appendix h

APPENDIXDraft MOA H

04/08/15 Draft MOA 1

DRAFTMEMORANDUM OF AGREEMENT

AMONG THE FEDERAL RAILROAD ADMINISTRATION,MARYLAND TRANSIT ADMINISTRATION,

THE MARYLAND STATE HIGHWAY ADMINISTRATION, ANDTHE MARYLAND STATE HISTORIC PRESERVATION OFFICE PURSUANT TO 36 CFR 800REGARDING THE BALTIMORE WASHINGTON INTERNATIONAL (BWI) RAIL STATION

IMPROVEMENTS AND FOURTH TRACK PROJECTFROM GROVE INTERLOCKING TO WINANS INTERLOCKING,ANNE ARUNDEL AND BALTIMORE COUNTIES, MARYLAND

WHEREAS, the Federal Railroad Administration (FRA) proposes to assist the MarylandTransit Administration (MTA) with the replacement of the Baltimore WashingtonInternational (BWI) Rail Station, addition of a third platform and installation ofapproximately nine miles of a fourth mainline track along the Northeast Corridor betweenGrove Interlocking in Anne Arundel County and Winans Interlocking in BaltimoreCounty, Maryland (the Undertaking); and

WHEREAS, the FRA and MTA have consulted with the Maryland State HistoricPreservation Office (MD SHPO) pursuant to 36 CFR 800, the regulations implementingSection 106 of the National Historic Preservation Act (16 U.S.C. 470f); and

WHEREAS, the fulfillment of the terms of this Memorandum of Agreement (MOA) willsatisfy the responsibilities of MTA and any other Maryland state agency under therequirements of the Maryland Historical Trust Act of 1985, as amended, State FinanceProcurement Article 5A-325 and 5A-326 of the Annotated Code of Maryland, for thecomponents of the Undertaking that require licensing, permitting, and/or funding actionsfrom Maryland State agencies; and

WHEREAS, as required in 36 CFR Section 800.4(a)(1), FRA, in conjunction with theMTA, and the MD SHPO established the Undertakings Area of Potential Effects (APE)(Attachment A); and

WHEREAS, FRA and MTA, in consultation with MD SHPO have determined that theUndertaking will cause or have the potential to cause adverse effects upon threearcheological sites (18AN29B; 18AN1478, and 18AN1482) and Bridge No. 0207500(MIHP No. AA-2125), which carries MD 174 over the Baltimore & Potomac Railroad(now Amtrak) and is also known as the Reece Road Bridge, which are eligible orpotentially eligible for listing in the National Register of Historic Places (NRHP)(Attachment B); and

WHEREAS, FRA and MTA have participated in the consultation, have responsibilitiesfor implementing stipulations under this MOA and have been invited to be signatories tothe MOA pursuant to 36 CFR 800.6(c)(2); and


WHEREAS, the Maryland State Highway Administration (SHA), which owns BridgeNo. 2075, has been consulted on the effects of this Undertaking and will be a signatory tothe MOA to fulfill that agencys responsibilities as described in 36 CFR 800; and

WHEREAS, the Oneida Indian Nation; and the Maryland State HighwayAdministration, formally accepted the invitation to be consulting parties; and

WHEREAS, FRA and MTA have consulted with the Oneida Indian Nation; DelawareTribe of Indians; Maryland State Highway Administration, Baltimore County Office ofPlanning, Historic Preservation Division; and Anne Arundel County Office on Planningand Zoning, Cultural Resources Division regarding the effects of the Undertaking onhistoric properties; and

WHEREAS, the FRA and MTA notified the Advisory Council on Historic Preservation(ACHP) of the adverse effect determination and the ACHP declined to participate in theconsultation; and

WHEREAS, the views of the public regarding this undertaking have been sought andconsidered through a public meeting held on May 12, 2015; and

NOW, THEREFORE, the FRA, MD SHPO, SHA, and MTA agree that the undertakingshall be implemented in accordance with the following stipulations in order to take intoaccount the effect of the undertaking on historic properties and that these stipulationsshall govern the Undertaking and all its parts until this MOA expires or is terminated.

