Att_7_-_NGWSP_Programmatic_Agreement.pdf

Attachment 7: Navajo Gallup Water Supply Project Programmatic Agreement

Programmatic Agreement Navajo-Gallup Water Supply Project 11-08-2011

Programmatic Agreement

Among The Bureau of Reclamation

The Advisory Council on Historic Preservation, The New Mexico State Historic Preservation Officer

The Navajo Nation The Bureau of Land Management and

The Bureau of Indian Affairs Regarding the Consideration and Management of Effects

On Historic Properties Arising from Construction of the Navajo-Gallup Water Supply Project, New Mexico

WHEREAS the United States Department of the Interior, Bureau of Reclamation (Reclamation) 1 has been authorized by Public Law 111-11, the Omnibus Public Land Management Act of 2009, 2 to construct the Navajo-Gallup Water Supply Project (Project), an undertaking subject to review 3 under Section 106 of the National Historic Preservation Act of 1966, as amended (NHPA), and 4 the regulations of the Advisory Council on Historic Preservation (ACHP) implementing Section 5 106 (36 CFR Part 800); and 6

WHEREAS the Project is a critical element in the implementation of the San Juan River Basin in 7 New Mexico Navajo Nation Water Rights Settlement Agreement executed December 17, 2010; 8 and 9

WHEREAS the Project is to be constructed substantially as described in the Record of Decision 10 (ROD) signed by the Secretary of the Interior on October 1, 2009, regarding the Planning Report 11 and Final Environmental Impact Statement for the project; and 12

WHEREAS in consultation with the New Mexico State Historic Preservation Officer 13 (NMSHPO) and the Navajo Nation Tribal Historic Preservation Officer (THPO), Reclamation 14 has determined that the Project will have adverse direct and indirect effects on historic 15 properties, as defined at Section 301(5) of NHPA and 36 CFR 800.16(l)(1); and 16

WHEREAS Reclamation has determined that because the project will be implemented in phases, 17 identification of the effects of the Project on historic properties cannot be completed prior to the 18 Project’s authorization, it is appropriate to develop and implement a Programmatic Agreement 19 (PA) pursuant to 36 CFR 800.14(b); and 20

WHEREAS pursuant to 36 CFR 800.4(a)(1), Reclamation has defined the Project’s Area of 21 Potential Effects (APE) for direct physical effects on historic properties to include all lands 22 within approximately 125 feet of the planned 150 foot construction rights-of-way for a total 23 width of 400 feet as depicted in the Final Environmental Impact Statement (FEIS), subject to 24 such revisions to the right-of-way as may occur during advanced planning of individually phased 25 Reaches and Project implementation, plus the sites and grounds of all planned pumping plants, 26 treatment plants, storage and treatment facilities, access roads, transmission lines, material 27 borrow sources, storage and mobilization sites, and other places where ground disturbance may 28 occur, and 29

WHEREAS the majority of the Project’s APE lie within the boundaries of the Navajo Nation; 30 and 31

WHEREAS the Navajo Nation has enacted the Navajo Nation Cultural Resources Protection Act 32 (CMY-19-88, NNC Title 19, Chapter 11, Sections 1001-1061; hereinafter CRPA) governing the 33 management of historic properties and other cultural resources on Navajo Nation Lands, and has 34 promulgated guidelines for implementation of the CRPA; and 35

WHEREAS, the Bureau of Indian Affairs (BIA) is responsible for the administration and 36 management of land and other interests held in trust by the United States for American Indians 37 and Indian tribes, including those lands comprising the Navajo Nation that will be within the 38 APE of the project; and 39

WHEREAS the Bureau of Land Management (BLM) is responsible for the administration and 40 management of public land and other resources that will be within the APE of the project; and 41

WHEREAS the Commissioner of Public Lands is responsible for the administration and 42 management of State Trust lands and the New Mexico Department of Transportation (NMDOT) 43 is responsible for the management of lands within NMDOT right-of-way within the Project’s 44 APE, ; and 45

WHEREAS the Indian Health Service (IHS) is a project participant for construction of several 46 reaches, and has been invited to consult to develop this PA; and 47

WHEREAS in consultation with the New Mexico SHPO and the Navajo Nation THPO, 48 Reclamation has determined that compliance with the terms of its permit from the Navajo Nation 49 Preservation Officer will provide adequately for the management of effects on historic properties 50 in the Project’s APEs within the Navajo Nation and on lands administered by the Bureau of 51 Indian Affairs; and 52

WHEREAS Reclamation has invited 51 American Indian tribes or Pueblos (See attachment 1) 53 that might attach religious or cultural significance to historic properties that may be affected by 54 the project to participate in the consultation; and a number of tribes, in addition to the Navajo 55 Nation, have agreed to participate in the consultation; and 56

WHEREAS other American Indian tribes and Pueblos, including but not limited to the Navajo 57 Nation, the Jicarilla Apache Nation, the Hopi Tribe, the Pueblo of Zuni, the Pueblo of Santa 58 Clara, the Ute Mountain Ute Tribe, the Southern Ute Indian Tribe, and the Hualapai Tribe, may 59 ascribe cultural significance to sites and areas within the Project’s APE, and are entitled to be 60 consulted about the identification and management of impacts on such sites and areas pursuant to 61 Section 101(d)(6)(B) of NHPA, 36 CFR 800.2(c)(2), and other legal authorities; and 62

