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PROGRAMMATIC AGREEMENT

AMONG THE FEDERAL HIGHWAY ADMINISTRATION, THE NATIONAL PARK SERVICE, TENNESSEE STATE HISTORIC PRESERVATION OFFICE, TENNESSEE DEPARTMENT OF ENVIRONMENT AND CONSERVATION, THE EASTERN BAND OF CHEROKEE INDIANS (EBCI), THE CHEROKEE NATION OF OKLAHOMA, THE CHICKASAW NATION (CN), THE CHOCKTAW NATION OF OKLAHOMA, THE SEMINOLE NATION OF OKLAHOMA (SNO) AND THE CUMBERLAND TRAIL CONFERENCE REGARDING IMPLEMENTATION OF THE CUMBERLAND TRAIL TENNESSEE STATE PARK

WHEREAS, Federal Highway Administration (FHWA) and the National Park Service (NPS) propose to fund and approve the construction of the Cumberland Trail State Park located in Anderson, Bledsoe, Campbell, Claiborne, Cumberland, Hamilton, Marion, Morgan, Rhea, Sequatchie, and Scott Counties; and

WHEREAS, the FHWA intends to reimburse TDEC from its allocations of Recreational Trails Program (RTP) and Transportation Enhancement (TE) funds associated with the costs of the acquisition of land and the subsequent development of the Cumberland Trail State Park (CTSP); and

WHEREAS, the NPS intends to allocate Land and Water Conservation Fund (LWCF) monies to the TDEC for a portion of the costs associated with the acquisition of land and the subsequent development of the CTSP; and

WHEREAS, the FHWA and the NPS have determined that the construction of the Cumberland Trail Tennessee State Park (CTSP) may have an effect upon a historic property eligible for listing in the National Register of Historic Places, and also has the potential to affect other, as yet undiscovered, historic properties eligible for in inclusion in the National Register of Historic Places; and

WHEREAS, the historic property eligible for inclusion in the National Register of Historic Places that may be affected by this undertaking is the Nemo Bridge, a Camelback Truss Bridge located in Morgan County; and

WHEREAS, the FHWA and the NPS has consulted with the Tennessee State Historic Preservation Office (SHPO) pursuant to Section 800.6 of the regulations (36 CFR Part 800) implementing Section 106 of the National Historic Preservation Act; (16 U.S.C. 470f), [and Section 110(f) of the same Act (16 U.S.C. 470h-2(f)] and

WHEREAS, the Federal Highway Administration and the National Park Service (NPS), initiated consultation and the Tennessee Department of Environment and Conservation (TDEC) participated in the consultation and have been invited to execute this Programmatic Agreement; and

WHEREAS, the Cumberland Trail Conference, the Eastern Band of Cherokee Indians, the Cherokee Nation of Oklahoma the Chickasaw Nation, the Choctaw Nation of Oklahoma and the Seminole Nation of Oklahoma participated in the consultation and have been invited to concur in this Programmatic Agreement; and

WHEREAS, this agreement allows for phased identification, evaluation and treatment of historic properties, under 36 CFR 800.4(b)(2), in order to meet the requirements of Section 106 of the National Historic Preservation Act; and

WHEREAS, the acronyms given in "Appendix A," are applicable throughout this PA; and

WHEREAS, a map of the affected area, clearly delineating the proposed route is made a part of this document by reference as "Appendix B;" and

WHEREAS, a project description and history is made part of this document as "Appendix C;" and

WHEREAS, a description and history of the Nemo Bridge is made part of this document as "Appendix D."

WHEREAS, the Eastern Band of Cherokee Indians, the Cherokee Nation of Oklahoma, the Chickasaw Nation, the Choctaw Nation of Oklahoma and the Seminole Nation of Oklahoma will be further referred to as the "Federally Recognized Indian Tribes" in this document.

NOW, THEREFORE, the FHWA, the NPS and the SHPO agree development of the CTSP shall be undertaken in accordance with the following stipulations to satisfy the FHWA's and the NPS' Section 106 responsibility for all individual aspects of the project.

