Common use of National Historic Preservation Act Clause in Contracts

National Historic Preservation Act. Compliance with Section 106 of the National Historic Preservation Act (NHPA) shall be addressed on a case-by-case basis by the Participants or WAFWA, as appropriate, and will be completed prior to implementation of Conservation Measures with the potential to affect historic properties. A Participant’s action that may require NHPA compliance is the burying of new distribution lines within 1.25 miles of leks that have been active within the previous 5 years. Compliance will be required for a) ground disturbance in areas that have not been previously disturbed, such as in native grassland and shrubland, or b) where a new disturbance would exceed the level of a previous disturbance (i.e., a trench for burying distribution line in a cultivated field, would still need NHPA compliance since the trench would likely exceed the depth of disturbance previously caused by the crop cultivation). For actions that would be implemented by WAFWA, NHPA compliance shall be addressed on a case-by-case basis but may be required for the conservation practices that result in ground disturbances. Some conservation practices that could be of concern for historic properties include brush management that involves removal of the roots (i.e., grubbing of mesquite), and the removal of existing structures, such as tank batteries, pump jacks, turbines, etc. Existing buildings or structures that are older than 50 years potentially may be historic properties, the removal of which may require NHPA compliance. Planted grass management is not considered to be a concern since it will occur in previously tilled acreage. The process for NHPA compliance includes a step-wise approach of identifying and evaluating potential impacts to historic properties resulting from the implementation of Conservation Measures. The Participant or WAFWA, as applicable, shall start this process as early as feasible in the planning process so that options for siting to avoid or minimize impacts to cultural resources are not precluded. To comply with the NHPA prior to taking action that may affect historic property, the Participant or WAFWA, as applicable, must adhere to the following process: A) During early planning, the Participant or WAFWA will determine if the planned Conservation Measures has the potential to affect to historic properties. Generally, implementing Conservation Measures in previously disturbed areas does not have the potential to affect historic properties. If the planned Conservation Measure does not have the potential to affect historic properties, the Participant or WAFWA will receive FWS concurrence and compliance process is complete. B) If the planned Conservation Measure has potential to affect historic properties, FWS will consult to identify historic properties in accordance with 36 C.F.R. § 800.4. FWS or consultant will then conduct records file search in coordination with the State Historic Preservation Officer (SHPO) and/or the Tribal Historic Preservation Officer (THPO). C) If a records search does not reveal the presence of historic properties (i.e., no resources identified) and past surveys are considered sufficient, then FWS will request concurrence of No Effect from SHPO/THPO in accordance with 36 C.F.R. § 800.4(d). If FWS receives concurrence from SHPO, the compliance process is complete. D) If the records file search determines that historic properties are potentially present, or determines that further investigations are appropriate, then the following factors will be evaluated: 1) Whether or not there are historic properties, as defined by the National Register criteria (36 C.F.R. part 63), in the area of potential effect; 2) Whether or not the project can avoid effects to historic properties; and 3) Whether or not the project would adversely affect historic properties. E) If no historic properties are present and/or no adverse effects are anticipated, then FWS will request a concurrence of No Effect or No Adverse Effect from SHPO and any other consulting parties, in accordance with 36 C.F.R. § 800.4(d) or 36 C.F.R. § 800.5(d), respectively. If FWS receives concurrence from SHPO and other consulting parties, the compliance process is complete. F) If FWS, in consultation with the SHPO and other consulting parties, determines that historic properties will be adversely affected, then the FWS and the Participant or WAFWA will develop a Memorandum of Agreement (MOA) in accordance with 36 C.F.R. § 800.6.

National Historic Preservation Act. Compliance with Section 106 of the National Historic Preservation Act (NHPA) shall be addressed on a case-by-case basis by the Participants or WAFWA, as appropriate, and will be completed prior to implementation of Conservation Measures with the potential to affect historic properties. A Participant’s action that may require NHPA compliance is the burying of new distribution lines within 1.25 miles of leks that have been active within the previous 5 years. Compliance will be required for a) ground disturbance in areas that have not been previously disturbed, such as in native grassland and shrubland, or b) where a new disturbance would exceed the level of a previous disturbance (i.e., a trench for burying distribution line in a cultivated field, would still need NHPA compliance since the trench would likely exceed the depth of disturbance previously caused by the crop cultivation). For actions that would be implemented by WAFWA, NHPA compliance shall be addressed on a case-by-case basis but may be required for the conservation practices that result in ground disturbances. Some conservation practices that could be of concern for historic properties include brush management that involves removal of the roots (i.e., grubbing of mesquite), and the removal of existing structures, such as tank batteries, pump jacks, turbines, etc. Existing buildings or structures that are older than 50 years potentially may be historic properties, the removal of which may require NHPA compliance. Planted grass management is not considered to be a concern since it will occur in previously tilled acreage. The process for NHPA compliance includes a step-wise approach of identifying and evaluating potential impacts to historic properties resulting from the implementation of Conservation Measures. The Participant or WAFWA, as applicable, shall start this process as early as feasible in the planning process so that options for siting to avoid or minimize impacts to cultural resources are not precluded. To comply with the NHPA prior to taking action that may affect historic property, the Participant or WAFWA, as applicable, must adhere to the following process: A) During early planning, the Participant or WAFWA will determine if the planned Conservation Measures has the potential to affect to historic properties. Generally, implementing Conservation Measures in previously disturbed areas does not have the potential to affect historic properties. If the planned Conservation Measure does not have the potential to affect historic properties, the Participant or WAFWA will receive FWS concurrence and the compliance process is complete. B) If the planned Conservation Measure has potential to affect historic properties, FWS will consult to identify historic properties in accordance with 36 C.F.R. § 800.4. FWS or consultant will then conduct records file search in coordination with the State Historic Preservation Officer (SHPO) and/or the Tribal Historic Preservation Officer (THPO). C) If a records search does not reveal the presence of historic properties (i.e., no resources identified) and past surveys are considered sufficient, then FWS will request concurrence of No Effect from SHPO/THPO in accordance with 36 C.F.R. § 800.4(d). If FWS receives concurrence from SHPO, the compliance process is complete. D) If the records file search determines that historic properties are potentially present, or determines that further investigations are appropriate, then the following factors will be evaluated: 1) Whether or not there are historic properties, as defined by the National Register criteria (36 C.F.R. part 63), in the area of potential effect; 2) Whether or not the project Conservation Measures can avoid effects to historic properties; and 3) Whether or not the project Conservation Measures would adversely affect historic properties. E) If no historic properties are present and/or no adverse effects are anticipated, then FWS will request a concurrence of No Effect or No Adverse Effect from SHPO and any other consulting parties, in accordance with 36 C.F.R. § 800.4(d) or 36 C.F.R. § 800.5(d), respectively. If FWS receives concurrence from SHPO and other consulting parties, the compliance process is complete. F) If FWS, in consultation with the SHPO and other consulting parties, determines that historic properties will be adversely affected, then the FWS and the Participant or WAFWA will develop a Memorandum of Agreement (MOA) in accordance with 36 C.F.R. § 800.6.

