B08 IFB Atch 17 - SIP_USACE ARCF Executed PA 20150910.pdf

American River Common Features Programmatic Agreement

PROGRAMMATIC AGREEMENT

AMONG

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

REGARDING THE AMERICAN RIVER COMMON FEATURES PROJECT,

SACRAMENTO, SACRAMENTO AND YOLO COUNTIES, CALIFORNIA

WHEREAS, the U.S. Army Corps of Engineers, Sacramento District (Corps), is proceeding to implement aspects of the American River Common Features Project (Project) as authorized in the Water Resources Development Act (WRDA) of 1996, Pub L. No. 104-303, §101(a)(1), 110 STAT. 3658, 3662- 3663 (1996), as amended by the WRDA 1999, Pub. L. No. 106-53, Section 366, 113 STAT. 269, 319-320 (1999) and the Energy and Water Development and Related Agencies Appropriations Act of 2008, Pub. L. No. 110-161, Section 130, 121 STAT. 1844, 1947 (2008), and as authorized by Section 7002 of the Water Resources Reform and Development Act (WRRDA) of 2014 (Pub. L. No. 113- 121, § 7002, 128 Stat. 1193, 1366); and

WHEREAS, the Project is being developed to provide flood risk management to the City of Sacramento, including areas along the Sacramento and American Rivers, and around and within the Natomas Basin, including the Natomas Cross Canal, the Sacramento Bypass, the Pleasant Grove Creek Canal, the Natomas East Main Drain Canal, Arcade Creek, Dry Creek, Robla Creek, and Magpie Creek located in Sacramento and Yolo Counties, California.

The authorized project is a single purpose flood risk management project shown in Attachment 1 and further described in Attachment 2; and

WHEREAS, the Corps proposes to construct levee improvements including, but not limited to: seepage cutoff walls, seepage berms, levee slope flattening, relief wells, adjacent levees, stability berms, drained stability berms, levee raising, floodwalls, bypass widening, riverbank erosion protection, and launchable rock erosion protection; and

WHEREAS the State of California Central Valley Flood Protection Board (CVFPB) is the non-Federal sponsor for the Project and the CVFPB has been invited to be a Concurring Party to this Programmatic Agreement (Agreement);

and

WHEREAS, the Corps has determined that the Project activities constitute an Undertaking, as defined in 36 C.F.R. § 800.16(y), and therefore is subject to Section 106 of the National Historic Preservation Act of 1966, 54 U.S.C. § 306108 (NHPA); and

WHEREAS, the Corps has determined that the Project may have an effect on properties that are either listed or eligible for listing in the National Register of Historic Places (NRHP) and has consulted with the California State Historic Preservation Officer (SHPO) pursuant to the NHPA; and

WHEREAS, pursuant to 36 C.F.R. § 800.4(b)(2), the Corps may implement the Project in phases as funding is available and construction authority is provided and, as a result, efforts to identify and evaluate Historic Properties and the determination of effects to those properties may be deferred until more specific project information for each phase is known; and

WHEREAS, this Agreement shall establish the process the Corps shall follow for compliance with 54 U.S.C. § 306108 (formerly 16 U.S.C. § 470f, referred to hereinafter as “Section 106”), taking into consideration the views of the Signatory and Concurring Parties; and

WHEREAS, a total of 69 cultural resources are known to be present within the Area of Potential Effects (APE) and although extensive archaeological inventory has been completed within the APE under other projects, portions of the APE have not been inventoried; and

WHEREAS, the presence of levees, alluvial deposition, and other built environment features have obscured the presence of cultural resources and a full assessment of archaeological sites cannot be made in advance of construction;

and

WHEREAS, the levees of the Sacramento and American Rivers are the one known potential Historic Property within the APE that will be affected by the Project; and

WHEREAS, the Corps is aware that there is a high probability for buried cultural resources that may not be identified prior to construction and that also may be eligible for inclusion in the NRHP, and therefore this Agreement documents a framework for managing post-review discoveries per 36 C.F.R. § 800.13; and

WHEREAS, the Corps, with the concurrence of SHPO, has decided to comply with Section 106 of the NHPA for the Undertaking through the execution and implementation of this Programmatic Agreement (Agreement) because the Corps cannot fully determine the effects of the Undertaking on Historic Properties [36 C.F.R. § 800.14(b)(1)(ii)], for all phases and segments of the Project at this time; and

WHEREAS, in accordance with 36 C.F.R. §§ 800.2(c)(2)(ii)(A), 800.3(f)(2), and 800.14(b)(2)(i), the Corps has contacted federal and state recognized Native American Tribes, via letter(s), phone call(s), and meetings, to invite them to consult on the Project and this Agreement, including the Buena Vista Rancheria of the Me-Wuk Indians of California, the Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, the Colfax-Todds Valley Consolidated Tribe, the Cortina Wintun Environmental Protection Agency, the El Dorado Miwok Tribe, the Enterprise Rancheria of

