Yosemite Valley Plan SEIS, Volume II, Appendix D

Appendix D — Cultural Resources Programmatic Agreement

PROGRAMMATIC AGREEMENT AMONG THE NATIONAL PARK SERVICE AT YOSEMITE, THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER, AND THE ADVISORY COUNCIL ON HISTORIC PRESERVATION REGARDING PLANNING, DESIGN, CONSTRUCTION, OPERATIONS AND MAINTENANCE, YOSEMITE NATIONAL PARK, CALIFORNIA.

WHEREAS, the National Park Service (NPS) at Yosemite National Park (YOSE) has determined that planning, design, construction, operations and maintenance may have an effect on properties included in, or eligible for inclusion in, the National Register of Historic Places, and has consulted with the California State Historic Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (Council) pursuant to Section 800.13 of the regulations (36 CFR Part 800), implementing Section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470f; hereinafter NHPA); and

WHEREAS, the NPS, the Council, and National Conference of State Historic Preservation Officers (NCSHPO) executed a Nationwide Programmatic Agreement on July 17, 1995 that establishes a framework for taking historic properties into account and is supplemented by this agreement; and

WHEREAS, the NPS completed a 1980 General Management Plan (GMP) that provides the management direction for YOSE; and

WHEREAS, the NPS, SHPO and Council executed a November 1, 1979, Memorandum of Agreement (MOA) that is still in effect to cover actions specified in the 1980 GMP; and

WHEREAS, a Concessions Services Plan and a Yosemite Valley Plan exist or are underway to implement proposals of and amend the 1980 General Management Plan; and

WHEREAS, the NPS has on staff or has access to qualified cultural resource specialists who meet, at a minimum, the appropriate qualifications set forth in the Department of the Interior’s "Professional Qualifications Standards" (36 CFR Part 61, Appendix A) to carry out programs for cultural resource management. These include cultural resource management advisors described in Stipulation III (C)(3) of the nationwide programmatic agreement; and

WHEREAS, the terms in 36 CFR Section 800.2 "Definitions" are applicable throughout this Programmatic Agreement, including "Historic Property" to mean any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places. Historic Properties include artifacts and remains that are related to and located within such properties, cultural landscapes, as defined in National Register Bulletins 18 and 30, and traditional cultural properties, as defined in National Register Bulletin 38. "Indian Tribes" refers to American Indian tribes, bands, organized groups, or communities recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, and who are culturally affiliated with YOSE lands and resources; and

WHEREAS, YOSE has consulted with Indian Tribes (American Indian Council of Mariposa County, Inc., the Tuolumne Me-Wuk Tribal Council, the Mono Lake Indian Community, the Bridgeport Paiute Tribe, the Chukchansi Nation, the Northfork Mono Rancheria and the Northfork Mono Indian Museum) and has provided these parties the opportunity to participate in the development of, and to concur in the terms of, this Agreement; and

WHEREAS, YOSE has consulted with the National Trust for Historic Preservation (National Trust) and has invited the National Trust to concur in this agreement; and

WHEREAS, YOSE has notified the public of the formulation of this agreement and provided them an opportunity to comment;

NOW, THEREFORE, the NPS, SHPO, and Council agree that YOSE shall carry out its responsibilities under the NHPA, as amended, for those undertakings/actions specified in Stipulation II below.

Stipulations

YOSE shall ensure that the following measures are carried out:

I. POLICY

YOSE shall manage and preserve the historic properties of the park through undertakings and research, consistent with good management and stewardship. These efforts are, and will remain, in keeping with the NHPA, the National Environmental Policy Act of 1969 (NEPA), and other applicable laws, executive orders, regulations and policies. YOSE shall implement its programs with public review and in consultation with other federal agencies, the SHPO, Indian Tribes, city and county governments and their respective authorities, as appropriate.

A	Guidelines, standards, and regulations that are relevant to this Agreement and that shall provide guidance and performance standards for management of historic properties include:
	NPS/ACHP	The Secretary of the Interior’s Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act [Section 110 Guidelines]
	ACHP	Treatment of Archeological Properties: A Handbook
	FHWA	Manual for Uniform Traffic Control Services
	NPS	Maintenance Management Program, Operations Manual, Parts 1&2
	NPS	Museum Handbook, Parts 1&2
	NPS	Director’s Order 2: Park Planning
	NPS-6	Interpretive and Visitor Services Guidelines
	NPS-12	NEPA Compliance Guidelines
	NPS-28	Cultural Resource Management Guideline
	NPS-38	Historic Property Leasing Guidelines
	NPS-76	Housing Design and Rehabilitation Guidelines
	USDI	Archeology and Historic Preservation: Secretary of the Interior’s Standards and Guidelines
	USDI	The Secretary of the Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings
	USDI	The Secretary of the Interior’s Standards for Historic Preservation Projects with Guidelines for Applying the Standards
	USDI	The Secretary of Interior’s Standards for the Treatment of Historic Properties with Guidelines for the Treatment of Cultural Landscapes
	US	Uniform Federal Accessibility Standards (49 FR 31528-31617)
	US	Americans with Disabilities Act Accessibility Guidelines (56 FR 45731-45778)
	US	Native American Graves Protection and Repatriation Act Regulations: Final Rule (43 CFR Part 10)

