DR-4627 Draft Bancroft Pedestrian Bridge Memorandum of Agreement

Notice Date

Memorandum of Agreement Among the Federal Emergency Management Agency, the Delaware State Historic Preservation Officer, the Delaware Emergency Management Agency, and Delaware Department of Natural Resources and Environmental Control, Regarding the Demolition and Replacement of the Bancroft Pedestrian Bridge, Alapocas Run State Park, Wilmington, New Castle County, Delaware

PREAMBLE

WHEREAS, remnants of Hurricane Ida during the period of September 1-7, 2021, resulted in the federally declared disaster DR-4627-DE, making Public Assistance (PA) funding available in Delaware; and

WHEREAS, the Federal Emergency Management Agency (FEMA) of the Department of Homeland Security proposes to administer Federal disaster assistance through FEMA Project PA-03-DE-4627 #660455 pursuant to the Robert T. Stafford Disaster Relief and Emergency Act, 42 U.S.C. §§5121-5207 (Stafford Act) through the Delaware Emergency Management Agency (DEMA) to Delaware Department of Natural Resources and Environmental Control (DNREC) for the demolition and replacement of the Bancroft Pedestrian Bridge (Undertaking), that is located in the floodway; and

WHEREAS, the Period of Performance for FEMA Project PA-03-DE-4627 #660455 ends on [Period of Performance]; and

WHEREAS, FEMA has defined the Undertaking’s Area of Potential Effects (APE) as the Bancroft Pedestrian Bridge [Start: (39.768817, -75.562186) End: (39.769086, -75.562205)] a deck-type Baltimore truss bridge which crosses the Brandywine Creek in Alapocas Run State Park, City of Wilmington, New Castle County, and its immediate viewshed, and any ground disturbed as a result of demolition and reconstruction; and 

WHEREAS, the Bancroft Pedestrian Bridge is identified as a contributing resource to the National Register of Historic Places (NRHP)-listed Bancroft and Sons Cotton Mills Historic District (CHRIS Resource No. N03646; NRHP No. 84000439), and FEMA upholds the previous determination that the Bancroft Pedestrian Bridge is individually eligible for listing in the NRHP; and

WHEREAS, FEMA has determined that the Undertaking will have an Adverse Effect on the historic structure, and the SHPO has concurred with this determination in accordance with the Programmatic Agreement Among the Federal Emergency Management Agency, The Delaware State Historic Preservation Officer, The Delaware Emergency Management Agency and Delaware Nation, executed June 12, 2023 (Statewide Programmatic Agreement) , and this Adverse Effect is being resolved through the execution of an Memorandum of Agreement (MOA) according to Stipulation II.C.6.b. of the Statewide Programmatic Agreement; and

WHEREAS, FEMA has determined that the Undertaking will have No Effect to below-ground resources, and the SHPO has concurred with this determination in accordance with the Statewide Programmatic Agreement; and

WHEREAS, FEMA notified the federally-recognized Delaware Nation and Delaware Tribe of Indians of FEMA’s determination that the Undertaking would result in an Adverse Effect to Historic Properties for above-ground resources and No Historic Properties Affected for below-ground resources; and the Delaware Nation requested to not be a signatory and has no immediate concerns with regard to traditional cultural properties, sacred sites or Native American archaeological sites within the boundaries of the APE; and the Delaware Tribe of Indians did not respond to the invitation to provide comment or participate in consultation to resolve the adverse effect in accordance with the terms of this MOA; and

WHEREAS, FEMA identified SHPO, DEMA, DNREC, Delaware Nation, Delaware Tribe of Indians, United States Army Corps of Engineers (USACE) – Philadelphia District, State Representative Krista Griffith, State Senator Sarah McBride, 8th District Councilman Nathan Field, 8th District Planning Council President Harold Schneikert, Debra Martin (City of Wilmington Historic Preservation Planner), Elizabeth Hatch (New Castle County Historic Preservation Planner), Historic Bridge Foundation, Preservation Delaware, Inc., Friends of Wilmington Parks, Delaware Zoological Society, Delaware Greenways, Highlands Community Association, The Pointe, and Brandywine Park Condos as potential consulting parties of the adverse effect, in correspondence dated May 24, and June 27, 2023, and invited participation in development of the MOA; and