STIPULATIONS

The FRA and MTA shall ensure that the following stipulations are implemented:

FRA and MTA shall implement the following stipulations:

I. PURPOSE

This MOA sets forth the process by which FRA, with the assistance of MTA,will meet its responsibilities under Section 106 for the Undertaking. TheMOA establishes procedures for ongoing consultation among FRA, MTA, theMD SHPO, SHA, and the consulting parties to consider and resolve theUndertakings effects on historic properties during the design and constructionphases of the Undertaking. The stipulations below set forth measures foravoidance, minimization, and resolution of adverse effects on historicproperties; in addition, the stipulations specify how the signatories and theother consulting parties will be involved in specified review.

II. RESPONSIBILITIES OF THE SIGNATORIES

A. Signatory Parties


FRA, MTA, the MD SHPO, and the SHA are the signatories to this MOA. Thesignatories shall participate in the coordination process as specified in subsequentstipulations of the MOA.

B. Federal Railroad Administration

FRA shall include the obligations set forth in this MOA as part of its Finding ofNo Significant Impact and a condition of FRA approval of any grant issued fordesign and construction of the Undertaking.

C. Maryland Transit Administration

MTA shall implement the terms of this MOA during design, construction, andoperation of the Undertaking.

D. State Highway Administration

FRA and MHT shall coordinate with the SHA architectural history staff toidentify and obtain copies of plans or documentation related to Bridge No.0207500.. The records will be used to complete the updated MIHP documentationfor the bridge, and where appropriate, will be included in the documentationpackage submitted to the MD SHPO.

III. PROFESSIONAL STANDARDS

A. Qualifications

MTA shall ensure that all cultural resources work performed pursuant to thisMOA is carried out by or under the direct supervision of personnel meeting TheSecretary of the Interiors Professional Qualifications Standards (48 FR 44716)(hereinafter cited as qualifications) with experiences and background inHistory, Architectural History, Historic Architecture, and Archeology, asappropriate. These personnel shall perform or directly supervise all culturalresources work pursuant to this MOA.

B. Standards and Guidelines

MTA shall complete all cultural resources investigations and preservation workexecuted as part of this MOA according to the following accepted professionalstandards and guidelines:


1. Secretary of the Interiors Standards and Guidelines for Archeology andHistoric Preservation (48 FR 44716; 1983 and successors);

2. Standards and Guidelines for Archeological Investigations in Maryland(Shaffer and Cole 1994);

3. Collections and Conservation Standards, Technical Update No. 1 of theStandards and Guidelines for Archeological Investigations in Maryland(Maryland Historical Trust 2005);

4. Standards and Guidelines for Architectural and Historical Investigations inMaryland (Maryland Historical Trust 2000);

5. General Guidelines for Compliance-Generated Determinations of Eligibilityand Standards and Guidelines for Architectural and Historical Investigationsin Maryland (Maryland Historical Trust, 2002);

6. Advisory Council on Historic PreservationSection 106 ArcheologyGuidance (ACHP 2007);

7. Recommended Approach for Consultation on Recovery of SignificantInformation for Archeological Sites, ACHP 2007 (64 FR 27085-27087);

8. Advisory Council on Historic Preservation Policy Statement RegardingTreatment of Burial Sites, Human Remains and Funerary Objects, ACHP2007; and

9. Secretary of the Interiors Standards for the Treatment of Historic Properties(36 CFR 68).

C. Curation

All materials and records resulting from archeological investigations conductedfor the Undertaking will be curated in accordance with 36 CFR 79 at theMaryland Archeological Conservation Laboratory (MAC Lab), unless clear title,Deed of Gift, or Federal curation agreement for the collection cannot be obtained.MTA shall consult with the MD SHPO regarding the appropriate disposition ofany materials or records not proposed for curation at the MAC Lab.

IV. ARCHEOLOGICAL STIPULATIONS

A. Archeological sites 18AN29B, 18AN1478, and 18AN1482 have beenidentified with good stratigraphic integrity and research potential, and arelocated in areas designated for right-of-way acquisition and construction; FRAand MTA will ensure that Phase II investigations to determine eligibility forlisting on the NRHP of these sites will be conducted prior to 100% design. APhase II research design and work plan will be prepared in consultation withMD SHPO and other consulting parties as appropriate. The Phase II researchdesign and work plan will be approved by MD SHPO prior to implementation.

B. At the completion of fieldwork, FRA and MTA will notify MD SHPO of thepreliminary findings and submit the draft Phase II technical report detailingthe eligibility recommendations for review and concurrence within 60 days.


C. In the event that any archaeological site is determined NRHP-eligible andcannot be avoided through project redesign, FRA and MTA will consult withMD SHPO and other consulting parties to develop an appropriatearcheological treatment plan in accordance with Standards and Guidelines forArcheological Investigations in Maryland (Shaffer and Cole 1994);

D. Archaeological site 18AN489 (the Higgins Site) is located within the APE;however, the physical integrity of the archaeological deposits within the APEis variable based on information obtained from the subsurface testing duringthe Phase I survey. As the limits of disturbance (LOD) for the current BWIStation design have been determined not to contain intact archeologicaldeposits, the site will not be adversely affected. However, FRA, MTA andMAA will ensure that the following protective measure will be followedbefore construction.

a. Coordination with construction personnel before and duringconstruction to assure archeological site protection.

b. Protective fencing of the areas outside of the station LOD duringconstruction. Protective fence will not include any excavationwithin the archeological site limits and installation will limit anyground disturbance. Simple orange snow fencing along the siteperimeter with hand driven stakes, or metal chain link fencingsupported by concrete block on the surface is recommended. Thefencing plan will be reviewed by archeological staff prior toinstallation.

c. Onsite monitoring by a qualified archeologist during allconstruction activities in the vicinity of the site.

d. Permanent retaining walls are designed and installed to preventfuture slumping of intact soil stratigraphy resulting fromexcavation of the hillside during construction.

E. For archeological sites within the limits of disturbance or immediately adjacentto the limits of disturbance based on the current design drawings (18AN1209 and18AN1480), FRA and MTA will ensure that positive protective measures, such asfencing, will be implemented.

VI. UNANTICIPATED DISCOVERIES FOR ARCHEOLOGICALPROPERTIES INCLUDING HUMAN REMAINS

MTA, in coordination with FRA, along with the MD SHPO, shall implement theUnanticipated Discoveries Plan for non-human archeological resources andhuman remains, specified in Attachment E, including Archeological ResourcesProtection Act, in the event that any unanticipated archeological resources and/orhuman remains are encountered during construction of the Undertaking.Archeologists executing work on sites with unanticipated discoveries will meetthe qualifications for Archeology as described in Stipulation III.A.


FRA, MTA, and the MD SHPO acknowledge that extraordinary costs will beincurred if construction were to be halted or delayed once underway.Accordingly, the parties will implement the approved Unanticipated DiscoveriesPlan expeditiously in circumstances requiring its use.

V. BUILT HISTORIC PROPERTIES STIPULATIONS

FRA and MTA will ensure that recordation of Bridge No. 2075 (MIHP No. AA-2125)will be prepared and submitted to MD SHPO for review. The recordation will beprovided to SHA for review and comments prior to submission to MD SHPO.

A. Recordation

FRA and MTA will complete and provide an updated Maryland Inventory ofHistoric Properties form to the MD SHPO, including black and white photographssufficient to portray the bridges elevations, its architectural and engineering detailsand its context in order to provide an accurate record of the bridge and its setting.The recordation will be completed according to the photographic documentationrequirements outlined on pages 36-38 of the Standards and Guidelines forArchitectural and Historical Investigations in Maryland (Maryland Historical Trust2000) or Appendix E Guidelines for Digital Images in the Trusts Guidelines andResources for Compliance-Generated Determinations of Eligibility (MarylandHistorical Trust 2009).

B. Drawings

FRA and MHT shall coordinate with the SHA architectural history staff to identifyand obtain copies of plans or documentation related to Bridge No. 0207500, includingavailable original plans and drawings.

C. Review

FRA and MTA will submit the required documentation to the MD SHPO for reviewand acceptance prior to any demolition work. The review process will follow thesteps described in Stipulation IX.

VII. DESIGN DEVELOPMENT, ALIGNMENT MODIFICATIONS ANDANCILLARY ACTIVITIES

The Undertaking may result in unforeseen effects on other historic properties andarcheological sites due to changes made during design development, alignmentmodifications, or as a result of associated ancillary activities including, but notlimited to, construction staging areas, stormwater management facilities, wetlandmitigation areas, reforestation areas, environmental stewardship activities, orother actions. Should such activities be added for which cultural resources studiesor assessments have not been completed, MTA shall consult with the MD SHPO


and other consulting parties that have an interest in the affected properties, andimplement all required cultural resources studies in accordance with theapplicable professional standards in Stipulation III and with the followingprocedures:

A. Identification

MTA shall review any additions or changes to the Undertaking and implementidentification investigations as necessary to identify any historic properties thatmay be impacted by the additions or changes to the Undertaking. MTA shallprovide all completed information to the MD SHPO, FRA, and other consultingparties that have an interest in the affected properties under this MOA for reviewand comment. If the MD SHPO does not provide written comments within 30calendar days of receipt, MTA may assume MD SHPO acceptance of the results.