Stipulations

The FHWA and the NPS, in consultation with the Tennessee SHPO, shall ensure that TDEC carries out the following measures relative to all development of the CTSP within the above referenced area of potential effect (APE), as delineated in Appendix B, before the commencement of any construction activities within the APE. If TDEC opts to complete the development of the CTSP in phases, this agreement document allows for phased identification, evaluation, and treatment of the historic properties located within the APE.

  1. IDENTIFYING HISTORIC PROPERTIES
    1. The FHWA and the NPS shall ensure that the funding applicant (TDEC) conducts or has conducted an archaeological survey to identify all historic properties within the APE, as defined in Appendix B.
    2. TDEC shall conduct this Survey or cause it to be conducted in consultation with the Tennessee SHPO.
    3. TDEC will carry out or cause the Survey to be carried out in a manner consistent with the Secretary of the Interior's Standards and Guidelines for Identification (48 FR 44720-23), the Tennessee SHPO Standards and Guidelines for Archaeological Resource Management Studies and taking into account the NPS publication, The Archaeological Survey: Methods and Uses (1978: GPO stock #024-016-00091).
    4. TDEC must submit the Scope of Work for site identification to the Tennessee SHPO, the Federally Recognized Indian Tribes and the NPS for review and comment before commencement of the Survey.
    5. TDEC shall submit a written report of the results of the survey to the Tennessee SHPO, the NPS and the Federally Recognized Indian tribes for review and comment.
    6. The FHWA and the NPS will ensure that TDEC shall not approve the commencement of any ground disturbing work associated with the development of the CTSP that could potentially affect identified historic properties until it has received and complied with the review comments of the SHPO and the Federally Recognized Indian Tribes.
  2. EVALUATION
    1. The FHWA and the NPS shall ensure that the funding applicant (TDEC) will evaluate properties potentially eligible for listing in the National Register of Historic Places in accordance with 36 CFR 800.4(c).
    2. TDEC shall cause to be prepared any site evaluation in a manner consistent with the Secretary of the Interior's Standards and Guidelines for Identification (48 FR 44720-23) and the Tennessee SHPO Standards and Guidelines for Archaeological Resource Management Studies.
    3. TDEC must submit the Scope of Work for such evaluation to the Tennessee SHPO for review and comment before commencement of any site evaluation.
    4. The FHWA, the NPS and the Tennessee SHPO shall consult with the Federally Recognized Indian Tribes to determine whether it is in their determination that any of the properties so evaluated possess religious or cultural significance.
    5. The FHWA, the NPS and the Tennessee SHPO shall take into account any such Tribal determinations when rendering their own determinations of National Register of Historic Places eligibility.
  3. TREATMENT PLANS
    1. AVOIDANCE
      1. The FHWA and the NPS, in consultation with the Tennessee SHPO and the Federally Recognized Indian Tribes, shall ensure that any additional historic properties determined eligible for listing in the National Register of Historic Places located within the APE shall be avoided by any activities associated with the development of the CTSP that could adversely affect those characteristics of that historic property that qualify it for listing in the National Register of Historic Places.
      2. The FHWA and the NPS shall ensure that TDEC avoids adversely affecting all eligible historic properties as long as the FHWA and the NPS, in consultation with the Tennessee SHPO and the Federally Recognized Indian Tribes agree that such avoidance measures are prudent and feasible.
      3. In the design of the CTSP, TDEC shall exhaust every consideration to avoid adversely affecting historic properties eligible for the National Register of Historic Places. In the event where Right-of-Way (ROW) has been purchased prior to the identification of a historic property, if needed, all efforts will be made to adjust the alignment of the CTSP to avoid the historic property.
      4. All archaeological sites, subsequently discovered or identified and determined eligible for listing in the National Register of Historic Places by the evaluation process under Stipulation II, that are avoided shall be protected by TDEC by a buffer zone established by consultation among TDEC, the FHWA, the NPS and the Tennessee SHPO.
      5. The Tennessee SHPO and the consulting Federally Recognized Indian Tribes shall participate in the consultation regarding the establishment of buffer zones for archaeological sites associated with historic and prehistoric Native American peoples of Tennessee.
      6. TDEC shall establish these buffer zones to avoid future indirect and cumulative effects to National Register of Historic Places eligible historic properties.
    2. DATA RECOVERY
      Because of the unique or nearly unique nature of each archaeological site, requirements for mitigation shall be determined through a process of consultation among the FHWA, the NPS, TDEC, the Tennessee SHPO and the Federally Recognized Indian Tribes.
      1. If TDEC, in consultation with the Tennessee SHPO and the Federally Recognized Indian Tribes, determines that historic properties shall be adversely affected by unavoidable physical destruction or damage associated with the development of the CTSP, and all avenues of avoidance have been exhausted and a decision by all consulting parties to conduct data recovery is made, TDEC shall develop and implement a treatment plan, through consultation with all consulting parties, for the recovery of historic and archaeological data from sites that are determined to be eligible for inclusion in the National Register of Historic Places.
      2. Consensus among the FHWA, the NPS, the Tennessee SHPO and the Federally Recognized Indian Tribes shall be made on any determination of unavoidable adverse effects to eligible historic properties.