Maidu Indians of California, the Ione Band of Miwok Indians of California, the Mechoopda Indian Tribe of Chico Rancheria, the Mooretown Rancheria of Maidu Indians, the Nashville-El Dorado Miwok, the Shingle Springs Band of Miwok Indians, the Strawberry Valley Rancheria, the T’si-Akim Maidu, the United Auburn Indian Community of the Auburn Rancheria, the Wilton Rancheria, the Yocha Dehe Wintun Nation, and interested Native American individuals; the Corps has invited them (and others who may be identified in the future as appropriate Concurring Parties) to participate as Concurring Parties to this Agreement; and the Corps will continue consultation throughout the duration of this agreement; and

WHEREAS, the Corps shall make the terms and conditions of this Agreement part of the conditions of any contracts issued by the Corps for this Project; and

WHEREAS, the definitions set forth in 36 C.F.R. § 800.16 are incorporated herein by reference and apply throughout this Agreement; and

WHEREAS, the definitions for Signatory Parties set forth in 36 C.F.R. §

800.6(c)(1), and the definitions for Concurring Parties set forth in 36 C.F.R. § 800.6(c)(3), are incorporated herein by reference and apply throughout this Agreement; and

WHEREAS, in accordance with 36 C.F.R. § 800.14(b)(3), the Corps notified and invited the Advisory Council on Historic Preservation (ACHP) per 36 C.F.R. § 800.6(a)(1)(C) to participate in consultation to resolve potential adverse effects of the Project, including development of this Agreement, and the ACHP has declined to participate pursuant to 36 C.F.R. § 800.6(a)(1)(iii) in a letter dated August 7, 2012; and

WHEREAS, in accordance with 36 C.F.R. § 800.6(a)(4) and 36 C.F.R. §

800.14(b)(2)(ii), the Corps has notified the public of the Project and provided an opportunity for members of the public to comment on the Project and the Section 106 process as outlined in this Agreement; and

NOW, THEREFORE, the signatories agree that the Undertaking shall be implemented in accordance with the following stipulations in order to take into account the effects of the undertaking on Historic Properties and to satisfy the Corps’ Section 106 responsibilities for all individual aspects of the undertaking.

The Corps shall ensure that the following measures are carried out:

STIPULATIONS

I. TIME FRAMES AND REVIEW PROCEDURES

For all documents and deliverables produced in accordance with the stipulations of this Agreement, the Corps shall provide a draft document to the SHPO, Concurring Parties, and Native American interested parties and Tribes for review.

Any written comments provided by the SHPO, Concurring Parties, and Native American interested parties and Tribes, within thirty (30) calendar days from the date of receipt, shall be considered in the revision of the document or deliverable.

The Corps shall document and report the written comments received for the document or deliverable and how comments were addressed. The Corps shall provide a revised final document or deliverable to the SHPO for concurrence.

The SHPO shall have thirty (30) calendar days to respond. Failure of the SHPO, Concurring Parties, and Native American interested parties and Tribes to respond within thirty (30) calendar days of any submittal shall not preclude Corps from moving to the next step in this Agreement.

Should the SHPO object to the final document or deliverable submitted for concurrence, the Corps and SHPO shall consult for a period not to exceed fifteen

(15) calendar days following the receipt of the SHPO’s written objection in an effort to come to agreement on the issues to which the SHPO has objected.

Should the SHPO and the Corps be unable to agree on the issues to which the SHPO has objected, the SHPO and the Corps shall proceed in accordance with Stipulation XV (Dispute Resolution), below. The timeframe to consult to resolve a disagreement or objection may be extended by mutual consent of the Corps and the SHPO.

II. AREA OF POTENTIAL EFFECTS

The APE for Project activities shall include the construction footprint of the activity and a reasonable buffer determined through consultation between SHPO and the Corps, and shall take into account the likelihood of direct and indirect effects to Historic Properties resulting from the Project. Attachment 1 includes an overall APE map for the Project. Because the Project will occur in phases, it may be necessary to further define the APE for each phase as phases are authorized and funded for design and construction. Prior to activities under Stipulation IV (Identification and Evaluation), the Corps shall submit to the SHPO, Concurring Parties, and Native American interested parties and Tribes a map of the APE for the current phase and a description of the Project activities occurring for that phase, in accordance with Stipulation I (Timeframes and Review Procedures). Revisions to the APE will not necessitate modifications to this Agreement.

A. For purposes of this Agreement, the APE for each phase shall be defined to meet, at a minimum, the following criteria:

The APE for any segment of the levees that are being improved as part of the phase of the Project shall include the levee segment and a corridor extending not less than 150 meters from the landside toe of the levee segment.

B. The APE also shall include:

(1) The extent of all Project construction and excavation activity required to construct flood control facilities and to modify irrigation and drainage infrastructure; and

(2) The additional right-of-way/easements obtained by the Corps as part of the Project’s features; and

(3) All areas used for excavation of borrow material and habitat creation; and

(4) All construction staging areas, access routes, spoil areas, and stockpiling areas.

C. After the APE has been defined and consulted on in accordance with

Stipulation II (Area of Potential Effects) above, construction or other Project activities may require revisions to the APE. If the APE is revised, the Corps shall consult on that revision in accordance with Stipulation I (Timeframes and Review Procedures), and the Corps shall determine the potential for Project activities in a revised APE to affect potential Historic Properties, in accordance with Stipulation IV (Identification and Evaluation).