B. Evaluation

MTA shall evaluate all cultural resources identified in the areas inventoried underStipulation VII.A in accordance with 36 CFR 800.4(c) to determine theireligibility for the National Register. MTA shall provide the results of any suchevaluation efforts to the MD SHPO, FRA, and other consulting parties that havean interest in the affected properties, for review and comment. If the MD SHPOdoes not provide written comments within 30 calendar days of receipt, MTA mayassume MD SHPO acceptance of the results.

C. Treatment

Should any property eligible for inclusion in the National Register be identifiedunder Stipulation VII.A, MTA shall make a reasonable and good faith effort toavoid adversely impacting the resources by realigning or modifying theUndertaking. If adverse effects are unavoidable, MTA, FRA, the MD SHPO, andother consulting parties that have an interest in the affected properties shallconsult in accordance with 36 CFR 800.6 to develop and implement appropriatetreatment options. MTA shall perform cultural resources work in accordance withthe relevant professional standards in Stipulation III.

VIII. TREATMENT OF NATIVE AMERICAN RESOURCES

A. If Properties of Traditional Religious and Cultural Importance to Native AmericanTribes are identified through consultation, then FRA and MTA will work with theTribes, and as appropriate, the MD SHPO, to determine the NRHP eligibility ofthe resource(s) as Traditional Cultural Properties.

B. If human remains are encountered, either during Phase II or subsequent datarecovery investigations or during any construction or ground-disturbing activities,


FRA and MTA will comply with all applicable state regulations regarding thetreatment of human remains and provisions outlined in accordance with existingNative American Graves Protection and Repatriation Act (NAGPRA) regulations,43 CFR Part 10, for Native American remains. Any decisions regarding thetreatment of human remains will be made in consultation with MD SHPO and thefull list of tribal groups originally contacted regarding the project (AttachmentC). In addition, FRA and MTA will also contact the state recognized PiscatawayConoy Tribe of Maryland and the Piscataway Indian Nation, Inc.

C. If items of religious and cultural importance to Native American groups areencountered or collected, FRA and MTA will implement appropriate proceduresin accordance with existing NAGPRA regulations, 43 CFR Part 10. Anydecisions regarding the treatment of items of religious and cultural importance willbe made in consultation with the affected Tribes.

IX. DOCUMENT AND DESIGN REVIEW

During the implementation of this MOA, MTA, in coordination with FRA, shallprovide the MD SHPO, and the other consulting parties with the opportunity toreview and comment on appropriate documents, reports, and design plans asspecified in the stipulations throughout the MOA. In general, review periods willencompass a timeframe not to exceed 30 calendar days from receipt of the itemfor review, unless otherwise specified in the MOA.

A. The MD SHPO shall provide comments to MTA regarding any plan ordocument submitted pursuant to this MOA, as promptly as possible, butnot to exceed 30 calendar days of the receipt of such revisions.

B. If the MD SHPO does not submit comments in writing within 30 calendardays of the receipt of any such submissions, MTA may assume MD SHPOacceptance of the submitted document.

C. If the MD SHPO or another consulting party objects within 30 calendardays of the receipt of any submissions, then FRA, MTA, and the MDSHPO shall consult expeditiously in an effort to resolve the objection.

D. If FRA and MTA cannot resolve MD SHPO, and/or the other consultingparties objections, and if further consultation with the MD SHPO isdeemed unproductive by any party, then the parties shall adhere to thedispute resolution procedures detailed under Stipulation XI.

E. FRA, MTA, and the MD SHPO acknowledge that the timeframes set forthin this stipulation will be the maximum allowable under normalcircumstances. In exigent circumstances (such as when constructionactivities have been suspended or delayed pending resolution of thematter), each party agrees to expedite their respective document reviewand dispute resolution obligations.


