Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 10/22/2012 Letter from OEA to SHPO 12/10/2012 Letter from OEA to ACHP 4/16/2013 to 4/18/2013 Meeting on Northern Cheyenne Reservation, Lame Deer, Montana. Attendees: OEA, ICF staff, consulting parties Summary or Excerpts of Communication Response/Action Initiating Section 106 process. The letter referenced the Programmatic Agreement for the Tongue River Railroad undertaking that was previously proposed, as follows: “OEA will be re-visiting…the methodology for the identification of historic properties and traditional cultural properties that was developed in the now expired Programmatic Agreement and will send information on those topics under separate cover for your review and comment.” Link: October 22, letter to SHPO Link: EO-1985 on ECT Inviting ACHP to participate in Section 106 process, and to seek the ACHP’s guidance and advice at the beginning of the Section 106 process. The letter referenced the Programmatic Agreement for the Tongue River Railroad undertaking that was previously proposed, as follows: “OEA will be re-visiting…the methodology for the identification of historic properties and traditional cultural properties that were developed in the now expired Programmatic Agreement and will send information on those topics under separate cover for your review and comment. We welcome any advice or guidance you may have for us at this time, in accordance with 36 CFR § 800.2(b)(2).” Link: December 10, letter to ACHP Link: EO-2002 on ECT The agenda included: the purpose of the meeting, an update on the EIS process, proposed Section 106 methodology, tribal caucus, tour of project area, field work methodology, open discussion regarding the project, and next steps. Regarding the PA, on the first day of the meeting, Cathy Nadals addressed the consulting parties as follows: “I know that some of you talked about wanting to have a programmatic agreement. We are at the very beginning stages of the process, and eventually we would want to develop a programmatic agreement to stipulate what we're going to do and what we need to do in order to address concerns…” Page 1 – 1/30/2015 In response to the 10/22/2012 letter, a letter dated 10/30/2012 from MT SHPO included the following statement: “We look forward to further discussion regarded [sic] the APE, methodology for identification efforts and development of a Programmatic Agreement.” Link: October 30, letter from SHPO Link: EI-18996 on ECT Not Applicable Not Applicable Link to Transcript, day 1, 4/16/2013, pages 26 of 143, 74-75 of 143, and 88-89 of 143 Link to Transcript, day 2, 4/18/2013 Link to Sign-In Sheets (EI-20181) Link to Meeting Agenda Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action Later that first day, Rick Starzak said: “And then when one [alternative] is licensed, then there is some sort of agreement or memorandum agreement to get one hundred percent access to look at everything and do detailed surveys. But for all of the alternatives we have access, we want to do field surveys with you to understand what's out there…We don't even know if the final project would be licensed. But if it is licensed, have a programmatic agreement put in place that allows you to get adequate time to do everything that you need to do.” And while presenting the methodology to the consulting parties, Mr. Starzak said: “So if there is a licensed alternative, then we would put into effect an MOA or a PA for completing the Section 106. Now, from the transcripts, I understand, there was a PA, but that was based on no field survey at all. In this case there would be a PA after surveys have been done, to some degree on all of the alternatives where we have access. But then the PA would fill in the gaps and completing the work on the selected alternatives, and that is an opportunity to then really delineate [APE] boundaries, see if there's a way to avoid, minimize, or mitigate [effects on historic properties]. This is after NEPA…” 5/13/2013 Discussion during Monthly Section 106 Teleconference. Rick Starzak. Mr. Starzak reviewed next steps based on the April in-person consultation meeting. These included updating the methodology to address concerns heard during the meeting and planning for the fieldwork season starting in mid-June and scheduled to conclude in August. The proposed methodology involved two phases of analysis: Phase 1 focused on gathering enough information to compare alternatives for the draft Environmental Impact Statement. During this phase, no ground disturbance or testing is contemplated. And, should the Surface Transportation Board license an alternative, Phase 2: more detailed study of the licensed alternative, guided by a Programmatic Agreement. The project team contacted all tribes that offered to assist with field work. Mr. Starzak invited questions but did not receive any regarding the PA. Page 2 – 1/30/2015 Not applicable Link: May 13, 2013 Section 106 Teleconference Link: EI-20250 on ECT Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 6/10/2013 Discussion during Monthly Section 106 Teleconference. Cathy Nadals, Rick Starzak. 11/4/13 Discussion during Monthly Section 106 Teleconference. Rick Starzak, Charlene Vaughn Summary or Excerpts of Communication Response/Action Mr. Starzak explained the approach to the upcoming surveys. The goal was to gather information regarding cultural resources within areas where the STB had been granted access for the purposes of comparing the alternatives. No detailed determinations of eligibility will be made during the NEPA analysis. However, a Programmatic Agreement will be developed pursuant to Section 106 to stipulate measures to mitigate impacts to historic properties once (or if) the Board licenses an alternative. The PA will also include a process for phased identification and evaluation work and will address tribal concerns. Not applicable Link: June 10, 2013 Section 106 Teleconference Link: EI-20251# on ECT Ms. Nadals explained that after the field work, OEA will proceed to develop a PA that will guide completion of the Section 106 process. Mr. Starzak explained that the framework for the PA will begin immediately but that its content will be partly informed by data that emerges from the field work. Tribal input will also be critical. Mr. Starzak explained that consultation with the tribes and SHPO led OEA to conclude that a phased identification, delaying determination of National Register eligibility until later in the process, was appropriate. During monthly calls and the in-person meeting in April, some tribes expressed concerns that archaeological resources not be disturbed, so no shovel testing or other ground disturbance ought to be done. Accordingly, shovel testing that is normally performed as part of determining eligibility and establishing boundaries of sites was not done. In May, SHPO requested that National Register eligibility determinations be deferred until after (and if) the Board licenses an alternative. At this stage, however, enough information has been gathered to understand the likely presence of historic properties for each of the NEPA alternatives. Completion of Section 106 determinations of National Register eligibility studies will be deferred until after (and if) one of the alternatives is licensed. After which, there will be complete property access and the ability to do further field investigation. Charlene Vaughn of ACHP asked for participants to ask any questions about the stated approach. No questions or comments were offered. Page 3 – 1/30/2015 Not Applicable Link: November 4, 2013 Section 106 Teleconference Link: EO-2191 on ECT Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action Ms. Vaughn stated that she is making a note that participants in the teleconference understand that the project is in Step 1 and how alignment with NEPA is occurring. It was noted that only one tribal participant was on the call (Darlene Conrad of the Northern Arapaho Tribe). However, she did not have a question about the phased approach. 1/23/2014 The purpose of this meeting was to discuss the Section 106 process to Meeting among date, the efforts needed to complete the Section 106 process if an OEA, ICF, ACHP, alternative is licensed, and the upcoming February 13-14 meetings with and MT SHPO (by consulting parties in Billings, MT. Discussed at the meeting was that OEA phone). Vicki is conducting a phased identification of historic properties pursuant to Rutson, Cathy 36 CFR § 800.4(b)(2) of the Section 106 regulations, which state, “where Nadals, Josh alternatives under consideration consist of corridors or large land areas, Wayland, Alan or where access to properties is restricted, the agency official may use a Summerville, Rick phased process to conduct identification and evaluation efforts….” This Starzak, Sarah approach was deemed necessary because length and number of Mulligan, alternatives and because OEA was not granted access to large portions of Charlene Vaughn, the APE for each alternative. During the meeting, all parties agreed that Stan Wilmoth, a phased identification effort was appropriate for the proposed rail line. 2/13/2014 On the first day of the meeting, Ms. Nadals brought up the Programmatic 2/14/2014 Agreement: “And I just want to say that at the last meeting that we had Discussion during in Lame Deer, which you know was wonderfully hosted by the Northern Section 106 Cheyenne Tribe, that some of you had said that we should begin Meeting in discussing a Programmatic Agreement, but we felt it was very important Billings. Cathy to provide you with background and the results of the fieldwork this Nadals, Rick summer before moving, you know, in that direction. But we really want Starzak, Conrad to hear from you before we even begin the process of developing a Fisher, Terry Programmatic Agreement about what you want to see in that agreement Clouthier, Ben document. Rather than providing you the draft, we want you to help us Rhodd, Tamara St. create that draft, to make sure that any of your concerns are included in John, Steve Vance, an agreement document that would -- that would lay out what we intend Curley Youpee, to do in the future if the Board licenses an alternative. Because we Chris Jenkins, and haven't been able to do all the fieldwork that we could possibly do at this Page 4 – 1/30/2015 The phased identification discussion was included in the meeting handout. As a result, phased identification was included in the WHEREAS clauses of the draft PA. The use of a PA is consistent with the outcome of the meeting: the very next sentence of the Section 106 regulations cited at the meeting and in the handout [§ 800.4(b)(2)] after “where alternatives under consideration…phased process to conduct identification and evaluation efforts” states: “The agency official may also defer final identification and evaluation of historic properties if it is specifically provided for in a…programmatic agreement…” Transcript for 2-13-2014, pages 56:2-14, 66:21-25 & 67:1-3, 137: 18-25 & 138:1; 139: 1-24; OEA edited the 2011 Programmatic Agreement on the screen using the participant’s input. Links: 2/13/14, 2/14/14 Link: EO-20413 on ECT Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence David Coburn Summary or Excerpts of Communication Response/Action point because of landowner issues or because of the terrain or other reasons.” Ms. Vaughn, ACHP asked “Included in the Final EIS will be the Section 106 Programmatic Agreement, or MOA, correct?” Alan Summerville, ICF, clarified that the Draft Programmatic Agreement would be included in the Draft EIS. Ms. Nadals said: “The Record of Decision would include something that we would like to develop with everyone, which is an agreement document that would lay out the process and the steps that we need to take to complete identification along any licensed alternative, and also, to do evaluation, and also, to provide mitigation for any adverse effects that could result as a consequence of building a railroad.”