WHEREAS, SHPO, DEMA, DNREC, USACE – Philadelphia District, State Representative Krista Griffith, State Senator Sarah McBride, Debra Martin (City of Wilmington Historic Preservation Planner), Elizabeth Hatch (New Castle County Historic Preservation Planner), Friends of Wilmington Parks, Delaware Greenways, Highlands Community Association, The Pointe, Bancroft Mills Homeowners Association, Nathan Field (City of Wilmington 8th District Councilman), Harold Schneikert (City of Wilmington 8th District Planning Council President) and Brandywine Park Condos accepted FEMA’s invitation to serve as consulting parties in development of the MOA; and

WHEREAS, Delaware Zoological Society and Preservation Delaware did not respond to the invitation to participate; and

WHEREAS, Historic Bridge Foundation opted out of participation during the development of the MOA; and

WHEREAS, FEMA and SHPO are participating as Signatories to resolve the effects of the undertaking on historic properties as provided by 36 CFR § 800.6(c)(1); and

WHEREAS, DEMA, as the Recipient, and DNREC, as the subrecipient of FEMA PA funding, are participating as Invited Signatories to resolve the effects of the undertaking on historic properties as provided by 36 CFR § 800.6(c)(2); and

WHEREAS, in accordance with 36 CFR. § 800.6(a)(1), FEMA has notified the Advisory Council on Historic Preservation (ACHP) of its adverse effect determination, and the ACHP has chosen not to participate in the consultation pursuant to 36 CFR§ 800.6(a)(1)(iii) in their letter dated July 31, 2023; and

WHEREAS, FEMA will file an executed copy of this Agreement with the ACHP pursuant to 36 CFR § 800.6(b)(1)(iv); and 

WHEREAS, FEMA provided a public comment period of thirty (30) days and held a hybrid public meeting at DNREC’s Blue Ball Barn (1914 W Park Dr, Wilmington, DE 19803) regarding the Undertaking and its effects on April 17, 2024; and

WHEREAS, all references to time periods in this MOA are in calendar days and notices and other written communications to FEMA may be submitted by e-mail; and 

NOW, THEREFORE, the Signatories and Invited Signatories agree that the Undertaking shall be implemented in accordance with the following stipulations in order to mitigate the effect of the Undertaking on historic properties.

STIPULATIONS

  1. To the extent of its legal authority and in coordination with the SHPO, DEMA, and DNREC, FEMA will require that the following measures are implemented according to the timelines included in Appendix B of this Agreement:

  2. Archaeological Resources 

    Limits of Disturbance (LOD) Demarcation: Prior to- and during construction activities, DNREC shall install clearly identifiable, brightly colored fencing or barricades to contain the movement of heavy equipment and to visually remind contractors and the general public of the LOD outlined in the construction plans.