As needed, additional guidelines may be developed for the built or designed landscapes of YOSE. Proposed new guidelines developed by YOSE shall be submitted to the SHPO for review and comment. The SHPO shall have 30 days after receiving the proposed guidelines to respond to specific treatments described in the guidelines.

III. SCOPE OF AGREEMENT

This Agreement applies to undertakings at YOSE that have not been covered by previous agreements, and that are under the direct or indirect supervision of the NPS including undertakings performed by NPS lessees, permittees, concessionaires, cooperators and park partners.
The NPS shall ensure that the lessees, permittees, concessionaires, cooperators and park partners are notified that they are subject to the terms of this Agreement.

IV. RELATIONSHIP TO OTHER PLANS

This Agreement incorporates provisions of, but does not supersede, the 1979 MOA executed for the 1980 GMP. Provisions of that agreement will continue to be implemented as written.
This Agreement supplements the 1995 Nationwide Programmatic Agreement among the NPS, the Council, and the National Conference of State Historic Preservation Officers.

V. PARTICIPATION OF INDIAN TRIBES

YOSE shall consult with Indian Tribes in such a manner as to meaningfully involve them in decisions affecting resources of concern.
Within one year of the execution of this Agreement, YOSE shall develop an agreement that sets forth the process by which Indian Tribes will be involved in considering the impacts of undertakings on Historic Properties at YOSE that are of interest to them. This protocol will:

Define when consultation between the YOSE and tribes is necessary
Identify individuals or offices directly involved in the consultation process
Outline key elements of the consultation process
Outline the process to be followed in case of inadvertent discovery of human remains or other items subject to the NAGPRA

Until this agreement is in place, YOSE shall continue to consult with Indian Tribes according to 36 CFR Part 800 and, when appropriate, the provisions of NAGPRA.

VI. PUBLIC PARTICIPATION

YOSE shall consult with the signatories to this Agreement and with other Interested Parties or Persons to determine if there are organizations or individuals that may be concerned with actions described in Stipulation VIII below, and shall provide notice to the public of the undertakings subject to the stipulations of this Agreement through the public participation process of the National Environmental Policy Act (NEPA) and its implementing regulations set forth in 40 CFR Parts 1500-1508. Any member of the public may participate as an Interested Person in the consultation for a particular action upon notifying YOSE of their interest. YOSE, SHPO and Council, if participating, shall jointly determine when such Interested Persons shall be invited to participate as a consulting party for individual undertakings in accordance with 36 CFR Section 800.5(e)(1)(iv). YOSE shall take into account the views of such parties regarding any adverse effect of an undertaking described in Stipulation VIII below.
Documentation regarding identification and National Register evaluation of historic properties, when not subject to confidentiality concerns, will be available for inspection at YOSE, SHPO, or NPS Pacific West Regional Office.

VII. CONSIDERATION OF HISTORIC PROPERTIES

Pursuant to the NHPA and in the earliest stages of the planning process, YOSE shall identify, evaluate, determine effects to, and treat historic properties in conformance with all applicable regulations, policies and guidelines listed in Stipulation I above.

Identification

YOSE shall consult with Indian Tribes and Interested Persons, as appropriate, on activities to locate and inventory Historic Properties, in accordance with Section 110 of the NHPA, and 36 CFR Section 800.4 .
If no Historic Properties are identified, YOSE shall maintain documentation of the inventory for purposes of review under Stipulation XVIII and no further action will be necessary.
If Historic Properties are identified, and consistent with any confidentiality protocols provided by the Tribe(s) and/or described in Section 304, NHPA, all final reports resulting from the Historic Properties surveys stipulated above shall be submitted to SHPO.

