on the management of landscapt: and Written species for the creation of tish and wildlife habitat. II provides for opportunities to improve, restore, or enhance habitat that supports native and/or mana2ed soecies.

399 Fish Pond Managing impounded aquatic habitat All conditions.

Management and wati:r quality for the production of fish.

512 Forage and Biomass Establishing and reestablishing long Within existing or previously tilled

Planting term stands of adapted species of cropland.

perennial, biennial, or reseeding fora2e plants.

511 Forage Harvest The timely cutting and removal of All conditions.

Management forages from the field as hay. green choo, or sila2e.

106 Forest Management Management of forested lands in All conditions.

Plan - Written nonindustrial private forest land becween I to 20 acres in size.

666 Forest Stand Manipulate species of trees by cutting Hand work only without burning or Improvement or killing selected trees and understory ground disturbance.

ve2etation.

383 Fuel break A strip of land on which the Within existing or previously tilled vegetation, debris and detritus have cropland and/or without any new been reduced and/or modified to soil disturbance.

control or diminish the risk of fire crossing the strio or block of land.

412 Grassed Waterways A natural or constructed channel that Within existing or previously tilled is shaped or graded 10 required cropland.

dimensions and established in suitable vegetation for the stable conveyance of runoff.

110 Grazing Management Plan for grazing management in small All conditions.

Plan - Written agricultural operation with less than

100 acres grazed land.

355 Groundwater Testing Testing the physical, biological, and All conditions.

chemical quality of groundwater from a water well or sorin2.

561 Heavy Use Area Protecting heavily used areas by Within existing or previously tilled Protection establishing vegelative cover, by cropland.

surfacing wilh suitable material, or by installinR needed structures.

422 Hedgerow Planting Establishing a living fence of shrubs Within existing or previously tilled or lrees in, across, or around a field. cropland.

315 Herbaceous Weed Using mechanical, chemical, burning Within existing or previously tilled Control or biological methods either alone or cropland or through chemical or in combination to remove or control of biological methods on previously herbaceous weeds. uncultivated lands.

603 Herbaceous Wind Herbaceous vegetation established in Within existing or previously tilled Barriers rows or narrow strips across the cropland.

orevailing wind direction.

325 High Tunnel System An enclosed polyethylene, When constructed within existing or polycarbonate, plastic, or fabric previously tilled cropland. When covered structure that is used to cover reinstolh:d within same ,ertical and and protect crops from sun, wind. horizontal footprint.

excessive rainfall, or cold, to extend the growing season in an environmentally safe manner.

751 Individual Terrace Creation of a small, rounded plalform (I) Only when performed to plant for planting individual trees and scattered trees or shrubs in newly shrubs on very steep slopes. undeveloped land or (2) when Applicable for Puerto Rico and USVI implemented to plant new or only. replaced existing trees/shrubs in a planlation area with previously disturbed soil horizons

595 Integrated Pest Managing weeds, insects and diseases All conditions.

Management by…