  3. Historic Bancroft Bridge Mitigation Measures
    1. Design Review: DNREC shall provide FEMA with accurate drawings or mockups of the proposed replacement bridge design for review by consulting parties. The design shall be historically sensitive, reflecting the replacement bridge’s location within the boundaries of the Bancroft and Sons Cotton Mill Historic District and on the former site of a historic deck-type Baltimore truss bridge.
      1. FEMA shall provide an opportunity for SHPO and other consulting parties to review and comment on the design of the bridge at the design draft, and final draft stages of development. DNREC shall provide a simplified rendering of the replacement bridge to be shared prior to and at the public meeting so that the public may be offered an opportunity to comment on the design. 
      2. SHPO and other consulting parties, including the public, will have thirty (30)calendar days from the confirmed receipt of the bridge’s design draft stage, regarded as the posting of the Public Notice, to provide comments to FEMA. At the end of the thirty (30) calendar days, FEMA will provide comments to the consulting parties for adjudication. Following adjudication, FEMA will provide with any substantive comments and notice to proceed with the final draft stage of the bridge. 
      3. DNREC will provide FEMA with a written response to any comments proposed by the SHPO or other consulting parties within fifteen (15) calendar days from the confirmed receipt of the comments. The response will address the comments posed by the SHPO or consulting parties with either acceptance or justification for why proposed design suggestions cannot be implemented. FEMA will distribute this response to SHPO and the consulting parties. 
      4. DNREC shall provide FEMA with the final draft of the bridge design within thirty (30) calendar days of the confirmed receipt of comments and FEMA’s notice to proceed. FEMA will distribute the design to SHPO and consulting parties who will have fifteen (15) calendar days from the confirmed receipt of the bridge’s final draft stage to provide comment.  If comments are not received at the end of the fifteen (15) calendar days, DNREC will assume concurrence and proceed with bridge design and construction.
      5. Should FEMA, SHPO, DEMA, DNREC, or any of the other consulting parties feel that their comments were not addressed in subsequent or final design iterations, FEMA will initiate the Dispute Resolution process outlined in Stipulation IX of this MOA.
    2. Public Interpretation:  In accordance with Section B of Appendix C, Treatment Measures of the Statewide Programmatic Agreement, upon execution of this MOA, DNREC shall install at least two (2) interpretive signs at the subject property location; one on each side of the bridge. The signage will be funded by the awarded grant dollars for PA-03-DE-4627 #660455. The signs shall consist of a historic narrative and images relating to the Bancroft Bridge and its context. The signs shall also include discussion of climate change and infrastructure adaptation. The design may also include architectural elements salvaged from the bridge. DNREC shall maintain the signs in perpetuity.  The signs will be fabricated and installed within eighteen (18) months of the execution of this MOA. 
      1. The conceptual design drafts of the interpretive signs will be provided by DNREC to FEMA within six (6) months of the execution of this MOA.
      2. FEMA shall provide an opportunity for the SHPO and other consulting parties to review and comment on the design of the interpretive signage at the conceptual design and final draft stages of development. SHPO and other consulting parties will have fifteen (15) calendar days from the confirmed receipt of the interpretive signs’ conceptual design drafts to provide comment. If comments are not received at the end the fifteen (15) calendar days, DNREC will assume concurrence and proceed with the final design drafts.
      3. Within twelve (12) months, the final design drafts of the interpretive signs will be provided by DNREC to FEMA.  FEMA will distribute the final designs to SHPO and other consulting parties prior to fabrication. Consulting parties will have fifteen (15) calendar days from the confirmed receipt of the final drafts to provide comment.  If comments are not received at the end of the fifteen calendar days, DNREC will assume concurrence and proceed with sign fabrication and installation.
      4. DNREC will provide a written response to any comments proposed by the SHPO or consulting parties within fifteen (15) calendar days from the confirmed receipt of the comments. The response will address the comments posed by the SHPO or consulting parties with either acceptance or justification for why the comments cannot be incorporated.
  4. Public Involvement: FEMA conducted a hybrid public meeting on April 17, 2024, from 6:00-7:00 PM at DNREC’s Blue Ball Barn (1914 W Park Dr, Wilmington, DE 19803) and via Zoom, which was advertised in a public notice posted at the Bancroft Bridge site and [insert locations]. Public comments were accepted orally and in writing at the public meeting and via email during the public comment period from April 3, 2024, to May 3, 2024.  Copies of the MOA and a simplified rendering of the replacement bridge were available for review on the FEMA Region 3 website and [insert websites].   
  5. Post Review Discoveries
    1. DNREC shall ensure that should previously unidentified archaeological sites or unanticipated effects be discovered during implementation of the Undertaking, the contractor shall immediately cease construction activities in the vicinity of the discovery.  Personnel should take all reasonable measures to avoid or minimize harm to the archaeological find(s) and/or avoid or minimize further unanticipated effects.
    2. Whoever encounters such sites or effects shall immediately notify DNREC, who will contact FEMA Region 3 Regional Environmental Officer and the SHPO. Construction in the area of such sites or effects shall not resume until FEMA determines that the requirements of 36 CFR § 800.13(b)(3) and Stipulation III.B., Unexpected Discoveries, Previously Unidentified Properties, or Unexpected Effects, of the Statewide Programmatic Agreement (enclosed as Appendix A), have been met.
  6. Anticipatory Actions
    1. In accordance with Section 110(k) of the NHPA, FEMA shall not grant assistance to any parties who, with intent to avoid the requirements of this Agreement or Section 106 of the NHPA, has intentionally significantly and adversely affected a historic property to which the assistance would relate, or having legal power to prevent it, allowed an adverse effect to occur.