National Register Evaluation

YOSE, in consultation with SHPO, shall follow the procedures in 36 CFR Section 800. 4 (c) (1 through 3) to evaluate the historical significance of all properties that may be affected by an undertaking. If YOSE and SHPO do not agree on the National Register eligibility of any property, or if the Council so requests, YOSE shall obtain a formal determination of eligibility from the Keeper of the National Register pursuant to 36 CFR Section 800.4 (c) (4). If SHPO does not respond within the review period described in Stipulation IX below, YOSE may assume SHPO concurrence with YOSE determinations.
As part of the 1980 GMP planning process, NPS evaluated and SHPO concurred in National Register eligibility determinations of certain properties in Yosemite. These determinations are itemized in the Case Report accompanying the 1979 MOA (summary list to be appended within six months). In addition, subsequent studies have evaluated properties under National Register criteria. These determinations will be reviewed, on a case by case basis by YOSE cultural resource staff or advisors, for new information or changed circumstances. Previous National Register determinations will be revisited by YOSE staff or cultural resources advisors if new information, such as recognition of new property types (e.g., cultural landscapes and traditional cultural properties) or change in historic context(s), is forthcoming or if SHPO so requests.
If traditional cultural properties are identified through the process outlined in Stipulation VII (A), YOSE shall seek the participation of all Indian Tribes (or other groups as appropriate) who ascribe traditional cultural values to those properties in applying the National Register criteria. Except as provided by any confidentiality protocols developed by Indian Tribes, and/or those described in Section 304, NHPA, YOSE shall ensure that documentation of determinations, including the SHPO’s comments, are made available for inspection according to provisions stated in Stipulation VI.

Assessment of Effect

YOSE shall determine the effect of any undertaking subject to this Agreement using the Criteria of Effect and Adverse Effect (36 CFR Part 800). At its discretion, YOSE may consult with the signatories to this Agreement or with other Interested Persons regarding effect determinations for individual undertakings.

Repetitive, Low Impact Activities

Repetitive, low impact activities defined in Appendix B will be undertaken with no additional review by YOSE cultural resource staff. The project proponent shall maintain records of actions for inspection according to Stipulation XVII below.

Actions Having No Effect or No Adverse Effect

Activities determined by YOSE to have "No Effect" or "No Adverse Effect" to Historic Properties, as defined in 36 CFR Part 800, may be implemented and will be documented for purposes of this Agreement by YOSE without further review by the Council or SHPO, provided:

that the undertaking is not subject to provisions of Stipulation VIII(B);
that the applicable YOSE management office has submitted a proposed undertaking to the YOSE Section 106 Coordinator for review and concurrence 15 work days prior to the start of the undertaking;
that the YOSE Section 106 Coordinator has reviewed the undertaking to ensure that identification and evaluation of Historic Properties in the area of potential effect has been completed according to Stipulation VII (A) and (B) above, and that adequate information has been compiled to identify and evaluate the effects of proposed undertakings on Historic Properties;
that YOSE ensures that decisions regarding proposed undertakings are made and carried out in conformance with the standards and guidelines in Stipulation I above;
that YOSE shall ensure that recovery of archeological data is based on the existing YOSE Archeological Research Design and Archeological Synthesis and Revised Research Design;
that YOSE has consulted with the appropriate Indian Tribe(s) regarding possible effects to Native American archeological or traditional cultural properties;
that YOSE has determined that the proposed action either does not affect or does not adversely affect Historic Properties based on the criteria of adverse effect found in 36 CFR Section 800.9; and
Monitoring, when appropriate, shall be summarized in a brief letter report. If Historic Properties are discovered during implementation, a detailed monitoring report shall be prepared. Large-scale ground disturbing activities shall be monitored in accordance with a monitoring plan. The monitoring plan shall include, at minimum, the following elements:

a detailed summary of properties that may be exposed during construction activities, based on archival research;
treatment strategies (i.e., documentation, data recovery excavations, protection, etc.) for anticipated property types;
specific guidelines for any necessary work stoppages;
the locations of Historic Properties to be avoided and the means by which they will be avoided;
specific areas and phases of construction which will be monitored;
a schedule for submitting progress reports of monitoring activities to the SHPO;
a process for dealing with types of properties not anticipated in the monitoring plan, including names of individuals or offices to be contacted in the event of discovery
reporting requirements, to be followed upon project completion
specific procedures to be followed in the event of discovery of human remains
Indian tribal monitoring procedures

VIII. RESOLUTION OF ADVERSE EFFECTS

YOSE shall make every reasonable effort to avoid adverse effects to Historic Properties identified according to Stipulation VII (A) through project design, facilities’ location, or other means. Avoidance alternatives will be documented during the NEPA process.

When avoidance of a Historic Property is not feasible or prudent, and the undertaking does not involve properties or actions described in (B) below, YOSE, as part of its examination of treatment options, may decide to implement one or more Standard Mitigating Measures (SMM) described in (A) below. YOSE shall notify the following parties in writing of the decision to implement SMM:

the SHPO
Indian Tribe(s) (when American Indian properties are involved)
members of the public who have made their interest in the undertaking known according to provisions outlined in Stipulation VI.