…“And so once an alternative is licensed, or if one is licensed, we will have an agreement document that we hope we can have your input on -- and we really want that and we need it -- to lay out the process for the identification, additional identification efforts that have to occur and evaluation efforts for tribal sites, historic sites, archeological sites, landscapes, the whole slew of different historic properties that could be affected by a project. And we really hope with this meeting that we can get your input on that. We don't want to just develop a Draft Programmatic Agreement and then just send it around for you to look at. We want to have you help us develop the initial components of that agreement document that's so important to us. And so that's kind of really what we're hoping. We really want -- we want your help. We need your help. Everybody here at this table and sitting around, we need your expertise to help us develop a process to do this – the additional identification, evaluation, and any other studies that you think might be necessary as mitigation.” etc. Immediately after the formal portion of the Section 106 meeting a group of meeting participants began modifying the Programmatic Agreement from Tongue River III (2011 version) to create a new Programmatic Agreement. Page 5 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 3/10/2014 Discussion during Monthly Section 106 Teleconference. Charlene Vaughn, Conrad Fisher, Clint McRae, Chere Jiusto, Terry Clouthier, Steve Brady 3/12/2014 Letter from OEA to SHPO with copy to ACHP Summary or Excerpts of Communication Agenda for this teleconference sent via e-mail to ACHP and all consulting parties was to address: A. Recap of meeting in Billings B. Additional field work in May C. Plan to complete programmatic agreement Ms. Vaughn recommended that OEA prepare a justification to explain why a PA is warranted. Updated the outreach, consultation and fieldwork efforts to date. On page 3, under consultation efforts, the letter references the PA as follows: “OEA recently held a Section 106 consulting party meeting in Billings, Montana, February 13 to 14, 2014, and it was attended by Stan Wilmoth of your office. OEA provided an update on Section 106 to the consulting parties and solicited their comments, questions, and concerns about the progress to date and next steps. Several of the meeting attendees had recommended that we begin work on a PA right away. Consequently, after the meeting was formally adjourned on February 14th, the following consulting party representatives remained behind to work on redrafting the PA that we had developed for the old Tongue River project: • Conrad Fisher, Northern Cheyenne Tribe, Tribal Historic Preservation Officer (THPO) • Terry Clouthier, Standing Rock Sioux Tribe, tribal archaeologist • Ben Rhodd, Rosebud Sioux Tribe, contract archaeologist • Tamara St. John, Sisseton-Wahpeton Oyate, THPO office archivist • Steve Vance, Cheyenne River Sioux Tribe, THPO • Curley (Darrell) Youpee, Ft. Peck Assiniboine and Sioux Tribes, THPO • Chris Jenkins, USACE, Regulatory Branch, Cultural Resources Program Manager • David Coburn, Steptoe & Johnson, representing the TRRC. Page 6 – 1/30/2015 Response/Action OEA prepared an explanation entitled “Justification for Preparing a Programmatic Agreement”. The final explanation is attached to the April 25, 2014 letter from OEA to ACHP. Link: March 10, 2014 Section 106 Teleconference Link: EO-2374 on ECT Link: April 25, 2014 Letter to ACHP Link: EO-2387 on ECT Not Applicable Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action OEA intends to further refine the old PA with the current project description. Once we have completed the administrative edits, we will send around the redrafted PA for your review and comment. We also intend to add some language to the redrafted PA to incorporate recommendations made by the meeting participants on February 14th and 15th. However, OEA will not make any additional changes to the PA until you and the consulting parties have a chance to review the revised draft to ensure that you and the consulting parties are in agreement with these inclusions/changes to the PA.” Link: March 12, 2014 letter to SHPO Link: EO-2244 on ECT In response to OEA’s letter to SHPO on 3/12/14, this letter discussed five items, including the identification effort when there are multiple alternatives and a PA. 3/19/2014 Letter from SHPO to OEA 4/4/2014 Email More specifically item 3 stated: “We support the ongoing identification effort and continue to applaud the effort to get a good look at each alternative. I have requested ICF to let us know the percentage coverage to date of each alternative and have been told they are working in that information. As stated at the Billings meeting in so far as the identification of cultural resources is to inform the selection of the route then as much up front inventory as possible is desirable. And some assessment of eligibility whether it is preliminary or otherwise will be useful. Obviously the regulations do not require 100% identification, particularly where there is a [Programmatic Agreement] PA, but it will, in our opinion, be useful in making and justifying a route choice (if cultural resources are seriously in the mix of considerations).” Link: March 19, 2014 letter from SHPO Link: EI-20421 on ECT Vicki Rutson sent the draft Justification for Preparing a PA to ACHP for Page 7 – 1/30/2015 OEA appreciates SHPO’s comments. OEA agrees. Not Applicable Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence from OEA to ACHP Summary or Excerpts of Communication Response/Action review prior to sharing this with Consulting Parties. OEA did not receive any comments or edits on the Justification for Preparing a PA. 4/9/2014 Email from OEA to Consulting Parties Ms. Nadals sent the draft Justification for Preparing a PA to Section 106 Consulting Parties asking for comments. Link: April 9, 2014 email to Section 106 Consulting Parties (EO-2373) Link: EO-2373 on ECT Not Applicable OEA did not receive any comments or edits on the Justification for Preparing a PA. 4/14/2014 Discussion during Monthly Section 106 Teleconference. Najah DuvallGabriel, Betsy Merritt, Clint McRae, Steve Vance. Purpose of teleconference was to focus on the Justification for Preparing a PA. OEA did not receive any comments or edits on the Justification for Preparing a PA. See meeting summary for this discussion. Please see meeting summary for this discussion. Link: April 14, 2014 Section 106 Teleconference Summary Link: EO-2382 on ECT 4/25/2014 Letter from OEA to ACHP Letter to ACHP notifying them that OEA is preparing a PA. Attachment A to this letter is the Justification for Preparing a PA. Link: April 25, 2014 Letter to ACHP (Justification for Preparing a PA) Link: EO-2387 on ECT Not Applicable 6/9/2014 Discussion during Monthly Section 106 Teleconference. Conrad Fisher, Stan Wilmoth, Najah DuvallGabriel, Betsy Merritt, David Coburn, Clint McRae, Terry Clouthier, Mike Purpose of teleconference was to focus on the draft WHEREAS clauses. Najah Duvall-Gabriel, ACHP, said that generally, the preferred alternative is chosen prior to engaging Section 106 consulting parties. Due to the NEPA process and the Section 106 process being coordinated simultaneously, some of the WHEREAS clauses need to be revised. It would help if the wording clarified that the Section 106 four-step process was started at the same time as the NEPA process. Mr. Duvall-Gabriel will determine which WHEREAS clauses need revising, work on revising the language, and share her suggestions with the Board. Page 8 – 1/30/2015 The NEPA regulations require that agencies designate a preferred alternative in the Final EIS if the agency has not already done so in the Draft EIS. When Section 106 and NEPA are coordinated, an agency would identify the consulting parties prior to designating a preferred alternative. OEA’s approach to engaging consulting parties is consistent with CEQ and ACHP guidance. CEQ & ACHP’s A Handbook for Integrating NEPA and Section 106 (March 2013) states on page 13: “If reasonable alternatives exist, NEPA requires agencies to rigorously explore and objectively evaluate them. Agencies should give a similar level of attention to historic properties as that given to other resources for all alternatives to establish a baseline of Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Scott, Mark Fix, Steve Vance. Summary or Excerpts of Communication Response/Action information to consider during consultation and review.” During the call, Rick Starzak, ICF, noted that the last three WHEREAS clauses on the second page were updated to include the tribes and consulting parties involved in the Section 106 process [that were not previously involved in the 2011 PA]. Since the call, OEA has continued to make revisions to the WHEREAS clauses to address ACHP’s comments, including a teleconference on 7/22/2014. Please see meeting summary for this discussion. Link: June 9, 2014 Section 106 Teleconference Summary Link: EO-2384 on ECT 6/9/2014 Email from NTHP to OEA and ACHP. Betsy Merritt to Najah Duvall-Gabriel with Charlene Vaughn, Reid Nelson, Amy Cole, Vicki Rutson, Cathy Nadals and Rick Starzak 7/14/2014 Discussion during Monthly Section 106 Purpose of e-mail was to suggest a revision to a specific WHEREAS clause that was discussed on the teleconference earlier that day, as follows: ““WHEREAS, the effects on historic properties and tribal sites of significance cannot be fully determined prior to the approval of the TRRC project by the STB, and therefore a programmatic agreement (PA) is appropriate pursuant to 36 CFR 800.14(b)(1)(ii);” [Emphasis used in email] This will make it explicitly clear what the connection is to Section 106, because it parrots this part of the regulations verbatim. I know that this regulation is also cited in the second WHEREAS Clause on p.2, so you may want to combine them, or you could eliminate the cite from the second WHEREAS Clause.” Ms. Vaughn responded that she and Mr. Duvall-Gabriel would review before ACHP submits final comments to the STB on the WHEREAS clauses. Link: June 9, 2014 email from NTHP to OEA Purpose of teleconference was to continue discussing the WHEREAS clauses. Mr. Starzak led the group through the revisions made to the WHEREAS clauses based on the Section 106 teleconference on June 9, 2014 as well as edits and comments from Mr. Wilmoth, Betsy Merritt of Page 9 – 1/30/2015 OEA revised the WHEREAS clauses to address NTHP’s comment, as follows: “WHEREAS, the effects on historic properties and tribal sites of significance cannot be fully determined prior to any approval of the TRRC project by the STB, and therefore a programmatic agreement (PA) is appropriate pursuant to the Section 106 regulations at 36 CFR § 800.14(b)(1)(ii); and,” Ms. Rutson clarified that without 100% access to properties, it was impossible to fully determine significance. Ms. Rutson explained that even though OEA has access to the Colstrip Alternative, it is only one Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Teleconference. Betsy Merritt, Najah DuvallGabriel, Clint McRae, Carrie La Seur, David Coburn, Conrad Fisher Summary or Excerpts of Communication Response/Action the National Trust for Historic Preservation, and Mr. Duvall-Gabriel. There were a few occasions where the edits conflicted with each other or with the Board’s procedures. Ms. Merritt expressed her concern about deferring all identification and evaluation until after an alternative has been chosen, when ideally that information could inform the decision. Carrie La Seur agreed and added that the language of the first WHEREAS clause on the second page was inaccurate. It says that if “significance cannot be fully determined” prior to the Board’s approval than a PA is appropriate. Since all alternatives have been clearly mapped, Ms. La Seur did not think this WHEREAS clause was applicable. Mr. McRae said that significance could be fully evaluated for the Colstrip Alternative. Link: July 8, 2014 email to Consulting Parties alternative out of many and the PA applies to all alternatives. In addition, NEPA requires that OEA analyze all of the alternatives equally. OEA cannot fully determine effects on land that it surveyed because the SHPO and Tribes said not to conduct subsurface tests and it is impossible to fully determine effects for the land where no access was provided. Of the 23,431 acres within the archaeological APE, OEA was granted legal access to 11,995 (51%) of the APE. Because of this, the effects on historical properties cannot be fully determined until or if the Board licenses a build alternative. Regarding the land that OEA did have access to, the SHPO stated that “some assessment of eligibility whether it is preliminary or otherwise will be useful. Obviously the regulations do not require 100% identification, particularly where there is a PA.” (March 19, 2014 letter from SHPO) Therefore OEA conducted pedestrian surveys and assumed that sites were eligible for the purposes of the EIS. Therefore, OEA is following the regulatory requirements that apply to this situation, i.e. effects “cannot be fully determined.” In addition, ACHP’s website has a document entitled Section 106 Archaeology Guidance, dated 1/1/2009, at http://www.achp.gov/archguide/ which includes guidance on pages 14-15 in the form of a response to question #18, as follows: “18. Does the federal agency have to identify or locate every archaeological site for Section 106 review? No. The ACHP’s regulations do not require the identification of all of the archaeological sites within the area of potential effects (APE). Rather, federal agencies are expected to make a “reasonable and good faith effort” [36 CFR § Page 10 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action 800.4(a)(1)] to identify historic properties, including archaeological sites listed or eligible for listing on the National Register in the APE. An agency’s identification effort can be considered reasonable and in good faith when it has appropriately taken into account the factors specified in 36 CFR § 800.4(b)(1) - past planning, research and studies, the magnitude and nature of the undertaking and the degree of federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects. One of the reasons the ACHP’s regulation contains a postreview discovery provision [36 CFR § 800.13] is that the level of effort is reasonable and in good faith, not 100 percent or exhaustive. The costs attendant with work stoppage because of a discovery should be reason enough for a federal agency to put forth a competent professional effort at the identification stage. “ Therefore, OEA is following ACHP’s guidance that applies to this situation, i.e. effects “cannot be fully determined.” Link: July 14, 2014 Section 106 Teleconference Summary Link: EO-2385 on ECT Link to ACHP’s website: http://www.achp.gov/archguide/ 7/22/2014 Meeting among OEA, ICF, and ACHP. Alan Summerville, Richard Starzak (by phone), Vicki Rutson, Cathy Nadals, Charlene ACHP reviewed each of the draft WHEREAS clauses (dated 7/8/2014), provided OEA with revisions and introduced new clauses. ACHP’s comments on the clauses clarified how the Section 106 process will inform the NEPA process; that the Board may or may not approve a build alternative; that in the event the Board does approve a build alternative, the PA will guide resolution of adverse effects on historic properties for any approved alternative, including development of a treatment plan; and that any information gathered would be made available to the northern plains tribes. Page 11 – 1/30/2015 OEA reviewed the ACHP’s comments and incorporated them as appropriate into the WHEREAS clauses distributed to the consulting parties on 8/4/2014. Link: EO-2377 on ECT Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Vaughn, Alan Summerville, and by phone Najah Duvall-Gabriel and Richard Starzak. Summary or Excerpts of Communication Response/Action Purpose of the teleconference was to discuss any concerns about edits made to the WHEREAS Clauses and begin discussion of the Stipulations. OEA had distributed for the meeting the draft WHEREAS clauses of the Programmatic Agreement that were revised based on comments made during the last monthly call and subsequent comments from the MT SHPO, ACHP, NTHP and applicant. Mr. Starzak asked if any of the participants had comments or concerns pertaining to the updated WHEREAS clauses. The most current version of the WHEREAS clauses is dated July 31, 2014 and has been shared with consulting parties via email. Mr. Starzak said that consulting parties were more than welcome to send in additional comments at this time. Discussion during Moving onto the next agenda item, Mr. Starzak explained that the Monthly Section stipulations of the PA would outline procedures for the processes 106 necessary to complete the Section 106 process if an alternative is Teleconference. licensed. Mr. Starzak asked if any participants had suggestions for Clint McRae, Betsy procedures or processes that should be included in the stipulations. Merritt, 1. Clint McRae said that that few participants had comments due to this being an unfamiliar topic for them. Mr. McRae suggested that perhaps the process of how landowners can see the site reports for their property should be included in the stipulations. He had raised this issue in a previous teleconference and wanted an update on the status of the survey information. Mr. McRae asked for a general timeline for when the landowners would receive the detailed site records. 