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HomeMy WebLinkAbout4563 Contract Number: Vendor: Subject: Department: File Class: Begin Date: End Date: Review Date: Vaul-t Date: Comments: 4563 SUQUAMISH TRIBE/US ENVIRONMENTAL PROTECTION AGENCY Pacific Avenue Basin CSO Reduction Engineering LEG 12-.1 11/04/2005 06/30/2008 02/15/2010 01JO.1/2D10 Memorandum of Agreement Between the Suquamish Tribe, U.S. Environmental Protection Agency Region 10, and City of Bremerton for the Pacific Avenue Basin Combined Sewer Overflow (CSO) Reduction Project Whereas, the purpose of this Memorandum of Agreement (MOA) is to ensure compliance with Section 106 of the National Historic Preservation Act, specifically with 36 CFR 800.4(b )(2) and 800.5(a)(3), allowing for phased determinations of National Register of Historic Places (NRHP) eligibility and effect, the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), RCW 27.44 Indian Graves and Records, and RCW 27.53 Archaeological Sites and Resources; and, Whereas, the Environmental Protection Agency (EP A), as the lead federal agency for the project, has consulted with the Washington State Historic Preservation Officer pursuant to 36 CFR 800; and administers the disposition of EP A Special Appropriation Act grant funds; and Whereas, the City of Bremerton (City), as the recipient of federal grant monies to construct a portion of the project, and as project proponent and administrator for design and construction of the Pacific Avenue Basin Combined Sewer Overflow (CSO) Reduction Project (Project), which will construct a replacement CSO trunk line from the intersection of 4th Street and Park Avenue to the existing manhole upland ofthe existing 30-inch outfall west of the ferry terminal and would construct a stormwater collection system to separate stonnwater flows from the combined sewer system; and, Whereas, the City has contracted a cultural resource study with Exeltech Consulting through its sub-consultant Northwest Archaeological Associates, Inc. for the proposed project, which included survey and limited subsurface geologic test monitoring, and planning and analysis of probable impacts to historic and archaeological resources; and, Whereas, the Suquamish Tribe (Tribe) as a consulting party to this undertaking, has reviewed the subject cultural resources survey and has expressed an interest regarding tribal cultural resources, human remains, funerary objects, or other archaeological resources; and, . Whereas, the portion ofthe Project north of 15t Street will be constructed as part of the Bremerton Downtown Pedestrian Access Improvements Tunnel Project (Tunnel) which will be constructed by WSDOT; and, Whereas, that portion of the Pacific Avenue CSO project associated withthe Tunnel will comply with the monitoring requirements outlined in the Inadvertent Discovery Plan that will be executed between WSDOT and the Suquamish Tribe; and, Whereas, the project will include excavation, and although there are no known cultural resource sites, potential. exists for discovery of currently unknown or unidentified archaeological resources in the Project area; and; Where~s, the Cultural Resources Report recommended that a Construction Monitoring and Discovery Plan (Plan) be prepared for sub-grade excavations and such Plan has been created and attached to this Agreement as Attachment A; and; Now, therefore, the parties agree to the following stipulations during the term of the Project: 1 y4 e e STIPULATIONS 1. Plan The parties will abide by the Plan with regard to archaeological monitoring of the Project and the protocols to be used if human remains, artifacts or other cultural resources are inadvertently discovered.1 2. Plan Implementation The Plan will be implemented prior to, and followed throughout project construction. 3. Dispute Resolution All parties will strive to address and resolve disagreements informally through the primary contact information listed below. In the event agreement is not reached within fifteen (15) calendar days, the matter will be forwarded to the Regional Administrator ofthe EP A, the Chair ofthe Tribe, and the Mayor of the City for resolution. Each party reserves any and all rights it may otherwise have to enforce its rights or seek resolution of the dispute under applicable law. 5. Failure to Comply If the City breaches any stipulation outlined in this MOA, EP A may impose sanctions upon the City as in accordance with 40 CFR 30.900. (40 CFR Part 6.512 (a,bn! 6. Modifications and Amendments This MOA may be modified in writing at the request of any party. All modifications must be mutually agreeable and in writing. 7. Duration and Renewal This MOA, and any agreed upon amendments, shall remain in effect until final approval confirming completion of the Project's construction work. 8. Sovereignty and Disclaimer The parties to this Agreement recognize and respect the sovereignty and legal status of one another. The parties further recognize that each has and reserves all rights, powers and remedies now or hereafter existing as law, in equity, or by statute, Treaty or otherwise. This Agreement provides a framework which the signatory parties agree to use to achieve the purpose of applicable laws and regulations. This Agreement does not diminish, increase or otherwise alter the rights and entitlements of each Party. Any Party's acceptance and execution of this agreement shall not constitute a waiver of sovereign immunity. IN WITNESS WHEREOF, the parties hereto have executed this Agreement: THIS 4- i~ DAY OF Alcl/ev..... i>El2.. ,2005 u.s. Environmental Protection Agency Re~on I~ ~nbeCk Regional Administrator Ci~rton Cary Bozeman Mayor Attested to by: ~-l14 Lm a Holt, Secretary 2 ~APproval: 'Jfr~ Phil Williams Director of Public Works and Utilities as to form: If ~ '" .) ATTACHMENT A CONSTRUCTION MONITORING PLAN and INADVERTENT DISCOVERY PROTOCOL FOR THE P ACIFIC AVENUE BASIN COMBINED SEWER OVERFLOW REDUCTION PROJECT, IN BREMERTON, WASHINGTON INTRODUCTION The Pacific Avenue Basin Combined Sewer Overflow Reduction Project (Project) is located in Kitsap County, Washington, in downtown Bremerton. The project would construct the following two proposed improvements: 1. Replace the existing CSO trunk line to the 24-inch outfall on PSNS property with a line from the existing overflow structure at the intersection of 4th Street and Park Avenue to a new manhole upland ofthe existing 30-inch outfall at the Washington State Ferry Terminal. The pipe size would be increased to a combination of 36-inch, 42-inch, and 54-inch diameter pipes. 2. Construction of a stormwater collection system to separate stormwater flows from the combined sewer system. This improvement would add additional storm water mains and catch basins on side streets and alleys. The Environmental Protection Agency (EPA) will be providing federal funding to the City of Bremerton (City) for a portion ofthe project. As a recipient of EP A Special Appropriation Act Grant Project grant monies, the City's construction grant project is subject to National Environmental Policy Act (NEPA) review as required under EPA's implementing NEPA regulations at 40 CFR Part 6 Subpart E. Therefore, EPA is required to demonstrate compliance with NEP A and all associated environmental laws and regulations. The City, through its consultant Northwest Archaeological Associates, Inc., completed a cultural resource study for the proposed project, which included a cultural resources survey and limited subsurface geologic testing. The cultural resource survey recommended development and implementation of a Construction Monitoring and Discovery Plan prior to project construction. The purpose of this Attachment A is to execute this recommendation as provided in the Memorandum of Agreement. Throughout project analysis, design and construction, EP A and the City have been and will continue to consult with the Suquamish Tribe (Tribe) and the Washington State Office of Archaeology and Historic Preservation (OAHP). This document serves as the plan for dealing with any inadvertent discovery of human remains, artifacts, sites, or any other cultural resources during the construction phase of the Project. This plan is intended to provide guidance to project personnel and contractors so they can: . Comply with applicable Federal and State laws and regulations particularly, Title 27 Revised Code of Washington and, 36 CFR 80004, 36 CFR 800.5,36 CFR 800.14 (as amended Allgust 5, 2004), that implements Section 106 of the National Historic Preservation Act of 1966, as amended; . Comply with Chapter 27044 Indian Graves and Records and Chapter 27.53 Archaeological Sites and. Resources; . Describe to regulatory and review agencies the procedures that will be followed to prepare for and deal with unanticipated discoveries and; . Provide direction and guidance to project personnel as to the proper procedures to be followed should an inadvertent discovery occur. 4 AFFECTED TRIBE The Indian Tribe affected by this Project is the Suquamish Tribe. Prehistoric human remains and cultural resources discovered during this project will be presumed to be of Suquamish ancestry. ARCHAEOLOGICAL CONSULTANT The parties acknowledge that the City has retained Northwest Archaeological Associates, Inc. (NW AA), an archaeological firm, as the Project archaeologist. EPA and the City represent that all individual archaeologists from NW AA who work on this Project meet the Secretary of the Interior professional standards for archaeologists. SPECIFICATIONS Specifications shall be included in construction bid documents indicating that cultural resources considerations are included under the enviro'nmental monitoring program associated with the Project. Specifications will acknowledge that no sites currently impede the Project, but that the potential for encountering archaeological resources exists. The Specifications will note that the Contractor's personnel shall be familiar with indicators of potential cultural resources discoveries and with procedures established if cultural resources are encountered during construction. Part of this responsibility will include attending or participating in a pre-construction meeting. PRE-CONSTRUCTION MEETING The contractor's supervisory personnel shall attend a briefing on cultural resource issues prior to beginning construction activities. The contractor and construction crew shall meet with the archaeologist to go over cultural resource issues and the procedures set forth herein. MONITORING