WHEREAS the Jicarilla Apache Nation, as a recipient of water from the Project, has an interest 63 in the Project and how its effects on historic properties are addressed and has been invited to 64 consult to develop this PA; and 65

WHEREAS Reclamation has entered into consultation with the Navajo Nation THPO, the New 66 Mexico SHPO, the governments and historic preservation officials of the Jicarilla Apache 67 Nation, the Hopi Tribe, the Pueblo of Zuni, the Pueblo of Santa Clara, the Ute Mountain Ute 68 Tribe, the Southern Ute Indian Tribe, and the Hualapai Tribe, as well the BLM, Navajo Area and 69 Southwest Regional offices of the BIA, the City of Gallup, the New Mexico State Land Office 70 (SLO), the NMDOT, the IHS, and the ACHP pursuant to Section 106 of the NHPA and the 71 ACHP’s Section 106 regulations to consider the potential effects of the project on historic 72 properties and seek ways to avoid, reduce, or mitigate adverse effects as set forth in this PA; and 73

WHEREAS Reclamation and BLM have entered into an agreement dated October 13, 2011 74 under which Reclamation serves as lead federal agency for purposes of compliance with Section 75 106 of NHPA and related requirements; and 76

WHEREAS Reclamation recognizes its obligations under Section 110(b) of NHPA to document 77 historic properties adversely affected by the Project, and under the Archaeological and Historic 78 Preservation Act of 1974 (16 U.S.C.469-469c) to protect and recover significant historical, 79 scientific, and archaeological data affected by the Project, and has designed this PA in part to 80 address these obligations; 81

WHEREAS the Bureau of Reclamation, the Navajo Nation, the New Mexico SHPO and the 82 ACHP mutually agree that it is in the public interest to expend federal funds to recover 83 significant information from archeological sites which may be determined eligible for listing on 84 the National Register of Historic Places (NRHP); and 85

WHEREAS Native American cultural items as defined in the Native American Graves 86 Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001, are expected to be encountered 87 during the archeological work and construction activities of the Project and a NAGPRA Plan of 88 Action (POA) shall be prepared in parallel with this agreement and included as an amendment to 89 this agreement. Approval of the POA shall not delay approval of the PA. The POA shall be 90 developed in consultation with those tribes that claim affiliation with project lands. 91

NOW, THEREFORE, the Bureau of Reclamation, the Navajo Nation THPO, the New Mexico 92 SHPO, the Bureau of Land Management, the Bureau of Indian Affairs, and the ACHP, 93 collectively known as “Signatory Parties”, mutually agree that the Project will be carried out in 94 accordance with the following stipulations to ensure that its effects on historic properties are 95 taken into account. 96

Stipulations 97 Reclamation, as the lead agency for NHPA and NAGPRA compliance, will ensure that the 98 following stipulations are implemented. 99

Roles and Responsibilities 100 Reclamation shall be the lead Federal agency for implementing this agreement. Duties include 101 ensuring that all Signatory and Concurring Parties carry out their responsibilities; consulting with 102 American Indian tribal governments; overseeing all cultural resource work; assembling all 103 submissions and requests for concurrence from the Parties including determinations of eligibility 104 and effect, treatment or data recovery plans; reports of findings or other relevant documents. 105

The term “signatory” or “signatories” to this agreement” means Reclamation, the Navajo Nation 106 THPO, the New Mexico SHPO, the BLM, the BIA,I and the ACHP, each of which has authority 107 to terminate the consultation process. ”Concurring Parties” have been invited to concur, but do 108 not have the authority to terminate (See Attachment 3: Definitions). The term “Parties” refers to 109 both Signatory and Concurring Parties. 110

As lead agency, Reclamation shall ensure that historic, architectural, and archaeological work 111 conducted pursuant to this agreement is carried out by or under the direct supervision of a person 112 or persons meeting, at a minimum, the Secretary of the Interior's Professional Qualification 113 Standards and who have been permitted for such work on public lands by the BLM and on tribal 114 lands by the BIA and NNHPD; and that ethnographic work is carried out by or under the direct 115 supervision of a person or persons holding, at a minimum, a graduate level degree in 116 anthropology or a closely-related field. 117

For work on Navajo Nation lands and lands administered by BIA, Reclamation will ensure that 118 its contractors or employees are permitted by the Navajo Nation THPO to perform such work on 119 tribal lands according to the CRPA, which governs the management of historic properties and 120 other cultural resources. Furthermore, the Navajo Nation THPO has promulgated guidelines for 121 implementation of the CRPA, including but not limited to: 122

Policies, Procedures, and Guidelines for Acquiring Cultural Resources Investigation 123 Permits; 124 Fieldwork, Report Standards, and Guidelines; 125 Guidelines for the Treatment of Historic, Modern and Contemporary Abandoned Sites; 126 Guidelines for the Treatment of Discovery Situations; 127 Policy for the Disposition of Cultural Resources Collections; 128 Navajo Nation Policy for the Protection of Jishchaa’: Gravesites, Human Remains, and 129 Funerary Items; and Significant Traditional Cultural Properties of the Navajo People. 130

Pursuant to Section 1021 of the CRPA, Reclamation must obtain the approval of the Navajo 131 Nation THPO prior to implementation of the Project on Navajo Nation Land; and 132

For work on BLM lands beyond the external boundary of the Navajo Nation, Reclamation shall 133 ensure that its contractors or employees comply with the requirements of the BLM both 134 nationally and in New Mexico, including, but not limited to the guidance provided by the BLM 135 Manual 8130, 8140, 8150, and 8170. 136