        The FHWA and the NPS shall ensure that TDEC develops a site-specific data recovery treatment plan (Plan), in consultation with the Tennessee SHPO and the Federally Recognized Indian Tribes, to resolve adverse effects through recovery of significant information from historic or archaeological sites prior to those project activities that could adversely affect historic properties eligible for the National Register of Historic Places.

        The Plan shall be consistent with the Secretary of the Interior's Standards and Guidelines for Archaeological Documentation (48 FR 44734-37) and take into account the Council's publication, Treatment of Archaeological Properties (Advisory Council on Historic Preservation, (draft) 1980), subject to any pertinent revisions the Council may make in the publication prior to completion of the data recovery plan. It shall specify, at a minimum:

        1. The property, properties, or portions where data recovery is to be carried out;
        2. Any property, properties, or portions of properties that will be destroyed without data recovery;
        3. The research questions to be addressed through the data recovery, with an explanation of their relevance and importance;
        4. The methods to be used in analysis, data management, and dissemination of data, including a schedule;
        5. The proposed disposition of recovered materials and records;
        6. Proposed methods for involving the interested public in the data recovery;
        7. Proposed methods for disseminating results of the work to the interested public;
        8. Proposed methods by which the Federally Recognized Indian Tribeswill be kept informed of the work and afforded the opportunity to participate in data recovery activities;
        9. A proposed schedule for the submission of progress reports to the FHWA, Tennessee SHPO, the Federally Recognized Indian Tribes and the NPS; and
        10. A plan delineating the manner in which historic properties, human remains, and associated funerary objects discovered would be treated.

        The data recovery plan shall be submitted by TDEC to the Tennessee SHPO and the Federally Recognized Indian Tribes for 30 days review. Unless the Tennessee SHPO or the Federally Recognized Tribes objects within 30 days after receipt of the plan, the FHWA and the NPS shall ensure that it is implemented.

    3. C. IN-PLACE PRESERVATION

      In the event of a decision by all consulting parties to conduct in-place preservation of National Register of Historic Places archaeological sites, TDEC shall develop a treatment plan in consultation with the Tennessee SHPO and the Federally Recognized Indian Tribes for the preservation in-place of historic and archaeological data from sites that are determined to be eligible for inclusion in the National Register of Historic Places.

      1. If TDEC, in consultation with the Tennessee SHPO and the Federally Recognized Indian Tribes, determines that historic properties shall be adversely affected by unavoidable physical destruction or damage associated with the development of the CTSP, and all avenues of avoidance have been exhausted and a decision by all consulting parties to conduct in-place preservation is made, TDEC shall develop and implement a preservation plan, through consultation with all consulting parties, for the preservation of historic and archaeological data from sites that are determined to be eligible for inclusion in the National Register of Historic Places.
      2. Consensus among the FHWA, the NPS, the Tennessee SHPO and the Federally Recognized Indian Tribes shall be made on any determination of unavoidable adverse effects to eligible historic properties.

