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Bee Branch Creek Restoration Project_Programmatic Agreement_Corps of EngineersMasterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Bee Branch Creek Restoration Project Programmatic Agreement DATE: March 29, 2010 MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gus Psihoyos, City Engineer Michael C. Van Milligen Dubuque bitil AH- Amalca CAy 11111 ' 2007 City Engineer Gus Psihoyos recommends City Council authorization for the City Manager to execute the Programmatic Agreement among the U.S. Army Corps of Engineers, the Iowa Department of Natural Resources, the State Historic Preservation Office and the City of Dubuque regarding the construction of the Bee Branch Creek Restoration Project. The City cannot deconstruct/remove any of the structures acquired to make way for the Bee Branch Creek Restoration Project until the U.S. Army Corps of Engineers, the Iowa Department of Natural Resources, the State Historic Preservation Office and the City of Dubuque become a party to a programmatic agreement outlining a satisfactory mitigation plan for the historic properties. I concur with the recommendation and respectfully request Mayor and City Council approval. Masterpiece on the Mississippi MEMORANDUM TO: Michael C. Van Milligen, City Manage FROM: Gus Psihoyos, City Engineer DATE: March 26, 2010 SUBJECT: Bee Branch Creek Restoration Project Programmatic Agreement INTRODUCTION BACKGROUND The purpose of this memo is to present a Programmatic Agreement (PA) among the U.S. Army Corp of Engineers (USACE), the Iowa Department of Natural Resources (IDNR), the State Historic Preservation Officer (SHPO), and the City of Dubuque regarding the construction of the Bee Branch Creek Restoration Project. City staff recommends entering into the agreement as a prerequisite for the deconstruction of the houses acquired for the Bee Branch Creek Restoration Project. The Bee Branch project must meet the requirements of 36 CFR Part 800, Section 106 (Section 106 Process). The purpose of which is to assure that no unnecessary harm comes to historic properties as a result of federal action. In the case of the Bee Branch Creek Restoration project, both the issuance of a federal permit and the use of the State Revolving Fund loan program that was established with federal funds constitute a federal act. An intensive level architectural /historic survey and evaluation of the properties impacted by the Bee Branch project identified two potential historic districts: the East 22nd & Washington Street Historic District and the Rhomberg and Kniest District. Exhibit B (attached) shows the location of the adversely impacted properties determined to be historically significant. The three structures shown in the East 22nd & Washington Street Historic District can remain as only the rear portion of the property is required for the Bee Branch Project. However, the Bee Branch Project requires the removal of twenty four (24) structures within the Rhomberg and Kniest District. The City cannot deconstruct/remove any of the structures acquired to make way for the Bee Branch Creek Restoration Project until the SHPO, IDNR, USACE, and the City of Dubuque become a party to a programmatic agreement outlining a satisfactory mitigation plan for the historic properties. Dubuque Al-Amnia City 1111 Ir 2007 RESOLUTION NO. 92 -10 AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH THE IOWA DEPARTMENT OF NATURAL RESOURCES, THE U.S. ARMY CORP OF ENGINEERS, AND THE STATE HISTORIC PRESERVATION OFFICER REGARDING THE CONSTRUCTION OF THE BEE BRANCH CREEK RESTORATION PROJECT Whereas, the City of Dubuque (hereinafter, City) proposes to restore the Bee Branch Creek (hereinafter, Undertaking) as an open waterway rather than an enclosed storm sewer within the City of Dubuque, Dubuque County, Iowa; and Whereas, the U.S. Army Corps of Engineers (hereinafter, USACE) proposes to authorize the construction of the Bee Branch Creek Restoration project in the City of Dubuque, Dubuque County, Iowa in two parts (lower and upper) under Section 404 Nationwide Permits Nos.3 and 27 respectively; and Whereas, the City will receive federal funding from the State Revolving Loan Program (hereinafter, SRF) authorized by the U.S. Environmental Protection Agency (hereinafter, EPA), and administered by the Iowa Department of Natural Resources (hereinafter, IDNR); and Whereas, the IDNR, in consultation with the Iowa State Historic Preservation Officer (hereinafter, SHPO), has determined, pursuant to 36 C.F.R. 800.4(c), that several properties and a district within the Area of Potential Effect (hereinafter, APE) are eligible for inclusion in the National Register of Historic Places; and Whereas, the IDNR, in consultation with the SHPO, has determined that the Undertaking will have an adverse effect on historic properties through direct and indirect impacts; and Whereas, the SHPO, the City, the USAGE, and the IDNR agree that the Undertaking shall be implemented in accordance with the stipulations outlined in a Programmatic Agreement (hereinafter, PA) to take into account the effects upon historic properties, and further agree that these stipulations shall govern the Undertaking and all of its parts until this Agreement expires or is terminated; and Whereas, the IDNR has drafted a PA in consultation with the SHPO, the City, and the USACE for the Undertaking, a copy of which is attached hereto; and Whereas, it is in the interest of the City to proceed with the Undertaking in accordance with the terms of the PA provided by the IDNR. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: The City Manager is hereby authorized to sign the Programmatic Agreement provided by the Iowa Department of Natural Resources in the form attached hereto. Passed, approved and adopted this 5th day of April , 010. eanne F. Schneider, CMC, City Clerk Roy D. Buol, Mayor PROGRAMMATIC AGREEMENT Among the U.S. ARMY CORPS OF ENGINEERS, IOWA DEPARTMENT OF NATURAL RESOURCES, IOWA STATE HISTORICAL PRESERVATION OFFICE, AND CITY OF DUBUQUE, DUBUQUE COUNTY, STATE OF IOWA REGARDING THE CONSTRUCTION OF THE BEE BRANCH CREEK RESTORATION PROJECT, CITY OF DUBUQUE, DUBUQUE COUNTY, IOWA WHEREAS, the City of Dubuque (hereinafter, City) proposes to restore the Bee Branch Creek (hereinafter, Undertaking) as an open waterway rather than an enclosed storm sewer within the City of Dubuque, Dubuque County, Iowa; and WHEREAS, the U.S. Army Corps of Engineers (hereinafter, USACE) proposes to authorize the construction of the Bee Branch Creek Restoration project in the City of Dubuque, Dubuque County, Iowa in two parts (lower and upper) under Section 404 Nationwide Permits Nos.3 and 27 respectively; and WHERAS, the City will receive federal funding from the State Revolving Loan Program (hereinafter, SRF) authorized by the U.S. Environmental Protection Agency (hereinafter, EPA), and administered by the Iowa Department of Natural Resources (hereinafter, IDNR); and WHERAS, an existing nationwide programmatic agreement among EPA, Advisory Council on Historic Preservation (hereinafter, Council), and National Conference of State Historic Preservation Officers authorizes the SRF the ability to negotiate with the State Historic Preservation Office without direct EPA involvement provided no disputes exist.; and WHEREAS, the IDNR has agreed to be the lead federal agency for the purposes of compliance with the National Historic Preservation Act of 1966 (16 U.S.C. 470f, hereinafter, Act); and WHEREAS, the IDNR has defined the proposed Bee Branch Creek Restoration project's area of potential effects (hereinafter, APE), as the term defined in 36 C.F.R. 800.16(d), to be the area along Bee Branch Creek in Sections 13 & 24, Township 89 North, Range 02 East and Section 19, Township 89 North, Range 03 East, in Dubuque, Dubuque County Iowa, as shown in Appendix A; and WHEREAS, the IDNR , in consultation with the Iowa State Historic Preservation Officer (hereinafter, SHPO), has determined, pursuant to 36 C.F.R. 800.4(c), that several properties and a district within the APE are eligible for inclusion in the National Register of Historic Places; and Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 1 of 22 WHEREAS, the IDNR, in consultation with the SHPO, has determined that the Undertaking will have an adverse effect on historic properties through direct and indirect impacts; and WHEREAS, the IDNR has notified the Council of the Undertaking's expected adverse effects upon historic properties, of IDNR's intention to enter into this Programmatic Agreement (hereinafter, Agreement), to meet the collective federal compliance responsibilities of the IDNR and the USACE; and WHEREAS, the Council has been invited to participate as a signatory to the agreement, and, after due consideration, has determined that their participation in executing the general terms of the Agreement is not necessary (see Appendix B: ACHP Response Letter); and WHEREAS, the IDNR respects the sovereignty of all federally recognized American Indian Tribes (hereinafter, Tribes) in mandated consultation processes and recognizes their expertise in identifying, interpreting, and assessing the religious and cultural significance of American Indian historic properties on and off of Tribal lands; and WHEREAS, pursuant to 36 C.F.R. 800.3 of the Council's regulations implementing Section 106 of the Act, the IDNR has contacted Tribes and other parties that may have an interest in the Undertaking and has invited their consultation (see Appendix C: Distribution List); and WHEREAS, the parties listed in Appendix C have been invited to participate as concurring parties to this Agreement, and an updated list of respondents and concurring parties will be provided at a later date; and WHEREAS, the IDNR, in consultation with the SHPO, proposes to involve the Public by disseminating information about the Undertaking and its effects on historic properties in a proper and timely fashion and will seek public participation as mandated by federal law by utilizing IDNR's procedures for soliciting public involvement as allowed by 36 C.F.R. 800.8 (c)(1)(iv). In order to address information dissemination requirements; the IDNR with assistance from the City will establish public repositories for all decision documents at the IDNR Records Center and at the Dubuque City Clerk's Office (50 West 13th Street, Dubuque, Iowa 52001). NOW, THEREFORE, the SHPO, the City, the USACE, and the IDNR agree that the Undertaking shall be implemented in accordance with the following stipulations to take into account the effects upon historic properties, and further agree that these stipulations shall govern the Undertaking and all of its parts until this Agreement expires or is terminated. Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 2 of 22 I. PERMITTING STIPULATIONS The USACE ensures that authorization to proceed under Section 404 Nationwide Permits Nos. 3 and 27 for the construction of the Undertaking shall be withheld until this Agreement has been signed by all signatories. II. HISTORIC PROPERTY IDENTIFICATION AND EVALUATION A. The IDNR shall ensure that the City will implement appropriate measures in order to identify and evaluate historic properties and, if necessary mitigate adverse effects upon them. And, that the City will provide resulting information, studies, or reports to the SHPO and other consulting parties in a timely manner for their review and comment. In this regard, the IDNR and The City propose the following: 1. The IDNR, in consultation with the City and SHPO shall define the APE for the Undertaking, and consider subsequent modifications to the APE in consultation with the SHPO. The APE shall be defined in three - dimensional terms and any modifications thereto shall be documented in Appendix A in the form of verbal descriptions and map representations. 2. The City will ensure the appropriate studies are conducted to identify the presence of historic properties within the APE and to evaluate the Undertaking's effects upon them. At a minimum these must include the following: a. Geoarchaeological modeling of the APE that considers geomorphological and geological data pertinent to understanding the potential for preservation of significant prehistoric and historic archaeological sites. b. Development of a comprehensive historic context for project area archaeological resources. c. Execution of intensive -level (Phase I) archeological survey tailored to all or specific portions of each discreet construction phase footprint as appropriate taking into account the findings of the geoarchaeological model and historic context. d. The preparation of a historic and architectural context sufficient for evaluating the project area's architectural resources; and a reconnaissance survey of all buildings, structures, objects. The results of these studies shall determine the need for additional study to evaluate NRHP eligibility or a mitigation strategy appropriate to the resource and magnitude of the effect(s). Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 3 of 22 3. The City will ensure that all reconnaissance surveys, subsurface archaeological testing, and architectural identification and evaluations are conducted in a manner consistent with the Guidelines for Archaeological Investigations in Iowa (1999), the Secretary of the Interior's Standards and Guidelines for Identification and Evaluation (48 FR 44720 -23), and take into account the National Park Service publication The Archeological Survey: Methods and Uses (1978) and any extant or most recent version of Iowa guidelines for historic properties reconnaissance surveys and reports, or other pertinent guidance depending on the resource type. 4. In consultation with the SHPO, and as appropriate, Tribes and other consulting parties, the City will evaluate the historical significance and NRHP - eligibility of all cultural resources that are within the APE and which are 50 years in age or older by applying the National Register criteria (36 CFR Part 60.4). No further eligibility study shall be required for any properties within the APE that have been determined ineligible in any previous eligibility studies conducted by the City or other federal agency as part of a separate action and was accepted by SHPO within the last three years. a. If an investigation results in the identification of historic properties within the APE, the City shall apply the criteria of adverse effects [36 CFR 800.5(a)]. b. The City shall negotiate directly with the SHPO and without the involvement of the IDNR in situations where the Undertaking will result no effects or no adverse effects to historic properties. For those properties that the City and SHPO conclude are: 1) not eligible for inclusion in the National Register of Historic Places (hereinafter NRHP); or 2) are listed or found to be eligible for listing but will not be adversely affected, the City shall document its determination of "No Historic Properties Affected" or "No Adverse Effect ", as appropriate, along with the SHPO's concurrence, and provide file copies to the IDNR. c. The City shall negotiate directly with the SHPO and without the involvement of the IDNR in situations where no adverse effects to historic properties can be achieved conditionally. The conclusions of such negotiations shall be provided in a file report to IDNR. d. If an adverse effect to an historic property is found and cannot be resolved conditionally, the City shall notify the IDNR who in turn shall notify the Council. Treatment of such properties shall be conducted in accordance with Part III below. e. If the City and the SHPO do not agree on NRHP eligibility, or if the Council or the Secretary of the Interior so request, the IDNR will request a formal determination of eligibility from the Keeper of the National Register, National Park Service, whose determination shall be final. If the City or the SHPO disagree about the magnitude of the Undertaking's effects upon a historic Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 4 of 22 property, the IDNR shall seek the opinion of the Council and take the Council's recommendations into account when forming its final assessment (refer to Part IV - Dispute Resolution, below). 