February 24, 2014

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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 subject 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 archaeological 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 undertaking(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 this 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 Indian 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 

historic 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 Indian 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

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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 

government 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 

concurrence. 

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 should be required to

consult with the relevant SHPO, THPO, or tribe 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... This language is not appropriate in a Section 106 agreement document. 
February 24, 2014

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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 illustrating 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 help clarify 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 identify 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 consultation 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 the 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 submit 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 able to provide information about historic properties 

located in the APE and measures to avoid or mitigate any adverse effects. 
February 24, 2014

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Again, EPA should require the applicant to identify historic properties, assess effects, and propose 

measures to avoid or mitigate 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, perhaps 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 

deemed 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.

Note 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 within 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 properties 

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 has 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 more 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 trigger 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

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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 assistance 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 properties 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 consulting 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 timeframes 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 and 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.