National Historic Preservation Act. Compliance Section 106 1. Enrolling landowners with Section 106 no environmental baseline responsibilities on their property at the time of enrollment in a Stewardship Agreement will have no responsibility relative to NHPA, because there is no APE (i.e., no baseline spotted owls). Therefore, no archaeological surveys or further consultation between ODF and the Service will be required. 2. Enrolling landowners, whose environmental baseline responsibilities are known to not contain sites that are eligible or potentially eligible for the NRHP based on archaeological survey work conducted prior to or concurrent with the enrollment in the Stewardship Agreement, will have no responsibility relative to NHPA, because there will be no adverse effects to NRHP eligible properties. The enrolling landowner shall provide ODF and/or the Service proper documentation of the National Historic Preservation Act finding of the archaeological survey. Consequently, no archaeological surveys or further consultation between ODF and/or the Service will be required. The enrolling landowner could undertake any management actions within the APE, including those that result in ground disturbance, provided that all other obligations in this Agreement and the enrolling landowner’s Stewardship Agreement have been satisfied. 3. In cases where previous archaeological survey work has not been conducted within the APE or where enrolling landowners are incapable or unwilling to conduct the archaeological survey work necessary to determine the presence of historic properties, enrolling landowners who agree in the Stewardship Agreement to avoid ground-disturbing activities within spotted owl habitat will have no responsibility relative to NHPA, because there will be no likely effects on historic properties even if they were present within the APE. Therefore, no archaeological surveys or further consultation between ODF and/or the Service would be required until and unless ground disturbing activities were planned in the APE. The voluntary limitation on ground-disturbing activities by the landowner would only apply to baseline responsibilities. The following activities shall not be considered ground-disturbing relative to activities in the APE: a. Forest site preparation (NHPAsuch as planting of seedlings) that involves soil disturbance, if such soil disturbance is limited to the area of disturbance by previous planting. b. Timber harvest operations (such as cutting, skidding, yarding) in areas that have been logged within that past 50 years. c. Removal of trees by manual felling, mowing, use of herbicides, manual uprooting with hand tools, and prescribed burning when hand constructed fire breaks are used to contain the fire and there is no excavation or plowing of new fire lines that penetrate deeper than four inches below the current soil surface. d. Timber harvest when removal of logs does not result in soil disturbance below four inches of the current soil surface. e. Maintenance of existing roads, such as grading, cleaning ditches, repairing, brushing, or replacing culverts, guards, and gates, within a spotted owl habitat if the maintenance occurs within the existing road profile (i.e., in the same location and maintaining the same width). f. Other activities which are non-ground disturbing, such as pest control, or any other activity in which soil disturbance is limited to the area within four inches of the soil surface. 4. Enrolling landowners whose activities identified in the Stewardship Agreement will include unavoidable ground-disturbing activities within the APE must determine, with the assistance of the SHPO, ODF, and the Service, whether the APE has been surveyed for historic properties and whether sites eligible, potentially eligible, or are on the NRHP are known to exist within the APE. The initial step in this determination will be a query by ODF of the SHPO archaeological sites files to determine whether archaeological surveys of the APE have been conducted and, if so, whether or not any NRHP potentially eligible or eligible sites are located within the APE. If no archaeological surveys have been conducted within the APE, ODF and/or the Service shall determine whether archaeological surveys are necessary (i.e., in some cases surveys may not be addressed necessary due to the location of the APE on a case-by-case basis by landform that is unsuitable for historic properties) and, if surveys are necessary, discuss the Participants survey requirements and other options (e.g., avoidance or WAFWA, as appropriate, and will protection) available with the enrolling landowner. Any necessary archaeological surveys must be completed conducted prior to implementation of Conservation Measures with the potential landowner’s ground-disturbing activities. All historic properties identified during surveys of the APE that are determined to affect historic propertiesbe potentially eligible or eligible for the NRHP will be protected from ground-disturbing activities by the enrolled landowner pending an evaluation of the landowner’s activities by ODF and/or the Service relative to NHPA. A ParticipantThe enrolled landowner will submit to ODF and/or the Service a document or letter that outlines the landowner’s action that may require NHPA compliance is the burying of new distribution lines within 1.25 miles of leks that have been active planned activities within the previous 5 years. Compliance will be required for a) ground disturbance in areas that have not been previously disturbedAPE, such as in native grassland and shrubland, or b) where a new disturbance would exceed including the level of a previous disturbance (i.e., a trench for burying distribution line in a cultivated field, would still need NHPA compliance since the trench would likely exceed the depth of disturbance previously caused by the crop cultivation). For actions specific measures and/or silvicultural practices that would be implemented by WAFWA, NHPA compliance shall conducted. This document will be addressed on a case-by-case basis but may be required for the conservation practices that result in ground disturbances. Some conservation practices that could be of concern for historic properties include brush management that involves removal of the roots (i.e., grubbing of mesquite), and the removal of existing structures, such as tank batteries, pump jacks, turbines, etc. Existing buildings or structures that are older than 50 years potentially may be historic properties, the removal of which may require NHPA compliance. Planted grass management is not considered to be a concern since it will occur in previously tilled acreage. The process for NHPA compliance includes a step-wise approach of identifying and evaluating potential impacts to historic properties resulting from the implementation of Conservation Measures. The Participant or WAFWA, as applicable, shall start this process as early as feasible used in the planning process so that options for siting evaluation conducted by ODF and/or the Service to make a determination of effect concerning the planned activities to the relevant historic property, which will include the identification of proposed measures to avoid or minimize impacts adverse effects to cultural resources are not precludedthe historic property. To comply The determination of effect would then be sent to the SHPO for comment. ODF and/or the Service will consult with the NHPA prior to taking action that may affect historic propertySHPO on their determination of effect, the Participant or WAFWAand, as applicable, must adhere to the following process: A) During early planning, the Participant or WAFWA will determine if the planned Conservation Measures has the potential to affect to historic properties. Generally, implementing Conservation Measures in previously disturbed areas does not have the potential to affect historic properties. If the planned Conservation Measure does not have the potential to affect historic properties, the Participant or WAFWA will receive FWS concurrence and compliance process is complete. B) If the planned Conservation Measure has potential to affect historic properties, FWS will consult to identify historic properties in accordance with 36 C.F.R. § 800.4. FWS or consultant will then conduct records file search in coordination with the State Historic Preservation Officer (SHPO) and/or the Tribal Historic Preservation Officer (THPO). C) If a records search does not reveal the presence of historic properties (i.e., no resources identified) and past surveys are considered sufficient, then FWS will request concurrence of No Effect from SHPO/THPO in accordance with 36 C.F.R. § 800.4(d). If FWS either receives concurrence from the SHPO, ODF and/or the compliance process is complete. D) If Service will provide the records file search determines that historic properties are potentially present, or determines that further investigations are appropriate, then the following factors will be evaluated: 1) Whether or not there are historic properties, as defined by the National Register criteria (36 C.F.R. part 63), in the area of potential effect; 2) Whether or not the project can avoid enrolled landowner and/or their agent with recommendations to minimize adverse effects to the historic properties; and 3) Whether or not property within the project would adversely affect historic propertiesAPE. E) If no historic properties are present and/or no adverse effects are anticipated, then FWS will request a concurrence of No Effect or No Adverse Effect from SHPO and any other consulting parties, in accordance with 36 C.F.R. § 800.4(d) or 36 C.F.R. § 800.5(d), respectively. If FWS receives concurrence from SHPO and other consulting parties, the compliance process is complete. F) If FWS, in consultation with the SHPO and other consulting parties, determines that historic properties will be adversely affected, then the FWS and the Participant or WAFWA will develop a Memorandum of Agreement (MOA) in accordance with 36 C.F.R. § 800.6.