OF GROUND DISTURBING ACTIVITIES The project excavation area south of I sl Street, in the area planned for development into Harborside Park, is thought to consist of mostly undisturbed soils. The presence of potential cultural resources would likely exist within the top layers of soil. A qualified NW AA archaeologist will provide on site monitoring of the excavation to a depth two feet below the top of native soils for this portion of the CSO trunk line (in the area south of 1 sl Street where Harborside Park is planned for development) at a level meeting current industry standards. Once such observations begin, the professional archaeologist should use discretion as to whether more or less monitoring is needed. As recommended in the cultural resource assessment conducted by NW AA, an archaeological Construction Monitoring and Discovery Plan will be prepared for sub grade excavations for Phase 2 of the CSO project. Monitoring of excavation activities shall occur in all areas of reasonable probability (shorelines, native soils, proximity to identified archaeological sites) by a qualified NW AA archaeologist. Upon the inadvertent discovery of archaeological resources, the parties shall follow the procedures and protocols provided below. A trained Suquamish Tribal member may also monitor construction activities at no additional cost to the City. Any Suquamish Tribal members monitoring construction activities will coordinate its activities with the NW AA archaeologist on site however, only the NW AA archeologist on site or designated City representative shall have the authority to stop construction. In the event a Suquamish tribal member monitoring the site discovers what they believe to be potential cultural reSOurces they shall inform the NW AA archeologist or the City representative so that appropriate actions may be taken to protect the discovery. During all other excavation activities, a qualified NW AA archaeologist will be on call by the City and will be contacted if actual or potential cultural resources are found.l. . If construction results in the inadvertent discovery of an actual or potential cultural resource, then the parties will take the additional appropriate actions outlined below. 5 At the conclusion of the construction portion ofthe Project, NW AA will submit a letter report to the City summarizing the results of its monitoring ofthe Project, with a copy of the report sent, at the same time, to the Tribe. PROCEDURES UPON THE DISCOVERY OF POTENTIAL OR ACTUAL CULTURAL RESOURCES OR HUMAN REMAINS Upon discovery of human remains and/or cultural resources as defined by the Native American Graves Protection and Repatriation Act of 1990, P.L. 101-601,25 U.S.C. Section 3001 ef seq. (NAGPRA), the City shall immediately call the contacts listed in this Plan for EP A and the Tribe to inform the parties of the discovery as soon as practicable, but in any event, no later than within twenty-four (24) hours of the discovery. If the discovery is made after Tribal business hours, the City shall contaCt the Suquamish Tribal Police Department Duty Officer at 911. Ajoint viewing of the discovery by the City, EPA, and Tribe will be scheduled within forty- eight (48) hours of the notification. When notifying the Tribe and EP A, the City shall arrange for an NW AA or other qualified archaeologist to attend the joint viewing. Upon making the discovery, the City shall cease all ground disturbing, construction or other activities around the immediate area ofthe discovery and secure the area with a perimeter of not less than thirty (30) feet until activities can resume. The City shall not excavate any findings and shall leave all findings in place, undisturbed and without analysis, until consultation with the EPA and Tribe and the final disposition of the findings. Human remains and cultural items of Native American origin shall be processed as provided in this plan. PROCEDURES FOR THE REPATRIATION OF HUMAN REMAINS AND CULTURAL RESOURCES Any human remains discovered during this Project will at all times be treated with dignity and respect. If any project employee or one of the City's contractors or subcontractors makes an inadvertent discovery of human remains, all work adjacent to the discovery shall cease and the contractor will secure the area with a perimeter of not less than thirty (30) feet until activities can resume. The City shall immediately notify the Kitsap County Coroner to have the Coroner determine whether the remains a~ Native American and to eliminate the site as a crime scene. Contemporaneous with notifying the Coroner, the City shall also notify the Tribe, EP A Region 10, and the City's archaeologist ofthe discovery. Human remains and associated funerary objects shall remain in place, unwashed, uncleaned and without analysis by any party at the site and with minimal disturbance by the Coroner in completing his or her wor~. After identification ofthe human remains as Native American and elimination ofthe site as a crime scene, the City shall continue to maintain the remains and any associated funerary objects in place, unwashed, unexamined and undisturbed until their final disposition to the Tribe. The City shall give due consideration to and honor, to the practical extent