2. Ms. Merritt of the National Trust for Historic Preservation said that one of the things she hopes to see in the PA is a discussion or description of how the Board will take into account the impacts on Page 12 – 1/30/2015 1. Ms. Nadals said that information would be shared with landowners in phases. Mr. Starzak explained that the Cultural Resources team was busy pulling together information to provide the Colstrip landowners with maps of sites and spreadsheet tables summarizing what was identified at each site. Detailed site records are in progress and will need to go through the State Historic Preservation Officer (SHPO) who will assign Smithsonian Numbers, before they can be shared with the landowners. Alisa Reynolds, ICF International, estimated that the detailed site records would be complete in October but that landowners would receive the summarized information with site maps sometime this month. 2. Ms. Nadals agreed and assured Ms. Merritt that the Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action historic properties in its alternative selection process. She wants to be sure that the information that has been gathered on cultural resources will be fully considered by the Board during its decision process. Ms. Merritt said that the PA should explain how this process will occur. Ms. Merritt agreed to think about examples for how this has been handled in the past. Board will be looking closely at the impacts to cultural resources in the EIS which informs their decision. Ms. Nadals asked if Ms. Merritt would consider drafting example language that the STB could incorporate into the stipulations. Link: August 11, 2014 Section 106 Teleconference Summary Link: EO-2390 on ECT Link: August 11, 2014 Email to Section 106 Consulting Parties Link: EO-2377 on ECT 9/3/2014 Letter from ACHP to OEA 9/3/2014 Letter from ACHP to OEA 1. ACHP noted that the NTHP “had raised a concern regarding the proposed language in the WHEREAS Clauses regarding how STB intends to involve consulting parties in the analysis of alternatives to the proposed undertaking. Although STB has indicated that it will consider the effects of each of the alternative routes on historic properties, such analysis should not be conducted in a vacuum. Accordingly, the inquiry [made] by the NTHP is relevant to the STB Section 106 consultation…” Link: September 3, 2014 letter from ACHP Link: EI-20520 on ECT 2. “During the teleconference on July 25, 2014 [sic], the ACHP recommended that STB develop a process Programmatic Agreement (PA) which would outline the procedures to be followed prior as STB selects the preferred alternative for the Tongue River Project. We understood that we were proposing an approach that differs from that recommended by the Tongue River Railroad. However, the ACHP believes that in this particular undertaking, it is critical that STB have transparency and stakeholder engagement in all aspects of decision making. Therefore, we urge STB to take appropriate measures to engage consulting parties as each alternative is Page 13 – 1/30/2015 1. The following Clause was added per the NTHP comment, “WHEREAS, the STB will be comparing the potential impact of each of the build alternatives on historic properties, cultural resources and tribal sites of significance to inform its selection of any build alternative”. This comment was addressed in detail in Stipulation V. Assessment of Effects, which was reviewed by the PA working group on 10/24/2014. Link: September 8, 2014 Email to Section 106 Consulting Parties Link: EO-2394 on ECT 2. The STB reworked the 2011 PA to follow ACHP’s recommended format of a process PA by generally following the format and content of the two BLM process PAs provided by ACHP. OEA has gone to great lengths to provide transparency and stakeholder engagement. OEA has been working with consulting parties since the beginning of the EIS process in the fall of 2012 and continues to work with consulting parties on issues related to the APE, identification and evaluation, assessment of effects etc. OEA has held Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication considered so that issues related to the APE, scope of work for identification and evaluation and assessment of effects are considered in a timely manner. Section 800.6(a) of our regulations, “Protection of Historic Properties” (36 CFR Part 800) states: The agency official shall consult with the SHPO/THPO and other consulting parties, including Indian tribes and Native Hawaiian organizations, to develop and evaluate alternatives or modifications that could avoid, minimize, or mitigate adverse effects to historic properties.” ACHP provided OEA with two examples of a “process PA”, the BLM Gateway Transmission Line Project and the BLM Boardman to Hemingway Transmission Line Project. Link: September 3, 2014 letter from ACHP Link: EI-20520 on ECT 9/3/2014 Letter from ACHP to OEA 3. “Since STB has not yet selected a preferred alternative for the Tongue River Project, the evaluation of alternatives must be incorporated in any PA that will be used by the agency to fulfill the requirements of Section 106. We have recommended to STB during previous teleconferences that it develop a PA that outlines the procedure to be followed for each step of the Section 106 process that will not have been completed prior to executing the PA. The Page 14 – 1/30/2015 Response/Action monthly teleconferences and held two Section 106 meetings in or near the project area. Moreover, the EIS covers fourteen impact areas and associated consultation. Cultural resources have received by far a disproportionate amount of time and effort relative to the other impact areas. Regarding alternatives, the consulting parties participated in the scoping process for the EIS, which entailed the development of a reasonable range of alternatives. OEA arranged for the consulting parties to take a bus tour of the project area and has also provided the consulting parties with the results of the field surveys that covered each alternative. OEA is coordinating the NEPA and Section 106 processes per the March 2013 CEQ/ACHP guidance and as such, the consulting parties will be able to review the analysis of alternatives in the Draft EIS and provide comments on the impacts of each alternative before OEA recommends an alternative to the Board. OEA began revising and re-organizing the 2011 draft PA to demonstrate engagement of consulting parties with Section 106 activities during the NEPA EIS phase, and how they will be engaged to complete the Section 106 process if the STB selects a build alternative. Link: EO-2389 on ECT BLM Gateway process PA Boardman to Hemingway process PA. 3. Stipulation II. Review of Alternatives was added to address this comment (circulated to ACHP and all consulting parties on 10/17/2014). i Other stipulations from the 2011 draft PA were revised to first explain those steps of the Section 106 process have been/will be completed during the NEPA EIS Phase, and the procedures necessary to complete the Section 106 process if the STB Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/3/2014 Letter from ACHP to OEA 9/8/2014 Email to Section 106 Consulting Parties from Rick Starzak 9/8/2014 Discussion during Monthly Section 106 Teleconference. Betsy Merritt, Charlene Vaughn, Conrad Fisher, David Coburn, Summary or Excerpts of Communication Response/Action analysis of alternatives would be done under the Resolution of Adverse Effects in Step IV.” Link: September 3, 2014 letter from ACHP Link: EI-20520 on ECT selects a build alternative. Link: September 26, 2014 Email to Working Group Link: EO-2395 on ECT Link: October 17, 2014 Email to Section 106 Consulting Parties 4. “Since the last teleconference held on August 11, 2014, ended without a discussion regarding the analysis of alternatives, we request that STB include this topic on the next meeting agenda. Other consulting parties may want to share their views regarding the analysis of alternatives as well. Moreover, we believe that STB’s position on this issue be resolved before consulting parties negotiate the avoidance, minimization, and mitigation stipulations.” Link: September 3, 2014 letter from ACHP Link: EI-20520 on ECT As a follow up to the discussion during our August 11 call, attached to the e-mail was a chart showing the NEPA/Section 106 timing, and a draft of the PA Stipulations for all consulting parties to review and comment. The Stipulations forming the second part of the PA, following the WHEREAS clauses, were lightly edited from the 2011 PA, but changed where necessary to reflect the current approach recommended by ACHP. These were distributed for the September 8 monthly call. Link: September 8, 2014 Email to Section 106 Consulting Parties Link: EO-2394 on ECT Purpose of the teleconference was to discuss the stipulations and NEPA/Section 106 timeline that were distributed on September 8. Stipulations. Ms. Nadals explained that the stipulations shared with all consulting parties in the September 8th email, and again on the day of the call, contained only light edits [to the 2011 PA]. This was to ensure that no major changes were made without the express input of the consulting parties. She stated that she added a “WHEREAS clause” to address Page 15 – 1/30/2015 4. Stipulation II. Review of Alternatives was added to address this comment. Link: September 26, 2014 Email to Working Group Link: EO-2395 on ECT Link: October 17, 2014 Email to Section 106 Consulting Parties Not applicable OEA explained to the consulting parties that the ACHP’s comments in their letter would be incorporated into the PA. To follow the letter, OEA added new Stipulation I for Roles and Responsibilities, new Stipulation II for Review of Alternatives, and began revising the draft PA to follow the content and format of the two BLM process PAs provided by ACHP. Ms. Nadals thanked the Northern Cheyenne Tribe for their Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Clint McRae Summary or Excerpts of Communication Response/Action comments made by Ms. Merritt during the last Section 106 teleconference. input and clarified that they will be submitting both comments on the additional whereas clause as well as the stipulations. Link: September 8, 2014 Section 106 Teleconference Summary Link: EO-2396 on ECT Mr. Starzak added that the stipulations had been edited based on the 2011 PA. He explained how the stipulations would be updated based on comments received from the ACHP. He asked the consulting parties to review the stipulations and reviewed the process that had been set up to complete work on the PA (identification, evaluation, effect assessment and treatments). He noted that excavation [data recovery] is not the only treatment option that is being considered under the PA but that it includes avoidance and other options. He stressed that data recovery would be the last option. He mentioned how the ACHP comments would be addressed and inserted into the current version of the PA. He stressed that comments from consulting parties will help the STB significantly in updating the PA. Mr. Starzak then briefly described the components of the PA. Ms. Nadals mentioned that OEA had received comments on the stipulations from ACHP on September 3rd. Ms. Vaughn, ACHP, explained that the comments had also been sent to all consulting parties just prior to the Section 106 teleconference. Ms. Nadals noted that she had not seen them prior to the call, but thanked her for sending them. She then asked participants if there were any other consulting parties that wished to offer comments on the stipulations. David Coburn, of Steptoe and Johnson, mentioned that the applicant would be submitting comments on the stipulations soon. Conrad Fisher, of the Northern Cheyenne Tribe, said that the Tribe would most likely be submitting comments on both the stipulations and the “WHEREAS clauses” by the next Section 106 teleconference, after reviewing the comments from ACHP. Page 16 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/8/2014 Letter from ACHP to OEA 9/8/2014 Letter from ACHP to OEA Summary or Excerpts of Communication Response/Action Mr. Starzak asked if all had received the NEPA-106 PA timeline which was attached to the call reminder along with the agenda, stipulations and WHEREAS clauses. During the last Section 106 teleconference, Clint McRae asked for a timeline detailing how the Section 106 process relates to the NEPA process. Mr. McRae thanked OEA for the timeline that had been developed, indicating that it was very helpful. Link: September 8, 2014 Email to Section 106 Consulting Parties Link: EO-2394 on ECT Analysis of Alternatives 1. A stipulation should be inserted at the beginning of the Stipulations section that clarifies that the STB is coordinating the review of alternatives for this undertaking as part of its NEPA review. The STB also should clarify how the review process outlined in the draft PA will inform the analysis of alternatives, including the selection of a preferred alternative. Although we understand that the STB intends to address this matter in the WHEREAS Section, it also needs to be addressed in the Stipulations section. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT Roles and Responsibilities 2. Given the prominent role that the applicant, Tongue River Railroad Company (TRRC), will assume in project planning and implementation, we recommend that a stipulation be added to the stipulations section that clarifies the roles and responsibilities of key consulting parties. We believe that all consulting parties would find this information useful since other Federal agencies such as BLM will be involved in project reviews. Further, it will help to avoid confusion in implementing the PA once it is executed. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT Page 17 – 1/30/2015 1. Stipulation II. Review of Alternatives was added to address ACHP’s comment. Link: September 26, 2014 Email to Working Group Link: October 17, 2014 Email to Section 106 Consulting Parties 2. Stipulation I. Roles and Responsibilities was added to address ACHP’s comment.ii In addition, OEA was not receiving many comments during or in between the Monthly Section 106 Teleconference so it formed a working group to meet every other week to review the ACHP’s September 8 guidance and work to revise the PA for distribution to the entire group of consulting parties each month. The working group’s first meeting was held on September 26, 2014, to review new Stipulations I and II that ACHP asked to be inserted into the draft PA. Link: September 26, 2014 Email to Working Group Link: October 17, 2014 Email to Section 106 Consulting Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/8/2014 Letter from ACHP to OEA Summary or Excerpts of Communication Response/Action Identification Plan 3. The draft PA starts with the assumption that an alignment will be chosen. The ACHP has previously advised the STB that it may be premature to make this assumption. Given the STB’s ability to recommend a “no-build” option, we need to recognize that this option could be selected as the “preferred alternative.” We, therefore, suggest that the PA outline specific measures that will be taken once the analysis of alternatives is completed and the STB makes a decision. Accordingly, the STB should clarify in the draft PA how the four-step Section 106 review process will be coordinated during the analysis of alternatives, and what role the consulting parties will have as determinations and findings are made. To defer involvement of consulting parties in findings and determinations until the preferred alternative is selected would be imprudent. Moreover, it would likely leave the STB open to challenges regarding the preferred alternative and questions about whether other alternatives may have avoided adverse effects of concern to consulting parties. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT Parties 3. The draft PA is written as though the Board had licensed a build alternative because the PA would only be used in that situation. If the Board chooses not to license a build alternative, no historic properties would be affected, and the PA would become moot. OEA recommends an alternative to the Board based on the EIS process. The CEQ regulations require all agencies to consider the No Action Alternative. In addition, OEA is not deferring involvement of consulting parties in findings and determinations until the preferred alternative is selected. The consulting parties participated in the scoping process for the EIS, which entailed the development of a reasonable range of alternatives. OEA arranged for the consulting parties to take a bus tour of the project area and has also provided them with the results of the field surveys that covered each alternative. OEA is coordinating the NEPA and Section 106 processes per the March 2013 CEQ/ACHP guidance and as such, the consulting parties will be able to review the analysis of alternatives in the Draft EIS and provide comments on the impacts of each alternative. Nevertheless, this ACHP comment led to re-structuring for this section of the 2011 PA to show what aspects of the four step Section 106 process were completed or partially completed during Phase I (NEPA EIS Phase) and how the four-step Section 106 process would be completed during Phase 2, in the event that the Board licenses a build alternative. Stipulation IV-Identification and Evaluation was revised from the 8/28/2014 version of the PA by creating the Page 18 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action following three subsections to clarify this process: A. First Phase-Review of Alternatives, B. Second Phase-Field Surveys if a Build Alternative is Approved, and C. Second Phase-Determination of Eligibility if a Build Alternative is Approved. 9/8/2014 Letter from ACHP to OEA Development of Treatment Plans 4. Further explanation is needed in this stipulation regarding how the applicant, TRRC, will consult with consulting parties to develop treatment plans. The Stipulations section should be explicit in encouraging the Contractor to give priority consideration to measures that would avoid adverse effects to historic properties. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT Link: October 17, 2014 Email to Section 106 Consulting Parties 4. OEA, letter to ACHP dated 11/28/2014: The draft PA we are currently developing with the Section 106 consulting parties sets forth the four-step Section 106 process through consideration of alternatives and sets forth the process for developing treatment plans should the STB approve a build alternative. We understand that, unless and until the STB approves a specific build alternative, the treatment plan(s) cannot be finalized. Should the STB approve a specific build alternative, the treatment plan(s) will be developed with the full participation of consulting parties identified for the specific alternative approved. Obviously, if the STB were to deny TRRC’s proposed rail line construction and operation, or if were to approve the No Action alternative, there would be no need for subsequent development of treatment plan(s). Revised Section VI, Subsection B, Development of the Treatment Plan(s) to provide timing, process, and participation of Montana SHPO, applicant TRRC, STB and the consulting parties identified for the specific alternative, assuming that the STB approves a build alternative. At the working group call on November 21, 2014, language was added to the mitigation measures to bolster avoidance. Moreover, clauses addressing the treatment plan were included in the Whereas clauses Page 19 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action of the October 17 and November 10 drafts of the PA. 9/8/2014 Letter from ACHP to OEA Development of Treatment Plans 5. We also are concerned about the notion that a treatment plan can be prepared for a portion of the line. This concept needs to be better explained in the PA, and have agreement of affected consulting parties. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT 9/8/2014 Letter from ACHP to OEA Development of Treatment Plans 6. Finally, the treatment of the Wolf Mountain Battlefield, a National Historic Landmark (NHL) must adhere to Section 110(f) of the NHPA and Section 800.10 of the ACHP’s regulations, which requires a higher consideration of alternatives to minimize harm to the NHL. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT 9/8/2014 Letter from ACHP to OEA Consultation on Developing Treatment Plans 7. During the analysis of alternatives, consulting parties should understand the extent to which the STB has considered measures to avoid adverse effects on historic properties on the particular alternative. It is our understanding that once the rail alignment is Page 20 – 1/30/2015 Link: November 28, 2014 Letter to ACHP Link: EO-2411 on ECT Link: December 8, 2014 Email to Section 106 Consulting Parties 5. The BLM Boardman to Hemingway example of a process PA provided by ACHP allows treatment plans to be developed and reviewed for different segments. The text may be useful to further explain, if needed. Link: EO-2389 on ECT BLM Gateway process PA Boardman to Hemingway process PA 6. The Wolf Mountain Battlefield NHL would only be affected if the Board chooses to license one of the Decker build alternatives. The text was revised in the 12/5/14 working group meeting by inserting the underlined phrase as follows: WHEREAS, given the designation of the Wolf Mountains Battlefield as an NHL, the STB must adhere to Section 110(f) of the NHPA and Section 800.10 of the ACHP’s regulations, which requires a higher consideration of alternatives to minimize harm to the NHL and has invited the U.S. Department of Interior, National Park Service, National Landmarks Program (NLP), and the NLP has agreed, to participate in consultation and invited to be a concurring party in the development of this PA. Link: December 8, 2014 Email to Section 106 Consulting Parties 7. The text in Stipulation V Assessment of Effects was revised during the Working Group meeting on 12/5/14 to explain adverse effects on historic properties for all alternatives in the Draft EIS, and Attachment D was added to summarize this information in the PA for all Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/8/2014 Letter from ACHP to OEA Summary or Excerpts of Communication Response/Action selected, the planning process will not be very flexible. Thus, once a preferred STB alignment is chosen, consulting parties will be limited in requesting modifications. It is therefore important that the consulting parties be able to share their comments on alternatives during the evaluation of an alternative and in advance of the Board’s decision. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT the consulting parties to review and consider. If a preferred STB alignment is chose, consulting parties will be able to share their comments. Under “Resolution of Effects”, the following text was added to Stipulation VI.4. “Each Treatment Plan will incorporate measures identified by other consulting parties who have expertise or interest in properties listed on or eligible for the National Register” and to Stipulation VI.5. “Whenever possible avoidance of adverse effects shall be the preferred alternative. In consultation with the consulting parties, TRRC shall develop specific procedures to preserve historic properties and tribal sites of significance in place. These procedures may include minor changes to the rail alignment or construction method to avoid or reduce impacts, and/or monitoring historic properties by historians, archaeologists and tribal members for sites of significance during construction.” Please follow the Link below to see text edits. Link: December 8, 2014 Email to Section 106 Consulting Parties 8. OEA, letter to ACHP dated 11/28/2014: As noted above, the Draft EIS will set forth each alternative analyzed and will make a comparative assessment of each alternative’s effects on the environmental disciplines required under NEPA and the National Historic Preservation Act (including the No Action alternative). For impacts to historic and tribal sites of significance, we conducted extensive surveys in 2013 and 2014 and set forth the data collected during those surveys (with the exception of specifics regarding confidential tribal data). The consulting parties, as well as members of the public and other stakeholders, will have the opportunity to comment on the EIS and the Consultation on Developing Treatment Plans 8. The Stipulations section, therefore, needs to emphasize that the identification and evaluation process will be coordinated with the State Historic Preservation Officer (SHPO) and Tribal Historic Preservation Officers (THPOs) to ensure that adequate baseline information is prepared for below ground historic properties, cultural landscapes, and traditional cultural properties associated with each alternative. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT Page 21 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action draft PA, which will be made available to the public in the Draft EIS. Comments received from the consulting parties and others will inform the Board’s consideration of the preferred alternative. Moreover, clauses addressing coordination with the Montana SHPO and the Tribal Historic Preservation Officers and the consulting parties’ ability to comment on the alternatives were added to the draft PA distributed on September 26, 2014 (Section II, Review of Alternatives) and to subsequent drafts (October 17 Draft (Whereas clauses, Section I, Roles and Responsibilities, Section II, Review of Alternatives); November 10, Draft (Whereas clauses, Section I, Roles and Responsibilities, Section II, Review of Alternatives, Section III, Area of Potential Effects)). The text for Stipulation IV Identification and Evaluation was revised and Attachment B-Identification Plan was added to clarify how the identification and evaluation process will be coordinated with SHPO, tribes, and other consulting parties, and it was discussed during the Working Group meeting on 12/5/14. Please follow the Link below to see text edits. Link: December 8, 2014 Email to Section 106 Consulting Parties 9/8/14 Letter from ACHP to OEA Construction 9. Perhaps the STB should revise this stipulation to make it clear under what circumstances construction will proceed. We also recommend that stipulations be added to be precise about how construction management, staging areas, use of Tribal monitors, etc., will be determined for the preferred alternative, and what consulting parties will be involved in this decision making. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT Page 22 – 1/30/2015 9. The two BLM process PAs provided by ACHP were reviewed for format and content. Stipulation II and VIII.A. were added to address the comment. Link: December 8, 2014 Email to Section 106 Consulting Parties Link: EO-2389 on ECT BLM Gateway process PA Boardman to Hemingway process PA. Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/8/2014 Letter from ACHP to OEA 9/8/2014 Letter from ACHP to OEA 9/8/2014 Letter from ACHP to OEA 9/8/2014 Letter from ACHP to OEA Summary or Excerpts of Communication Response/Action Emergency Situations 10. We encourage the STB to add a new section that is related to emergency situations. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT 10. This was discussed in the Working Group meeting on 12/5/2014. The Emergency Situations Stipulation XIII was based on the ACHP’s MOA template on its website. Link: December 8, 2014 Email to Section 106 Consulting Parties 11. This was discussed in the Working Group meeting on 12/5/14. To address ACHP’s comment, the Dispute Resolution stipulation was divided into two phases (A & B) and the 2011 PA text substituted by text from the “process PA” provided by ACHP, for the BLM Gateway PA. Link: December 8, 2014 Email to Section 106 Consulting Parties Link: EO-2389 on ECT BLM Gateway process PA Boardman to Hemingway process PA. Dispute Resolution 11. As currently drafted, the stipulation for dispute resolution allows “any party to this PA” to object. Does this mean that all consulting parties can file objections? Are objections during the alternative analysis to be handled differently from objections during project implementation? This stipulation needs to be revised. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT Tribal Coordination 12. This stipulation should recognize that there may be a need to amend tribal protocols if new tribal leadership is elected and proposes a different approach to coordinating the undertaking. To address this potential change to approved tribal protocols, we recommend that language be included in the PA that recognizes the need for amendments to the ID Plan. Link: September 8, 2014 Letter from ACHP Link: EI-20518 on ECT Public Participation 13. The STB needs to include in the Stipulations section language that allows the public to file objections regarding the implementation of the terms of this PA. While the filing of reports is helpful, it is unclear what steps should be taken if the public wants to file objections to the actions, findings, or determinations that are required under the terms of the PA. Link: September 8, 2014 Letter from ACHP Page 23 – 1/30/2015 12. This was discussed in the Working Group meeting on 12/5/14. Stipulation XV. Tribal Coordination, Section B. was added to address this comment. Link: December 8, 2014 Email to Section 106 Consulting Parties 13. This was discussed in the Working Group meeting on 12/5/14. Stipulation XVI. Public Participation, Section B. was added to address the comment, and is based on the BLM Boardman-Hemingway process PA example provided by ACHP Link: December 8, 2014 Email to Section 106 Consulting Parties Link: EO-2389 on ECT Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/8/2014 Discussion during PA Working Group Teleconference #1 Doug Melton, Stan Wilmoth, Betsy Merritt, David Coburn, Conrad Fisher 9/30/2014 Letter from Colstrip Landowners Group to OEA Summary or Excerpts of Communication Response/Action Link: EI-20518 on ECT BLM Gateway process PA Boardman to Hemingway process PA. Purpose of the teleconference was to discuss the stipulations ACHP asked to be added: Alternative Consultation Stipulation and Roles and Responsibilities Link: September 26, 2014 Email to Working Group Link: EO-2395 on ECT 1. The letter states that the eighth WHEREAS clause appears to contemplate the choice of a route by the STB prior to the full identification and consideration of potentially significant cultural resources. It also questioned whether a PA was appropriate because the Tongue River Railroad is not a complex project: “PAs are not an option available to the agency unconditionally…Only the ‘complex project’ language appears to have potential application to the TRR project. Nowhere in the proposed PA is there any explanation of why this project should be considered ‘complex’.” Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Stipulation I Roles and Responsibilities and Stipulation II. Review of Alternatives were added to address this comment (circulated to ACHP and all consulting parties on 10/17/2014). Link: October 17, 2014 Email to Section 106 Consulting Parties 1. The Section 106 regulations at 36 CFR § 800.4(b)(2) allow for a phased identification of historic properties: “Where alternatives under consideration consist of corridors or large land areas, or where access to properties is restricted, the agency official may use a phased process to conduct identification and evaluation efforts.” OEA added the following WHEREAS clause to help clarify: “WHEREAS, the STB may or may not approve construction and operation of the TRRC rail line, the STB developed this PA to defer final identification and evaluation of historic properties pursuant to 36 CFR § 800.4(b)(2), to phase the application of the criteria of adverse effect pursuant to 36 CFR § 800.5(a)(3), and to continue consultation to avoid, minimize and mitigate the potential adverse effects of the Undertaking to historic properties and tribal sites of significance in accordance with 36 CFR § 800.6(a);“ OEA’s approach is consistent with CEQ and ACHP guidance. CEQ & ACHP’s A Handbook for Integrating Page 24 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action NEPA and Section 106 (March 2013) states on pages 1314: “The Section 106 process does not require agencies to identify and evaluate historic properties in the area of potential effects for all NEPA alternatives; however, the preferred alternative may not be selected until late in the NEPA review, or may change during that review… Section 106 allows the identification and evaluation of historic properties and assessment of effects to be phased for large land areas or in cases of restricted access. In some circumstances, the agency may defer identification, evaluation and assessment of effects through a formal agreement, such as a PA. As specific aspects or locations of an alternative are refined or access is gained, the agency should complete its efforts to identify and evaluate the potential effects to historic properties.” Regarding the need for a PA, OEA prepared a justification for the PA in response to ACHP’s recommendation and distributed it to the consulting parties (finalized April 25, 2014). As OEA stated in the Justification for a PA, the Project is complex, consisting of ten alternatives that encompass approximately 240 miles and 11,975 acres of possible railroad rights-ofway. However, that “complex project” condition is not the only time a PA may be used. The Section 106 regulations at 36 CFR § 800.4(b)(2) allow for a phased identification of historic properties: “The agency official may also defer final identification and evaluation of historic properties if it is specifically provided for in a memorandum of agreement executed pursuant to § 800.6, a programmatic agreement executed pursuant to § 800.14(b), or the documents used by an agency official to comply with the [NEPA] Page 25 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action pursuant to § 800.8.” OEA is phasing the identification of historic properties and it is using a programmatic agreement as the instrument to defer final identification and evaluation. 9/30/2014 Letter from Colstrip Landowners Group to OEA Effects can be fully determined prior to approval. 2. “Finally we do not agree that the language of Section 800.14(b)(1)(ii) – “When effects on historic properties cannot be fully determined prior to approval of an undertaking” – applies to this proposed project. To the contrary, determining effects on historic properties along all alternative routes is feasible prior to the agency’s decision. As the agency appears to believe otherwise, we request an explicit property description of what portions of the alternatives cannot be fully analyzed prior to the agency’s final decision.” Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Page 26 – 1/30/2015 Link: CEQ/ACHP Handbook Link: April 25, 2014 Letter to ACHP Link: EO-2387 on ECT Link: October 17, 2014 Email to Section 106 Consulting Parties 2. OEA did not change the clause, because we could not perform archaeological and tribal surveys on private land where landowners did not provide us access. The operative words are “cannot fully.” OEA cannot fully determine effects on land that it surveyed because the SHPO and Tribes said not to conduct subsurface tests and it is impossible to fully determine effects for the land where no access was provided. The commenter has not explained how we would do otherwise. Of the 23,431 acres within the archaeological APE, OEA was granted legal access to 11,995 (51%) of the APE. Because of this, the effects on historical properties cannot be fully determined until or if the Board licenses a build alternative. Regarding the land that OEA did have access to, the SHPO stated that “some assessment of eligibility whether it is preliminary or otherwise will be useful. Obviously the regulations do not require 100% identification, particularly where there is a PA SHPO.” (March 19, 2014 letter from SHPO) In addition, the SHPO and the Tribes did not want OEA to disturb the APE with subsurface testing. Therefore OEA conducted Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action pedestrian surveys and assumed that sites were eligible for the purposes of the EIS. OEA added the following WHEREAS clause to help clarify: “WHEREAS, the STB may or may not approve construction and operation of the TRRC rail line, the STB developed this PA to defer final identification and evaluation of historic properties pursuant to 36 CFR § 800.4(b)(2), to phase the application of the criteria of adverse effect pursuant to 36 CFR § 800.5(a)(3), and to continue consultation to avoid, minimize and mitigate the potential adverse effects of the Undertaking to historic properties and tribal sites of significance in accordance with 36 CFR § 800.6(a);“ [emphasis added]. 36 CFR § 800.5(a)(3) states: “Where alternatives under consideration consist of corridors or large land areas, or where access to properties is restricted, the agency official may use a phased process in applying the criteria of adverse effect consistent with phased identification and evaluation efforts conducted pursuant to § 800.4(b)(2).” Because OEA would not gain access to the restricted remaining land until or if the Board licenses a build alternative , we are following the regulatory language that applies to this situation at § 800.14(b)(1)(ii), i.e. “A programmatic agreement may be used: …when effects on historic properties cannot be fully determined prior to approval of an undertaking.” Regarding “which portions of the alternatives cannot be fully analyzed prior to the agency’s final decision,” those maps are being distributed separately. Link: October 17, 2014 Email to Section 106 Consulting Parties Page 27 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication 9/30/2014 Letter from Colstrip Landowners Group to OEA Identifying some effects after authorizing construction would disadvantage the No Action Alternative as a viable option. 3. If effects turn out to be more serious or widespread than understood at the decision point, the No Action Alternative will no longer be available. The STB will have committed itself irrevocably to construction. This outcome would be a poor use of the considerable resources, government and private, devoted to making the best decision for all involved. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT 9/30/2014 Letter from Colstrip Landowners Group to OEA Preamble: 4. We would like a clarification here that the STB's duty extends to the full scope of NHPA and its implementing regulations, not just the section mentioned here. We would also like some commitment as to the overall timeline in which the STB would carry out its legal duties under the PA, if the PA takes effect. The twelve-year lifetime of the proposed PA is far too long for the Landowners to live in limbo, especially given the decades this proposal has already dragged on. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Response/Action Page 28 – 1/30/2015 3. The use of a PA is fully justified in this situation. See Justification for Preparing a PA (finalized April 25, 2014). OEA is also complying with NEPA by disclosing potential impacts of the build alternatives to the decision maker and the public. The Draft EIS will demonstrate that OEA adequately characterized the potential impacts for each alternative so that the decision makers can make a reasoned choice among alternatives. Link: April 25, 2014 Letter to ACHP Link: EO-2387 on ECT 4. This was discussed during the Working Group meeting on 12/5/14. In Stipulation I. Roles and Responsibilities, section A. OEA added references to other applicable sections of the NHPA, including Section 101(d)(6)(B), Section110(f) and Section 304. The primary purpose of a Programmatic Agreement, however, is to satisfy the requirements of Section 106 of the NHPA under the regulations, in this case specifically: to defer final identification and evaluation of historic properties pursuant to 36 CFR § 800.4(b)(2), to phase the application of the criteria of adverse effect pursuant to 36 CFR § 800.5(a)(3), and to continue consultation to avoid, minimize and mitigate the potential adverse effects of the undertaking to historic properties and tribal sites of significance in accordance with 36 CFR § 800.6(a). Stipulation XXII Duration was revised. The length of time the PA remains in effect was shortened to 10 years per ACHP’s suggestion. Link: December 8, 2014 Email to Section 106 Consulting Parties Link: EO-2389 on ECT BLM Gateway process PA Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/30/2014 Letter from Colstrip Landowners Group to OEA 9/30/2014 Letter from Colstrip Landowners Group to OEA 9/30/2014 Letter from Colstrip Landowners Group to OEA Summary or Excerpts of Communication Response/Action Identification Plan: 5. Many of the Landowners have long family relationships with the land to be crossed and personal knowledge of historically and culturally significant sites that may be affected by the rail line. Most have had little or no opportunity to share this information. The oral history surveys prescribed in National Register Bulletin 24 have not taken place. There is no barrier to collecting this information immediately. Participants with relevant knowledge should receive reasonable financial reimbursement for their time. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Identification Plan: 6. The 15-day timeline for response by PA consulting parties on each Phase I ID Report, and again for submitting final comments, is far too short. The Landowners are working people participating in this process in their spare time. At some points during the agricultural calendar, they are effectively unavailable for weeks. To ensure the Landowners' ability to participate meaningfully, the minimum turnaround for their response should be 45 days. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Identification Plan: 7. The five days allowed for the STB to provide missing information or determine that additional information is not needed may be inadequate where a significant data gap is identified. We also request an automatic extension period of at least 15 days on any deadline named in the PA, if requested in writing by one of the Page 29 – 1/30/2015 Boardman to Hemingway process PA 5. This sentence about collecting additional information from landowners was added to Stipulation IV Identification and Evaluation: The Contractor will conduct the additional Phase I Surveys, collect information from landowners and other knowledgeable parties, conduct Phase II Testing and National Register Evaluations, and prepare the Identification Reports (Phase I ID Report) and Evaluation Reports (Phase II Evaluation Report). Additionally, information landowners offered on properties in the APE was utilized to inform the results of the EIS. Additional information can be collected as part of Phase 2 if a build alternative is selected. Link: October 17, 2014 Email to Section 106 Consulting Parties 6. This was distributed for the Working Group meeting on 12/5/14. Since the applicant wanted to shorten the time frame and Colstrip Landowner Group wanted to lengthen it, the suggested appropriate compromise is to leave it as 15 days as originally stated in the 2011 PA. Link: December 8, 2014 Email to Section 106 Consulting Parties 7. This was distributed for the Working Group meeting on 12/5/14, the timeframe was left as is. Link: December 8, 2014 Email to Section 106 Consulting Parties Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/30/2014 Letter from Colstrip Landowners Group to OEA 9/30/2014 Letter from Colstrip Landowners Group to OEA Summary or Excerpts of Communication Response/Action interested parties, and reasonable financial reimbursement for the Landowners' time required to review reports, or if deemed necessary by the Landowners, reasonable financial reimbursement for a qualified expert approved by the Landowners to assist them with this review. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Finalization of Treatment Plan(s): 8. The 15-day time line for PA consulting party responses on information deficiencies is inadequate. To ensure the Landowners' ability to participate meaningfully, the minimum tum around for 8. In response to the comment, the 15-day timeline was their response should be 45 days. The Landowners will require expanded to 30-days. Note the draft PA illustrates that expert assistance to review the sufficiency and quality of the an additional 45-day or 60-day response periods to the Treatment Plans for their property. We request reasonable financial consulting parties are available. reimbursement for a qualified expert approved by the Landowners Link: October 24, 2014 Email to Working Group to assist them with this review. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT 9. OEA notes the concern, but the consulting parties have an adequate time frame of 45 or 60 days to respond. The STB must close the comment period in order to complete its own obligations with this stipulation, as shown in bold in the current version of the PA”, which Finalization of Treatment Plan(s): states: “The PA consulting parties will have 45 days 9. Landowners will not willingly be bound by any clause that interprets from the receipt of the complete information, or the their failure to comment as concurrence. determination that additional information is not Link: September 30, 2014 Letter from Carrie La Seur required, to comment on the Treatment Plan(s). If no Link: EI-20551 on ECT additional information is requested, the PA consulting parties will have 60 days from receipt of the initial Treatment Plan(s) to submit comments. A copy of any comments sent to STB will be sent simultaneously to the MT SHPO. If any PA consulting party fails to submit its comments within 45 days of the receipt of the Page 30 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/30/2014 Letter from Colstrip Landowners Group to OEA 9/30/2014 Letter from Colstrip Landowners Group to OEA 9/30/2014 Letter from Colstrip Landowners Group to OEA Summary or Excerpts of Communication Response/Action Data Recovery Plan: 10. We are concerned that subsection (c), regarding the Contractor's duty to conduct data recovery in accordance with the Data Recovery Plan, includes no timeline and could potentially be delayed indefinitely. We request a clear timeline. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Review of Data Recovery Reports: 11. The 15-day timeline for PA consulting party responses on informational deficiencies is inadequate. To ensure the Landowners' ability to participate meaningfully, the minimum turn around for their response should be 45 days. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Construction: 12. The Landowners are concerned that the PA contemplates consideration of "the full range of treatment options (including avoidance)" after a route decision has been made. The only way that the STB can realistically consider the full range of options is to analyze all the data described in the Stipulations prior to the route decision. In addition, a phased review of data while construction is underway may foreclose options that would have been available prior to construction. As a practical matter, delays and route changes will be far more costly to TRRC during construction, putting Page 31 – 1/30/2015 complete information, or 60 days of receipt of the initial Treatment Plan(s) if it is complete, STB may assume that party’s concurrence with the Treatment Plan(s). The STB will make any required revisions to the Treatment Plan(s), as appropriately, within 45 days of the close of the comment period, taking into consideration the comments received during this review period.” 10. Stipulation VII.E. was distributed for the Working Group meeting on 12/5/14. It provides the Contractor 45 days to complete the Final Data Recovery Report. The length of time the Contractor needs to complete data recovery may vary, depending on the size and complexity of the historic property. Link: December 8, 2014 Email to Section 106 Consulting Parties 11. Stipulation VII.D. was distributed for the Working Group meeting on 12/5/14. The total timeframe is 60 days. Link: December 8, 2014 Email to Section 106 Consulting Parties 12. Stipulations VII. A. and B. were added to describe the full range of treatment options available to the STB after a route decision has been made. Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/30/2014 Letter from Colstrip Landowners Group to OEA 9/30/2014 Letter from Colstrip Landowners Group to OEA Summary or Excerpts of Communication Response/Action additional pressure on the Contractor and the STB to set aside serious concerns. For other interested parties, being forced to raise objections during construction creates the risk of being required by a court to post a bond while attempting to have the PA enforced, which the Landowners cannot afford to do. Only a full review of all data prior to the route decision will leave all options open and protect all parties’ rights. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Construction: 13. The Landowners will require expert assistance to review the sufficiency and quality of the Contractor's data recovery fieldwork/treatment on their land. We request reasonable financial reimbursement for a qualified expert approved by the Landowners to assist them with this review. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Changes to the Rail Line Alignment/Other Areas Subject to Direct Impacts: 14. The language of this stipulation represents the first notice the Landowners have had that there are plans for staging areas or work camps. Such facilities represent many potential impacts that have not yet been considered at all in the planning process, such as damage to roads and other infrastructure, and law enforcement needs. We are very concerned that the STB would propose to consider these impacts, along with those created by construction access routes and completely unknown "changes to the alignment," after selecting an alternative. These impacts are completely knowable in advance if the agency makes the effort to acquire the information. Again we object to any plan to postpone collection of this vital data until after an alternative is chosen. As above, the Landowners will require expert assistance to review Page 32 – 1/30/2015 13. The STB will use an independent third-party contractor, working under its sole supervision, direction and control, and at TRRC’s expense, to assist the STB in the review of reports, including data recovery reports. 14. The staging areas are within the right of way and the draft stipulation from the 2011 PA was incorrect in listing work camps, material sources/gravel quarries, and overburden disposal areas. TRRC does not plan to have work camps. Gravel will come from an existing quarry, and overburden would be used for fill within the ROW. The stipulation does not list new roads, burdens on law enforcement or “unknown ‘changes to the alignment.’” OEA has sought and TRRC has provided sufficient information to characterize the potential impacts. The STB will use an independent third-party contractor, working under its sole supervision, direction and control, and at TRRC’s expense, to assist the STB in the review of reports. Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 9/30/2014 Letter from Colstrip Landowners Group to OEA 9/30/2014 Letter from Colstrip Landowners Group to OEA 9/30/2014 Letter from Colstrip Landowners Group to OEA Summary or Excerpts of Communication Response/Action the sufficiency and quality of supplemental reports. We request reasonable financial reimbursement for a qualified expert approved by the Landowners to assist them with this review. The Landowners request at least 45 days to provide comments. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Link: December 8, 2014 Email to Section 106 Consulting Parties Discovery: 15. The Discovery Plan creates the same need for expert assistance. We request reasonable financial reimbursement for a qualified expert approved by the Landowners to assist them with this review. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Curation: 16. The Landowners express their preference for preservation in place of all archeological, cultural, and paleontological materials discovered on their property, and their wish to be consulted on the handling of such materials before any removal from the Landowners' individual properties. The Landowners wish to receive a detailed report on and receipt for any such materials prior to their removal. Finally, the Landowners request that the STB require a bond from TRRC prior to the beginning of construction sufficient to cover the expense of handling and returning any such materials to private property owners. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Dispute Resolution: 17. Given the possibility that the Landowners will not ultimately sign the PA, but have participated in its development and will continue to have a significant interest in its enforcement, they request language that would grant them access to review of disputes by the Council as described under subsections (a) - (f), instead of the lesser level of review offered to members of the public at subsection (g). The Page 33 – 1/30/2015 15. The STB will use an independent third-party contractor, working under its sole supervision, direction and control, and at TRRC’s expense, to assist the STB in discovery and other historic preservation needs under the PA. Link: December 8, 2014 Email to Section 106 Consulting Parties 16. Stipulation VI.C.6. states: “If avoidance is not possible, in-place preservation will be the preferred option.” This was distributed for the Working Group meeting on 12/5/2014. The STB will use an independent thirdparty contractor, working under its sole supervision, direction and control, and at TRRC’s expense, to assist the STB in the disposition and appropriate curation of any artifacts or archaeological materials. Link: December 8, 2014 Email to Section 106 Consulting Parties Link: EO-2389 on ECT BLM Gateway process PA Boardman to Hemingway process PA. 17. Stipulation XIV-Dispute Resolution was divided into two phases (A & B) and the 2011 PA text substituted by text from the “process PA” provided by ACHP, for the BLM Gateway PA. The use of the process PA example text addresses the comment, as it clarifies consulting parties participate in consultation. Link: December 8, 2014 Email to Section 106 Consulting Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 10/10/2014 Discussion during PA Working Group Teleconference #2. David Coburn, Chris Jenkins, Betsy Merritt, Terry Clouthier 10/20/2014 Discussion during Monthly Section 106 Teleconference. Carrie La Seur, Lana Gravatt, Najah DuvallGabriel, Mike Scott, Clint McRae, Conrad Fisher 10/24/2014 Summary or Excerpts of Communication Response/Action Landowners also request the right to initiate Council review of an objection in the event that the STB declines to do so. Link: September 30, 2014 Letter from Carrie La Seur Link: EI-20551 on ECT Parties Based on PA working group comments, 10/10/2014, a summary of the field survey results, including the sessions from 2014, will be included as an attachment to the draft PA. The next letter to the MT SHPO, dated November 17, 2014, includes a summary of the field results. Purpose of the teleconference was to discuss Step 2 – Review of Alternatives. Link: October 10, 2014 Email to Working Group To address NTHP comment, the following comment was added to Stipulation III: “[We should coordinate with analysis for cumulative impacts being developed for the EIS. Specifically for induced development at the mine itself.]” During 10/10/2014 meeting, the working group defined which Tribal Members would participate. “Per OEA, tribal members should be defined in the WHEREAS clauses.” Link: October 17, 2014 Email to Section 106 Consulting Parties Purpose of the teleconference was to discuss the current versions of: WHEREAS clauses, and new Stipulations I: Roles and Responsibilities and II: Review of Alternatives. Mr. Duvall-Gabriel said, before moving on from the WHEREAS Clause causing concern [regarding effects cannot be fully determined], that OEA should clarify how they are coordinating the activities for development of the PA and the coordination on steps of the Section 106 process. Link: November 10, 2014 Email to Section 106 Consulting Parties During the call OEA said the letters from ACHP were posted on the STB’s website. OEA prepared a version of the draft PA that had comments received embedded in the document to be distributed to all the consulting parties for the next monthly call on 11/10/2014. Link: October 20, 2014 Section 106 Teleconference Summary Link: EO-2370 on ECT Purpose of the teleconference was to discuss Step 3 - Assess Effects. Link: November 10, 2014 Email to Section 106 Consulting Page 34 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Summary or Excerpts of Communication Correspondence Discussion during Link: October 24, 2014 Email to Working Group PA Working Group Teleconference #3 Conrad Fisher, Stan Wilmoth, Betsy Merritt, David Coburn 1. Whereas: because of the several alternative build routes, the effects on historic properties (which includes tribal sites of significance) cannot be fully determined prior to any approval of the TRRC project by the STB, and there for a programmatic agreement(PA) is appropriate pursuant to Section 106 regulations at 36 CFR 800.14 (b)(1)(ii);and etc. Link: Comment from Lana Gravatt 10/27/2014 Email Link: EI-20564 on ECT from Lana Gravatt 2. Whereas, historic properties (which includes tribal sites of significance) within the actual boundaries of APE, will be protected and given every consideration under the American Indian religious act of 1978 within the NEPA Process and before approval of TRRC by STB, etc. Link: Comment from Lana Gravatt Link: EI-20564 on ECT Draft Programmatic Agreement Stipulations 1. “The current draft programmatic agreement (PA) circulated by STB does not appear to include all of the ACHP’s recommended revisions outlined in our letter of September 8, 2014 to STB. Nor does the draft PA include comments submitted by other consulting parties. 10/30/2014 Letter Since no explanations are provided in the draft PA, we question from ACHP to OEA whether it was ready for circulation. Nevertheless, we request that STB revise the current draft PA to include all comments and recirculate it to all consulting parties with an explanation of comments submitted on the stipulation and STB’s proposed action.” Link: October 30, 2014 Letter from ACHP Page 35 – 1/30/2015 Response/Action Parties 1. This was discussed during the Working Group meeting on 12/5/14. Not applicable under NHPA. Also, it should be noted that private landowners did not provide access for surveys to fully identify archaeological and tribal resources and all alternatives must be treated equally. Link: December 8, 2014 Email to Section 106 Consulting Parties 2. AIRFA was addressed in the WHEREAS clause at the bottom of page 4. During the 12/5/14 meeting, the Working Group discussed this clause and made no modifications. Link: December 8, 2014 Email to Section 106 Consulting Parties 1. OEA has been making revisions to the PA based on consulting party comments, including ACHP's comments, for the past ten months. OEA circulated a draft document to consulting parties on 11/10/2014 combining the WHEREAS Clauses and Stipulations I – VI. This document shows comments from consulting parties and tracked changes to the text that have resulting from consultation thus far. Link: November 10, 2014 Email to Section 106 Consulting Parties Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action Link: EI-20571 on ECT 10/31/2014 Discussion during PA Working Group Teleconference #4 Betsy Merritt, Ben Rhodd, Conrad Fisher, David Coburn Purpose of the teleconference was to discuss Step 4 – Resolve Effects, Avoidance Measures, Minimization Measures, Treatment Plan Link: October 24, 2014 Email to Working Group Not applicable Link: November 10, 2014 Email to Section 106 Consulting Parties 11/4/2014 Letter from Colstrip Landowners Group to OEA This letter contains additional comments from the Colstrip Landowners Group on the WHEREAS clauses and Stipulations I – IV. It expresses their concern that comments from the 9/30/14 letter were not included in the draft PA distributed to consulting parties on 10/20/14. Link: November 4, 2014 letter from Carrie La Seur to STB Link: EI-20570 on ECT OEA circulated a draft document to consulting parties on 11/10/2014 combining the WHEREAS Clauses and Stipulations I – VI. This document shows comments from consulting parties and tracked changes to the text that have resulting from consultation thus far. This matrix shows OEA responses to the Colstrip Landowners Group comments from the 9/30/14 letter. Stipulations I-Roles and Responsibilities, II-Review of Alternatives (see endnotes 1 and 2) and III Area of Potential Effects were all added as a result of ACHP’s letter dated 9/8/2014, and so only Stipulation IV-Identification and Evaluation was in previous versions of the PA made available for comment. Link: November 10, 2014 Email to Section 106 Consulting Parties 11/7/2014 Discussion during PA Working Group Teleconference #5 Najah DuvallGabriel, Betsy Merritt, David Coburn, Stan Wilmoth, Conrad Fisher, Ben Rhodd The purpose of this teleconference was to continue reviewing Stipulations V and VI with the working group and discuss with ACHP what their remaining concerns are and how OEA can better address them. OEA is circulating this Matrix to address ACHP’s concern that comments have been left unaddressed. Page 36 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 11/7/2014 Email from Stan Wilmoth 11/10/2014 Email from Richard Starzak 11/17/2014 Letter from OEA to SHPO with ACHP copied Summary or Excerpts of Communication Response/Action Provided edits on Stipulations V and VI Link: November 7, 2014 Email from Stan Wilmoth Edits were incorporated into Draft PA in Stipulations I.E., V.C. and V.E. Link: November 10, 2014 Email to Section 106 Consulting Parties Link: December 8, 2014 Email to Section 106 Consulting Parties Mr. Starzak emailed the working group a brief discussion of the stipulations with the following attachments: ACHP’s letter dated 9/8/2014, two BLM example templates for process PAs, and the consolidated draft PA that was distributed to consulting parties on 11/10/14. All consulting parties had received ACHP’s e-mail of 9/8/2014, but the letter and two BLM process PAs were re-sent as a courtesy to the working group. Link: November 10, 2014 Email to Working Group Link: EO-2389 on ECT Updated SHPO on the identification effort and development of the draft programmatic agreement as follows: “OEA held a Section 106 consulting party meeting in Billings, Montana, February 13 and 14, 2014, and several of the meeting attendees recommended that work on a Programmatic Agreement begin immediately. Since that meeting, OEA has worked with the consulting parties on a regular basis to develop the draft Programmatic Agreement. In April 2014, upon the advice of ACHP, OEA provided the consulting parties with the justification for developing a Programmatic Agreement. In June through July 2014, OEA worked with the consulting parties to develop the recitals, or WHEREAS clauses of the draft Programmatic Agreement. From August 2014 through the present time, OEA continues to work with the consulting parties to develop the other sections of the draft Programmatic Agreement, including the stipulations and appendices. The draft Programmatic Agreement stipulates measures that would be taken to complete the identification and evaluation efforts in accordance with C.F.R. Part 800.4(b)(2) and to phase the application of the criteria of adverse effect in accordance with 36 C.F.R. Part 800.5(a)(3). It also Page 37 – 1/30/2015 Not applicable Not applicable Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action outlines measures that would be taken to avoid, minimize, or mitigate the effects on historic properties and tribal sites of significance in accordance with 36 C.F.R. Part 800.6(a). The draft Programmatic Agreement will be attached to the Draft EIS for further review and comment by the consulting parties and the public. In a letter dated September 8, 2014, the Advisory Council on Historic Preservation asked that two stipulations be added to the draft Programmatic Agreement: 1) Roles and responsibilities of key consulting parties, and 2) Analysis of alternatives considered under NEPA and how that analysis is informed by the historic properties review process in the draft Programmatic Agreement, including the selection of a preferred alternative. OEA has established a working group to regularly revise the draft Programmatic Agreement. Deputy SHPO Dr. Wilmoth has participated in the working group, and joined our first teleconference held on September 26, 2014. Other members of the working group represent the U.S. Army Corps of Engineers, the Department of the Interior-Bureau of Land Management, the Northern Cheyenne, the Rosebud Sioux, the Standing Rock Sioux, the National Trust on Historic Preservation, and TRRC (the applicant). The working group meets twice a month, and the group’s revisions have been circulated to the rest of the consulting parties before each monthly call for discussion, review and comment.” 11/28/14 Letter from OEA to ACHP Link: November 17, 2014 Letter to SHPO Link: EO-2403 on ECT This letter provided ACHP with an overview of the consultation process for the Draft PA and a response to each issue raised by ACHP in their September 3rd letter. Attached to the letter was a matrix showing how each comment from ACHP has been addressed as well as the updated draft stipulations. Link: November 28, 2014 Letter to ACHP Page 38 – 1/30/2015 Not Applicable Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action Link: EO-2411 on ECT 12/5/14 Discussion during PA Working Group Teleconference #6 Najah DuvallGabriel, Charlene Vaughn, Betsy Merritt, David Coburn, Doug Melton, Barbara Miller, 12/7/14 Email from Doug Melton 12/7/14 Email from Doug Melton 12/7/14 Email from Doug Melton 12/7/14 Email from Doug Melton The purpose of this teleconference was to continue reviewing Administrative Stipulations with the working group and discuss with ACHP what their remaining concerns are and how OEA can better address them. This teleconference was also used to discuss any comments from Section 106 Consulting Parties that had not yet been addressed. 