From: Telleen, Katherine

Sent: Thursday, February 14, 2013 5:27 PM

To: Telleen, Katherine

Subject: Follow-up: NHPA consultation on two Clean Water Act general permits

Dear Historic Preservation Officers and Tribal Representatives:

Thank you for your participation in the February 6 webinar regarding consultation under Section 106 of 

the National Historic Preservation Act (NHPA) on two EPA stormwater general permits. The EPA kept a 

record of the written and verbal comments submitted during the webinar, and will consider these when 

drafting the Programmatic Agreements (which will be circulated for your review). For those who attended, 

and for those who were unable to attend, this email is a follow-up to invite additional comments and 

questions, to summarize what was presented in the webinar, and to let you know the EPA’s next steps in 

the consultation process. 

In accordance with regulation 36 CFR § 800.14, the EPA has resumed consultation with the Advisory 

Council on Historic Preservation (Council), State Historic Preservation Officers (SHPOs), Tribal Historic 

Preservation Officers (THPOs), and other tribal representatives on the development of a Programmatic 

Agreement for the 2012 Construction General Permit (CGP) that includes guidance to clarify the historic 

properties procedures established in the permit. The EPA also initiated consultation with the Council, 

SHPOs, THPOs, and Indian tribes on the development of a Programmatic Agreement for the Multi-Sector 

General Permit (MSGP), which the EPA intends to re-issue in September of 2013.

During the webinar on February 6, the EPA provided background on the two general permits, the scope 

of potential impacts to historic properties, procedures to address potential impacts, announced its intent 

to develop a Programmatic Agreement (PA) for each permit, and asked for SHPOs, THPOs, and tribes to 

consult and provide input and comments on how best to develop the PAs in order to consider potential 

impacts on historic properties.

The EPA considers the issuance of both the CGP and MSGP to be Federal undertakings. The EPA 

believes that the scope of potential impacts to historic properties from both the CGP and MSGP are 

limited to the installation of subsurface stormwater controls that a permittee may install to meet the 

requirements of the permit. Examples of subsurface stormwater controls are: trenches, culverts, 

channels, and perimeter drains. Temporary stormwater controls such as hay bales, compost blankets, 

geotextile mats, filter socks, fiber rolls are not considered to be subsurface stormwater controls.

Importantly, individual authorizations to discharge (i.e., permit coverage of specific sites/facilities under a 

general permit) do not constitute separate Federal undertakings. Because site-specific information about 

project locations and potential impacts of covered activities only becomes available as project developers 

seek coverage under the permits, EPA believes that including historic property screening procedures in 

the permits is the most effective means of addressing potential impacts of permit issuance on such 

resources. In these circumstances, EPA also believes that development of NHPA Programmatic 

Agreements is the most appropriate means of consulting on, and memorializing, such screening 

procedures for purposes of compliance with Section 106. NHPA’s regulations provide for development of 

Programmatic Agreements in these types of circumstances and contemplate that such agreements will 

memorialize the relevant procedures for compliance with Section 106, which may differ from the regular 

Section 106 and part 800 process as agreed and as appropriate to accommodate the particular program 

at issue (see 36 CFR § 800.14). To comply with Section 106 of the NHPA, in consultation with the ACHP 

and with SHPOs, THPOs, and Indian tribes whose areas are covered under both permits, EPA seeks to 

develop a Programmatic Agreement for the CGP and a Programmatic Agreement for the MSGP. 

Next Steps in the consultation process and development of PAs:

Now – April 2013: The EPA will take into consideration feedback from the ACHP, SHPOs, THPOs, and 

other Tribal representatives in the development of Programmatic Agreements for the CGP and MSGP;
April 2013: The EPA will share draft Programmatic Agreements with the ACHP, SHPOs, THPOs, and 

other Tribal representatives for the CGP and MSGP;

May 2013: Comments on the draft Programmatic Agreements are due to the EPA;

May – July 2013: The EPA will coordinate with the ACHP, SHPOs, THPOs, and other Tribal 

representatives on finalizing the Programmatic Agreements for the CGP and MSGP.

Please contact me, or Erika Farris at (202) 564-7548 or farris.erika@epa.gov, with comments or 

questions. Thank you.

Katherine Telleen

Office of Wastewater Management

U.S. Environmental Protection Agency

(202) 564-7933

For more information:

To view the current CGP (issued February 2012) go to: 

http://www.epa.gov/npdes/pubs/cgp2012_finalpermit.pdf (see Appendix E for the Historic Property 

Screening Process). 

To view the current MSGP (which EPA intends to re-issue in 2013), go to: 

http://www.epa.gov/npdes/pubs/msgp2008_finalpermit.pdf (see Appendix F for Procedures Relating to 

Historic Properties Preservation).

Both general permits apply only in areas where the U.S. EPA is the NPDES permitting authority, which 

includes four States (Idaho, Massachusetts, New Hampshire and New Mexico); the District of Columbia; 

Puerto Rico; all U.S. territories except the Virgin Islands; federal facilities in Colorado, Delaware, 

Vermont, and Washington; and most Indian country. Each permit has a term of five years.

The CGP authorizes new stormwater discharges from construction activities that result in a total land 

disturbance of equal to or greater than one acre, and construction activities that result in a land 

disturbance of less than one acre that are part of a common plan of development or sale that will 

ultimately disturb one acre or more in areas where the EPA is the permitting authority. The MSGP 

authorizes stormwater discharges from certain industrial facilities that have been grouped into 29 sectors. 

To obtain coverage under either general permit, operators must first meet all eligibility requirements 

(including requirements relating to consideration and protection of historic properties). Then, after being 

authorized to discharge stormwater, operators must maintain compliance with all other permit 

requirements throughout the respective permits' terms. To address any issues relating to historic 

properties, the EPA has established procedures in the 2012 CGP that require permit applicants to certify 

that potential impacts of their covered activities on historic properties have been appropriately considered 

and addressed. The existing MSGP also includes procedures that require permit applicants to certify that 

potential impacts of their covered activities on historic properties have been appropriately considered and 

addressed. 

Attached is the PowerPoint presentation used in the webinar: