MEMO TO FILE

DATE: July 12, 2012 

SUBJECT: Federal Implementation Plan under the Clean Air Act for Oil and Gas Production 

Facilities on the Fort Berthold Indian Reservation; National Historic Preservation Act 

FROM: Victoria Parker-Christensen, EPA Region 8 Air Program 

TO: Docket 

Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to take into 

account the effects of their undertakings on historic properties and afford the Advisory Council on 

Historic Preservation (ACHP) a reasonable opportunity to comment with regard to such undertakings. 

Under the ACHP’s implementing regulations at 36 CFR Part 800, Section 106 consultation is generally 

with state and tribal historic preservation officials in the first instance, with opportunities for the ACHP 

to become directly involved in certain cases. An “undertaking” is “a project, activity, or program funded 

in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried 

out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those 

requiring a Federal permit, license or approval.” 36 C.F.R. § 800.16(y). 

Under the NHPA Section 106 implementing regulations, federal agencies consult with relevant historic 

preservation partners to determine the area of potential effect (APE) of the undertaking, to identify 

historic properties that may exist in that area, and to assess and address any adverse effects that may be 

caused on such properties by the undertaking. Specifically, Section 800.4(b)(1) of the regulations states 

that federal agency officials shall make a “reasonable and good faith effort” to identify historic 

properties. 

The EPA proposes1

 to promulgate a Reservation-specific federal implementation plan (FIP) under the 

Clean Air Act (CAA) to establish enforceable control requirements for reducing volatile organic 

compound (VOC) emissions from oil and gas production activities within the exterior boundaries of the 

Fort Berthold Indian Reservation (FBIR) in North Dakota. Specifically, the EPA is requiring owners and

operators of oil and gas production facilities to reduce emissions of VOCs emanating from well 

completions, and from production and storage operations, as is already required by the North Dakota 

Department of Health for production facilities located outside of Indian country, including outside of the 

FBIR2

. 

This memorandum describes EPA’s efforts to identify historic properties and assess potential effects in 

connection with implementing the FIP for oil and gas production facilities in Dunn, McLean, McKenzie, 

Mercer, Mountrail and Ward Counties on the FBIR. 

 

1 EPA is issuing this action as an interim final rule. As an interim final rule, this action is time-limited. It will be effective 

from the date of signature until the date that EPA promulgates a final rule based on its proposal for a Reservation-specific 

FIP to regulate emissions from oil and natural gas productions facilities located on the FBIR and that final rule takes effect. 

EPA is proposing the Reservation-specific FIP concurrently with this interim final rule. 

2 North Dakota Century Code (Chapter 23-25 Air Pollution Control); Air Pollution Control Rules (Article 33-15). 
Area of Potential Effects (APE)

Because the FIP will apply throughout the entire reservation, EPA is considering the reservation as the 

area of potential effect (APE) as that term is defined in the NHPA Section 106 regulations at 36 C.F.R. § 

800.16(d). The “area of potential effects” of an undertaking is defined as: 

... the geographic area or areas within which an undertaking may directly or indirectly cause 

alterations in the character or use of historic properties, if any such properties exist. The area of 

potential effects is influenced by the scale and nature of an undertaking and may be different for 

different kinds of effects caused by the undertaking. 

Region 8 Approach 

The EPA has reviewed information from the National Park Service on registered historic places located 

within the APE. Although only one registered site may be within the FBIR boundary (see Appendix), 

the EPA anticipates that eligible historic properties may be present within the FBIR. We are in the 

process of consulting with the Three Affiliated Tribes’ tribal historic preservation officer (THPO) 

concerning the FIP, and have invited the THPO to provide information concerning historic properties 

within the Reservation. We are also requesting the THPO’s views concerning potential effects of the 

FIP. Similarly, we are communicating with the Tribal government, inviting them to consult with us and 

provide comment concerning the NHPA as it relates to this FIP. 

Additional Future Efforts 

The EPA may also pursue a programmatic agreement with the Bureau of Indian Affairs (BIA) and the 

Bureau of Land Management (BLM) to ensure that cultural resources are not adversely affected and to 

meet our NHPA responsibilities relating to oil and gas development. Programmatic agreements (PA) are 

executed under 36 CFR §800.14(b). In a PA, an agency, the ACHP, THPO/SHPO, and other parties can 

agree on a process for considering historic properties with respect to an entire agency program or a large 

and complex project, such as the FIP. See U.S. Environmental Protection Agency, Historic and 

Archaeological Resource Protection for USEPA Personnel (October 2009). 

Bureau of Indian Affairs and the Bureau of Land Management Memorandum of Understanding 

As a related matter, we note that the Bureau of Indian Affairs (BIA) and the Bureau of Land 

Management (BLM) also have roles regarding management of oil and gas activities on the FBIR. BIA 

and BLM have implemented a Memorandum of Understanding (MOU, BLM-MOU-MT920-0121) 

describing each Agency’s responsibilities for the prelease and postlease phase of oil and gas 

development, including compliance with requirements under the National Environmental Policy Act of 

1969 (NEPA). The NHPA analysis and associated documentation prepared by those agencies are 

included in their NEPA process. Importantly, we understand that the BIA and BLM coordinated efforts 

address NEPA and NHPA requirements prior to any surface disturbance or subsurface drilling by oil and 

gas facilities. We further understand that on-site cultural resource surveys are conducted at proposed

sites and recommendations and adjustments are made at that time to mitigate any potential impacts. This 

process occurs independently of the EPA’s actions. 
Effect on Permitting of Facilities 

The proposed rule is not a permitting program and therefore does not impose (or exempt the facilities 

from) any CAA permitting requirements, including the Prevention of Significant Deterioration (PSD) 

permitting requirements at 40 C.F.R. §52.21 and Federal Minor New Source Review for Indian country 

(FMNSR) permitting requirements at 40 C.F.R. §49.151. The purpose of this rule is to provide Federal 

enforceability for the use of VOC emission controls that are already being used as an industry standard. 