For work on state or private land, Reclamation shall ensure that its contractors or employees 137 comply with the requirements for the State of New Mexico including state cultural resources and 138 historic preservation rules and regulations found in the New Mexico Administrative Code 139 (NMAC) and state agency or department guidance. All archeological records generated for 140 resources on BLM lands, state lands or private lands beyond the external boundary of the Navajo 141 Nation shall meet the standards of the BLM or the State of New Mexicoas appropriate . 142

Contingent upon funding by Congress, Reclamation shall bear all expenses of identification, 143 documentation, evaluation, and treatment of historic properties directly or indirectly affected by 144 project-related activity within the APE. Such costs shall include, but not be limited to, cultural 145 resource implementation planning, fieldwork, post-fieldwork analysis, research and report 146 preparation, interim and summary report preparation, and artifact and records curation. 147

I. Navajo Nation Cultural Resource Protection Act (CRPA) Permits, BLM Permits and 148 New Mexico Cultural Property Review Committee (CPRC) Permits 149

a. Reclamation contractors will obtain and comply with a Class B and Class C permit or other 150 permits from the Navajo Nation Historic Preservation Officer pursuant to Section 1021 of the 151 Navajo Nation CRPA; compliance with the terms of such permit(s), together with the other 152 stipulations in this PA, will be understood by the Parties hereto to constitute compliance with this 153 PA with respect to lands and historic properties within the Navajo Nation. 154

b. With respect to lands within the Project APEs and outside the Navajo Nation, Reclamation 155 will apply the standards set forth in the BLM National Handbook and the BLM New Mexico 156 Handbook and standards or the State of New Mexico standards as appropriate. 157

1. Reclamation contractors will obtain permits as required under the Archaeological 158 Resources Protection Act (ARPA) of 1979 (16 U.S.C. 470) for any archaeological 159 investigations carried out under this PA. These permits shall be issued by the BLM or 160 BIA for lands under their ownership or management. 161

Reclamation will require cultural resource contractors to obtain all necessary permits required 162 under the New Mexico Cultural Properties Act (NMSA 1978, 18-6-1 et seq.). These permits are 163 issued by the (CPRC) with the concurrence of the State Archaeologist and the NMSHPO for 164 archaeological investigations carried out on state, city or private land under this PA. 165

c. Reclamation, in cooperation with the Parties, shall ensure that all its personnel and personnel 166 of its construction contractors are directed not to engage in the illegal collection of archeological 167 objects. Reclamation shall cooperate with the land-managing parties to ensure compliance with 168 ARPA on public lands and tribal lands. 169

d. Should damage to cultural resources inside or outside the APE occur during construction or 170 operation due to the unauthorized or negligent actions of Reclamation, its employees, 171 contractors, or any other project personnel, Reclamation shall be responsible for costs of 172 rehabilitation or mitigation, and may be subject to civil or criminal penalties for willful 173 violations, as appropriate. 174

II. Identification of Potentially Affected Historic Properties. 176

1. Reclamation will undertake a survey of the Project’s APE to identify historic 177 properties potentially affected by the Project, subject to the following terms: 178

a) Either for the APE as a whole, or once the centerline of each Project Reach has been 179 defined, Reclamation shall have its consulting archaeologists conduct searches of the 180 National Register of Historic Places, the New Mexico Cultural Resource Information 181 System (NMCRIS) and Archeological Resources Management Section (ARMS), BLM, 182 BIA, and Navajo Nation THPO cultural resources records to identify known cultural 183 resources within the APE. Reclamation need not await execution of this PA to initiate 184 the survey on lands where Reclamation has right of entry; the tight scheduling of the 185 Project demands that it be undertaken as soon as possible; 186

b) The record search (Class I survey) will address the entire APE of the Project, with the 187 intent of obtaining, at the earliest possible date, a solid overall understanding of historic 188 properties subject to effect; 189

c) Priority, in terms of timing and sequencing of the surveys, may be given to Reaches or 190 other segments of the Project on which ground disturbance is more imminent than in 191 other reaches or segments. 192

2. Archaeological survey of the APE to identify sites subject to potential effects; 194

a) Subject to the terms of the CRPA, ARPA, BLM and/or CPRC permits or permissions for 195 field work, the survey will include an intensive inventory of the APE including the 196 construction right-of-way (ROW) and all proposed project facilities and other ground 197 disturbance. The inventory shall meet Secretary of the Interior Standards, as well as those 198 of the other parties for their respective land jurisdictions, especially Navajo Nation, the 199 BLM and the State of New Mexico. 200

b) Identification of additional sites and areas subject to possible effects will be based on 201 review of published and unpublished historical, archaeological, and ethnographic data, 202 consultation with NMSHPO and BLM on areas outside of the Navajo Nation, 203 coordination with tribal traditional cultural place surveys under Stipulation II.b, 204 consultation with Navajo Chapters, and consultation with people residing on or using 205 lands within the APE for any adverse effects. 206