III. HISTORIC PROPERTIES MANAGEMENT PLAN

The Corps, in consultation with the SHPO, Concurring Parties, and Native American interested parties and Tribes, shall develop a Historic Property Management Plan (HPMP), which provides the framework by which remaining identification, evaluation of eligibility, findings of effect, and resolution of adverse effect efforts to Historic Properties will occur. The HPMP shall include consideration of property types, treatment of property types, expected methodology for identification and evaluation of potential historic properties, potential templates for work plans, provisions for avoidance or protection of historic properties, and consideration for identification and treatment of human remains. The HPMP shall be appended to this Agreement (Attachment 3) and will form the basis for any Historic Property Treatment Plans (HPTPs) that may be required for one or more phases of the Project. The HPMP shall be developed after execution of the Agreement, but before construction commences. For the overall Project and individual phases, the HPMP shall be the means for the Corps to comply with 36 C.F.R. § 800.6 and provide standardized methods for dealing with unanticipated discoveries in accordance with 36 C.F.R. § 800.13(a).

The HPMP may be amended and appended to this Agreement without amending the Agreement.

A. Review: The Corps shall submit the Draft HPMP to the SHPO, Concurring

Parties, and Native American interested parties and Tribes for review and comment pursuant to Stipulation I (Timeframes and Review Procedures).

B. Historic Property Treatment Plans: The Corps shall consult the SHPO, pursuant to 36 C.F.R. § 800.5, when the Corps has determined that a Project activity will result in adverse effects to a Historic Property. An HPTP specific to the phase of the Project or the Historic Property will be drafted to describe how the Corps intends to resolve adverse effects and that HPTP may be appended to the HPMP. HPTPs shall be consistent with the HPMP and may incorporate by reference historic contexts, methods, procedures, and research designs, as appropriate. When incorporating portions of the HPMP by reference, the HPTP shall at a minimum include the date of the HPMP and where the HPMP is available to be viewed.

(1) An HPTP may address individual or multiple Historic Properties or Historic

Property types. An HPTP shall stipulate those actions the Corps shall take to resolve the adverse effects of the Project on Historic Properties within the project phase or specific action specified by the HPTP. For properties eligible under criteria specified in 36 C.F.R. § 60.4 (A) through (D), mitigation other than data recovery may be considered in the treatment plan (e.g., HABS/HAER, oral history, historic markers, exhibits, interpretive brochures or publications, or other means as deemed appropriate by the signatories). In addition to the SHPO, Concurring Parties, and Native American interested parties and Tribes the Corps may invite the interested public, in accordance with Stipulation XIII (Public Consultation and Public Notice), to comment on the means of mitigation, as appropriate. HPTPs shall include specifications (including content and number of copies) for publication of brochures, pamphlets or synthesis reports for distribution to the general public. The Corps shall ensure that all provisions of an HPTP are carried out as stipulated in the

HPTP.

(2) Historic Context, Recordation, and Treatment of Levees: The Sacramento and American River levees are a known potential Historic Property within the APE that may be affected by the Project. Sections of the levees have been recorded and evaluated for their individual eligibility for listing in the NRHP but no overall historic context or evaluation of the levee system has been developed. Because the specific project design that may alter the levees will not be developed until after the Project has been approved for design, a determination of effect and, if necessary, an HPTP, cannot be developed until after approval and execution of this Agreement. In order to document the levees for evaluation, the Corps will develop a historic context and HPTP for recordation of the Sacramento and American River levees as historic structures within the APE in order to evaluate the effects of the Project on the levees. If a historic context and/or HPTP for the levees within the APE has already been developed, the Corps may incorporate it as deemed appropriate by the Corps. The HPTP shall consider the levees in the context of the entire Sacramento and American River levee systems. Additionally, the HPTP shall require the development of clear and specific criteria for determining: (1) recordation guidelines for the levees within the APE, (2) contributing and non-contributing elements of the levee system, (3) thresholds of adverse effect, and (4) treatment of adverse effects. The HPTP shall be developed after execution of the Agreement and before construction commences.

The Corps shall submit the HPTP for review, in accordance with Stipulation I (Timeframes and Review Procedures).

(3) HPTPs will be submitted and reviewed in accordance with Stipulation I

(Timeframes and Review Procedures), except for those HPTPs developed for Historic Properties discovered during construction activities, which shall follow the review timeframes identified in Stipulation IX (Discovery of Unknown Historic Properties). Circulation of an HPTP shall not include a recirculation of the HPMP.

D. Reporting: Reports and other data pertaining to the inventory of Historic

Properties and the treatment of effects to Historic Properties will be distributed to Concurring Parties to this Agreement, Native American Tribes, and other members of the public, consistent with Stipulation XIV (Confidentiality) of this Agreement, unless parties have indicated through consultation that they do not want to receive a report or data.

E. Amendments/Addendums/Revisions: If an Historic Property type that is not coveredby an existing HPTP is discovered within the APE subsequent to an initial inventory effort for a phase, or if there are previously unexpected effects to an Historic Property, and the Corps and SHPO agree that the Project may adversely affect the Historic Property, the Corps shall submit an addendum to the HPTP or a new HPTP to the SHPO and Concurring Parties for review and comment, and shall follow the provisions of Stipulation IX (Discovery of Unknown Historic Properties). The HPTP may cover multiple discoveries for the same property type.

