February 6, 2013

2 PM Eastern

EPA Headquarters

Office of Wastewater Management

NHPA Section 106 Consultation 

for two EPA Clean Water Act 

(CWA) Stormwater Permits:

The Construction General Permit (CGP) &

The Multi-Sector General Permit (MSGP)
Objective

2

 To consult under Section 106 regarding an approach to 

considering potential impacts on historic properties for 

two federal undertakings by the EPA:

 Construction General Permit (CGP) (reissued Feb 2012)

 Multi-Sector General Permit (MSGP) (reissuance Sep 2013)
Agenda

 Background

 Scope of Potential Impacts to Historic Properties

 Procedures to Address Potential Impacts 

 Questions for SHPOs and THPOs

 Next Steps

3
Background

4

 EPA’s Clean Water Act (CWA) regulations require a National 

Pollutant Discharge Elimination System (NPDES) permit for 

stormwater discharges from construction site disturbances of 

one or more acres and from industrial facilities in certain 

sectors 

 Most regulated stormwater discharges are covered under a 

general permit

 Used to cover a similar group of dischargers under one permit

 Simplifies the process for dischargers to obtain authorization to 

discharge

 Typically, to obtain authorization to discharge, a discharger submits 

to the permitting authority a Notice of Intent (NOI) to be covered 

under the general permit
Background

5

 All NPDES permits have a 

maximum duration of 5 years 

before they expire and have to be 

reissued

 EPA has issued a series of CGPs 

and MSGPs since the early 1990s 

in areas where EPA remains the 

NPDES permitting authority

 MA, NH, ID, NM, DC, Puerto 

Rico, the territories

 Most Indian country lands 

 Areas within CO, VT, WA 

operated by a “federal 

operator”

 Limited areas of Oklahoma and 

Texas
Background

6

CGP MSGP

What does the permit 

regulate?

• The quality of stormwater 

discharges from all earthdisturbing activities at 

construction sites from an 

acre or above and any 

dedicated support sites

• The quality of stormwater 

discharges from industrial 

facilities in certain sectors

What does the permit not

regulate?

• What is being constructed (project design) or what industrial 

activity occurs

• Where development/facility occurs (project location)

What does the permit 

require?

• Develop and maintain a stormwater pollution prevention 

plan (SWPPP)

• Install and maintain stormwater controls

• Conduct inspections and document findings

• Fix,replace, or upgrade stormwater controls

How many sites/facilities 

are covered?

• About 5,000/year • About 2,400 ongoing and 

about 50 new facilities/year
Background

7

 EPA considers the issuance of both the CGP and MSGP to be 

Federal undertakings

 Individual authorizations to discharge (i.e., permit coverage of 

specific sites/facilities under a general permit) do not constitute 

separate Federal undertakings

 Section 106 of the NHPA requires EPA to consider the 

potential impacts of these undertakings on historic properties 

and to provide the ACHP an opportunity to comment. Under 

ACHP regulations, consultation includes appropriate State and 

Tribal historic preservation officials

 EPA is committed to meeting the requirements of Section 106 

of the NHPA for the CGP (reissued in Feb 2012) and the MSGP 

(to be reissued in Sep 2013)
Scope of Potential Impacts to Historic 

Properties

8

 EPA has determined that discharges of treated stormwater from sites/facilities 

covered under the CGP and MSGP will not have the potential to affect historic 

properties

 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 include:

 In particular, EPA believes that the vast majority of facilities covered under the 

MSGP have no potential to impact historic properties because the majority of

MSGP facilities are existing facilities that do not constructing new stormwater 

controls (only about 50 new facilities are receive permit coverage each year)

• Trenches

• Culverts

• Channels

• Perimeter drains

• Swales

• Dikes 

• Catch basins

• Stormwater ponds
Procedures to Address Potential Impacts 

9

 At the time the CGP and MSGP are reissued, EPA does not know where 

any new sites/facilities will be/are located and whether there will be 

potential impacts to historic properties from the installation of subsurface 

stormwater controls

 Therefore, EPA believes the best way to address any potential for historic 

properties impacts for both construction and industrial operators seeking 

authorization to discharge under the CGP and MSGP is to require them to 

do specified screening procedures before being eligible to apply for permit 

coverage

 EPA has previously developed historic property screening procedures that all 

operators must perform and certify to on their NOIs before receiving permit 

authorization

 To comply with Section 106 of the NHPA, EPA seeks to formalize these 

procedures in Programmatic Agreements through consultation with SHPOs 

and Indian tribes whose areas are covered under both permits
10

 As part of Section 106 consultation, EPA held a 

teleconference in January 2012 with State and Tribal 

historic preservation officers seeking input on a historic 

property screening process

 EPA reissued the CGP in February 2012 and included a 

new historic properties screening process (see Appendix 

E of the permit: http://www.epa.gov/npdes/pubs/cgp2012_appendixe.pdf)