5. The City shall prepare, in consultations with the SHPO and other consulting parties as appropriate documentation in accordance with 36 CFR Part 800.11. This shall include, "Finding of no Historic Properties Affected," 36 CFR Part 800.11(D) and "Finding of no adverse effect," 36 CFR Part 800.11(E). III. TREATMENT OF HISTORIC PROPERTIES Historic properties that will be adversely affected by the Undertaking will be treated by the City in the following manner. The City will ensure that any treatment plans developed, as appropriate to the type of resource, are carried out by or under the direct supervision of an archaeologist, architectural historian or other appropriate cultural resource specialist that meets, at minimum, the Secretary of the Interior's Professional Qualifications Standards for their discipline (48 FR 44738 -9). A. TREATMENT OF ARCHEOLOGICAL PROPERTIES: 1. If the DNR determines, in consultation with the SHPO, that no other actions are feasible to avoid or otherwise minimize the effects to archeological properties, then the City will develop a treatment plan, which may include data recovery, partial site avoidance and preservation in place, and active protection measures (Appendix D). Upon IDNR approval, the City will implement the treatment plans in consultation with the SHPO. The City shall prepare, in consultation with the SHPO and other consulting parties as appropriate, and subject to IDNR review and approval, documentation in accordance with 36 CFR Part 800.11. This shall include "requests for comments without a memorandum of agreement," 36 CFR Part 800.11(G). 2. If archeological data recovery is the agreed upon treatment, a data recovery plan (hereinafter, DRP) will be devised in consultation with the SHPO subject to IDNR approval, and attached to Appendix D of this agreement. The DRP will address substantive research questions that are pertinent to the historic context(s) under investigation. The treatment plan shall be consistent with the Guidelines for Archaeological Investigations in Iowa (1999), the Secretary of the Interior's Standards and Guidelines for Archeological Documentation (48 FR 44734 -37), and take into account the Council's publication, Treatment of Archeological Properties (Advisory Council on Historic Preservation, 1980) and SHPO guidance. It shall specify, at a minimum, the following: a. The property, properties, or portions of properties where the treatment plan is to be carried out Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 5 of 22 b. The research questions to be addressed, with an explanation of research relevance and importance. c. The relevant historic contexts that are under consideration and their qualities of historical significance. d. The methods to be used, with an explanation of methodological relevance to the research questions. e. Proposed methods of disseminating results of the work to the interested public. f. A proposed schedule for the submission of progress reports to the SHPO. 3. When archaeological data recovery is the agreed upon approach to mitigation, the City, in consultation with the SHPO and consulting archaeologist, will develop and implement a program to secure significant archeological resources from vandalism subject to IDNR approval. B. TREATMENT OF ARCHITECTURAL PROPERTIES: 1. The City shall ensure that where the Undertaking will affect historic architectural properties, the project design will be developed to meet the Secretary of the Interior's Standards for the Treatment of Historic Properties (hereafter Treatment Standards) wherever possible in order to avoid or minimize adverse effects to the historic properties. The SHPO will be given an opportunity to review and comment on the design and specifications for the Undertaking (see Part II.4.b). 2. In those cases where adverse effects to historic architectural properties cannot be avoided due to the engineering requirements of the project, the Signatories to this Agreement have determined that the City shall perform certain mitigation actions including the following: a. Formal recordation of the historic structures to be destroyed, including archival quality records, photos and floor plans pursuant to Section 110(b) of the National Preservation Act; and b. A National- Register nomination level survey of the East 22 and Washington potentially eligible historic district; and c. A publication for public consumption summarizing the history of the structures within APE, details of the construction of these buildings, and the history of their residents. This publication may be a physical booklet or may take the form of a digital video or web -site. SHPO shall be given an opportunity to review and comment on the method selected and the publication's distribution prior to their creation; and Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 6 of 22 d. The City shall utilize existing salvage programs to the extent practicable; and e. The City shall coordinate with an architectural historian to document, during deconstruction, the materials and construction methods used for pre - selected prototype structures that are representative of the historic context to which they belong; and f. The City shall document the existing Bee Branch storm sewer and preserve in place representative elements exhibiting significant design and /or historic fabric. 3. The City shall ensure that all historic architectural properties within the APE whose removal is not necessary for the project will be protected from both direct and indirect adverse effects produced by activities associated with the Undertaking, such as vibration that may not be readily apparent in project plans. The City shall evaluate and document the preconstruction condition of all historic architectural properties within the APE prior to the commencement of the construction activities. The City shall collect pre - construction baseline vibration data for later comparison with values collected at the time of construction. The City shall monitor and assess vibration that could have reasonably foreseeable indirect adverse effects. If the effects are found to be not adverse, then the City shall document its findings, secure a letter of concurrence from the SHPO in accordance with Part II.4.b above and proceed with the Undertaking in those areas. If the effects are found to be adverse, the activity(ies) producing it shall cease in those areas and the City, in consultation with SHPO, subject to IDNR approval, shall devise treatment measures to minimize and /or mitigate the effect(s). The measures that are adopted shall be summarized in the architectural treatment plan and incorporated into Appendix D of this agreement. 