Consultation with the Council will not be undertaken when YOSE decides to implement SMM. If the SHPO, any Indian Tribe or any Interested Person does not object, within 14 calendar days of the notification, to YOSE’s decision to treat the adverse effect according to the SMM, YOSE will proceed without further involvement of these parties. Should the SHPO, Indian Tribe, or Interested Person(s) object to the implementation of SMM as set forth above, YOSE shall make every effort to resolve the objection. If YOSE decides not to implement SMM, or YOSE and the objecting party are unable to resolve the objection, YOSE shall consult in accordance with (B) below, Required Consultation.

Standard Mitigating Measures

Recordation

Individual, nationally significant Historic Properties will be documented according to the standards of the Historic American Buildings Survey or Historic American Engineering Record, as appropriate. The level of documentation for these Historic Properties shall be determined by the NPS. Copies of documentation will be deposited in the YOSE archives, SHPO, and Library of Congress.
The following categories of structures, whether significant at the national, state, or local level, will be documented by black and white 5 x 7 photographic prints, and a Historic Record that includes narrative history and original drawings where available. Copies of documentation will be deposited in the YOSE archives and with SHPO:

Contributing elements in a historic district (unless individually eligible)
Individual elements of linear resources, such as ditches, roads, trails
Minor elements of a complex (e.g., sheds, garages)
Individual elements of cultural landscapes

Individual Historic Properties of state and local significance

In the past YOSE has experienced major floods, fires, earthquakes, wind damage from storms, earth slides, and other natural disasters/emergencies which are likely to recur in the future. For a period not exceeding 45 days after the conclusion of the emergency (plus any extension agreed upon by YOSE, SHPO and Council) YOSE will proceed as follows:

Programmatic agreements or memoranda of agreement may be negotiated by YOSE, SHPO, and the Council, as appropriate, and may supplement this Agreement.

Any signatory may request that this Agreement be amended, whereupon the parties will consult in accordance with 36 CFR Section 800.13. Where the parties cannot agree on executing an amendment, the matter shall be addressed pursuant to Stipulation XIV, Dispute Resolution. Any amendment agreed upon will be executed in the same manner as the original Agreement.

In the event YOSE does not or cannot carry out the terms of this Agreement, YOSE shall comply with the NPS Nationwide Programmatic Agreement with regard to individual undertakings covered by this Agreement.

YOSE, SHPO, or Council may terminate this Agreement by providing 30 calendar days’ written 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. In the event of termination, the NPS shall comply with 36 CFR Sections 800.4 through 800.6 for individual undertakings covered by this Agreement.

This Programmatic Agreement shall be null and void fifteen (15) years from date of execution of this Agreement by the Council.

Execution and implementation of this Programmatic Agreement evidences that YOSE has satisfied its Section 106 responsibilities for all individual undertakings referenced in this Agreement.

The following requirements are those used by the National Park Service, and have been previously published in the Code of Federal Regulations, 36 CFR Part 61. The qualifications define minimum education and experience required to perform identification, evaluation, registration, and treatment activities. In some cases, additional areas or levels of expertise may be needed, depending on the complexity of the task and the nature of the historic properties involved. In the following definitions, a year of full-time professional experience need not consist of a continuous year of full-time work but may be made up of discontinuous periods of full-time or part-time work adding up to the equivalent of a year of full-time experience.

The minimum professional qualifications in history are a graduate degree in history or closely related field; or a bachelor’s degree in history or closely related field plus one of the following:

The minimum professional qualifications in archeology are a graduate degree in archeology, anthropology, or closely related field plus:

In addition to these minimum qualifications, a professional in prehistoric archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the prehistoric period. A professional in historic archeology shall have at least one year of full-time professional experience at the supervisory level in the study of archeological resources of the historic period.

The minimum professional qualifications in architectural history are a graduate degree in architectural history, art history, historic preservation, or closely related field, with coursework in American architectural history; or a bachelor’s degree in architectural history, art history, historic preservation or closely related field plus one of the following:

The minimum professional qualifications in architecture are a professional degree in architecture plus at least two years of full-time experience in architecture; or a State license to practice architecture.

The minimum professional qualifications in historic architecture are a professional degree in architecture or a State license to practice architecture, plus one of the following:

Such graduate study or experience shall include detailed investigations of historic structures, preparation of historic structures research reports, and preparation of plans and specifications for preservation projects.

The following classes of undertakings are considered exempt from further review or consultation under the terms of this Agreement. NPS staff are not required to notify or consult with YOSE cultural resource staff about these classes of undertakings unless the project proponent has reason to believe that a specific exempt undertaking may affect historic properties. (NOTE: Items 1, 6, and 11 should be recorded in building files, and should include date, action taken, building location, type of paint used, etc.).