X. ONGOING COORDINATION AND OVERSIGHT

A. Ongoing coordination

MTA and the MD SHPO shall regularly consult to review implementation of theterms of this MOA. MTA shall schedule coordination meetings and invite FRA, MDSHPO, and the other consulting parties, as needed throughout the duration of theMOA. At a minimum, MTA shall submit an annual report to signatories and otherconsulting parties for the duration the MOA, as long as MTA is still activelyperforming work under the MOA stipulations.

B. Monitoring

FRA and MD SHPO shall monitor activities carried out pursuant to this MOA. MTAshall cooperate with the signatory parties in carrying out their monitoring efforts.

XI. DISPUTE RESOLUTION

A. Objections by the Signatories

Should any of the signatories to this MOA object in writing to FRA within 30 days to anyplans or actions proposed pursuant to this MOA, FRA shall first consult with theobjecting party to resolve the objection. If FRA determines that such objection cannot beresolved through such consultation, FRA shall within a 30-day time period:

1. Forward all documentation relevant to the objection, including FRAsproposed resolution, to the ACHP. Prior to reaching a final decision on thedispute, FRA shall prepare a written response that takes into account anytimely advice or comments regarding the dispute from the ACHP,signatory parties, and other consulting parties, and provide them with acopy of this written response. FRA shall then proceed according to itsfinal decision.

2. If the ACHP does not provide its advice regarding the objection within the30-day time period, FRA may make a final decision on the dispute andproceed accordingly. Prior to reaching such a final decision, FRA shallprepare a written response that takes into account any timely commentsregarding the dispute from the signatories and concurring parties to theMOA, and provide them and the ACHP with a copy of such writtenresponse.

3. FRAs responsibility to carry out all other actions subject to the terms ofthis MOA that are not the subject of the dispute remains unchanged.

B. Objections by Consulting Parties and the Public

At any time during the implementation of this MOA, should a consulting party ormember of the public raise an objection pertaining to this agreement or the effect of the

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Undertaking on historic properties, MTA shall consult with FRA, the objector, and thesignatory parties to this agreement, as needed. After considering these discussions, MTAshall account for and resolve the objection in an appropriate manner.

XII. OTHER

A. Contact Information

For purposes of notices and consulting pursuant to this MOA, the following contactinformation should be used for the signatory agencies:

MTAJohn NewtonOffice of PlanningMaryland Transit Administration6 St. Paul StreetBaltimore, MD 21202-1614

FRAADD CONTACT

MD SHPOElizabeth HughesActing State Historic Preservation OfficerMaryland Historical Trust100 Community PlaceCrownsville, MD 21032-2023

SHAJulie SchablitskyOffice of Planning and Preliminary EngineeringState Highway Administration707 N. Calvert StreetBaltimore, MD 21202

B. Emergency Situations

If an emergency situation that represents an immediate threat to public health, safety, lifeor property creating the potential to affect a historic property should occur during theduration of this MOA, the regulations set forth in 36 CFR 800.12 shall be followed. MTAshall notify FRA and the MD SHPO of the condition that has created the situation and themeasures to be taken to respond to the emergency or hazardous condition. FRA and theMD SHPO may submit comments to MTA within seven days of the notification. If MTAdetermines that circumstances do not permit seven days for comment, MTA shall notifyFRA and the MD SHPO and invite any comments in the determined and stated timeavailable. MTA shall consider these comments in developing a response to the treatmentof historic properties in relation to the emergency.

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C. Anti-Deficiency Act Federal Parties

The obligations of Federal agencies under this MOA are pursuant to 31 USC 1341(a)(1);therefore nothing in this MOA shall be construed as binding the United States to expendin any one fiscal year any sum in excess of appropriations made by Congress for thispurpose, or to involve the United States in any contract or obligation for the furtherexpenditure of money in excess of such appropriations.

XIII. AMENDMENTS

Any signatory to this MOA may propose to FRA that the MOA be amended,whereupon FRA shall consult with all signatories and consulting parties toconsider such an amendment. This MOA will be amended when agreed to inwriting by all signatories. FRA or its designee shall provide a copy of theamended MOA to all consulting parties within thirty (30) days of execution by thesignatories.

XIV. TERMINATION

If any signatory to this MOA determines that its terms will not or cannot becarried out, that party shall immediately consult with the other parties to attemptto develop an amendment per Stipulation XIII. If within thirty (30) days (oranother time period agreed to by all signatories) an amendment cannot bereached, any signatory may terminate the MOA upon written notification to theother signatories. If the MOA is terminated, MTA and FRA must comply withsubpart B of 36 CFR 800 with regard to individual undertakings of the programcovered by the MOA, pursuant to 36 CFR 800.14(b)(2)(v), prior to workcontinuing on the Undertaking. MTA and FRA shall notify the signatories as tothe course of action it will pursue.

XV. DURATION

This MOA shall be null and void if its terms are not carried out within ten (10)years from the date of execution, unless the signatory parties agree to amend it inaccordance with Stipulation XIII. If FRA and MTA have not fulfilled the terms ofthe MOA prior to its expiration, the signatory parties shall consult to reconsiderthe terms of the MOA and amend it according to Stipulation XIII or terminate itin accordance with Stipulation XIV.

XVI. EFFECTIVE DATE OF AGREEMENT

The MOA shall become effective when executed by the last of the signatories.

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Execution of the MOA by the FRA, MD SHPO, MTA and SHA and implementation ofits terms evidence that FRA has afforded the signatories an opportunity to comment onthe Undertaking and its effects on historic properties, and that FRA has taken intoaccount the potential effects of the undertaking on historic properties.

SIGNATORIES:

FEDERAL RAILROAD ADMINISTRATION

By: __________________________________ Date: ______________NAMEMaryland Division Administrator

MARYLAND DEPARTMENT OF TRANSPORTATIONMARYLAND TRANSIT ADMINISTRATION

By: _________________________________ Date: _______________Robert L. SmithAdministrator

MARYLAND DEPARTMENT OF TRANSPORTATIONSTATE HIGHWAY ADMINISTRATION

By: _________________________________ Date: _______________Melinda B. PetersAdministrator

MARYLAND STATE HISTORIC PRESERVATION OFFICE

By: __________________________________ Date: ______________Elizabeth HughesActing Maryland State Historic Preservation Officer

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Attachment AArea of Potential Effects (APE)

BWI Rail Station Improvements and Fourth Track Project

02/24/15 B-1

Attachment BNRHP-Eligible or Unevaluated Resources That Will Be or May Be Affected by the Undertaking

SiteNumber

SiteDesignation Type Time Period Description Results Recommendations

18AN29B Harmans BPrehistoric/

HistoricArchaic/ Woodland; mid

to late 19th centuryCampsite, Refuse

ConcentrationIntact archeological deposits

in APE (east and west)

Unevaluated - Potential Adverse EffectPhase II testing recommended todetermine NRHP eligibility of the

prehistoric component. The historiccomponent is not considered historically

significant.

18AN489 Higgins PrehistoricPaleo-Indian/

Archaic/Early Woodland CampsiteIntact archeological deposits

outside of revised LOD

NRHP eligible No Adverse EffectConsultation with MD SHPO on

protective measures included in MOA

18AN1478

TelegraphDorsey

PrehistoricSite

Prehistoric IndeterminateLithic scatter

including QuartzCore and biface

Intact archeological depositsin APE (east)

Unevaluated - Potential Adverse EffectPhase II testing is recommended todetermine NRHP eligibility of the

prehistoric component. The historiccomponent is not considered historically

significant.

18AN1482 OKeefe SiteEast Prehistoric IndeterminateCampsite with fire-cracked rock andquartz debitage

Intact archeological depositsin APE (east)

Unevaluated - Potential Adverse EffectPhase II testing is recommended todetermine NRHP eligibility of the

prehistoric component.

MIHP # AA-2125

Bridge No.2075020750

0

BuiltHistoricProperty

1931Single span, two-lane metal girder

bridge

MD 174 (Reece Road)bridge over Amtrak will be

demolished

NRHP-eligible Adverse EffectRevised Maryland Inventory of Historic

Properties form to be prepared andsubmitted to MD SHPO prior to

demolition

02/24/15 C-1

Attachment CInterested Parties

Affiliation Points of Contact

Anne Arundel County, Cultural ResourcesDivision of Planning and ZoningDepartment

Jane C. Cox

Baltimore County Landmarks PreservationCommission

Ms. Vicky Nevy

Maryland Commission on Indian Affairs Keith Colston

The Delaware NationPresident C.J. WatkinsMr. Jason Ross, Museum/Section 106Assistant, Ms. Nekola Alligood, CulturalPreservation Director

Delaware Tribe of Indians Chief Paula PechonickDr. Brice Obermeyer, THPOMs. Blair Fink