4. The City, in consultation with the SHPO and consulting architectural historian, will develop and implement a program to secure significant structures from vandalism subject to IDNR approval IV. CURATED ITEMS In consultation with the SHPO, the City will ensure that all archeological materials and records resulting from the historic properties studies are curated at a repository within the State of Iowa that meets curatorial standards established at 36 CFR Part 79. V. TREATMENT OF HUMAN REMAINS AND ITEMS OF RELIGIOUS AND CULTURAL SIGNIFICANCE A. If human remains are encountered either during survey, evaluation, or data recovery investigations or during any construction activities associated with the Undertaking, the IDNR and City will comply with all provisions outlined in the Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 7 of 22 appropriate state acts, statutes, and guidance and any decisions regarding the treatment of human remains will be made in consultation with the SHPO, Tribes, and the Iowa Office of the State Archaeologist (Iowa Code section 263B.7 -9, Iowa Code Chapter 523I, Iowa Code section 716.5, and 685 Iowa Administrative Code (IAC) chapter 11), as appropriate. B. If items of Native American cultural patrimony as defined at 25 U.S.C. 3001 (3)(D) are encountered or collected as part of investigations or other activities associated with the Undertaking, the IDNR and City will comply with all provisions outlined in the appropriate state acts, statutes, and guidance and any decisions regarding the treatment of items of cultural patrimony will be made in consultation with the SHPO, Tribe(s), and the Iowa Office of the State Archaeologist (Iowa Code section 263B.7 -9, Iowa Code Chapter 523I, Iowa Code section 716.5, and 685 IAC chapters 1- 14), as appropriate. VI. ARCHEOLOGICAL REPORTS The City will ensure that all final archaeological reports resulting from the actions pursuant to this Agreement will be provided in a format that is consistent with contemporary professional standards including the Guidelines for Archaeological Investigations in Iowa (1999), and to the Department of the Interior's Format Standards for Final Reports of Data Recovery (42 FR 5377 -79). Precise locations of significant historic properties must only be provided in a separate appendix marked not for public disclosure if it appears that the release of this data could jeopardize historic properties. Precise locational data of traditional cultural properties or sacred sites, consisting of architectural resources, landscapes, objects, or surface or buried archeological sites identified in coordination with Tribe(s), will be considered sensitive information pursuant to Section 304 of the NHPA and Chapter 22.7(20) of the Iowa Code. The IDNR, City and other signatories will not make this information available for public disclosure except as required by state and federal law. The IDNR and other signatories will make available for publication and public dissemination the reports and associated data, but will not include precise aforementioned locational data and sensitive information if so requested. A program employing a combination of letter reports and formal reports is anticipated in order to accommodate scheduling requirements of the Undertaking. Formal reports shall be prepared for all Phase I —level (identification) and Phase II -level (evaluation) studies that are performed. The reports shall be completed by the consultant in a timely manner, taking into account the demands of the schedule for the Undertaking, and submitted to the City for distribution to the SHPO and IDNR and other consulting parties. In an effort to save time and resources, when practical and feasible, it is recommended that the results of Phase II -level evaluation of archeological sites that will be mitigated by data recovery should be incorporated as a chapter in the final data recovery report. Immediately upon the completion of data recovery efforts, a letter report of sufficient content shall be prepared by the cultural resources consultant and submitted to the IDNR along with relevant attachments that demonstrate adherence to and fulfillment of the approved DRP. The IDNR shall distribute copies to the SHPO and other consulting parties. The SHPO shall have 30 calendar days from the date of their receipt to comment Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 8 of 22 on the IDNR's findings and determinations. Failure by the SHPO to respond within 30- days shall represent concurrence with the IDNR findings and determinations. The final report shall be submitted to the IDNR within one year of the completion of fieldwork. The IDNR shall distribute copies to the SHPO and consulting parties. The adverse effect shall be considered mitigated once the SHPO has received and recommended the acceptance of the final report. Failure to complete and file the final report with the SHPO will result in an adverse effect on the historic property that is the subject of the data recovery and constitute a breach of this Agreement. VII. PROVISION FOR