February 24 , 2014

1 ACHP Comments on Draft EPA Construction General Permit and Multi

- Sector General Permit Section 106 Materials

Cover letter to Historic Preservation Officers and Tribal Representatives :

Note that the “undertakings” at issue here are the activities for which an EPA permit is required. The reissuance of the general permits require Section 106 review , but the undertakings to be considered in the review are those actions proposed to be the su bject of the permit.

Refer to letter from ACHP to EPA, dated 1

- 28

- 14, regarding scope of undertaking (s) at issue here.

Are there any other effects to historic properties that should be considered in this review process beyond direct effects to historic a rchaeological sites? Other types of historic properties that may be affected?

Draft Programmatic Agreement for Construction General Permit (CGP) :

A new Whereas clause should be added to reflect the issuance of the CGP in 2012 and briefly explain how this PA would coordinate/apply to activities permitted by the CGP as well as the procedures included in the Appendix of the CGP.

Note the issuance of the CGP is not the undertaking; the activities requiring review and approval under the permit are the underta king(s).

Note concern about limiting scope of potential effects to historic properties to the construction, installation, and alternation of subsurface stormwater controls. Request clarification as to this suggested limitation.

Note that the purpose of t his PA is to establish an approach to fulfill EPA’s Section 106 responsibilities to take into account the potential effects of undertakings permitted under the CGP.

The applicant should not unilaterally identify historic properties within the undertaking’ s area of potential effects (APE) and determine its undertaking would not affect /adversely affect historic properties without consultation with the relevant State Historic Preservation Office (SHPO), Tribal Historic Preservation Office (THPO), interested I ndian tribes, and/or other consulting parties.

Note that the SHPO/THPO/tribal databases may not be complete and without consultation with the relevant parties, applicants are unlikely to be able to make a good faith and reasonable effort to identify histo ric properties within an undertaking’s APE. Further, the need to conduct surveys or other efforts to identify historic properties should be included in these procedures.

Note that an applicant might need to consult with the SHPO, THPO, and interested Indi an tribes on a single undertaking. These groups are not mutually exclusive, as is currently implied in the draft language. Further, EPA should provide assistance to applicants in identifying the tribes that should be invited to consult for each undertaking

.February 24 , 2014

2 Both SHPOs and tribes have expressed concern over the 15 day/14 day review periods. Recommend extending the 15 day period to 30 days in all cases.

Note further that this PA does not alter or modify EPA’s responsibility to conduct government to

governme nt consultation with Indian tribes. The ability of tribes to request consultation directly with EPA, rather than the applicant, should be made clear in this document.

The draft PA does not allow for consultation with any other consulting parties, such as local governments or interested entities such as historical societies, preservation organizations, or concerned residents. Such groups should be provided some opportunity for consultation.

The procedures in the Appendix and the PA appear to put the onus on the SHPO, THPO, or tribe to identify any historic properties previously undocumented within the APE for the applicant, as well as identify potential effects and determine appropriate measures to avoid or mitigate adverse effects to historic properties. Putting this responsibility on these historic preservation offices is inappropriate, and is further exacerbated by the requirement for these groups to complete this assessment within 15 or 30 days. The applicant should be completing the bulk of this work, with the assistance and input of a qualified historic preservation professional, and providing draft historic property inventories, effect findings, and proposals to avoid or mitigate adverse effects to the historic preservation offices for review and

conc urrence.

If the SHPO/THPO/tribe does not respond in the initial 15 day review period, the applicant appears to be able to move forward without any further consideration of the potential effects of its undertaking on historic properties. Strongly recommend revising this process to require the applicant, in the case no reply is received from the relevant historic preservation office(s) during the initial time period, to identify historic properties and propose measures to avoid or mitigate adverse effects to EPA, which will be filed and made part of its certification under the permit. Similarly, if a dispute arises during the 14 day review period and EPA elects not to place a hold on the application, the applicant should still be required to

propose measures to avoid or mitigate adverse effects to complete its review requirements.

Who within EPA makes the determinations as to whether a hold should be placed on an application during the review period? Is this entity a historic preservation professional? EPA sh ould be required to consult with the relevant SHPO, THPO, or t ribe during this determination to resolve the dispute.

If there is a disagreement between the applicant and the historic preservation office about historic properties that be located within the APE for an undertaking, the effect finding, or measures to avoid or mitigate adverse effects (either before the NOI is submitted or during the 14 day review period after submittal) , EPA should be engaged in the consultation process to resolve that dispute . If EPA cannot resolve the dispute, it should refer the matter to the ACHP for its advisory opinion.

Suggest using template language for dispute resolution, anti

- deficiency act compliance, and duration. Note inability to amend PA due to permit length in Whereas clauses. Suggest also providing for annual meeting or report to allow signatories opportunity to review program of compliance.

Remove stipulation stating that this PA does not create any right or benefit enforceable against any of the Parties... Thi s language is not appropriate in a Section 106 agreement document.February 24 , 2014

3 Guidance on the Historic Properties Screening Procedures in the EPA’s 2012 NPDES Stormwater CGP :

This guidance document should be revised to be more straightforward and focused on illust rating the concepts, documentation requirements, and opportunities for consultation with SHPO/THPO/tribes as well as points at which EPA can be engaged in the process. Perhaps including a flowchart or other illustration to depict the review process would h elp clar ify each step and the sequence, rather than repeating the narrative.

The documentation that the applicant provides the SHPO/THPO/tribe to initiate their review should also include a description of the efforts the applicant has undertaken to identi fy historic properties and any preliminary descriptions of how the undertaking would affect identified historic properties.

The applicant should be required to share its plan for avoidance or mitigation of adverse effects, once developed through consultat ion with the SHPO/THPO/tribe, with EPA.