possible, any request by the Tribe to leave the remains and/or other cultural items undisturbed and in place. Should the Tribe request to conduct ceremonies or other traditional activities with respect to the human remains at the site where the remains were found the City will make a good faith attempt to accommodate such requests. Where the Tribe requests repatriation of any human remains, funerary objects and/or other artifacts which are identified, such remains, objects and/or artifacts shall be placed in plain paper bags in lots as large as possible. The Tribe will take receipt of the remains, funerary objects and/or artifacts within seven (7) days after the Tribe submits a request for repatriation. At the time of transfer, the City shall prQvide to the Tribe a brief description of the remains, objects and/or artifacts transferred and the Tribe shall confirm receipt of the same. If human remains, funerary objects and/or artifacts are inadvertently collected during any archaeological investigation and identified as Native American in the field or in the laboratory, the City will notify and return the remains, objects and/or artifacts to the Tribe within twenty-four (24) hours of the identification, to the extent possible. Such human remains, funerary objects and/or artifacts shall remain unwashed and without further analysis. 6 If requested by OAHP, the City's archaeologist will prepare a letter report for OAHP briefly describing the discovery, notification of concerned parties, steps taken in response to the discovery, and the final disposition of the remains. PROCEDURES FOR DETERMINING THE SIGNIFICANCE OF POTENTIAL OR ACTUAL PREHISTORIC OR mSTORIC RESOURCES Upon the discovery of potential or actual pre-historic or historic properties as defined in the National Historic Preservation Act of 1966, P.L. 89-665,16 U.S.C. Section 470 et seq. (NHPA) the EPA or City will take appropriate steps to protect the discovery site. At a minimum, the immediate area of the discovery will be secured to a distance of thirty (30) feet. Vehicles, equipment, and unauthorized personnel will not be permitted to traverse the discovery site. Work in the immediate area will not resume until treatment of the discovery has been completed. The City will contact all parties for ajoint viewing to occur within 48 hours ofthe discovery. The archaeologist will recommend whether the discovery is potentially eligible for listing in the National Register of Historic Places. The City will immediately consult with OAHP and EP A regarding the National Register . eligibility of the discovery. If the discovery appears to be a traditional cultural place or of historic significance to the Tribe, the City will also consult with the Tribe. After the joint viewing, and taking into account any recommendations of the archaeologist, the parties shall discuss the potential significance, if any, of the discovery and determine whether the parties should initiate the NHPA Section 106 process. Ifthe parties determine to seek listing ofthe property, they will act in accordance with the NHP A provisions. CONFIDENTIALITY OF INFORMATION! The City shall comply with RCW 42.17.310 to ensure that its personnel, contractors, and permittees keep the discovery of any found or suspected human remains, other cultural items, and potential historic properties confidential. The City recognizes that archaeological properties are of a sensitive nature and sites where cultural resources are discovered can become targets of vandalism and illegal removal activities. The City will take reasonable steps to ensure that an information regarding any discovered cultural resources, particularly the location of known archaeological property where cultural resources have been discovered, is kept and maintained as confidential, except that the City shall comply with the other provisions of RCW 42.17 and applicable laws regarding Public Disclosure. HOLD HARMLESS The Suquamish Tribe recognizes that the City does not have direct control over the actions of other parties mentioned in this agreement, including but not limited to the Kitsap County Coroner, NW AA, and Contractor. The Suquamish Tribe shan hold the City, its officers, officials, employees, agents, volunteers and assigns harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising from activities outside the scope, control, and or authority of the City set forth in this MOA. 7 CONTACT INFORMATION / LEAD REPRESENTATIVE U.S. Environmental Protection Agency Ms. Hanh Shaw, NEPA Coordinator 1200 6th Avenue, OWW 130 Seattle, W A 98101 (206) 553-0171 Suquamish Tribe Mr. Robert Purser, Fisheries Director PO Box 498 Suquamish, W A 98392-0498 (360) 598-3311 City of Bremerton Mr. Ned Lever, Project Manager 3027 Olympus Drive Bremerton, W A 98310 (360) 473-2398 Northwest Archaeological Associates Mr. Mike Shong, Monitoring Coordinator Ms. Chris Miss, Principal and Senior Archaeologist 5418 20th Avenue NW, Suite 200 Seattle, WA 98107 (206) 781-1909 Kitsap County Coroner Mr. Greg Sandstrom, Coroner 614 Division Street, MS-1 7 Port Orchard, WA 98366 (360) 337-7077 Office of Archaeology and Historic Preservation Dr. Allyson Brooks, State Historic Preservation Officer PO Box 48343 Olympia, W A 98504 (360) 586-3066 8