3. TCP’s and Sacred Sites Identification and Ethnographic Studies. 207

a) Reclamation shall consult with the signatory and Concurring Tribes to identify properties 208 of traditional religious and cultural importance. Reclamation shall ensure that recordation 209 and evaluation of TCPs and sacred sites will be done utilizing guidance provided by 210 Bulletin Number 38, Executive Order 13007, Executive Order 13175, Reclamation 211 policy and guidance on the identification and evaluation of sacred sites, and Navajo 212 Nation policy regarding the identification and evaluation of TCPs and sacred sites. 213 Requirements for recordation and documentation will be limited to that needed to 214 determine project effects and subsequent treatments. Identification, evaluation, 215 assessment of effects and subsequent treatment will be done in consultation with the 216 Parties, and Consulting Tribes, groups or individuals affiliated with a given TCP or 217 sacred site, as appropriate. Reclamation will coordinate with Indian Tribes and affected 218 Native American groups or individuals so as to assure that treatment and use of TCPs 219 associated with Native Americans is consistent with the intent and purposes of the 220 American Indian Religious Freedom Act. 221

b) Reclamation will assist each concurring tribal party to this PA, when requested, so that 222 the Tribe may conduct its own study of the Project APE to identify potentially affected 223 TCPs as defined in the National Register of Historic Places (NRHP) and Bulletin 38. 224 The nature, form and product of each tribe’s or Pueblo’s TCP study will be established 225 through consultation between the Tribe or relevant tribal party or parties and 226 Reclamation, with due consideration for the need to expedite an assessment and 227 resolution of effects to these properties. 228

c) As appropriate, ethnographic work undertaken shall be performed by or under the direct 229 supervision of qualified ethnographers with ethnographic research training as described 230 in National Park Service Bulletin Number 38, Guidelines for the Identification and 231 Evaluation of Traditional Cultural Properties (Bulletin 38). However, the religious and 232 cultural sensitivities of Native American or other ethnic groups shall be given primary 233 consideration in the process of recognizing and evaluating Traditional Cultural Places 234 (TCP’s) and sacred sites within the context of the Section 106 process. 235

III. Eligibility 236

a) Reclamation, in consultation with the Parties, shall evaluate all cultural resources located 237 within the APE for eligibility to the NRHP. It is anticipated that consensus 238 determinations of eligibility shall be done by Project Reach. 239

b) To the extent practicable, eligibility determinations shall be based on surface inventory 240 plus ethnographic or observational information. If the information gathered in the 241 inventory, ethnographic or observational processes is inadequate to determine eligibility, 242 Reclamation (through its contractors) may be required to conduct testing of a limited 243 nature and extent or other evaluative techniques to determine eligibility. Subject to 244 approval by Reclamation, in consultation with the Parties, evaluative testing would be 245 intended to provide the minimum data necessary to define the nature, density, and 246 distribution of materials in potential historic properties, to make final evaluations of 247 eligibility, and to devise treatment options if needed. 248

c) Reclamation, will consult with the Parties on eligibility and effects during the same 249 consultation to ensure that, to the maximum feasible extent, adverse effects to NRHP 250 eligible properties are avoided. 251

d) If Reclamation or the Parties disagree regarding eligibility of a property, Reclamation 252 shall seek a formal determination of eligibility from the Keeper of the National Register. 253 The Keeper's determination is final. 254

e) Pursuant to Section 304 of NHPA, Reclamation will seek to enter into an agreement with 255 the Secretary of Interior (see 36 CFR 800.11(c)) allowing Reclamation to withhold from 256 release to the public any information on historic places that a Tribe or Pueblo requests be 257 kept confidential because disclosure of this information may cause a significant invasion 258 of privacy, risk harm to the resource, or impede its use by traditional religious 259 practitioners.. In negotiating this agreement, Reclamation will consult with the Parties to 260 this PA, and seek to ensure that their concerns are effectively addressed by the 261 agreement. 262

IV. Assessment of Effect 264

a) Because of the large number of historic properties expected to be found within the 265 Project’s APE and the impossibility of avoiding physical impacts to all of them, the 266 Parties agree that this undertaking will have an adverse effect on historic properties. 267 When possible, adverse effects to historic properties will be avoided. 268

b) Reclamation, will consult with the Parties on eligibility and effects during the same 269 consultation to ensure that, to the maximum feasible extent, adverse effects to NRHP 270 eligible properties are avoided. 271

c) Avoidance measures for archaeological sites may include (but are not limited to) 272 monitoring of construction near site areas, and placement of trench for pipe outside site 273 boundaries. Where these measures cannot be employed, boring beneath sites may be 274 considered when site depth has been established through testing or other documentation. 275

d) Reclamation will identify avoidance measures for NRHP eligible properties of traditional 276 religious and cultural importance in consultation with the Parties and affected tribes or 277 Native American groups or other ethnic groups who ascribe traditional religious and 278 cultural importance to the properties. 279

V. Treatment of Potentially Affected Historic Properties 281

Reclamation or its contractors will prepare, in consultation with Parties to this PA, a treatment 282 plan for all historic properties it determines are subject to adverse direct and indirect effects by 283 the Project. 284

Reclamation shall ensure consultation with all the Parties to this PA to ensure that the treatment 285 plan prepared is acceptable to all Parties and is consistent with the Secretary of the Interior's 286 Standards for the Treatment of Historic Properties and with the ACHP’s guidelines. 287

Treatment Plans will be appropriate for the resources and the nature of effects and may include, 288 but are not limited to, the following options: 289

a) No treatment beyond documentation prepared (if any) during a property’s 290 identification; 291

b) Avoidance or minimization of effect through project redesign, monitoring of 292 construction near sites, fencing, and placement of trenches outside site boundaries, or 293 other means; 294

c) Recordation via photography, mapping, data recovery and similar means; and 295

d) Treatment not yet identified but determined between Reclamation and the tribal group 296 ascribing significance to that property. 297