National Historic Preservation Act. ‌ Section 106 of the National Historic Preservation Act, as amended, requires Federal agencies to take into account the effects of their undertakings on historic properties, and afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment. The historic preservation review process mandated by Section 106 is outlined in regulations issued by ACHP (36 CFR Part 800). An undertaking in 36 CFR § 800.16(y) of the NHPA’s implementing regulations is defined as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval.” A basic xxxxx underlying Enhancement of Survival Permits is that the Services do not authorize the applicant’s activities that cause the take. Instead, the Services authorize the incidental take that results from the applicant’s covered activities. Compliance with Section 106 of the National Historic Preservation Act (NHPA) shall be addressed on a case-case- by-case basis by the Participants DNR or WAFWAother Enrolled Participant, as appropriate, and will be completed prior to implementation of Conservation Measures actions with the potential to affect historic properties. A ParticipantActions pursuant to the CCAA on managed lands are unlikely to affect NHPA’s action that may require NHPA compliance is the burying of new distribution lines within 1.25 miles of leks that have been active within the previous 5 years. Compliance will be required for a) resources since these actions are designed at maintaining natural landscape features and generally only include ground disturbance in areas that have not been previously disturbeddisturbed (e.g., such as in native grassland re-planting former agricultural lands). Actions on managed and shrubland, or b) where a new disturbance unmanaged lands would exceed the level of a previous disturbance (i.e., a trench for burying distribution line in a cultivated field, would still need require additional NHPA compliance since the trench would likely exceed the depth of disturbance previously caused by the crop cultivation). For actions that would be implemented by WAFWA, NHPA compliance shall be addressed on a case-by-case basis but may be required for the conservation practices that result in ground disturbances. Some conservation practices that could be of concern for historic properties include brush management that involves removal of the roots (i.e., grubbing of mesquite), and the removal of existing structures, such as tank batteries, pump jacks, turbines, etc. Existing buildings or structures that are older than 50 years potentially may be if they affect historic properties, the removal of which may require NHPA compliance. Planted grass management is not considered to be a concern since it will occur in previously tilled acreagearchaeological sites and resources, and other cultural resources (e.g., historic districts, historic and prehistoric landscapes, Native American sites, etc.). The process for NHPA compliance includes a step-wise approach of identifying and evaluating potential impacts to historic properties resulting from the implementation of Conservation Measuresactions. The Participant DNR or WAFWAother Enrolled Participant, as applicableappropriate, shall start this process as early as feasible in the planning process so that options for siting to avoid or minimize impacts to cultural resources are not precluded. To comply with the NHPA prior to taking action that may affect historic property, the Participant DNR or WAFWAother Enrolled Participant, as applicableappropriate, must adhere to the following process: A) A. During early planning, the DNR or Enrolled Participant or WAFWA will determine if the planned Conservation Measures action authorized pursuant to the CCAA has the potential to affect to historic properties. Generally, implementing Conservation Measures in actions that maintain existing natural features without additional ground disturbance or have ground disturbance that is limited only to previously disturbed areas does do not have the potential to affect historic properties. If the planned Conservation Measure does not have the potential to affect historic propertiesFor these actions, the Participant or WAFWA will receive FWS concurrence and Service has concurred that the NHPA’s compliance process is complete. B) B. If the planned Conservation Measure action has potential to affect historic properties, FWS DNR or Enrolled Participant with Service will consult to identify historic properties in accordance with 36 C.F.R. § 800.4. FWS MDNR or consultant Service will then conduct records file search in coordination with the State Historic Preservation Officer (SHPO) and/or the Tribal Historic Preservation Officer (THPO). C) C. If a records search does not reveal the presence of historic properties (i.e., no resources identified) and past surveys are considered sufficient, then FWS DNR or Service will request concurrence of No Effect from SHPO/THPO in accordance with 36 C.F.R. § 800.4(d). If FWS DNR or Service receives concurrence from SHPO, the compliance process is complete. D) D. If the records file search determines that historic properties are potentially present, or determines that further investigations are appropriate, then the following factors will be evaluated: 1) a. Whether or not there are historic properties, as defined by the National Register criteria (36 C.F.R. part 63), in the area of potential effect; 2) b. Whether or not the project action can avoid effects to historic properties; and 3) c. Whether or not the project action would adversely affect historic properties. E) If E. For actions other than maintaining existing natural features or that involve ground disturbance of areas previously undisturbed, but where no historic properties are present and/or no adverse effects are anticipated, then FWS DNR in coordination with Service will request a concurrence of No Effect or No Adverse Effect from SHPO and any other consulting parties, in accordance with 36 C.F.R. § 800.4(d) or 36 C.F.R. § 800.5(d), respectively. If FWS DNR or Service receives concurrence from SHPO and other consulting parties, the compliance process is complete. F) F. If FWSthe Service, in consultation with the SHPO and other consulting parties, determines that historic properties will be adversely affected, then the FWS and the Service in coordination with DNR or Enrolled Participant or WAFWA will develop a Memorandum of Agreement (MOA) in accordance with 36 C.F.R. § 800.6.