    2. However, after consultation with the SHPO and ACHP, FEMA may determine that circumstances justify granting such assistance despite the adverse effect created and shall complete consultation for the Undertaking. 

       

  7. Duration of Memorandum of Agreement
    1. This MOA will be null and void if its terms are not carried out by [ Period of Performance], the end of the Period of Performance of the FEMA grant award for PA-03-DE-4627 #660455, unless amended in accordance with Stipulation X, Amendments. 
  8. Reporting Requirements 
    1. Every six months following the execution of this MOA until it expires or is terminated, those signatories and invited signatories who have assumed responsibility for specific treatment measures outlined in this MOA will provide the other signatories with a treatment measure status report, compiled by FEMA.
      1. Each status report will include the following information, as proposed in Appendix C of this MOA:
        1. Status of treatment measure completion, including completion dates.
        2. Anticipated schedule for completion.
        3. Proposed scheduling changes.
        4. Any problems, disputes, or objections that have arisen.
    2. Review of Six-Month Report: Within fifteen (15) days of receipt, the signatories and invited signatories will review the treatment measure status report and provide written feedback to the responsible parties.  The signatories may request a conference call to discuss the report content and discuss the implementation of this MOA. 

  9. Dispute Resolution

     

    1. If any objection or dispute should be put forth by a signatory or consulting party within the time frame provided by this MOA to any plans, specifications, or actions provided for review pursuant to this MOA, FEMA will consult further with the objecting party to seek resolution.
    2. If FEMA determines that the dispute cannot be resolved, FEMA shall forward all documentation relevant to the dispute to the ACHP in accordance with 36 CFR § 800.11(e), including FEMA’s proposed resolution of the dispute.  Within thirty (30) calendar days after receipt of all pertinent documentation, the ACHP will either:
      1. Advise FEMA that it concurs with FEMA’s resolution to the dispute; or
      2. Provide FEMA with recommendations, which FEMA will take into consideration in reaching a final decision regarding the dispute; or
      3. Notify FEMA that it will comment pursuant to 36 CFR §800.7(c) and proceed to comment.  Any comment provided will be taken into consideration by FEMA in accordance with 36 CFR § 800.7(c)(4) with reference to the subject of the dispute.
    3. Any recommendation or comment provided by the ACHP will be understood to pertain only to the subject of the dispute, and FEMA’s responsibility to fulfill all actions that are not subject of the dispute will remain unchanged.
    4. Failure to fulfill the terms of this MOA requires that FEMA again request ACHP’s comments in accordance with 36 CFR § 800.7.
    5. If FEMA cannot fulfill the terms of this MOA, it shall not take or sanction any action or make any irreversible commitment. 

     

  10. Amendments: Any signatory or invited signatory to this MOA may propose in writing to FEMA that the MOA be amended, whereupon FEMA will consult with all signatories to the MOA to consider such an amendment.  36 CFR § 800.6(c)(7) shall govern the execution of any such amendment.  The signatures of all the signatories shall be required for any amendment hereto to be effective. The amendment will be effective on the date a copy signed by all of the signatories and invited signatories is filed with the ACHP.

     

  11. Termination and Non-Compliance

    1. If any signatory or invited signatory to this MOA determines that its terms will not or cannot be carried out, that party shall immediately consult with the other parties to attempt to develop an amendment per Stipulation X, above.
    2. If within thirty (30) days an amendment cannot be reached, any signatory or invited signatory may terminate the MOA upon written notification to the other signatories.  Once the MOA is terminated, FEMA must either (a) seek to resolve the adverse effects pursuant to 36 CFR §800.6(b), or (b) request, take into account, and respond to the comments of the ACHP under 36 CFR § 800.7.  FEMA shall notify the other signatories as to the course of action it will pursue.