Treatment Plans shall: 298

a) Be consistent with applicable CRPA, BLM and NMSHPO standards and guidelines 299 on tribal, federal, state and/or private lands as appropriate and with the terms of an 300 ARPA permit or permits obtained from the relevant land managing agency; 301

b) Be designed to preserve historic properties in place where feasible; 302

c) Within the Navajo Nation, be consistent with the Navajo Nation’s Policy for the 303

Protection of Jishchaa’; 304

d) On federal property outside of the Navajo Nation, be consistent with the POA to be 305 developed by Reclamation pursuant to NAGPRA and for unmarked human burials on 306 state and private land be consistent the requirements of Section 18-6-11.2 of the 307 Cultural Properties Act and rule 4.10.11 NMAC; 308

e) Be designed to the extent possible to protect or, if necessary, recover interred human 309 remains and funerary items for appropriate reburial or other treatment; 310

f) Where archaeological data recovery is proposed, be designed to address defensible 311 research questions or issues; 312

g) Be developed in consultation with those affected and/or knowledgeable about the 313 properties affected; and 314

h) Include, where pertinent, provisions for minimizing the likelihood of discoveries 315 during construction, and for the efficient handling of any discoveries that may occur. 316

Reclamation will ensure that the treatment plans it prepares, or that are prepared on its behalf, are 318 promptly submitted for review by the Parties via their Points of Contact established under 319 Stipulation VIII, and where lands outside the Navajo Nation are involved, are promptly 320 submitted to the New Mexico SHPO and to the BLM or other land managing agency for review. 321

At a minimum, a data recovery treatment plan shall include the following topics: 322

a) Research Domains 323

b) Previous research and applicable research issues 324

c) Research questions 325

d) Proposed Research 326

e) Data required to address objectives 327

f) Sampling design 328

g) Sample size 329

h) Justification for sampling design 330

i) Number and dimensions of block excavation units, trenches, etc. 331

j) Special analyses (e.g., C-14, obsidian sourcing, dendrochronology, clay and temper 332 sourcing, etc.) 333

k) Native American Consultation 334

l) Native American ideas regarding resolution of effects 335

m) NAGPRA Plan Of Action 336

n) Navajo Nation Jishchaa’ policy 337

o) Schedule 338

p) Relative time line with fieldwork, analyses, write up, draft report, final report 339

q) Work effort needed to perform tasks (hours, budget) 340

Other form of treatment shall be documented with similar efforts in keeping with the nature of 341 those specific treatment plans. 342

Reclamation will ensure that all final, approved treatment plans take into account comments 343 provided by the Parties. 344

VI. Curation 345

The curation policy for recovered artifacts on Navajo Nation land will be according to Navajo 346 CRPA publication Policy for the Disposition of Cultural Resources Collections. Artifacts will be 347 retained for analysis during the data recovery efforts until completion of the project. 348

Curation for artifacts and all records, data base files, photographs, negatives, maps, field notes, 349 artifacts, reports (both a hard copy and electronic copy) and other materials collected or 350 developed for any identification, evaluation, or treatment activities recovered outside Navajo 351 Nation land will be in accordance with (36 CFR 79) Regulations for the Curation of Federally 352 Owned and Administered Archeological Collections and as supplemented by Part 411 DM, the 353 Department of the Interior Museum Property Handbook; DO #24; and will be curated in a 354 facility approved by the Upper Colorado Regional Office’s custodial and accountable officers at 355 the time the final report associated with that activity is accepted, unless materials and artifacts 356 must be returned to the owner. The Museum of New Mexico through the Museum of Indian Arts 357 and Culture serves as the repository for collections recovered from state and public land 358 including all associated records and files. 359

VII. Key Personnel qualifications 361

Personnel should meet or exceed applicable Secretary of the Interior’s Professional 362 Qualification’s Standards for history, archeology, architectural history, architecture or historic 363 architecture at 48 FR 44738 as appropriate. For studies on state land, supervisory personnel shall 364 be listed on the SHPO Directory (4.10.8 NMAC) in archaeology, history, architectural history, 365 historic architecture or cultural anthropology, as appropriate. 366

VIII. Discoveries 368

Should unanticipated impacts on a known or hitherto unknown historic property be discovered 369 during construction or other Project activities after or without implementation of a Treatment 370 Plan, Reclamation will ensure that such discovery is addressed: 371

a) In accordance with the terms of Reclamation’s Navajo Nation CRPA Permit if the 372 discovery occurs within the Navajo Nation; 373

b) In accordance with Reclamation’s NAGPRA POA if the discovery is of a Native 374 American gravesite, human remains, funerary items, or objects of cultural patrimony on 375 federal property outside the Navajo Nation; 376

c) In accordance with Section 18-6-11.2 of the Cultural Properties Act, NMSA 1978, and 377 rule 4.10.11 NMAC if the discovery involves unmarked human remains or funerary items 378 on state or private property outside the Navajo Nation; and 379

d) In accordance with 36 CFR 800.13, if the discovery occurs outside the Navajo Nation and 381 is not covered by Reclamation’s NAGPRA POA or the requirements of Section 18-6-382

11.2 of the Cultural Properties Act. 383

IX. Participation by Other Entities 384

Reclamation will notify all agencies of federal, tribal, state and local government that participate 385 in the Project, including but not limited to those proposing to construct parts of the Project, that 386 this PA has been executed, and will endeavor to the best of its ability to ensure that they are 387 bound by its terms and participate in its implementation. 388