Eastern Shawnee Tribe Ms. Robin Dushane, Cultural PreservationDirector

Oneida Indian Nation* Mr. Raymond Halbritter, NationRepresentativeMr. Jesse Bergevin, Historic ResourcesSpecialist

Onondaga Nation Mr. Tony Gonyea, Faithkeeper

Saint Regis Mohawk Tribe Mr. Arnold Printup, Tribal HistoricPreservation Officer

Stockbridge Munsee Community ofWisconsin

President Kimberly Vele

Tuscarora Nation Bryan Printup, Chiefs Council

Maryland State Highway Administration* Dr. Julie Schablitsky*Consulting party

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Attachment DUNANTICIPATED DISCOVERIES FOR ARCHAEOLOGICAL PROPERTIES

INCLUDING HUMAN REMAINS

For the purposes of this work plan, an unanticipated discovery is defined as a significantarchaeological resource that is encountered in a portion of the APE where it was notanticipated. As such, the work plan will require modification to adequately andappropriately identify, assess and if necessary, mitigate adverse impacts to the resource.For example, prehistoric artifacts or human remains may be uncovered in an area wherehistoric industrial remains were anticipated. Also included in the category ofunanticipated discovery are any archaeological resources that may be encountered duringconstruction outside the APE. These resources are defined as artifact (historic orprehistoric) deposits, cultural features or human remains.

An Unanticipated Discoveries plan has been developed in consultation with MD SHPOMD SHPO that will be followed in the event that any archaeological resources and/orhuman remains are encountered during construction of the Project. The stipulations of theUnanticipated Discoveries plan as set forth below are in accordance with currentstandards and guidelines elaborated in:

Section 106 of the National Historic Preservation Act (16 USC 470f);

Secretary of the Interior Standards for Archaeology and Historic Preservation (48CFR 44716-42);

Standards and Guidelines for Archeological Investigations in Maryland (Shaffer andCole 1994);

Advisory Council on Historic Preservation Section 106 Archaeology Guidance(ACHP 2007); and

Maryland Cemetery Law (Criminal Law Article, Title 10-401: Crimes Against PublicHealth, Conduct and Sensibilities; Subtitle 4).

UNANTICIPATED ARCHAEOLOGICAL DISCOVERY PROTOCOL

The protocol to follow in the advent of an unanticipated discovery contains the followingsteps:

The Contractor will immediately notify the Resident Engineer of an unanticipateddiscovery.

The Resident Engineer will direct a Stop Work order to the Contractors Site Foremanto flag or fence off the archaeological discovery location and direct the Contractorto take measures to ensure site security. Any discovery made on a weekend willbe protected until all appropriate parties are notified of the discovery. TheContractor will not restart work in the area of the find until the Resident Engineerhas granted clearance.


The Resident Engineer will indicate the location and date of the discovery on theproject plans and will notify FRA, MTA and the Cultural Resources Manager(CRM), who will undertake a site visit or otherwise coordinate an on-sitearchaeological consultation.

FRA and MTA will immediately notify MD SHPO of the find.FRA and MTA will direct the CRM to begin a more detailed assessment of the finds

significance and the potential project effects. An archaeological team will bedispatched to the site to determine the nature and extent of the archaeologicaldeposits; they will be granted full access to the required site area and otherwisefacilitated by the Contractor to complete this investigation in the most expeditiousmanner possible.

The CRM will notify FRA and MTA of their findings and recommendations, whetherthe remains are assessed not to be significant and request approval forconstruction to proceed, or describe a proposed scope of work for evaluating thesignificance of the find and evaluating project effects.

FRA and MTA will convey this information to MD SHPO; at the discretion of FRAand MTA and MD SHPO a meeting may be held to discuss options andrecommendations.

If the resource is determined to be a significant archaeological property and it isthreatened by further project development, the CRM in consultation with MDSHPO (and other appropriate parties) will develop a site mitigation plan.

Upon direction by FRA and MTA, the CRM will then implement the archaeologicalmitigation plan.

A meeting or site visit will be held with FRA and MTA, MD SHPO and otherappropriate parties once the field investigation for site mitigation has beencompleted to review the work accomplished.

MD SHPO will notify FRA and MTA that the terms of the fieldwork portion of themitigation plan have been satisfactorily completed and FRA and MTA will notifythe Contractor that it is a Cleared Site and excavation and/or construction mayresume.