        The Plan shall be consistent with the Secretary of the Interior's Standards and Guidelines for Archaeological Documentation (48 FR 44734-37) and take into account the Council's publication, Treatment of Archaeological Properties (Advisory Council on Historic Preservation, (draft) 1980), subject to any pertinent revisions the Council may make in the publication prior to completion of the preservation plan. It shall specify, at a minimum:

        1. The property, properties, or portions where preservation in-place is to be carried out;
        2. The methods to be used for preservation in-place, including a schedule and documentation clearly describing and diagramming preservation methodologies and boundaries;
        3. Proposed methods by which the Federally Recognized Indian Tribes will be kept informed of the preservation work and afforded the opportunity to participate;
        4. A proposed schedule for the submission of progress reports to the FHWA, Tennessee SHPO, the Federally Recognized Tribes and the NPS.
        5. A plan describing the methods by which TDEC shall monitor the conditions of the preserved historic properties and means by which TDEC shall insure that preservation of such properties is not compromised in the future.

        The FHWA and the NPS shall ensure that TDEC submits the preservation plan to the Tennessee SHPO for review. Unless the Tennessee SHPO objects within 30days after receipt of the plan, the FHWA and the NPS shall ensure that the plan is implemented.

    4. SITES OF RELIGIOUS OR CULTURAL SIGNIFICANCE

      For National Register of Historic Places-eligible historic properties that are of religious or cultural significance to consulted Federally Recognized Indian tribes, these consulting parties shall participate in the consultation regarding resolving adverse effects to those properties.

      The Tennessee SHPO and the consulting Federally Recognized Indian Tribes shall participate in the consultation regarding resolving adverse effects to those properties that are of religious or cultural significance to Native American peoples of Tennessee.

    5. MONITORING

      This agreement shall provide for monitoring as a safeguard against the loss of archaeological data that may have been missed during planning and Section 106 review.