Reclamation will ensure that all its planning, design, construction and other contractors are 389 aware of this PA and comply with its terms. 390

Federal agencies other than those initially signing this PA may elect to participate in 391 implementation of its terms, and hence satisfy their responsibilities under Section 106 of NHPA, 392 by so notifying the Parties in writing. 393

Should a Party object to participation by a requesting federal agency within 30 days after that 394 party receives notification of the request, or to Reclamation’s interpretation of the rights and 395 responsibilities of the agency, the Parties will consult to resolve the objection, subject to 396 Stipulation XII. 397

X. Tribal Points of Contact 398

Reclamation will request that each Tribe or Pueblo that is a Concurring party to this PA 399 designate a Point Of Contact (POC) with whom Reclamation and others can interact for purposes 400 of coordination and information exchange regarding Section 106 compliance efforts as the 401 Project proceeds. This will not serve as a substitute to government-to-government tribal 402 consultation which Reclamation commits to continue for the life of the project. 403

If so requested, Reclamation will assist the Tribes and Pueblos in retaining and compensating 404 POC personnel via direct employment, contract, or other mechanism; such assistance may be 405 coordinated or consolidated with the studies under stipulation II-2.b of this document 406

POCs will assist Tribes and Pueblos in their participation towards implementation of this PA, 407 specifically including the expeditious review of such work products as survey reports and 408 treatment plans. 409

XI. Programmatic Agreement Program Manager 410

Within six (6) months after execution of this PA, Reclamation will fund an independent PA 411 Project Manager (PAPM), to assist with the coordination of all reviews and deliverables required 412 under the terms of the PA. In designing the PAPM’s scope of work and professional 413 requirements, Reclamation will consult with the Parties to this PA, and comply with the 414 Secretary of the Interior’s Professional Qualifications Standards. 415

The PAPM will serve during the design and construction process for the Project. Should the 416 position become vacant, Reclamation will act promptly to re-fill it in the same manner as the 417 position was originally filled. 418

The role and function of the PAPM will be evaluated on a yearly basis by Reclamation in 419 consultation with the parties to ensure the effectiveness of the position in the overall operation 420 of the cultural resource compliance program. 421

The PAPM will: 422

a) Independently monitor, assess and report to the Parties on compliance with the terms of 423 this PA and ensure project reports and other documentation adhere to accepted 424 professional standards ; 425

b) Ensure that all Parties with known or potential interests in particular Reaches, Project 426 areas, issues, sites, or reports, are kept apprised of activities bearing on their interests, and 427 given the opportunity to influence decisions regarding such interests; 428

c) Coordinate the scheduling and conduct of meetings among Parties and others regarding 429 implementation of this PA; 430

d) Establish and maintain lines of project-related communication and consultation between 431 the Parties and the design and construction engineers, including oversight and monitoring 432 of internet sites created for the Project; 433

e) Address requests by Parties and others to review documentation produced pursuant to this 434

PA; 435

f) Coordinate the timely distribution of reports and other products and the issuance of 436 regular public updates regarding historic preservation issues; 437

g) Develop a “best practice” manual and a "lessons learned" case study or studies on the 438 Project for reference in future projects similar to the Project; these products are to be 439 made available to the Parties and other interested entities within one (1) year after 440 completion of the Project. 441

The PAPM will not assume any of Reclamation’s responsibility for Section 106 or government-442 to-government tribal consultation although it may assist in these consultation efforts. 443

XII. NOTICES TO PROCEED 444

Reclamation will provide its construction contractors with a Notice To Proceed (NTP) in Project 445 areas only after: 446

a) the inventories required in Stipulation II have been completed for the project area; and, 447

b) where mitigation activities are necessary, only after all Parties and Tribal POC’s have 448 had the opportunity to review the mitigation completion report to ensure compliance 449 with the treatment plan. 450

To ensure compliance, the following will be carried out: 451

Reclamation cultural resources contractors will provide Reclamation with a summary of the field 452 work completed at each property pursuant to the requirements of the approved treatment plan. 453

Reclamation will provide the mitigation completion report to the Navajo Nation THPO, the 454 NMSHPO and the appropriate land managing agency for review and approval of the summary 455 for their respective lands and resources. If the Navajo Nation THPO, NMSHPO or land 456 managing agency does not respond within 15 working days, Reclamation shall assume 457 concurrence and issue the NTP. Copies of the mitigation completion report will be provided to 458 other concurring parties at their request. 459

Reclamation’s construction contractors shall not begin any ground-disturbingactivities within the 460 boundaries of any historic property until a NTP has been issued for the property in accordance 461 with the above terms. 462

Areas that have not been released for construction activities will be clearly marked in the field 463 and labeled via global positioning system for avoidance until the conditions outlined above have 464 been met. A standard avoidance buffer for these areas will be 50 feet from the property’s 465 boundary, but may be enlarged if site conditions warrant. 466

XIII. Dispute Resolution 468

Should any party to this PA object in writing to Reclamation regarding any action carried out or 469 proposed with respect to the Project or implementation of this PA, Reclamation will consult with 470 the objecting party to resolve the objection. 471