     

  12. Execution of the Memorandum of Agreement
    1. This MOA will be executed in counterpart, with a separate page to be signed by each signatory and invited signatory. The MOA will become effective on the date a copy signed by all of the signatories and invited signatories is filed with the ACHP.
    2. FEMA will provide each signatory, invited signatory, and invited consulting parties with a signed original of this MOA and will file a copy of the MOA with the ACHP.
    3. Execution and implementation of this MOA evidences that FEMA has taken into account the effects of the Undertaking on historic properties, has afforded the ACHP a reasonable opportunity to comment on the Undertaking and its effects on historic properties, and that FEMA has satisfied its Section 106 responsibilities for all aspects of the Undertaking


 

EXECUTED:

SIGNATORY:                                                                                                    

FEDERAL EMERGENCY MANAGEMENT AGENCY

By: _________________________________________ Date: ________________________

              MaryAnn Tierney, Regional Administrator, FEMA Region 3
 

EXECUTED:

SIGNATORY:

DELAWARE STATE HISTORIC PRESERVATION OFFICE

By: _________________________________________ Date: ________________________

             Suzanne Savery, State Historic Preservation Officer
 

EXECUTED:

SIGNATORY:

DELAWARE EMERGENCY MANAGEMENT AGENCY

By: _________________________________________ Date: ________________________

              A.J. Schall Jr., Director, Delaware Emergency Management Agency
 

EXECUTED:

SIGNATORY:

DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

By: _________________________________________ Date: ________________________

              Shawn M. Garvin, Cabinet Secretary, Delaware Department Natural Resources and Environmental Control
 

 

Appendix A. Stipulation III.B., Unexpected Discoveries, Previously Unidentified Properties, or Unexpected Effects, of the Statewide PA 

Unexpected Discoveries, Previously Unidentified Properties, or Unexpected Effects:   

  1. Upon notification by a Subrecipient of an unexpected discovery, or if it appears that an Undertaking has affected a previously unidentified property or affected a known historic property in an unanticipated manner, in accordance with Stipulation I.B.3(e), Recipient Roles and Responsibilities, the Recipient shall immediately notify FEMA and require the Subrecipient to: 

    1. Stop construction activities in the vicinity of the discovery.

    2. Take all reasonable measures to avoid or minimize harm to the property until FEMA has completed consultation with the SHPO, participating Tribe(s), and any other consulting parties. Upon notification by the Recipient of a discovery, FEMA shall within 24 hours notify the SHPO, participating Tribe(s), and other consulting parties that may have an interest in the discovery, previously unidentified property or unexpected effects, and consult to evaluate the discovery for National Register eligibility and/or the effects of the Undertaking on historic properties.

    3. If human remains are discovered, notify the local law enforcement office, the medical examiner or the Director of the Division of Historical and Cultural Affairs (SHPO) in accordance with the Delaware Unmarked Human Burials and Skeletal Remains Act; (Delaware Code: Title 7, Chapter 54; 66 Del. Laws, c. 38. § 1; 75 Del. Laws., c. 153 §§ 4, 5.), and protect the remains from any further exposure of and damage to the remains.  FEMA, the Recipient and Subrecipient will consult with the SHPO to develop and implement appropriate treatment plan, in compliance with the above cited state law. Discoveries of human remains on Federal or Tribal lands shall be subject to the Native American Graves Protection and Repatriation Act (NAGPRA) (25 U.S.C. §3001-3013, 18 U.S.C. § 1170) and ARPA, as applicable. 

    4. Assist FEMA in completing the following actions, as required:

      1. FEMA shall consult with the SHPO, participating Tribe(s), and other consulting parties in accordance with the consultation process outlined in Stipulation II, Project Review, to develop a mutually agreeable action plan with timeframes to identify the discovery or previously unidentified property, take into account the effects of the Undertaking, resolve adverse effects if necessary, and ensure compliance with applicable Federal, State, and local statutes.

      2. FEMA shall coordinate with the Recipient and the Subrecipient regarding any needed modification to the scope of work for the Undertaking necessary to implement recommendations of the consultation and facilitate proceeding with the Undertaking.

      3. If the human remains are of Native American affiliation, then FEMA will immediately notify the Federally Recognized Indian Tribes. FEMA and the Recipient will forward information regarding Native American discoveries to the SHPO and the Federally Recognized Indian Tribes for review and comments. This will occur as soon as possible, within a period no longer than two (2) weeks. FEMA will request that the parties’ comment on the information within two (2) weeks of receipt. FEMA will then consult with the Federally Recognized Indian Tribes, the SHPO and the Recipient to determine an appropriate course of action in accordance with 36 CFR 800 and taking into account the above cited state law. In addition, FEMA shall follow the guidelines outlined in the ACHP’s Policy Statement Regarding the Treatment of Burial Sites, Human Remains, and Funerary Objects (2023) and any state-specific policies that may be in force.