UNANTICIPATED DISCOVERIES In accordance with 36 CFR Section 800.13, if previously undetected or undocumented historic properties are discovered during construction activities or pre - construction exploratory investigation, the City will cease, or cause to stop, any activities and consult directly with the SHPO to determine if additional investigation is warranted. Direct notification shall be by telephone or in person. The SHPO shall respond within two working days to the City's direct notification. If further investigations are deemed warranted and required, any treatment plan will be performed by the City in accordance with Parts III — VI of this Agreement. If both the City and the SHPO determine, that further investigation is not necessary, activities may resume with no further action required. Any disagreement between the City and the SHPO concerning the need for further investigations will be handled in accordance with Part IV of this Agreement. VIII. HEALTH AND SAFETY The APE for the Undertaking may include portions of urban residential, commercial, and industrial areas which may contain appreciable quantities of demolition and midden debris as generalized urban fill. It is reasonable to expect that possible hazardous materials may be encountered during cultural resource investigations within portions of the APE including but not limited to volatile organic compounds (VOCs), polynuclear aromatic hydrocarbons (PAHs), heavy metals, herbicides, pesticides, petroleum derivatives, asbestos, and other substances that may pose a threat to health and safety. The City shall provide the cultural resource consultant(s) with copies of all pertinent environmental studies, HAZMAT reports, environmental assessments (EA), or environmental impact statements (EIS) for the Undertaking and will share with the cultural resource consultant(s) any other information pertaining to potential hazards known or suspected within the APE. If hazardous materials are present on the site, the appropriate personnel for the cultural resource consultant(s) shall be certified under the Hazardous Waste Operations and Emergency Response Standards prior to any investigations within the contaminated area (OSHA - 29 CFR 1910.120). The City agrees to consult with the SHPO regarding the handling and disposition of contaminated soils and regarding the treatment of historic properties found within the area contaminated by hazardous materials. IX. DISPUTE RESOLUTION Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 9 of 22 Should the SHPO, or other signatory to the Agreement, object within 30 days to any plans or actions provided for review pursuant to this Agreement, the IDNR will consult with the objecting party to resolve the dispute. If a disagreement with the SHPO cannot be resolved, the IDNR will request comment from the Council in accordance with the applicable provisions of 36 CFR Part 800.7. The IDNR in accordance with 36 CFR Part 800.7(c)(4) will take the Council's comments into account, with reference only to the subject of the dispute. The signatories' responsibilities to carry out all actions under this Agreement not in dispute will remain unchanged. X. TERMINATION Any of the signatories to this Agreement may request a reconsideration of its terms or revoke the relevant portions of this Agreement upon written notification to the other signatories, by providing thirty (30) days notice to the other signatories, provided that these signatories will consult during the period prior to termination to seek agreement on amendments or other actions that would avoid termination. In the advent of termination, the IDNR may either seek to enter into an agreement directly with the Council or comply with 36 CFR Parts 800.3 through 800.7. XI. AMENDMENTS Any of the signatories to this Agreement may request that any or all of its parts (I- XIII) be amended subsequent to the Agreement's ratification, whereupon the other signatories will consult in accordance with 36 CFR Part 800.13, to consider such amendment. The IDNR must notify the Council of its intent to amend the Agreement and invite the Council's review and comment. The amendment shall be adopted immediately upon the consent of all the signatories. The IDNR shall ensure that copies of the amended Agreement are provided to all of the signatories and to the Council. The signatories acknowledge that modifications to the APE and Historic Properties Treatment Plans are anticipated owing to the scope and complexity of the Undertaking. Consequently, the appendices to this Agreement shall be viewed as works -in- progress. Revisions to any of the appendices shall be adopted immediately upon consent of all of the signatories with copies of the finalized version provided to each. Revisions to the appendices shall not require notification of and review by the Council. However the IDNR shall ensure that the Council is provided file copies of finalized versions that reflect all revisions. XII. PERIODIC REVIEW A. The IDNR will provide the SHPO with evidence of compliance with this Agreement by letter on January 1, 2011 and once every year thereafter while this Agreement remains in effect. This documentation shall contain the name of the Undertaking, title of the documents which are contained in the Agreement, historic properties identified, determinations of effect, avoidance procedures, level of investigation(s) or mitigation(s) conducted with titles of all reports related to such investigation(s) or mitigation(s) which have been completed. Please refer to page 2 for mention of the public repository for decision documents. Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 10 of 22 B. The terms of this Agreement shall remain in -force for a period of ten years commencing at the date of its filing with the Council. At the end of this period the IDNR shall review the necessity of this Agreement in order to determine whether it should be reissued or allowed to expire. If the Agreement requires reissue, the IDNR shall consult with the SHPO in order to ensure compliance with the most current version of the federal regulations (36 CFR Part 800) implementing Sections 106 and 110(f) of the Act. XIII. FISCAL LAW REQUIREMENT The Undertaking, including stipulations of this Agreement, is subject to provisions of the Antideficiency Act (31 U.S.C. § 1341). In the event that stipulations of this Agreement can not be executed as a result of insufficient authorized funding, the IDNR shall notify signatories to this Agreement in accordance with Part XI and Part XII of this Agreement and consult to determine the proper course of action in accordance with Part IV, Part X, or Part XI of this Agreement, as appropriate. XIV. EXECUTION AND IMPLEMENTATION A. Nothing in this Agreement is intended to prevent the IDNR from consulting more frequently with the SHPO, the Council, or other parties concerning any questions that may arise or on the progress of any actions falling under or executed by this Agreement. Any resulting modifications to this Agreement will be coordinated in accordance with Part XI of this Agreement and 36 CFR Part 800.5(e)(5) of the NHPA. B. Execution of this agreement by U.S. Army Corps of Engineers — Rock Island District, City of Dubuque, the Iowa State Historic Preservation Officer, and the Advisory Council on Historic Preservation, and the Iowa Department of Natural Resources and the implementation of its terms evidence that the federal agencies have taken into account program effects on historic properties and has afforded the Advisory Council on Historic Preservation an opportunity to comment. Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 11 of 22 XV. SIGNATORIES TO THIS AGREEMENT IOWA DEPARTMENT OF NATURAL RESOURCES f •� ..� / "� Date - ,Z -/U Ric hard Zeopol Ric , Directo Iowa Department of Natural Resources U.S. ARMY CORPS OF ENGINEERS, ROCK ISLAND DISTRICT .5r BY: CITY OF DUBUQUE Michael C. Van Milhgen, City Manager City of Dubuque Shawn McGinley, Colonel, U.S. Army U.S. Army Corps of Engineers, Rock Island istrict IOWA STATE HISTORICAL PRESERVATION OFFICER BY: Barbara Mitchell, Deputy State Historic Preservation Officer State Historical Society of Iowa Date 2 l f -f 0 Date 61 141 z.D 1 BY: " Date Y:06 Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 12 of 22 a .. Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 14 of 22 Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 15 of 22 Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 16 of 22 POINT LATITUDE LONGITUDE 59 42.50997117 - 90.66383184 1 42.51732764 - 90.67046003 60 42.50939476 - 90.66351173 2 42.51727911 - 90.67059128 61 42.50949767 - 90.66316303 3 42.51679808 - 90.67026285 62 42.50916549 - 90.66298294 4 42.51691049 - 90.66993245 63 42.50931225 - 90.66248149 5 42.51673358 - 90.66982464 64 42.50911091 - 90.66237566 6 42.51661220 - 90.67018745 65 42.50935548 - 90.66153953 7 42.51649210 - 90.67011376 66 42.50905483 - 90.66137888 8 42.51662378 - 90.66974825 67 42.50934273 - 90.66039808 9 42.51651133 - 90.66967859 68 42.50868512 - 90.66005182 10 42.51650005 - 90.66971202 69 42.50876393 - 90.65983586 11 42.51638720 - 90.66964324 70 42.50919076 - 90.65934714 12 42.51627129 - 90.66997809 71 42.50903576 - 90.65884854 13 42.51607237 - 90.66985597 72 42.50873354 - 90.65873241 14 42.51618720 - 90.66951946 73 42.50894978 - 90.65798165 15 42.51604950 - 90.66943499 74 42.50759705 - 90.65728936 16 42.51593425 - 90.66977122 75 42.50882405 - 90.65316993 17 42.51559521 - 90.66956323 76 42.51121616 - 90.65390204 18 42.51570106 - 90.66925786 77 42.51211789 - 90.65426761 19 42.51557673 - 90.66918184 78 42.51111249 - 90.65768963 20 42.51547103 - 90.66948705 79 42.51027719 - 90.65724191 21 42.51540122 - 90.66944419 80 42.50989046 - 90.65853940 22 42.51556323 - 90.66897417 81 42.50992313 - 90.65906383 23 42.51548648 - 90.66892810 82 42.51085555 - 90.65856316 24 42.51544555 - 90.66904712 83 42.51101899 - 90.65865126 25 42.51532429 - 90.66897438 84 42.50988138 - 90.66251409 26 42.51534208 - 90.66892206 85 42.51034563 - 90.66312992 27 42.51524163 - 90.66886166 86 42.51123435 - 90.66307337 28 42.51510683 - 90.66926205 87 42.51201687 - 90.66246663 29 42.51507646 - 90.66940809 88 42.51289821 - 90.66271226 30 42.51496245 - 90.66974529 89 42.51333213 - 90.66362736 31 42.51438934 - 90.66938557 90 42.51345893 - 90.66352162 32 42.51446328 - 90.66916701 91 42.51376752 - 90.66349669 33 42.51421504 - 90.66901547 92 42.51385855 - 90.66368575 34 42.51428278 - 90.66882289 93 42.51345164 - 90.66403216 35 42.51397103 - 90.66863116 94 42.51371327 - 90.66458094 36 42.51425167 - 90.66780891 95 42.51381368 - 90.66444839 37 42.51431401 - 90.66768213 96 42.51408809 - 90.66416239 38 42.51441892 - 90.66755602 97 42.51420163 - 90.66406501 39 42.51375765 - 90.66695720 98 42.51429456 - 90.66425783 40 42.51383787 - 90.66683499 99 42.51441014 - 90.66415903 41 42.51367300 - 90.66667779 100 42.51480847 - 90.66498738 42 42.51373174 - 90.66662698 101 42.51428277 - 90.66542866 43 42.51367790 - 90.66649675 102 42.51422907 - 90.66548747 44 42.51361726 - 90.66637222 103 42.51446810 - 90.66598265 45 42.51356826 - 90.66639905 104 42.51440981 - 90.66603191 46 42.51336521 - 90.66597935 105 42.51507256 - 90.66742977 47 42.51349250 - 90.66589880 106 42.51517882 - 90.66760183 48 42.51331879 - 90.66553534 107 42.51534834 - 90.66796423 49 42.51343814 - 90.66543338 108 42.51540090 - 90.66791584 50 42.51297521 - 90.66446129 109 42.51554608 - 90.66813613 51 42.51305848 - 90.66428232 110 42.51569020 - 90.66783596 52 42.51256127 - 90.66386948 111 42.51712051 - 90.66931383 53 42.51248898 - 90.66391417 112 42.51702158 - 90.66960522 54 42.51217629 - 90.66340118 113 42.51714584 - 90.66968235 55 42.51192397 - 90.66359639 114 42.51720995 - 90.66996295 56 42.51114715 - 90.66401389 115 42.51708224 - 90.67029128 57 42.51076460 - 90.66404316 58 42.51025404 - 90.66395159 Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 17 of 22 Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 18 of 22 Appendix B: ACHP Response Letter Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 19 of 22 February 22, 2010 Jean Krewson Environmental Specialist Iowa Department of Natural Resources 401 SW 7 Street, Suite M Des Moines, Iowa 50309 -4611 Ref: Proposed Bee Branch Storm Water Project Dubuque, Iowa Dear Ms. Krewson: Preserving America's Heritage The Advisory Council on Historic Preservation (ACHP) has received your notification and supporting documentation regarding the adverse effects of the referenced undertaking on a property or properties listed or eligible for listing in the National Register of Historic Places. Based upon the information you provided, we have concluded that Appendix A, Criteria for Council Involvement in Reviewing Individual Section 106 Cases, of our regulations, "Protection of Historic Properties" (36 CFR Part 800), does not apply to this undertaking. Accordingly, we do not believe that our participation in the consultation to resolve adverse effects is needed. However, if we receive a request for participation from the State Historic Preservation Officer (SHPO), Tribal Historic Preservation Officer, affected Indian tribe, a consulting party, or other party, we may reconsider this decision. Additionally, should circumstances change, and you determine that our participation is needed to conclude the consultation process, please notify us. Pursuant to 36 CFR §800.6(b)(1)(iv), you will need to file the final Programmatic Agreement (PA), developed in consultation with the Iowa State Historic Preservation Office (SHPO) and any other consulting parties, and related documentation with the ACHP at the conclusion of the consultation process. The filing of the PA and supporting documentation with the ACHP is required in order to complete the requirements of Section 106 of the National Historic Preservation Act. Thank you for providing us with your notification of adverse effect. If you have any questions or require further assistance, please contact Louise Brodnitz at 202 606 -8527 or via e-mail at lbrodnitz @ achp.gov. Sincerely, ivgA LaShavio Johnson Historic Preservation Technician Office of Federal Agency Programs ADVISORY COUNCIL ON HISTORIC PRESERVATION 1100 Pennsylvania Avenue NW, Suite 803 • Washington, DC 20004 Phone:202 -606 -8503 • Fax: 202 -606 -8647 • achp @achp.gov • www.achp.gov Citizen Band Potawatomi Indian Tribe 1601 South Gordon Cooper Drive Shawnee, OK 74801 Delaware Tribe of Indians Campus Box 4022 Emporia, KS 66801 Flandreau Santee Sioux PO Box 283 Flandreau, SD 57028 Ho -Chunk Nation P.O. BOX 667 Black River Falls, WI 54615' Iowa Tribe of Kansas & Nebraska 3345B Thrasher Road White Cloud, KS 66094 Iowa Tribe of Oklahoma RR1, Box 721 Perkins, OK 74059 Kickapoo Tribe in Kansas 1107 Goldfinch Road Horton, KS 66439 Kickapoo Tribe of Oklahoma PO Box 70 McCloud, OK 74851 Lower Sioux Indian Community Council PO BOX 308 Morton, MN 56270 Miami Tribe of Oklahoma PO Box 1326 Miami, OK 74355 Omaha Tribal Council PO Box 368 Macy, NE 68039 Appendix Distribution C: List Osage Tribal Council PO Box 779 Pawhuska, OK 74056 Otoe - Missouria Tribe 8151 Highway 177 Red Rock, OK 74651 -0348 Pawnee Nation of Oklahoma 881 Little Dee Drive Pawnee, OK 74058 Peoria Tribe of Indians of Oklahoma PO Box 1527 Miami, OK 74355 Ponca Tribe of Indians of Oklahoma 20 White Eagle Drive Ponca City, OK 74601 Ponca Tribe of Nebraska PO Box 288 Niobrara, NE 68760 Prairie Band Potawatomi Nation 16281 Q Road Mayetta, KS 66509 Prairie Island Indian Community 5636 Sturgeon Lake Road Welch, MN 55089 Sac & Fox Nation of Mississippi in Iowa 349 Meskwaki Road Tama, IA 52339 -9629 Sac & Fox Nation of Missouri 305 N. Main St. Reserve, KS 66434 Sac & Fox Nation of Oklahoma Route 2, BOX 246 Stroud, OK 74079 Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 20 of 22 Santee Sioux Nation 108 Spirit Lake Ave. West Niobrara, NE 68760 Shakopee Mdewakanton Sioux Community 2330 Sioux Trail NW Prior Lake, MN 55372 Sisseton - Wahpeton Oyate Old Agency Box 509 Sisseton, SD 57262 -0509 Spirit Lake Tribal Council PO Box 359 Fort Totten, ND 58335 Three Affiliated Tribes Mandan, Hidata, & Arikara Nations 404 Frontage Road New Town, ND 58763 Upper Sioux Tribe PO Box 147 Granite Falls, MN 56241 Winnebago Tribal Council RR -1 Box 21 B I A RD -17 Winnebago, NE 68071 Yankton Sioux Tribal Business & Claims Committee PO Box 248 Marty, SD 57361 Dubuque Historic Commission Planning Services Department City of Dubuque City Hall 50 W. 13th Street Dubuque, Iowa 52001 Iowa Historic Preservation Alliance PO Box 814 Mt. Pleasant, IA 52641 National Trust for Historic Preservation 53 West Jackson Boulevard Suite 350 Chicago, IL 60604 Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 21 of 22 Appendix D: Data Recovery and Treatment Plan Programmatic Agreement for the Dubuque Bee Branch Creek Restoration- Page 22 of 22