If after initiating such consultation Reclamation determines that the objection cannot be resolved 472 through consultation, Reclamation will forward all documentation relevant to the objection to the 473 ACHP, including Reclamation's proposed response to the objection. Within 30 calendar days 474 after receipt of all pertinent documentation, the ACHP will exercise one of the following options: 475

a) Advise Reclamation that the ACHP concurs in Reclamation's proposed response to the 476 objection, whereupon Reclamation will respond to the objection accordingly; 477

b) Provide Reclamation with recommendations, which Reclamation will take into account in 478 reaching a final decision regarding its response to the objection; or 479

c) Notify Reclamation that the objection will be referred for comment pursuant to 36 CFR 480 800.7(a)(4), and proceed to refer the objection and comment. Reclamation will take the 481 resulting comment into account in accordance with 36 CFR 800.7(c)(4) and Section 482 110(l) of NHPA. 483

Should the ACHP not exercise one of the above options within 30 days after receipt of all 484 pertinent documentation, Reclamation may assume the ACHP's concurrence in its proposed 485 response to the objection. 486

Reclamation will take into account any ACHP recommendation or comment provided in 487 accordance with this stipulation with reference only to the subject of the objection; Reclamation's 488 responsibility to carry out all actions under this PA that are not the subjects of the objection will 489 remain unchanged. 490

At any time during implementation of the measures stipulated in this PA, should an objection 491 pertaining to this PA or the effect of the Project on historic properties be raised by a member of 492 the public, Reclamation will notify the Parties to this PA and take the objection into account, 493 consulting with the objector and, should the objector so request, with any of the Parties to this 494 PA to resolve the objection. 495

Reclamation's responsibilities to carry out all other actions subject to the terms of this agreement 496 that are not the subject of the dispute remain unchanged. 497

XIV. Reporting, Progress Reports and Monitoring 499

Reclamation shall report and distribute the results of Section 106 compliance activities (i.e., 500 planning, identification, evaluation, effect and treatment) to the Parties by Project segment or 501 Reach, as completed. Reclamation and the Parties agree to process these reports as they are 502 produced following Stipulation XV. 503

Reclamation shall ensure that all final reports resulting from actions pursuant to this agreement 504 will be provided to the Parties and to other interested entities, as allowed. Archeological reports 505 shall be consistent with the Department of Interior's Standards for Final Reports of Data 506 Recovery Programs (42 FR 5377-79). 507

Site forms resulting from inventory shall be provided in formats acceptable to the Navajo Nation 508 and State of New Mexico, as appropriate. 509

As appropriate, reports on historic contexts (date established, individuals involved, etc.) shall be 510 prepared to document historic properties with structural remains or traditional cultural properties 511 that qualify for the National Register under Criteria a, b, or c. 512

Final reports may be submitted in either hard copy or electronic formats to the Parties. Reports 513 must be submitted in both hard copy and electronic formats to the NMSHPO.and NN-THPO 514

On or before October 30 of each year until the Project is completed, Reclamation, the Navajo 515 Nation, NMSHPO, BIA and BLM must agree in writing that the terms of this PA have been 516 fulfilled for the prior fiscal year; Reclamation will prepare and provide an annual report to all 517 Parties to this PA addressing the following topics: 518

a) Progress in constructing the Project including issuances of Notices To Proceed; 519

b) Progress in identification of historic properties; 520

c) Progress in the development and implementation of the treatment Plan; 521

d) Any unexpected discoveries and how they have been handled; 522

e) Any problems or unexpected issues encountered during the year; 523

f) Any special challenges Reclamation anticipates in the coming year; and 524

g) Any changes that Reclamation believes should be made in implementation of this PA. 525

Subject to the terms of the agreement developed pursuant to Stipulation II c governing 527 confidential data, and subject to Section 9 of ARPA, Reclamation will ensure that its annual 528 report is made available for public inspection, that potentially interested members of the public 529 are made aware of its availability, and that interested members of the public are invited to 530 provide comments to any of the other Parties to this PA as well as to Reclamation. 531

The signatories to this PA will review the annual report and provide comments to Reclamation. 532 Parties to this PA, and others, may review and comment on the annual report at their discretion. 533

At the request of any party to this PA, Reclamation will ensure that a meeting or meetings are 534 held to facilitate review and comment, to resolve questions, or to resolve adverse comments. 535

Based on this review, the signatories to this PA will determine whether this PA will continue in 536 force, be amended, or be terminated. 537

XV. Time Frames 538

1. Formal Reports: Reclamation will review and comment on any report submitted by 539 its cultural resource consultant(s) within 30 calendar days of receipt per 100 pages with the 540 understanding that Reclamation will attempt to provide review as quickly as staffing allows. All 541 reports and other documentation shall be submitted by the cultural resource consultant directly to 542 Reclamation. A version of the report without archaeological site locations can be provided by the 543 consultant for public dissemination after the report is approved by Reclamation and the Parties. 544

2. Informal Reports: The cultural resource consultant hired by Reclamation to 545 implement treatment plans will provide Reclamation with progress reports as each phase of a 546 treatment plan is completed. Such informal reports shall include any scheduling changes 547 proposed, any problems encountered, and any disputes or objections received regarding 548 Reclamation’s efforts to carry out the terms of this agreement. 549

3. Consultation with Parties: Reclamation shall submit the results of all identification 550 and evaluation efforts and treatment plans for each project phase to the Parties for a 30 calendar 551 day review and comment period. Reclamation shall take into account the comments provided by 552 the Parties and require its consultants to amend the reports, site forms or other documents as 553 necessary. 554

Reclamation shall consult with tribes about TCPs, sacred sites, and other concerns at the 555 beginning of each Reach of the Project. Consultation shall be initiated as soon as the ROW is 556 determined, but may continue for the duration of the project. Additional consultation may be 557 needed prior to the implementation of each phase based on concerns raised in the initial 558 consultation, the cultural resources documented during each phase of inventory, and proposals in 559 the treatment plan. 560