If EPA elects not to place a hold on an application during the review period, how is the dispute resolved? Would this trigger the dispute resolution process in the PA?

What is the purpose of SHPO/THPO/tribe reviewing the NOI after submittal? If a dispute has arisen and measures are not agreed to, EPA should be consulting with those parties and the applicant to resolve the dispute. What other circumstances are envisioned here that would necessitate this second review?

Does anyone within EPA review and verify the NOI to ensure the preservation review responsibilities have been fulfilled?

EPA should require t he applicant to also use the services of a qualified professional to review prior professional cultural resource surveys (e.g., to determine whether survey is outdated or incomplete) and to determine whether prior disturbances preclude the existence of historic properties.

Recommend clarifying why applicant would submi t documentation to the ACHP per SHPO/THPO/tribe’s request. Would ACHP review this documentation and the proposed measures to avoid or mitigate adverse effects?

Draft Programmatic Agreement for Multi

- Sector General Permit (MSGP) :

Incorporate the comments and questions provided on the draft PA for CGP as these documents are very similar.

Again, EPA should provide an opportunity for other consulting parties, such as local governments, historic preservation societies, etc., to participate in consultation with the applicant, in addition to the SHPO/THPO/tribe (or all 3). These groups may be a ble to provide information about historic properties located in the APE and measures to avoid or mitigate any adverse effects.February 24 , 2014

4 Again, EPA should require the applicant to identify historic properties, assess effects, and propose measures to avoid or mitiga te adverse effects to historic properties even if the historic preservation office does not respond with the initial 15 day review period.

Note EPA is required to consult with Indian tribes without THPOs that request such consultation.

Should expand, pe rhaps in the guidance document, what constitutes “sufficient information” that the applicant is required to provide to historic preservation offices.

Should clarify that where measures to address adverse effects to historic properties are disputed or deem ed impracticable by the operator, the dispute resolution process would be triggered.

Guidance on the Historic Properties Screening Procedures in EPA’s 2014 NPDES Stormwater MSGP :

Incorporate the comments and questions provided on the Guidance for CGP.

No te the limitation of potential impacts to be considered in the Section 106 review for these permitted undertakings does not comport with our letter of Jan. 2014. We would like to discuss the issue (i.e., the scope of the undertaking subject to Section 106 review) further with EPA.

Similar comment as above regarding the scope of the APE for each undertaking to be determined.

Recommend expanding and/or further explaining the types of site conditions that would preclude the presence of historic properties wi thin the APE to provide greater clarity to the applicant.

It is not clear in this guidance whether applicants must consult with SHPO/THPO/tribe and/or professional consultant in every case to identify historic properties, or only where there are no proper ties listed in the National Register of Historic Places or there has been no prior ground disturbance or other activity. Consultation to identify historic properties within the APE should require consultation with the SHPO/THPO/tribe, after the applicant h as engaged the services of a qualified professional to make those findings.

While this process may relieve the burden on applicants to conduct historic preservation reviews, it puts a significant burden on the SHPO/THPO/tribe. Recommend EPA develop a mor e balanced approach to carrying out the work required to identify historic properties, assess effects, and propose measures to avoid or mitigate adverse effects.

EPA should clarify whether requiring an applicant to seek individual permit coverage would tr igger a separate (standard) Section 106 review for that proposed permit action.

If EPA is satisfied that disputes have been resolved after placing a hold on the applicant, how will that determination be documented? Will it be shared with the relevant SHPO /THPO/tribe and/or ACHP?

Appendix F

- Historic Properties Screening Process :

Again, recommend clarifying whether individual permit application would trigger separate (standard) Section 106 review.February 24 , 2014

5 Are there any other associated actions that may be related to the discharge of constituents into existing stormwater channels or natural drainage areas that may have the potential to affect historic properties? Perhaps reword this qualification to be where no new (construction, demolition, etc.) action is required to implement the pollution control?

Need to clarify whether applicant must work with qualified professional in the identification of historic properties within the APE prior to consulting with the SHPO/THPO/tribe. (e.g., pg. C

- 2) Applicants may need assi stance of qualified professional in evaluating prior surveys and/or assessing current property (e.g., identifying artifacts or remains).

Should expand the examples in Criterion A of existing site conditions that would preclude impacts on historic properti es to provide further instruction on this topic to applicants.

Note again, e.g., under Criterion C, that applicant may need to contact the SHPO, THPO, and interested tribes (not just one). Also, include any possibility of consultation with other consultin g parties?

Note again, e.g., Criterion C, that the applicant should be required to propose a plan to identify historic properties, and avoid or mitigate any adverse effects and implement this plan even if no response from SHPO/THPO/tribe.

Can the consultation to avoid or mitigate adverse effects with the SHPO/THPO/tribe take longer than 30 days?

Again, note need to further discuss scope of APE (to match scope of undertaking) that should be considered (e.g., Step Three).

Note that the timef

rames for review should begin upon receipt (and/or direct contact via phone or in person meeting) of relevant information, not on date of sending. Again, should also describe more explicitly the information that should be provided to the SHPO/THPO/tribe an d should include a description of applicant’s efforts to identify historic properties, preliminary descriptions of effect findings, and preliminary proposal to avoid or mitigate any adverse effects.

Note that the ACHP does not usually receive findings of “no adverse effects” to historic properties (e.g., pg. C

- 9). Should clarify why such a finding would be submitted to ACHP

- e.g., if dispute or seeking advisory opinion.

To resolve a dispute when a hold is placed on the NOI, or when EPA elects not to place a hold, measures should be proposed to avoid or mitigate any adverse effects to historic properties. Should also link the hold process with the dispute resolution stipulation in the PA.