Unanticipated Discovery of Human Remains Protocol

This protocol is specifically designed for circumstances where human remains areencountered in the project APE.

The Contractor will immediately notify the Resident Engineer of a discovery.

The Resident Engineer will direct a Stop Work order to the Contractors Site Foremanto flag or fence off the archaeological discovery location and direct the Contractorto take measures to ensure site security. Any discovery made on a weekend willbe protected until all appropriate parties are notified of the discovery. TheContractor will not restart work in the area of the find until the Resident Engineerhas granted clearance.


The Resident Engineer will indicate the location and date of the discovery on theproject plans and will notify FRA and MTA.

FRA and MTA will immediately notify MD SHPO and the County States Attorney ofthe find as well as the CRM. Should it be determined necessary, local lawenforcement, the Medical Examiner and a representative of the Coroners officewill visit and inspect the site to determine whether the site constitutes a crimescene.

If it is declared a criminal matter, the CRM will have no further involvement and thedecision to declare it a Cleared Site for construction will made be made by theappropriate legal authorities.

Any decisions regarding the treatment of human remains will be made in consultationwith MD SHPO and the full list of tribal groups originally contacted regarding theproject (Attachment C). In addition, FRA and MTA will also contact the staterecognized Piscataway Conoy Tribe of Maryland and the Piscataway IndianNation, Inc.

If the find is determined not to be a criminal matter, the disinterment/reinterment planwill be developed for the Project will be employed and modified as appropriatefor the find(s). MD SHPO and other relevant agencies will review and approvethe modified plan prior to implementation. Specific elements of thedisinterment/reinterment plan to be applied in the case of the unanticipateddiscovery of human remains include:

1. CRM develop disinterment/reinterment plan2. CRM present plan to FRA and MTA for review and consultation3. FRA and MTA notify MD SHPO and other involved agencies4. Consultation with next of kin or descendant community5. Undertake fieldwork6. Approval to resume construction following completion of the fieldwork

component of the mitigation plan.7. Complete appropriate regulatory and legal documentation of studies

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Attachment EBWI Rail Station Improvements and Fourth Track Project

Glossary and Definitions

Acronyms and Abbreviations

ACHP Advisory Council on Historic PreservationAPE Area of Potential EffectsCFR Code of Federal RegulationsFRA Federal Railroad AdministrationHAER Historic American Engineering RecordMD SHPO Maryland State Historic Preservation OfficeMOA Memorandum of AgreementMTA Maryland Transit AdministrationNHL National Historic LandmarkNRHP National Register of Historic Places

Glossary

Area of Potential Effects the geographic area or areas within which an undertakingmay directly or indirectly cause alterations in the character or use of historic properties, ifany such properties exist. The area of potential effect is influenced by the scale andnature of an undertaking and may be different for different kinds of effects caused by theundertakings. 36 CFR 800.16 (d)

Consulting Parties are participants in the Section 106 process and in addition to theFederal agency and the ACHP, include the State Historic Preservation Office (MDSHPO), Indian Tribes and Native Hawaiian organizations, local governmentrepresentatives, and the public. 36 CFR 800.2

Historic Property any prehistoric or historic district, site, building, structure, or objectincluded in, or eligible for inclusion in, the NRHP maintained by the Secretary of theInterior. This term includes artifacts, records, and remains that are related to and locatedwithin such properties. The term includes properties of traditional religious and culturalimportance to an Indian Tribe or Native Hawaiian organization and that meet the NRHPcriteria. The term eligible for inclusion in the NRHP includes both properties formallydetermined as such in accordance with regulations of the Secretary of the Interior and allother properties that meet the NRHP criteria. 36 CFR 800.16(l)

Memorandum of Agreement- the document that records the terms and conditions agreedupon to resolve the adverse effects of an undertaking upon historic properties. 36 CFR800.16(o)

04/08/15 Draft MOA E-2

Signatories the signatories to a MOA have the sole authority to execute, amend orterminate the MOA and assume legal responsibilities for implementation of the MOAconditions. 36 CFR 800.6(c)(1)

Undertaking a project, activity, or program funded in whole or in part under the director indirect jurisdiction of a Federal agency, including those carried out by or on behalf ofa Federal agency; those carried out with Federal financial assistance; those requiring aFederal permit, license or approval; and those subject to State or local regulationadministered pursuant to a delegation or approval by a Federal agency. 36 CFR800.16(y)

appendix h

Documents