National
Historic
Preservation
Act
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
3
27
The
draft
CGP
should
omit
the
NHPA
eligibility
requirements,
as
they
are
unnecessarily
duplicative
of
existing
state
and
local
laws
and
regulations 
all
50
states
and
more
than
500
municipalities
have
enacted
laws
"
to
provide
incentives
for
or
to
mandate
the
preservation
of
buildings
and
areas
with
historic
or
aesthetic
importance."
EPA
is
still
consulting
with
the
Advisory
Council
on
Historic
Preservation
(
ACHP)
and
as
such,
NHPA
requirements
have
been
reserved
pending
further
discussions.
1079
3
250
If
clearance
by
the
State
Historic
Preservation
Office
(
SHPO)
is
required
under
Criteria
"
B,"
this
clearance
process
typically
takes
at
least
45
days,
after
submittal
to
the
SHPO,
assuming
no
subsurface
investigation
is
required
by
the
SHPO.
If
a
subsurface
investigation
is
required,
experience
shows
that
the
process
could
take
up
to
six
months,
depending
on
scope
and
results.
 
if
CGP
coverage
is
required
for
clearing,

grading,
and
excavating
activities
at
oil
and
gas
sites,

the
work
load
on
SHPOs
will
likely
become
unmanageable.
To
meet
future
natural
gas
demand,

the
National
Petroleum
Council
estimates
that
the
number
of
natural
gas
wells
alone
needs
to
increase
to
approximately
48,000
wells
annually
[
See
Independent
Petroleum
Association
of
America
(
IPAA),
Update
on
Stormwater
Construction
Permits
(
Sept.
6,
2002)].

Consequently,
the
NHPA
eligibility
requirements
have
at
least
as
great
a
potential
to
delay
oil
and
gas
development
as
the
ESA
requirements.
See
Response
to
comment
summary
27.
1061
3
264
Section
1.3.
C.
7:
We
assume
that
Criterion
A
can
be
accomplished
by
visual
inspections,
web
site
reviews,

knowledge
of
previous
surveys,
and
other
various
methods.
To
clarify
this
issue,
we
request
EPA
provide
examples
of
these
types
of
procedures
in
the
text.
See
Response
to
comment
summary
27.
1028
and
1024
3
265
Section
1.3.
C.
7:
In
Oklahoma,
we
request
that
the
EPA
or
the
appropriate
state
agency
place
all
surveys
and
evaluations
on
their
web
site
by
Section
(
breaking
the
section
into
1/
4,
114,
1/
4),
Township,
and
Range
to
decrease
the
number
of
repetitive
surveys
and
evaluations
that
operators
will
have
to
conduct.
See
Response
to
comment
summary
27.
1024
and
1028
1
National
Historic
Preservation
Act
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
3
266
NMA
is
concerned
with
the
proposed
requirement
that
applicants
are
eligible
for
permit
coverage
only
if
"
the
operator
has
obtained
and
is
in
compliance
with
a
written
agreement
with
the
SHPO
or
THPO
that
outlines
all
measures
to
be
taken
to
mitigate
or
prevent
adverse
effects
to
historic
property".
Nothing
in
the
NHPA
prescribes
such
a
role
for
the
SHPO.
Section
106
of
the
NHPA
simply
provides
that
the
Advisory
Council
on
Historic
Preservation
"
have
a
reasonable
opportunity
to
comment
with
regard
to
an
undertaking".

It
in
no
way
implies
an
concurrence
or
approval
role
by
the
SHPO
or 
ACHP 
program
decisions
remain
with
the
permitting
agency­
there
is
simply
no
basis
to
impose
any
obligation
upon
private
parties.
See
Lee
v.

Thornburgh
877
F.
2d
1053,
1056
(
D.
C.
Cir
1989);
see
also
NMA
v.
Slater
167
F.
Supp.
2d
265
(
D.
C.
Cir
2001)
NMA
recommends
EPA
revise
the
final
rule
making
it
consistent
with
the
Part
800
regulations
and
a
subsequent
2001
interim
guidance
issued
by
the
ACHP...
See
Response
to
comment
summary
27.
1066
3
267
Section
1.8,
C.
7.
h.
Criterion
A,
however
could
be
interpreted
to
mean
that
the
EPA
could
decide
whether
the
operator
has
adequately
evaluated
the
potential
to
affect
sites
that
are
listed
or
potentially
eligible
for
listing
on
the
National
Register
of
Historic
Places.