 In coordination with the ACHP, EPA has expressed its 

intent to memorialize the historic properties procedures 

in a Programmatic Agreement

Historic Property Screening Process in the CGP
11

 The pre-authorization historic properties screening 

process is in Appendix E of the current CGP

 The procedures help operators to identify whether any 

historic properties issues are found at their sties, and if 

so, to determine whether any subsurface stormwater 

control installations have the potential to cause effects to 

historic properties

 If needed, operators are directed to contact the SHPO, 

THPO, or other tribal representative for further 

information 

Historic Property Screening Process in the CGP
12

Step 1: 

Permit 

applicant 

must 

determine if 

any 

subsurface 

stormwater 

controls will 

be installed

If no, operator 

can submit NOI 

certifying no 

controls will be 

installed

Step 2: If yes, 

permittee 

must 

determine 

whether any 

prior surveys 

have 

concluded 

that no 

historic 

properties 

exist

If yes, permit 

applicant can 

submit NOI 

certifying no 

historic 

properties 

exist 

Step 3: If no, 

permit 

applicant 

must 

determine if 

subsurface 

controls will 

have an 

effect on 

historic 

properties

If permit applicant 

determines no effect from 

subsurface stormwater 

controls, permit applicant 

can submit NOI

Step 4: If the permit applicant 

cannot conclude that subsurface 

controls will not have effects on 

historic properties, the applicant 

must contact the relevant SHPO, 

THPO, or other tribal 

representative to request their 

views on the likelihood of 

impacts. 

Applicants must provide the 

following information: 

1. Project name

2. Narrative description of 

project

3. Operator contact info

4. USGS map showing project 

location and boundaries

5. Site map showing locations 

showing subsurface stormwater 

controls

SHPO, THPO, or other tribal 

representative has 15 days to 

respond.

If no response, or if 

SHPO, THPO, or tribal 

representative indicates 

no historic properties 

effects, permit applicant 

can indicate this on and 

submit NOI.

If SHPO, THPO, 

or tribal 

representative 

indicates further 

consultation 

necessary, 

applicant must 

consult.

If applicant and 

SHPO, THPO, or 

tribal 

representative 

enter into written 

agreement, 

applicant can 

indicate this on and 

submit NOI

If no agreement can be 

reached within 30 days 

of further consultation, 

applicant can submit 

NOI and indicate that 

no agreement reached

Summary of screening process permittees must follow before applying 

for permit coverage: 

* Note: Within 14 days after 

an NOI is submitted, SHPOs, 

THPOS, and other tribal 

representatives can request 

that EPA place a “hold” on 

authorization to consider any 

unresolved issues
Historic Property Screening Process in the MSGP

13

 EPA has similar procedures established in the current 

MSGP (issued in 2008)

 Because the nature of the activities potentially impacting 

historic properties is the same under both permits, EPA is 

considering making the procedures the same as in the 

CGP for permit consistency when EPA reissues the 

MSGP in Sep 2013

 EPA seeks to memorialize the historic properties 

procedures in a Programmatic Agreement
Summary 

14

 EPA would like to develop two Programmatic Agreements 

that will memorialize the historic property screening 

procedures in both the CGP and MSGP

 EPA also intends to develop guidance in connection with 

each Programmatic Agreement that will assist SHPOs, 

THPOs, and other Tribal representatives in their 

involvement with CGP and MSGP historic property 

screening procedures
Discussion Topics for SHPOs and THPOs/Tribes

15

1. Are there any changes that you would like EPA to consider 

making to the historic properties screening process for when EPA 

reissues the permits? 

2. What types of scenarios should be clarified in guidance that will 

accompany the Programmatic Agreements?

 SHPO/THPO/Tribe finds there to be “no historic properties” within the Area of 

Potential Effect (APE). What does the SHPO/THPO/Tribe do?

 There are historic properties within the APE but properties will not be adversely 

affected. What does the SHPO/THPO do?

 There are potential impacts to historic properties, and SHPO/THPO/Tribe and 

applicant reach mitigation agreement. How is the agreement memorialized? 

 There are potential impacts to historic properties, and SHPO/THPO/Tribe cannot 

reach agreement with the applicant. What does the SHPO/THPO/Tribe do and 

what will EPA’s role be?

 Others?

3. For THPOs and other tribal representatives, are there any special 

considerations for the Programmatic Agreements? 

4. Other topics to discuss?
Next Steps

16

 Now – April 2013: 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

 Mid-April 2013: EPA will share draft Programmatic 

Agreements with the ACHP, SHPOs, and Indian tribes for the 

CGP and MSGP

 Mid-May 2013: Comments on the draft Programmatic 

Agreements are due to the EPA

 May – July 2013: EPA coordinates with the ACHP, SHPOs, 

THPOs, and other Tribal representatives on finalizing the 

Programmatic Agreements for the CGP and MSGP
Additional questions or comments?

For more information about the CGP and MSGP:

www.epa.gov/npdes/stormwater/cgp

www.epa.gov/npdes/stormwater/msgp

Erika Farris

202-564-7548

farris.erika@epa.gov