      1. The FHWA and the NPS will ensure that TDEC will take particular care during construction to avoid affecting any archaeological remains that may be associated with a historic property. In the event that a historic property is discovered during construction, restrictions on construction work and the surrounding areas will be put into place. Suitable arrangements will be made in consultation with the Tennessee SHPO prior to construction within the area of the affected historic property. At a minimum, such monitoring will include recording and reporting of major features or artifact concentrations uncovered, and recovery/curation of a sample of uncovered remains where practicable.
      2. After completion of the fieldwork component of the data recovery program provided for in Stipulation III(B), the TDEC will ensure that an archaeologist meeting the Secretary of the Interior's Professional Qualifications Standards (48 FR 44738-9) monitors removal of the affected historic property. At a minimum, such monitoring will include recording and reporting of major features or artifact concentrations uncovered during construction, and recovery/curation of a sample of uncovered remains where practicable.
  4. REPORTING
    1. The FHWA and the NPS shall ensure that formal written reports on all activities carried out pursuant to this agreement are provided to the Tennessee SHPO, the Federally Recognized Indian Tribes and, upon request, to other interested parties. B. The FHWA and the NPS shall ensure that all historical and archaeological investigations undertaken in compliance with this agreement meet the Secretary of the Interior's Standards and Guidelines for Identification (48 FR 44720-23) and the Tennessee SHPO Standards and Guidelines for Archaeological Resource Management Studies. C. The SHPO, the Federally Recognized Indian Tribes, the FHWA and the NPS shall be afforded thirty (30) days to review and comment on any archaeological or historical reports submitted as compliance with this agreement document.
  5. TREATMENT OF HUMAN REMAINS
    1. The FHWA and the NPS shall ensure that the treatment of any human remains discovered within the project area complies with all state and federal laws concerning archaeological sites and treatment of human remains.
    2. Should human remains be encountered during historic properties investigations or post review discovery, all ground disturbing activities shall cease immediately, and:
      1. TDEC shall immediately notify the Tennessee SHPO, the Tennessee State Archaeologist, the FHWA, the NPS, the consulting Federally Recognized Indian Tribes and appropriate county coroner should any human remains and/or grave associated artifacts be encountered in connection with an undertaking covered by this agreement.
      2. In consultation with the Tennessee SHPO, the FHWA, the NPS and the Federally Recognized Indian Tribes, TDEC shall ensure that those remains shall be treated in a manner that is consistent with the ACHP "Policy Statement Regarding the Treatment of Human Remains and Grave Goods" (1988), and in accordance with all Tennessee laws and regulations and policies pertaining to Native American graves including T.C.A. 11-6-116b, "Notification and Observation," and T.C.A. 11-6-119 "Re-interment" with implementing Tennessee Rules and Regulations Chapter 0400-9-1 "Native American Indian Cemetery Removal and Reburial."
    3. Should human remains and/or grave associated artifacts be encountered on Federal property their treatment shall comply with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001-3013, and its implementing regulations 43 CFR 10.
  6. QUALIFICATION OF PERSONNEL
    1. The TDEC shall ensure that all historic preservation work carried out pursuant to this agreement is carried out by or under the direct supervision of a person or persons meeting at a minimum the Secretary of the Interior's Professional Qualifications Standards (48 FR 44738-9).
  7. TIMETABLES FOR COMPLIANCE
    1. The FHWA and the NPS shall ensure that the stipulations of this agreement document are met prior to commencement of any ground-disturbing activities. B. If development of the CTSP is to be completed as phased construction, the stipulations of this agreement may be satisfied in concert with such scheduling. C. The Tennessee SHPO, the Federally Recognized Indian Tribes, the FHWA and the NPS shall have thirty (30) days to review and comment on all archaeological reports of investigation, proposed data recovery and/or preservation plans. During that time, the Tennessee SHPO, the FHWA and the NPS may request comments from other consulting parties as appropriate.
  8. PHASED COMPLIANCE
    1. Consistent with 36 CFR 800.4(b)(2), this agreement allows for phased identification, evaluation, and treatment of historic properties in order to meet the requirements of Section 106 of the National Historic Preservation Act.
  9. IX. ADMINISTRATIVE CONDITIONS
    1. If Stipulations 1-8 have not been implemented within seven (7) years from the signing date, this agreement shall be considered null and void, unless the signatories have agreed in writing as provided in Paragraph VIII(B) below to an extension for carrying out its terms. If no agreement is reached on an extension at the end of the 7-year period, the FHWA, the NPS and the Tennessee SHPO shall resume consultation pursuant to 36 CFR 800.
    2. If Stipulations 1-8 have not been implemented within six (6) years from the date of this agreement's execution, the FHWA, the NPS and the Tennessee SHPO shall review the agreement to determine whether the agreement should be extended. If an extension is deemed necessary, the FHWA, the NPS and the Tennessee SHPO shall consult in accordance with 36 CFR 800.6(c) to make appropriate revisions to the agreement.
    3. The parties to this Programmatic Agreement shall consult annually as directed by the FHWA and NPS to review implementation of the terms of this agreement and determine whether revisions are needed. If revisions are needed, the parties to this agreement will consult in accordance with 36 CFR 800.6(c) to make such revisions.
    4. Any party to this Programmatic Agreement may request that it be amended or modified, where upon the FHWA, the NPS and the Tennessee SHPO will consult in accordance with 36 CFR 800.6(c)(7) to consider such revisions.
    5. Any resulting amendments or addenda shall be developed and executed among the consulting and concurring parties in the same matter as the original PA.
  10. DISPUTE RESOLUTION
    1. Should any of the signatories object within thirty (30) days after receipt to any plans, specifications, contracts, or other documents provided for review pursuant to this agreement, the FHWA, the NPS, and the Tennessee SHPO shall consult to resolve the objection.
    2. Any one of these signatories may request the consultation of any other signatory.
    3. If the FHWA or the NPS determines that the objection cannot be resolved, the FHWA or the NPS shall request further comments of the Advisory Council pursuant to 36 CFR 800. Any Advisory Council comment provided in response to such a request shall be taken into account by the FHWA and the NPS in accordance with 36 CFR 800 with reference only to the subject of the dispute.
    4. The FHWA's and the NPS' responsibility to carry out all actions under this agreement that are not the subjects of the dispute shall remain unchanged.
  11. TERMINATION AND EXECUTION
    1. Any party to this Programmatic Agreement may terminate it by providing thirty (30) days notice to the other parties, provided that the parties will consult during the period prior to termination to seek agreement on amendments or other actions that would avoid termination (see Stipulation IX, A-D). In the event of termination, the FHWA and the NPS will comply with 36 CFR § § 800.4 through 800.6 with regard to individual undertakings covered by this Programmatic Agreement.
    2. In the event the FHWA and the NPS does not carry out the terms of this Programmatic Agreement, the FHWA and the NPS will comply with 36 CFR § § 800.4 through 800.6 with regard to individual undertakings covered by this Programmatic Agreement.
    3. Execution and implementation of this Programmatic Agreement evidences that the FHWA, the NPS and the Tennessee SHPO, and implementation of its terms, evidence that the FHWA and the NPS have taken into account the effects of the undertaking on historic properties, and the FHWA and the NPS have complied with their Section 106 responsibilities for all individual undertakings of the CTSP project.

EXECUTION PARTIES:

FEDERAL HIGHWAY ADMINISTRATION

By:_____________________________________ Date:____________

[Charles S. Boyd, Tennessee Division Administrator]

NATIONAL PARK SERVICE

By:_____________________________________ Date:____________

[Edwolyn Dooley-Higgins, Chief of the Recreation Program Division]

THE TENNESSEE STATE HISTORIC PRESERVATION OFFICE

By:_____________________________________ Date:____________

[Herbert L. Harper, Deputy SHPO]

TENNESSEE STATE PARKS, DEPARTMENT OF ENVIRONMENT & CONSERVATION

By:_____________________________________ Date:____________

[Mark Williams, Assistant Commissioner, Director of State Parks]

TENNESSEE DEPARTMENT OF ENVIRONMENT & CONSERVATION

By:_____________________________________ Date:____________

[Milton H. Hamilton, Commissioner, State Liaison Officer]

CONCURRING PARTIES:

EASTERN BAND OF CHEROKEE INDIANS

By:_____________________________________ Date:____________

[Leon Jones, Principal Chief]

CHEROKEE NATION OF OKLAHOMA

By:_____________________________________ Date:____________

[Chadwick Smith, Principal Chief]

CHICKASAW NATION

By:_____________________________________ Date:____________

[Bill Anoatubby, Governor Chickasaw Nation]

CHOCTAW NATION OF OKLAHOMA

By:_____________________________________ Date:____________

[Gregory E. Pyle, Chief]

SEMINOLE NATION OF OKLAHOMA

By:_____________________________________ Date:____________

[Jerry G. Haney, Principal Chief]

CUMBERLAND TRAIL CONFERENCE

By:_____________________________________ Date:____________

[Rob Weber, Executive Director]


APPENDIX A

LIST OF ACRONYMS

ACHP

Advisory Council on Historic Preservation

APE

Area of Potential Effect

CTSP

Cumberland Trail State Park

FHWA

Federal Highway Administration

LWCF

Land and Water Conservation Funds

NAGPRA

Native American Graves Protection and Repatriation Act

NPS

National Park Service

PA

Programmatic Agreement

ROW

Right-of-Way

RTP

Recreational Trails Program

SHPO

State Historic Preservation Officer

TDEC

Tennessee Department of Environment and Conservation

TE

Transportation Enhancement

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