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