 

Appendix B. Timelines

Overall Execution Timeline: Eighteen (18) months from the execution of this MOA*

Treatment Measure: Design Review

Treatment Measure: Public Interpretation

 

*Timeline will be updated and distributed to consulting parties pending execution. 

 

Treatment MeasureStepDue DateResponsible Party
Design ReviewDNREC shall provide FEMA with accurate drawings or mockups of the proposed replacement bridge design for review by consulting parties. The design shall be historically sensitive, reflecting the replacement bridge’s location within the boundaries of the Bancroft and Sons Cotton Mill Historic District and on the former site of a historic deck-type Baltimore truss bridge. This will also include a simplified rendering of the replacement bridge to be shared prior to and at the public meeting so that the public may be offered an opportunity to comment on the design.PendingDNREC
Design ReviewFEMA shall provide SHPO and consulting parties 30 days to comment on draft design.

30 days from posting of the

Public Notice.

FEMA, SHPO, Consulting Parties
Design ReviewFEMA shall provide DNREC with adjudicated comments from SHPO and consulting parties.30 days from the posting of the Public Notice.FEMA
Design ReviewDNREC shall provide written response to design comments, with explanation as to why they were/were not incorporated.15 days from receipt of comments provided by FEMA.DNREC
Design ReviewDNREC shall provide FEMA with the final draft of the bridge design.

30 days from

 receipt of comments provided by FEMA. 

DNREC
Design ReviewFEMA shall provide SHPO and consulting parties the opportunity to comment on the final draft of the bridge design.  If comments are not received at the end of the 15 days, DNREC will assume concurrence and proceed with bridge fabrication and installation.15 days from receipt of final bridge design provided by FEMA.FEMA, SHPO, Consulting Parties

 

 

 

Treatment MeasureStepDue DateResponsible Party
Public InterpretationDNREC shall fabricate conceptual designs for the interpretive signs and send to FEMA for distribution to SHPO and consulting parties.Within 6 months of the executed MOA.DNREC
Public InterpretationFEMA distributes conceptual design to SHPO and consulting parties.Within 6 months of the executed MOA.FEMA
Public InterpretationDeadline for comments from SHPO and consulting parties.15 days from receipt of the conceptual designs provided by FEMA.FEMA SHPO, Consulting Parties
Public InterpretationDNREC fabricates final designs and sends to FEMA for distribution to SHPO and consulting parties.Within 12 months of the executed MOA. DNREC
Public InterpretationDeadline for comments from SHPO and consulting parties. 15 days from the receipt of the final designs provided by FEMA. FEMA, SHPO, Consulting Parties
Public InterpretationDeadline for response from DNREC to final design comments. 15 days from receipt of comments provided by FEMA. DNREC
Public InterpretationFabrication and installation of interpretive signs. Within 18 months of the execution of the MOA. DNREC

 

Appendix C. Template for 6-month status report

 

Status Report*   

Treatment Measure 

Description

Responsible Party 

Status Report

III.A. Design ReviewDNREC shall provide FEMA with accurate drawings or mockups of the proposed replacement bridge design for review by consulting parties. The design shall be historically sensitive, reflecting the replacement bridge’s location within the boundaries of the Bancroft and Sons Cotton Mill Historic District and on the former site of a historic deck-type Baltimore truss bridge.DNREC 
III.B. Public InterpretationDNREC shall install interpretive signage at the subject property location. The signs shall include a historic narrative and photographs relating the Bancroft Bridge and its context.DNREC 
    
*To be completed every 6 months in conjunction with a status meeting until [Period of Performance]. 
Distribute 1 week ahead of status meeting  

 

Proposed scheduling changes

 

Treatment Measure

Step

Original Due Date

Updated/Proposed Due Date

Responsible Party

III.A. Design Review    
III.B. Public Interpretation    

 

Problems, disputes, or objections

 

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