F. Data Recovery: When data recovery is proposed, the Corps, in consultation with the SHPO, shall ensure that HPTPs are developed consistent with the Secretary of the Interior’s Standards and Guidelines for Archaeology and Historic Preservation and the ACHP’s “Recommended Approach for Consultation on Recovery of Significant Information from Archaeological Sites” (ACHP, May 18, 1999).

G. Final Phase Report Documenting Implementation of the Historic Properties Treatment Plan(s): Within one year after the completion of all work for each phase of the Project, the Corps shall submit to the SHPO, Signatory Parties, Concurring Parties, and Native American interested parties and Tribes, a Final Phase Report documenting the results of all work prepared for that phase under the HPTPs, and the information learned from each of the Historic Properties. The submittal of the Final Phase Report shall be in accordance with Stipulation I (Timeframes and Review Procedures).

IV. IDENTIFICATION AND EVALUATION

Should the HPMP not be finalized at the time that a phase of the Project may be proceeding to design and construction, the Corps shall consult with the Signatory Parties before issuing a notice to proceed on any phase of the Project. Should the Signatory Parties agree that the work may proceed, the Corps shall comply with Stipulation IV A., B., and C. (Identification and Evaluation) and, as necessary, Stipulation VI (Determination of Effects). The Corps shall complete any identification and evaluation, and as necessary, any evaluation of effects to Historic Properties prior to proceeding with construction. If the Signatory Parties do not agree to proceed with the phase of the Project the Corps shall follow Stipulation XV (Dispute Resolution).

A. Identification of Potential Historic Properties: An inventory of Historic

Properties within the APE, consistent with the Secretary of Interior’s Standards and Guidelines for Archeology and Historic Preservation (48 FR 44716–44740) will be initiated for the Project, or for individual phases of the Project, as construction details become available.

Survey recordation shall include features, isolates, and re-recordation of previously recorded sites, as necessary. The survey shall ensure that potential Historic Properties such as historical structures and buildings, historical engineering features, landscapes, viewsheds, and traditional cultural properties (TCPs) with significance to Native American communities, are recorded in addition to archeological sites. Recordation of historic structures, buildings, objects, and sites shall be prepared using the California Department of Parks and Recreation (DPR) 523 Site Record forms.

B. Property Types Exempt from Evaluation: Attachment 4 to this Agreement lists the property types that the Signatories agree shall be exempt from evaluation as determined by the Corps in consultation with the SHPO. The Corps shall evaluate all other identified properties in accordance with Stipulation IV.C (Evaluation of Potential Historic Properties).

C. Evaluation of Potential Historic Properties: After recordation on DPR 523

Site Record forms, potential Historic Properties shall be evaluated by a qualified professional for their eligibility for listing in the NRHP consistent with the Secretary of Interior’s Standards for Evaluation, 36 C.F.R. § 60.4. In accordance with Stipulation I (Timeframes and Review Procedures), the Corps shall submit a completed inventory and evaluation for each phase of Project work.

V. GEOTECHNICAL INVESTIGATIONS

For the purposes of gathering engineering data and for project planning, it may be necessary for the Corps to conduct limited geotechnical investigations at areas within the APE.

A. The Corps may conduct geotechnical investigations (e.g., borings, potholing, or trenches) for planning and exploratory efforts. The Corps shall follow Stipulation V.A(1) and (2), or may follow Stipulation V.A(3) if unable to follow Stipulation V.A(1) and (2):

(1) A records and literature search and consultation with Native Americans has been conducted and it has been determined there are no known existing potential Historic Properties located within 50 feet of the areas identified for geotechnical investigations, and an archeological field survey of the areas identified for geotechnical investigations has been conducted and it has been determined there are no known potential Historic Properties present;

(2) A potential Historic Property is identified during the records and literature search or field survey and consultation process as being within an area where geotechnical investigation will occur, and the geotechnical investigation is relocated at least 50 feet outside the site boundaries; or

(3) Provisions for an archeological monitor meeting the qualifications described in Stipulation VII.C. (Archeological Monitor Standards) are included in the contract specifications for the geotechnical investigations.

As appropriate, or when geotechnical activities may occur in sensitive areas, an archeological monitor will be present for all ground disturbing activities.

B. If potential Historic Properties are discovered during geotechnical investigations, Stipulation IX (Discovery of Unknown Historic Properties) shall be followed;

C. A Memorandum for Record shall be written documenting the results of the records and literature search, the archeological field survey, any decisions to relocate geotechnical investigation areas, the determination for inclusion of an archeological monitor for ground disturbing activities, and a record of communication with Native American interested parties and Tribes, as appropriate.

VI. DETERMINATION OF EFFECTS

Avoidance of adverse effects to Historic Properties is the preferred treatment approach. The Corps will consider redesign of Project elements in order to avoid Historic Properties and Project effects that may be adverse. However, it may not be possible to redesign the Project in order to avoid adverse effects to Historic Properties.

The Corps will apply the criteria of adverse effect, pursuant to 36 C.F.R. § 800.5(a)(1), to all Historic Properties within the APE that will be affected by the Project. The Corps shall submit determinations of effects in accordance with Stipulation I (Timeframes and Review Procedures).

If effects to Historic Properties are determined to be adverse, Stipulation III (Historic Properties Management Plan), above, will be followed.

VII. QUALIFICATIONS

A. Professional Qualifications: All technical work required for historic preservation activities implemented pursuant to this Agreement shall be carried out by or under the direct supervision of a person or persons meeting, at a minimum, the Secretary of Interior’s Professional Qualifications Standards for archeology or history, as appropriate (48 FR 44739). “Technical work” here means all efforts to inventory, evaluate, and perform subsequent treatment such as data recovery excavation or recordation of potential Historic Properties that is required under this Agreement. This stipulation shall not be construed to limit peer review, guidance, or editing of documents by SHPO and associated Project consultants.

B. Historic Preservation Standards: Historic preservation activities carried out pursuant to this Agreement shall meet the Secretary of Interior’s Standards and Guidelines for Archaeology and Historic Preservation (48 FR 44716- 44740), as well as standards and guidelines for historic preservation activities established by the SHPO. The Corps shall ensure that all reports prepared pursuant to this Agreement will be provided to the Signatories, Concurring Parties, and Native American interested parties and Tribes and are distributed in accordance with Stipulation XIV (Confidentiality), and meet published standards of the California Office of Historic Preservation, specifically, Preservation Planning Bulletin Number 4(a), “Archaeological Resources Management Reports (ARMR): Recommended Contents and Format” (December 1989).

C. Archeological Monitor Standards: Archeological monitoring activities required for exploratory, construction, or construction related ground disturbing activities implemented pursuant to this Agreement shall be carried out by a person meeting, at a minimum, the Secretary of Interior’s Professional Qualifications Standards for prehistoric or historic archaeology, as appropriate (48 FR 44739). “Archeological monitoring” here includes monitoring ground disturbing activities that have been determined by the Corps to be occurring in areas potentially sensitive for Historic Properties or buried resources.

VIII. NOTICES TO PROCEED WITH CONSTRUCTION

Notices to Proceed may be issued by the Corps for individual construction segments, defined by the Corps in its construction specifications, after a Historic Properties inventory has been completed [per Stipulation III (Historic Properties Management Plan) or Stipulation IV (Identification and Evaluation)], and prior to treatment of adverse effects on Historic Properties within the APE provided that:

A. A plan to respond to inadvertent archeological discoveries is prepared by the

Corps, and approved by SHPO, prior to the commencement of Project activities anywhere in the APE for that phase of the Project; and

B. Project development activities do not encroach within 30 meters (100 feet) of the known boundaries of any Historic Property as determined from archeological site record forms, other documentation, or as otherwise defined in consultation with the SHPO and other parties, as appropriate; and

C. An archeological monitor meeting the professional qualifications as described in Stipulation VII (Qualifications), is present during any Project activities that are anticipated to extend either vertically or horizontally into any areas designated to be archeologically sensitive by the Corps, in consultation with SHPO, except in phases of construction for slurry walls where visual inspection of the construction area cannot be safely or feasibly accomplished.

IX. DISCOVERY OF UNKNOWN HISTORIC PROPERTIES

The Corps is responsible for complying with 36 C.F.R. § 800.13(a) in the event of inadvertent discoveries of Historic Properties during implementation of the Project. The HPMP will provide procedures for complying with post review and inadvertent discoveries of Historic Properties. If the Corps authorizes work before the HPMP is finalized and there is a discovery of an unknown Historic Property, the Corps shall follow 36 C.F.R. § 800.13(b). Additionally, the following procedures shall be followed:

A. Workforce Training: During implementation of Project activities, the Corps, or archeologists meeting the professional qualifications as described in Stipulation VII (Qualifications), will provide training to all construction personnel, before they begin work, regarding proper procedures and conduct in the event that archeological materials are encountered during construction.

B. Human Remains: Treatment of human remains is governed by Stipulation

XII (Tribal Consultation and Treatment of Human Remains).

X. CURATION

To the extent that curation is determined to be appropriate mitigation to resolve adverse effects to Historic Properties, curation shall be conducted in accordance with 36 C.F.R. § 79, except those materials identified as Native American human remains and items associated with Native American burials. Archeological items and materials from State or privately owned lands shall be maintained in accordance with 36 C.F.R. § 79 until any specified analyses are complete.

Although the Native American Graves Protection and Repatriation Act (NAGPRA) (25 U.S.C. § 3001 et seq.) does not apply to this Project, as there is no federally owned or administered property within the APE and the Corps will not be curating cultural materials subject to NAGPRA, this Agreement incorporates by reference the definitions for “human remains” and “funerary objects” set forth in 43 C.F.R § 10.2(d) and those definitions shall apply to actions under this Agreement. Further treatment of human remains is addressed in Stipulation XII (Tribal Consultation and Treatment of Human Remains).

XI. TRIBAL INVOLVEMENT

A. In consultation with Native American interested parties and Tribes, the Corps will make a reasonable and good-faith effort to identify Historic Properties of traditional religious and cultural importance. The Corps shall ensure that consultation with Native American Tribes is initiated early with respect to the Project and continues throughout the Section 106 process.