AGA
recommends
that
EPA
modify
Criterion
A
to
include
the
following:
"
The
adequacy
of
the
determination
that
there
are
no
or
acceptable
impacts
shall
be
consistent
with
procedures
adopted
by
the
State
Historic
Preservation
Officer,''
See
Response
to
comment
summary
27.
1045
3
268
EPA
should
make
clear,
perhaps
in
its
Fact
Sheet,
that
these
provisions
do
not
allow
EPA
to
require
the
discharger
to
take
into
consideration
the
affect
of
construction
activity
on
eligible
historic
properties
that
will
not
be
affected
by
the
discharge
of
storm
water
(
or
allowable
non­
storm
water)
pursuant
to
the
Permit.
See
Response
to
comment
summary
27.
1049
2
National
Historic
Preservation
Act
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
3
269
Comments
to
the
Addition
of
Eligibility
Requirements
Based
on
the
National
Historic
Preservation
Act
(
Proposed
CGP,
pg.
44)
This
is
a
new
requirement
that
is
not
in
the
existing
CGP,
and
is
not
discussed
in
the
proposed
C&
D
ELG.
It
introduces
another
bureaucratic
layer
that
creates
added
expense,
time
delays,
and
confusion.
See
Response
to
comment
summary
27.
1058
3
270
With
the
only
avenue
of
appeal
being
to
contact
the
National
Advisory
Council
on
Historic
Preservation,

this
provision
 
Addendum
B,
page
44,
Scenario
3
 

in
the
proposed
CGP
is
definitely
objectionable
and
impractical.
It
is
debatable
whether
EPA
has
the
authority
to
mandate
on
what
is
largely
a
nonenvironmental
issue
that
has
little
or
nothing
to
do
with
storm
water
or
erosion
control
and
to
empower
national
agencies
not
under
its
direct
authority.
See
Response
to
comment
summary
27.
1058
3
271
The
final
statement
in
Addendum
B
states,
'
Operators
are
reminded
that
they
must
comply
with
applicable
State,
Tribal,
and
local
laws
concerning
the
protection
of
historic
properties
and
places.'
AAR
believes
that
this
statement
is
adequate
to
cover
this
issue,
and
therefore
the
remainder
of
Addendum
B
should
be
removed
from
the
proposed
CGP.
See
Response
to
comment
summary
27.
1058
3
272
As
we
noted
at
that
time,
we
continue
to
object
to
the
assertion
of
any
federal
authority
over
non­
member
fee
lands
within
reservation
areas.
However,
if
EPA
is
to
assert
jurisdiction,
we
agree
a
general
permit
is
appropriate
for
construction
activities.
Our
primary
concern
has
been
the
implementation
of
historic
preservation
review
under
the
National
Historic
Preservation
Act
(
NHPA).
See
Response
to
comment
summary
27.
1044
3
National
Historic
Preservation
Act
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
3
273
 
'
Criterion
A'
also
says
that
the
operator
must
have
'
no
knowledge
of
any
properties
that
may
be
eligible
for
listing
occurring
on
the
construction
site.'
Whether
a
property
may
be
eligible
is
always
a
subjective
determination
and
is
particularly
problematic
when
dealing
with
traditional
cultural
properties
(
TCP)
as
defined
in
National
Register
Bulletin
No.
38.
 

Unfortunately,
the
proposed
general
permit
and
Fact
Sheet
are
silent
on
the
issue
of
how
traditional
cultural
properties
will
be
treated.
In
our
view,
it
is
unacceptable
to
allow
a
mere
assertion
of
a
TCP
to
disqualify
a
person
from
application
under
the
general
permit.
 
However,
we
believe
that
the
inclusion
of
language
about
properties
that
may
be
eligible
for
listing
is
unworkable
and
should
be
deleted,
at
least
in
the
context
of
traditional
cultural
properties.
See
Response
to
comment
summary
27.
1044
3
274
The
permit
indicates
that
'
operators
may
also
contact
city,
county
or
other
local
historic
societies
for
assistance,
especially
when
determining
if
a
place
or
property
is
eligible
for
listing
on
the
Register.'
The
problem,
however,
arises
where
a
party
such
as
an
Indian
tribe
asserts
that
a
property
may
be
eligible
for
inclusion
as
a
traditional
cultural
property
but
nothing
has
been
done
to
actually
list
the
property.
...
A
question
remains
as
to
the
process
to
obtain
'
agreement'
under
Criterion
B.
It
is
not
clear
whether
this
is
an
informal
process
or
whether
the
intent
is
to
incorporate
the
lengthy
NHPA
process
under
36
CFR
§
§
800.04
to
800.06.
The
latter
process
is
clearly
unworkable
in
the
context
of
a
general
storm
water
permit.
On
the
other
hand,
it
is
equally
unworkable
to
have
a
state
or
tribal
office
simply
object
to
the
activity
without
some
process
for
resolving
the
dispute.
We
proposed
an
abbreviated
process
in
our
comments
to
Region
5,
and
urge
your
consideration
of
these
comments.
See
Response
to
comment
summary
27.
1044
4
National
Historic
Preservation
Act
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
3
275
Furthermore,
the
issuance
of
NPDES
permit
has,
on
occasion
in
the
past,
adversely
effected
historic
properties
 