If any party fails to respond to Reclamation within 30 calendar days of the receipt of a 561 submission, Reclamation shall presume concurrence with Reclamation's findings and 562 recommendations as detailed in the submission and proceed accordingly. 563

Reports: A draft report of all identification, evaluation, treatment or other mitigative activities 564 will be due to Reclamation within 12 months (one year) after the completion of the fieldwork 565 associated with the activity, unless otherwise negotiated. 566

XVI. Expiration, Amendments, and Termination 567

The terms of this PA will expire if their implementation has not been initiated by September 30, 568 2012, and/or if their implementation is not substantially complete by October 1, 2025. In such 569 event Reclamation will notify the Parties to this PA, and if it expects to continue with the 570 Project, will re-initiate review of the Project in accordance with 36 CFR Part 800. 571

Any party to this PA may propose to Reclamation that the PA be amended, whereupon 572 Reclamation will consult with the other Parties to this PA to consider such an amendment. 36 573 CFR 800.6(c)(1) will govern the execution of any such amendment. 574

If Reclamation determines that it cannot implement the terms of this PA, or if any other Party to 575 this PA determines that the PA is not being properly implemented, such Party may propose to the 576 other Parties to this PA that it be terminated. 577

The Party proposing to terminate this PA will so notify all Parties to this PA, explaining the 578 reasons for termination and affording them at least 30 days to consult and seek alternatives to 579 termination. The Parties will then consult. 580

Should such consultation fail, Reclamation, the ACHP, Navajo Nation THPO, BLM, BIA, or 581 NMSHPO may terminate the PA by notifying all Parties. Termination by the Navajo Nation or 582 BIA will apply only to those parts of the Project, and those aspects of this PA, that relate directly 583 to lands within the Navajo Nation. Termination by the NMSHPO or BLM will apply only to 584 those parts of the Project and those aspects of this PA that relate directly to lands outside the 585 Navajo Nation. Termination by Reclamation or the ACHP will apply to the entire PA, or to 586 those land areas or aspects of the PA specified by the terminating party. Termination by IHS 587 will apply only to those parts of the Project, and those aspects of this PA, that relate directly to 588 lands on which IHS is constructing Project facilities. 589

Should this PA be terminated, Reclamation will: 590

a) Consult to develop a new PA; or 591

b) Request the comments of the ACHP pursuant to 36 CFR 800.7, or 592

c) Should only specified aspects of the PA be terminated, or should the termination apply 593 only to specified lands, consult with the other parties to this PA, and with any other 594 relevant parties, to amend this PA or make other adjustments to correct the cause of the 595 termination. 596

Execution of this PA by Reclamation, the Navajo Nation, the New Mexico SHPO, BLM, BIA, 597 and the ACHP, and implementation of its terms, evidence that Reclamation has afforded the 598 ACHP a reasonable opportunity to comment on the Project and its effects on historic properties, 599 and that Reclamation has taken into account the effects of the Project on historic properties and 600 that Reclamation has satisfied its Section 106 responsibilities for all actions associated with the 601 project. 602

SIGNATORY PARTIES 604

U.S. DEPARTMENT OF THE INTERIOR: BUREAU OF RECLAMATION 606

By: 607

NAVAJO NATION HISTORIC PRESERVATION DEPARTMENT 609

By: 610

NEW MEXICO STATE HISTORIC PRESERVATION OFFICER 612

By: 613

U.S. DEPARTMENT OF THE INTERIOR: BUREAU OF INDIAN AFFAIRS 615

By: 616

ADVISORY COUNCIL ON HISTORIC PRESERVATION 618

By: 619

U.S. DEPARTMENT OF THE INTERIOR: BUREAU OF LAND MANAGEMENT 621

CONCURRING PARTIES: 623

HOPI TRIBE 625

HUALAPAI TRIBE 628

By: _______________________________________________________Date: __________ 630

JICARILLA APACHE NATION 632

By: ______________________________________________________Date:____________ 634

PUEBLO OF ACOMA 636

By: _______________________________________________________Date:___________ 638

PUEBLO OF JEMEZ 640

By: _______________________________________________________Date:___________ 642

PUEBLO OF OHKAY OWINGEH 646

By: _______________________________________________________Date:___________ 648

PUEBLO OF SANTA ANA 650

By: ________________________________________________________Date:__________ 652

PUEBLO OF SANTA CLARA 654

By: ________________________________________________________Date:___________ 656

PUEBLO OF ZIA 658

By: ________________________________________________________Date:___________ 660

PUEBLO OF ZUNI 662

SOUTHERN UTE TRIBE 666

By: ________________________________________________________Date:___________ 668

UTE MOUNTAIN UTE TRIBE 670

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES: Navajo Area Indian 673 Health Service, Division of Sanitation Facilities Construction 674

By: ________________________________________________________Date:___________ 675

THE COMMISSIONER OF PUBLIC LAND, State of New Mexico 677

By: ________________________________________________________Date:____________ 679

THE NEW MEXICO DEPARTMENT OF TRANSPORTATION 681

By: ________________________________________________________Date:____________ 683

Other Tribes or Agencies as necessary 685

Attachment 1: List of all Tribes Initially Notified of the NGWSP 686

Tribal Name Chemehuevi Indian Tribe Navajo…