Provided that the facilities are in compliance with the new rule, it will allow the facilities to take credit 

for the VOC emission reductions the controls provide when calculating their potential to emit for 

determining applicability to the permitting requirements. 

Tribal Consultation 

To comply with our obligations under Section 106 of the NHPA and its implementing regulations at 36 

C.F.R. Part 800, we are consulting with the Three Affiliated Tribes’ tribal historic preservation officer 

(THPO) concerning the NHPA. The EPA sent a letter to the Fort Berthold Three Affiliated Tribes 

THPO on July 12, 2012, and is waiting for the THPO response. 

We are also consulting with the tribal government by sending a letter on July 12, 2012, to the Tribal 

Chairman and Environmental Director, Three Affiliated Tribes inviting them to consult with us and 

provide comment concerning NHPA as it relates to this FIP. 

 
Appendix: Registered Historic Places 

The National Park Service maintains an internet resource that was used to determine whether any 

registered historic places are within the external boundary of the FBIR: 

National Register of Historic Places database, http://www.nps.gov/history/nr/research/index.htm 

An additional site was used to provide additional information on these historic places: 

National Register of Historic Places, http://www.nationalregisterofhistoricplaces.com/

a. County information (i.e. Mountrail County) 

http://www.nationalregisterofhistoricplaces.com/ND/Mountrail/state.html 

b. Historic Districts within a county (i.e. Mountrail County) 

http://www.nationalregisterofhistoricplaces.com/ND/Mountrail/districts.html

The results of the database search indicated that there are 40 registered cultural places within Dunn,

McKenzie, McLean, Mercer, Mountrail and Ward Counties. The historic properties are listed below: 

County in Fort Berthold Indian Reservation 

Registered Historic Place City Location 

Distance Outside 

External Boundary 

FBIR 

Dunn County 

1 Dunn County Courthouse Manning 20 miles 

2 Hutmacher Farm Manning 20 miles 

3 Saints Peter and Paul Church New Hradec 38 miles 

McKenzie County 

4 Birdhead Ranch House NE of Alexander 

5 Fairview Lift Bridge Cartwright 54 miles 

6 Grassy Butte Post Office Grassy Butte 25 miles 

7 Sandstone School Keene 7 miles 

McLean County 

8 Former McLean County Courthouse Washburn Approx. 36 miles 

9 Holy Trinity Ukrainian Greek Orthodox Church Wilton Approx. 50 miles 

10 Ingersoll School Washburn Approx. 30 miles 

11 McLean County Courthouse Washburn Approx. 36 miles 

12 Semevolos Farm Butte Approx. 50 miles 

13 Soo Line Depot Wilton Approx. 50 miles 

14 Zion Lutheran Cemetery, Wrought-Iron Cross Site Mercer Approx. 45 miles 

Mercer County 

15 Beulah School Beulah Approx. 14 miles 

16 Big Hidatsa Village Site 1 mile N of Stanton Approx. 20 miles 

17 Fort Clark Archeological District Stanton Approx. 20 miles 

18 Hazen High School Hazen Approx. 16 miles 
County in Fort Berthold Indian Reservation 

Registered Historic Place City Location 

Distance Outside 

External Boundary 

FBIR 

19 High Butte Effigy and Village Site Riverdale Address restricted 

20 Knife River Bridge - 

4 mile W & 1 mile N 

of Stanton Approx. 20 miles 

21 

Knife River Indian Villages National Historic Site 

Archeological District Stanton 

Address restricted 

Approx. 20 miles 

22 Fred Krause House Hazen Approx. 16 miles 

23 St. Paul’s Lutheran Church Hazen Approx. 16 miles 

Mountrail County 

24 Evans Site New Town Address restricted 

25 Great Northern Railroad Underpass Stanley 21 miles 

26 Mountrail County Courthouse Stanley 21 miles 

Ward County 

27 Andrew Carr, Sr. House Minot Approx. 27 miles 

28 Eastwood Park Bridge Minot Approx. 27 miles 

29 Levi Glick Round Barn Surrey Approx. 35 miles 

30 Minot Carnegie Library Minot Approx. 27 miles 

31 Minot Commercial Historic District Minot Approx. 27 miles 

32 Minot Industrial Historic District Minot Approx. 27 miles 

33 Our Savior’s Scandinavian Lutheran Church Coulee Approx. 37 miles 

34 Soo Line Passenger Depot Minot Approx. 27 miles 

35 South Prairie Community Hall Minot Approx. 27 miles 

36 Tufveson House Minot Approx. 27 miles 

37 U.S. Post Office Minot Approx. 27 miles 

38 Union National Bank and Annex Minot Approx. 27 miles 

39 Ward County Courthouse Minot Approx. 27 miles 

40 Westland Oil Filling Station Minot Approx. 27 miles 

Thirty nine sites are located outside the external boundary of the Fort Berthold Indian Reservation. One 

site (Evans Site) is located near New Town, but because the address is restricted the EPA has not 

determined whether it is within the Fort Berthold Indian Reservation. New Town is, however, within 

the Reservation.