located
in
Arizona.
We
recommend
that
EPA
pursue
a
Programmatic
Agreement,
because
the
draft
NPDES
general
permit
(
i.
e.,
the
current
undertaking)
meets
two
of
the
criteria
listed
at
36
C.
F.
R.
800.14
(
b)
(
1)
for
such
agreements.

Specifically,
the
effects
of
this
draft
permit
on
historic
properties
cannot
be
fully
determined
prior
to
its
approval,
and
non­
federal
parties
are
delegated
major
decision­
making
responsibilities.
See
Response
to
comment
summary
27.
1018
3
276
According
to
Criterion
A
 
(
draft
permit
page
11)
 
,

an
applicant
can
meet
the
permit's
historic
preservation
requirements,
if
they
do
not
have
reason
to
believe
that
construction
activities
will
affect
a
historic
property
or
they
have
no
knowledge
of
historic
properties
on
the
construction
site.
This
method,
in
our
opinion,
fails
to
meet
EPA's
obligation
to
make
a
full
and
good
faith
effort
to
identify
historic
properties
as
required
by
the
National
Historic
Preservation
Act.
In
our
experience,

project
proponents
are
reluctant
to
use
the
services
of
qualified
historic
preservation
professionals
to
identify
historic
properties.
In
addition,
some
applicants
do
not
believe
that
some
types
of
historic
properties,

particularly
Traditional
Cultural
Properties,
actually
exist.
Criterion
C
simply
refers
back
to
Criteria
A
and
B,
and
thus
the
above­
mentioned
concerns
apply
as
well.
See
Response
to
comment
summary
27.
1018
5
National
Historic
Preservation
Act
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
3
277
Criterion
B
 
(
draft
permit
page
11)
 
states
that
applicants
may
enter
into
an
agreement
with
a
State
Historic
Preservation
Office
(
SHPO).
However,
the
primary
purpose
of
SHPOs
under
the
National
Historic
Preservation
Act
is
to
advise
Agency
officials,
not
their
applicants.
The
Arizona
SHPO
does
not
have
the
time
or
the
staff
to
consult
with
EPA's
numerous
applicants.

Furthermore,
we
do
not
have
the
authority
or
obligation
to
consult
with
applicants,
much
less
enter
into
agreement
solely
with
applicants.
We
suggest
that
EPA
participate
in
any
agreements
associated
with
this
criterion.
As
currently
written,
this
criterion
is
unworkable
in
our
opinion.
Criterion
C
simply
refers
back
to
Criteria
A
and
B,
and
thus
the
abovementioned
concerns
apply
as
well.
See
Response
to
comment
summary
27.
1018
3
278
EPA
should
modify
section
1.3.
C.
7
of
the
final
Construction
General
Permit
to
authorize
all
applicants
seeking
coverage
under
the
Construction
General
Permit
to
consult
with
SHPOs
and
THPOs
as
appropriate
under
36
C.
F.
R.
800.2(
c)(
4).
See
Response
to
comment
summary
27.
1072
3
279
Consistent
with
36
C.
F.
R.
800.2(
c)(
4),
EPA
should
provide
notification
to
all
SHPOs
and
THPOs
of
EPA's
authorization
for
use
of
this
process
both
in
the
final
Construction
General
Permit
and
other
notice
as
appropriate,
in
consultation
with
the
Advisory
Council
on
Historic
Preservation.
See
Response
to
comment
summary
27.
1072
3
280
The
proposed
general
permit
states
that
the
existing
NOI
form
should
be
used
for
permit
coverage
until
a
revised
form
becomes
available.
The
existing
form
does
not
have
a
section
to
address
the
Historic
Properties
requirement.
See
Response
to
comment
summary
27.
1073
6