B. In accordance with the guidance provided in National Register Bulletin 38 and Preservation Brief 36, the Corps will seek comments from all potentially interested Native American interested parties and Tribes in making determinations of NRHP eligibility for any Traditional Cultural Properties (TCPs) and Cultural Landscapes (as defined in Bulletin 38 and Preservation Brief 36). Review of documentation shall be consistent with Stipulation I (Timeframes and Review Procedures).

C. Pursuant to 36 C.F.R. § 800.6(c)(2)-(3), the Corps shall consider requests by

Native American Tribes to become Concurring Parties to this Agreement. In accordance with Stipulation XIV (Confidentiality), Concurring Parties to this Agreement will receive documents produced under this Agreement, as appropriate.

D. Native American Tribes may choose not to sign this Agreement as a Concurring Party. Native American Tribes and individuals not acting as Concurring Parties to the Agreement will be contacted when the Corps identifies potential interest in a specific phase or action of the project. The Corps will make a good faith effort to identify any Native American organizations and individuals with interest in the proposed treatment of Historic Properties. The identification effort may include contacting the Native American Heritage Commission (NAHC), using online databases, and using personal and professional knowledge. The Corps will then contact each identified organization and individual by mail, inviting them to consult about the specific treatment of Historic Properties. If interest from the contacted parties is received by the Corps, the Corps will proceed to consult in accordance with Stipulation XI.A. (Tribal Involvement). Further consultation may also be carried out through either letters of notification, public meetings, environmental assessments/environmental impact statements, site visits, and/or other method requested by a Native American interested party and Tribe. Failure of any contacted group to comment within thirty (30) calendar days shall not preclude the Corps from proceeding with the Project.

E. The Corps shall make a reasonable and good-faith effort to ensure that

Native American Tribes, acting as either Concurring Parties or those expressing interest in the project, will be invited to participate in the development and implementation of the terms of this Agreement, including, but not limited to, the identification of the APE, identification of potential Historic Properties, determinations of eligibility, findings of effect, and the resolution of adverse effect for those Historic Properties. Review periods shall be consistent with Stipulation I (Timeframes and Review Procedures) except in situations involving unanticipated discoveries and treatment, which shall follow the review schedules of Stipulation IX (Discovery of Unknown Historic Properties). The Corps shall ensure that all interested Native American reviewers shall receive copies of all final survey and evaluation reports.

XII. TRIBAL CONSULTATION AND TREATMENT OF HUMAN REMAINS

There is no federally owned property within the designated APE, therefore NAGPRA would not apply. The CVFPB and landowner shall ensure that Native American human remains and grave goods encountered during the Undertaking that are located on state or private land are treated in accordance with the requirements in California State Health and Safety Code, Section 7050.5 and Public Resources Code 5097.98. If Native American human remains are encountered within the context of a National Register eligible archaeological site, a clear means of identifying those remains and grave goods will be described in the HPMP. Any procedures described in the HPTP regarding the handling or treatment of human remains will be coordinated with the landowner to ensure that they are consistent with Public Resources Code 5097.98. In the event that any Native American human remains or associated funerary items are identified, the Most Likely Descendant (MLD), as identified by the Native American Heritage Commission, shall be invited to advise the CVFPB and landowner in the treatment of any Native American human remains and items associated with Native American burials.

XIII. PUBLIC CONSULTATION AND PUBLIC NOTICE

A. Pursuant to 36 C.F.R. § 800.6(c)(2)-(3), the Corps will consider requests by interested parties to become Concurring Parties to this Agreement. Within thirty (30) calendar days of the effective date of this Agreement, the Corps shall consult with the SHPO to compile a list of members of the interested public who shall be provided notice of this Agreement.

B. The interested public will be invited to provide input on the identification, evaluation, and proposed treatment of Historic Properties. This may be carried out through either letters of notification, public meetings, environmental assessment/environmental impact statements, and/or site visits. The Corps shall ensure that any comments received from members of the public are taken under consideration and incorporated where appropriate.

Review periods shall be consistent with Stipulation I (Timeframes and Review Procedures). In seeking input from the interested public, locations of Historic Properties will be handled in accordance with Stipulation XIV (Confidentiality). In cases where the release of location information may cause harm to the Historic Property, this information will be withheld from the public in accordance with Section 304 of the NHPA (54 U.S.C. § 307103).

XIV. CONFIDENTIALITY

Confidentiality regarding the nature and location of the archaeological sites and any other cultural resources discussed in this Agreement shall be limited to appropriate Corps personnel, Corps contractors, Native American tribes, the SHPO, and those parties involved in planning, reviewing and implementing this Agreement in accordance with Section 304 of the NHPA (54 U.S.C. § 307103).

XV. DISPUTE RESOLUTION

A. Should any Signatory Party to this Agreement object in writing to any action proposed or carried out pursuant to this Agreement, the Corps will immediately notify the SHPO and the Concurring Parties of the objection and proceed to consult with the objecting party for a period of time, not to exceed thirty (30) calendar days, to resolve the objection. If the objection is resolved through consultation, the Corps may authorize the disputed action to proceed in accordance with the terms of such resolution. If the Corps determines that the objection cannot be resolved, the Corps shall forward all documentation relevant to the dispute to the ACHP. Within forty-five (45) calendar days after receipt of all pertinent documentation, the ACHP shall either:

(1) Advise the Corps that the ACHP concurs in the Corps’ proposed response to the objection, whereupon the Corps will respond to the objection accordingly; or

(2) Provide the Corps with recommendations, which the Corps shall consider in reaching a final decision regarding the objection; or

(3) Notify the Corps that the ACHP will comment in accordance with the requirements of Section 106 of the NHPA, and proceed to comment. Any ACHP comment provided in response shall be considered by the Corps, pursuant to the requirements of Section 106 of the NHPA.

B. Should the ACHP not exercise one of the options under Stipulation XV.A.

(Dispute Resolution) within forty-five (45) calendar days after receipt of all submitted pertinent documentation, the Corps’ responsibilities under Section 106 of the NHPA are fulfilled upon implementation of the proposed response to the objection.

C. The Corps shall consider any ACHP recommendation or comment and any comments from the SHPO to this Agreement provided in accordance with this stipulation with reference only to the subject of the objection; the Corps’ responsibility to carry out all actions under this Agreement that are not the subjects of the objection shall remain unchanged.

D. The Corps shall provide the SHPO with a written copy of its final decision regarding any objection addressed pursuant to Stipulation XV.A. (Dispute Resolution).

E. At any time during implementation of the measures stipulated in this

Agreement should an objection pertaining to the Agreement be raised by a Concurring Party, Native American Tribe, or a member of the public, the Corps shall notify the Signatory and Concurring Parties and take the objection under consideration, consulting with the objecting party and, should the objecting party request, any of the Signatory and Concurring Parties to this Agreement, for no longer than fifteen (15) calendar days. The Corps shall consider the objection, and in reaching its decision, will consider all comments provided by the other parties. Within fifteen (15) calendar days following closure of the comment period, the Corps will render a decision regarding the objection and respond to the objecting party. The Corps will promptly notify the other parties of its decision in writing, including a copy of the response to the objecting party. The Corps’ decision regarding resolution of the objection will be final. Following issuance of its final decision, the Corps may authorize the action that was the subject of the dispute to proceed in accordance with the terms of that decision. The Corps’ responsibility to carry out all other actions under this Agreement shall remain unchanged.

XVI. NOTICES

A. All notices, demands, requests, consents, approvals or communications from all parties to this Agreement to other parties to this Agreement shall be personally delivered, sent by United States Mail, or emailed, and all parties shall be considered in receipt of the materials five (5) calendar days after deposit in the United States mail, certified and postage prepaid, return receipt requested.

B. Signatory and Concurring Parties agree to accept facsimiles or copies of signed documents and agree to rely upon such facsimiles or copies as if they bore original signatures.

XVII. AMENDMENTS, NONCOMPLIANCE, AND TERMINATION

A. Amendment: Any Signatory Party to this Agreement may propose that the

Agreement be amended, whereupon the Corps shall consult with the SHPO to consider such amendment. The Agreement may be amended only upon written concurrence of all Signatories.

All attachments to this Agreement, and other instruments prepared pursuant to this agreement including, but not limited to, the Project’s description, initial cultural resource inventory report and maps of the APE, the HPMP, HPTPs, and monitoring and discovery plans, may be individually revised or updated through consultation consistent with Stipulation I (Timeframes and Review Procedures) and agreement in writing of the Signatories without requiring amendment of this Agreement, unless the Signatories through such consultation decide otherwise. In accordance with Stipulation XI (Tribal Involvement) and Stipulation XIII (Public Consultation and Public Notice), the Concurring Parties, interested Native American Tribes, and interested members of the public, will receive amendments to the Project’s description, initial cultural resource inventory report and maps of the APE, the HPMP, HPTPs, and monitoring and discovery plans, as appropriate, and copies of any amendment(s) to the Agreement.

B. Termination: Only the Signatories may terminate this Agreement. If this

Agreement is not amended as provided for in Stipulation XVII.A.

(Amendment), or if any Signatory proposes termination of this Agreement for other reasons, the Signatory proposing termination shall notify the other Signatory in writing, explain the reasons for proposing termination, and consult with the other Signatory to seek alternatives to termination, within thirty (30) calendar days of the notification.

Should such consultation result in an agreement on an alternative to termination, the Signatories shall proceed in accordance with that agreement.

Should such consultation fail, the Signatory proposing termination may terminate this Agreement by promptly notifying the other Signatory and Concurring Parties in writing.

Beginning with the date of termination, the Corps shall ensure that until and unless a new agreement is executed for the actions covered by this Agreement, such undertakings shall be reviewed individually in accordance with 36 C.F.R. § 800.4-800.6.

C. Duration: This Agreement shall remain in effect for a period of ten (10) years after the date it takes effect and shall automatically expire and have no further force or effect at the end of this ten-year period unless it is terminated prior to that time. No later than ninety (90) calendar days prior to the expiration date of the Agreement, the Corps shall initiate consultation to determine if the Agreement should be allowed to expire automatically or whether it should be extended, with or without amendments, as the Signatories may determine.

Unless the Signatories unanimously agree through such consultation on an alternative to automatic expiration of this Agreement, this Agreement shall automatically expire and have no further force or effect in accordance with the timetable stipulated herein.

XVIII. ANNUAL REPORTING

At the end of every calendar year following the execution of this Agreement, the Corps shall provide all parties to this Agreement a summary report detailing work carried out pursuant to its terms, if any. Such report shall describe progress made implementing the terms of the Agreement as well as include any scheduling changes proposed, any problems encountered, and any disputes and objections received in the Corps’ efforts to carry out the terms of this Agreement.

Any Signatory party may request to meet with the other Signatories to discuss implementation of this Agreement.

XIX. EFFECTIVE DATE

This Agreement shall take effect on the date that it has been fully executed by the Corps and the SHPO.

EXECUTION of this Agreement by the Corps and the SHPO, its transmittal to the ACHP, and subsequent implementation of its terms evidence that the Corps has afforded the ACHP an opportunity to comment on the undertaking and its effects on Historic Properties, that the Corps has taken into account the effects of the undertaking on Historic Properties, and that the Corps has satisfied its

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

CONCURRING PARTIES:

STATE OF CALIFORNIA CENTRAL VALLEY FLOOD PROTECTION BOARD

BY:____________________________________________DATE:____________

Leslie Gallagher, Executive Officer

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

BUENA VISTA RANCHERIA OF THE ME-WUK INDIANS OF CALIFORNIA

BY:________________________________________DATE: ____________

Rhonda L. Morningstar Pope, Chairwoman

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

CACHIL DEHE BAND OF WINTUN INDIANS OF THE COLUSA INDIAN

COMMUNITY OF THE COLUSA RANCHERIA

Ambar Mohammed

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

COLFAX-TODDS VALLEY CONSOLIDATED TRIBE

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

CORTINA WINTUN ENVIRONMENTAL PROTECTION AGENCY

Charlie Wright, Chairperson

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

EL DORADO MIWOK TRIBE

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

Rose Enos

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

ENTERPRISE RANCHERIA OF MAIDU INDIANS OF CALIFORNIA

Glenda Nelson, Chairperson

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

FAIR OAKS HISTORICAL SOCIETY

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

Kesner Flores

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

GOLDEN GATE STATE MUSEUM

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

IONE BAND OF MIWOK INDIANS OF CALIFORNIA

Crystal Martinez, Chairperson

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

MECHOOPDA INDIAN TRIBE OF CHICO RANCHERIA

Dennis Ramirez, Chairperson

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

MOORETOWN RANCHERIA OF MAIDU INDIANS

Guy Taylor, Representative

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

NASHVILLE-EL DORADO MIWOK

Cosme Valdez, Interim Chief Executive Officer

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

SACRAMENTO COUNTY HISTORICAL SOCIETY

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

SHINGLE SPRINGS BAND OF MIWOK INDIANS

Nicholas Fonseca, Chairperson

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

SOCIETY FOR CALIFORNIA ARCHAEOLOGY

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

STRAWBERRY VALLEY RANCHERIA

Cathy Bishop, Chairperson

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

SUTTER COUNTY HISTORICAL SOCIETY

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

T’SI-AKIM MAIDU

Don Ryberg, Chairman

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

UNITED AUBURN INDIAN COMMUNITY OF THE AUBURN RANCHERIA

Gene Whitehouse, Chairman

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

WEST SACRAMENTO HISTORICAL SOCIETY

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

WILTON RANCHERIA

Raymond Hitchcock, Chairperson

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

YOLO COUNTY HISTORICAL SOCIETY

THE U.S.ARMY CORPS OF ENGINEERS AND

THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER

Randy Yonemura

Borrow Area Fisherman's Lake

Natomas Cross Canal

Dry/Robla Creeks

Arcade Creek

Pleasant Grove Creek Canal

Magpie CreekWest Drainage Canal

Sacramento Bypass

Natomas East Main Drainage Canal

Attachment 1 U.S. Army Corps of Engineers

American River Common Features (ARCF) Project Area of Potential Effects (APE)

ARCF APE

®0 3 6 9 121.5 Miles

Attachment 2

American River Common Features Project Project Description

November 2014

The American River Common Features (ARCF) Project is being developed to provide flood risk reduction to the city of Sacramento, including the Natomas Basin, areas along the North and South banks of the American River, and areas along the East bank of the Sacramento River below the American River. The non-Federal sponsor for the ARCF Project is the State of California Central Valley Flood Protection Board (CVFPB). The Sacramento Area Flood Control Agency (SAFCA) has a Local Cooperation Agreement with the CVFPB. Authorized Local Cooperation Agreements include requirements to: 1) Provide lands, easements, and rights-of-way; 2) Modify or relocate utilities, roads, bridges (except railroad bridges), and other facilities where necessary for the construction of the project; 3) Cost share the project per applicable laws; and 4) Bear all costs of operation, maintenance, repair, rehabilitation and replacement of flood control facilities.

Location

The Sacramento River Watershed covers approximately 26,000 square miles in central and northern California.