1. On page 1 in the third Whereas clause, I am assuming that the Decker Alternative is the same as the 2007 western alignment and would still tie in with the existing railroad near the Spring Creek Mine. If this is the case you should probably add Big Horn County to the list of other counties. The railroad, mine and Tongue River Dam are all in Big Horn rather than Rosebud County. Link: December 7, 2014 Email from Doug Melton 2. On Page 5, 5th full whereas clause, I don't have a problem with the clause, I would point out undertakings in the Tongue River Valley can go from fairly small-such as installing signs, building fences to large, complex actions such as yours. Link: December 7, 2014 Email from Doug Melton 3. Page 10 2(f). You might also want to add some language for borrow sources that involve split estate minerals or BLM managed surface where the Federal approval would be a different process than the ROW grant. Link: December 7, 2014 Email from Doug Melton 4. Page 11-12, Under Section IV.B, Second Phase Surveys if a Built Alternative is approved. Is there any thought of adding something about Geo-archaeological modeling at areas that have high potential for buried cultural deposits, such as river crossings, but where Page 39 – 1/30/2015 Discussions during this Working Group meeting are reflected in the draft PA circulated to Section 106 Consulting parties on December 8, 2014. Link: December 8, 2014 Email to Section 106 Consulting Parties 1. Inserted “Big Horn” per e-mail comment #1 from Doug Melton, BLM, received on 12/7/2014. Final Scope of Study Maps indicated the two Decker alternatives reach Big Horn County. 2. No changes to the 12/8/2014 PA were necessary. 3. Subsection “2(g).” added to the draft PA to address this comment. 4. Field Survey to be conducted during Phase II: This section of the ID Plan (on page 34, #3), already addresses consideration of “geo-archaeological modeling.” Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 12/7/14 Email from Doug Melton 12/7/14 Email from Doug Melton 12/7/14 Email from Doug Melton 12/7/14 Email from Doug Melton 12/7/14 Email from Doug Melton Summary or Excerpts of Communication Response/Action surface indications may not be apparent. Link: December 7, 2014 Email from Doug Melton 5. Page 27, you probably already realize this, but you may want to separate the line for the Eastern Shoshone and Oglala Sioux Tribe. Link: December 7, 2014 Email from Doug Melton 6. Page 51: Lithic Scatters. The fact that Tongue River Silicified Sediment is the most common raw material is interesting. I would interested in seeing a photograph of what is being called Tongue River Silicified Sediment. Most previous studies have shown porcellanite to be the most common raw material used in the Tongue River Valley and surrounding areas of southeast Montana. The 2006 Miles City Class I Overview gives a good summary of lithic materials available for use in southeast Montana. Link: December 7, 2014 Email from Doug Melton 7. Page 54: Built Resources. Although it lacks standing structures, I was surprised to see the CCC camp at Spotted Eagle was not listed in this section. The camp is currently in the Miles City Shooting Range. Link: December 7, 2014 Email from Doug Melton 5. Thank you, the formatting was corrected in the 12/8/2014 draft of the PA that was sent to the consulting parties for review. 6. Text revised. 7. The CCC Camp was identified in the APE for the following alternatives: Tongue River, Tongue River East, Tongue River Road, and Tongue River Road East. Changed table 2 in Attachment D of the PA by adding the former CCC camp in the footnote for “Other”. No change to page 54, because this property type did not fit within one of the major built resources categories. 8. Page 57. Lee community District: for the Lee Community District, you may want to check with the Montana SHPO for additional work done 8. ICF checked with SHPO, and they have no information for later coal studies to the north might contain additional newer than was in the draft PA from Ferguson 2002. No information on the district. changes to PA were necessary. Link: December 7, 2014 Email from Doug Melton 9. Finally, has there any thought to doing anything with the existing rail line from the former Rosebud Mine to the mainline terminus west of 9. ICF inventoried the segment of the rail line, which is Forsyth? I understand that this not necessarily a part of the Tongue currently abandoned and a spur line that branches off River Railroad, but any upgrading to connect it to the main line of this segment, as well. No changes needed to PA. would be viewed as a connected action. I would also point out that in This line is being addressed in the EIS. and of itself, the line is a historic resources. Link: December 7, 2014 Email from Doug Melton Page 40 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 12/8/14 Discussion during Monthly Section 106 Teleconference. Carrie La Seur, Mark Fix, Charlene Vaughn, Mike Scott, Doug Melton, Jean Riley Summary or Excerpts of Communication Response/Action The purpose of this teleconference was to provide an update on the NEPA process, summarize the section 106 PA updates, and discuss a schedule for comments on the draft PA. Link: December 8, 2014 Email to Section 106 Consulting Parties N/A 1/15/15 Email from Colstrip Landowners Group to OEA WHEREAS Clause 4. “STB and ICF do not appear to be giving equivalent consideration to the potential impacts on each of the alternatives. This statement is inadequate and inaccurate to describe the actual process to date.” Link: January 15, 2015 Comments from Carrie La Seur 1/15/15 Email from Colstrip Landowners Group to OEA WHEREAS Clause 9. “Attachment D is a Summary of Previously Recorded Cultural Resources and includes no information about survey access granted on each alternative. The reference to Attachment D is misleading: it does not say what this Whereas clause says it says.” Link: January 15, 2015 Comments from Carrie La Seur This WHEREAS clause was developed in response to the consulting parties, including the ACHP and the NTHP who believed the STB needed to explain how it intended to assess impacts to cultural resources within each of the alternatives and to compare such or any impacts. Please refer to Tables 4 and 5 in Attachment D to this PA which show how many identified and estimated resources would be affected by each of the build alternatives. The tables demonstrate that equivalent consideration is being given to identifying the potential impacts of each of the alternatives. While Attachment D begins with a Summary of Previously Recorded Cultural Resources, Table 3 in Attachment D, which is referenced in the WHEREAS clause, does include information on survey access granted on each alternative. It identifies the following information about restricted access to property, including: 1) Total Acres in the APE, 2) Total Acreage Accessible, 3) Percent Access Granted, That access to property was restricted to approximately 50 Page 41 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action percent of the combined APE comes from Table 3 in Attachment D to this PA. In the last row of Table 3, entitled “Unique Segment Total” and under the third column entitled “Percent Access Granted,” the value of 51% is provided, which is approximately 50%. The Section 106 regulations do not require that a federal agency identify a specific percentage of historic properties within an APE for a defined undertaking. Rather, the regulations require an agency to make a reasonable and good faith effort to identify historic properties. 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners WHEREAS Clause 9. “The 50% access figure is not accurate for the Colstrip Alternative. Because much more access (the landowners estimate over 90%) is available on the Colstrip Alternative, the PA should not apply to that route. The unsubstantiated 50% number appears to be a total for all alternatives, which does not justify a PA for alternatives where far greater access has been granted.” Link: January 15, 2015 Comments from Carrie La Seur WHEREAS Clause 13. “Landowners dispute the statement that there has been an appropriate level of field investigation.” Page 42 – 1/30/2015 The appropriate level of effort for field investigation under the Section 106 regulations is described in relevant part at 36 C.F.R. § 800.4(b)(1) as “a reasonable and good faith effort to carry out appropriate identification efforts, which may include…sample field investigation, and field survey.” We have done so here. (Please refer to Attachment D, Table 3 regarding your query regarding percentages of access and areas surveyed.) Moreover, the 90% estimate overstates the percentage access for the Colstrip Alternatives, see Table 3 in Attachment D for detailed percentages. PA justification: A phased approach and use of a PA are appropriate in this case under the Section 106 regulations at 36 C.F.R. § 800.4(b)(2) because the “alternatives consist of corridors or large land areas, or where access to properties is restricted.” These circumstances apply to this undertaking. The appropriate level of effort for field investigation under the Section 106 regulations is described in relevant part at 36 C.F.R. § 800.4(b)(1) as “a reasonable and good faith Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Group to OEA Summary or Excerpts of Communication Response/Action Link: January 15, 2015 Comments from Carrie La Seur effort to carry out appropriate identification efforts, which may include…sample field investigation, and field survey.” We have done so here. (See previous response.) In addition to survey work that has already been completed, this PA sets forth a phased approach to complete additional field surveys not completed during Phase I because of restricted property access, should STB select a build alternative. Note, the CEQ/ACHP Handbook for Integrating NEPA and NHPA (March 2013), says on page 13: “The Section 106 process does not require agencies to identify and evaluate historic properties in the area of potential effects for all NEPA alternatives…” The level of field investigation is also consistent with the ACHP’s Section 106 Archaeology Guidance (01/01/2009) which includes the following question and answer: “18. Does the federal agency have to identify or locate every archaeological site for Section 106 review?” No. The ACHP’s regulations do not require the identification of all of the archaeological sites within the area of potential effects (APE). Rather, federal agencies are expected to make a “reasonable and good faith effort” to identify historic properties, including archaeological sites listed or eligible for listing on the National Register in the APE. An agency’s identification effort can be considered reasonable and in good faith when it has appropriately taken into account the factors specified in 36 CFR § 800.4(b)(1) - past planning, research and studies, the magnitude and nature of the undertaking and the degree of federal involvement, the nature and extent of potential effects on historic Page 43 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action 1/15/15 Email from Colstrip Landowners Group to OEA WHEREAS Clause 31. “Which records, according to Attachment D, covered less than 10% of the alternatives, rendering this analysis fairly meaningless.” Link: January 15, 2015 Comments from Carrie La Seur 1/15/15 Email from Colstrip Landowners Group to OEA WHEREAS Clause 33. “STB and ICF have never conducted interviews with individuals knowledgeable about history along the route, as directed by federal guidelines.” Link: January 15, 2015 Comments from Carrie La Seur 1/15/15 Email from Colstrip Landowners Group to OEA I. Roles and Responsibilities. Part E. Tribes. Part 2. “How can the agency know what’s anticipated when so little ground has actually been surveyed?” Link: January 15, 2015 Comments from Carrie La Seur 1/15/15 Email from Colstrip Landowners Group to OEA I. Roles and Responsibilities. Part F. Applicant. “TRRC is paying for consultant services on cultural resources, so anything they disclose only adds to their expense. TRRC’s motivation is contrary to the stated goals of the PA. A third party monitor is needed to ensure accurate disclosure, not ‘shovel and shut up.’” Link: January 15, 2015 Comments from Carrie La Seur 1/15/15 Email from Colstrip Landowners II. Review of Alternatives. Part B: In the EIS, the STB compared the potential impact of each of the alternatives on historic properties, cultural resources and tribal sites of significance to inform its eventual Page 44 – 1/30/2015 properties, and the likely nature and location of historic properties within the area of potential effects. OEA searched the available databases for identifying previously recorded archaeological and historic sites kept on file with the Montana SHPO. These are the sites noted in Attachment D, Tables 1 and 2. We simply identified the number of sites previously recorded in the study area. The records search level of effort is consistent with 36 C.F.R. §800.4(b)(1), which states: “The agency official shall take into account past planning, research and studies…” The WHEREAS clause in question states: “the STB has been advised by some consulting parties, including tribal members and ranchers, that the Tongue River Valley is an area of rich cultural heritage.” That is factually correct. OEA and ICF complied with federal guidelines and consulted extensively with tribal members and landowners while in the field and through meetings and teleconferences. Sentence deleted. The STB is the lead federal agency under Section 106 and NEPA and is responsible for accurately delineating the APE. Text revised to clarify. Third party monitor: Any third party contractor hired by TRRC to monitor would be under the STB’s sole direction and control. Please see earlier response regarding the impacts analysis for each build alternative, summarized in Tables 4 and 5 in Attachment D to this PA. Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Group to OEA Summary or Excerpts of Communication Response/Action selection of the preferred alternative. “The landowners consider this an inaccurate statement at this point.” Link: January 15, 2015 Comments from Carrie La Seur 1/15/15 Email from Colstrip Landowners Group to OEA II. Review of Alternatives. Part C. Step 1: Initiation of the Section 106 Process. “There was inadequate public consultation after the Applicant identified its new preferred alternative.” Link: January 15, 2015 Comments from Carrie La Seur In the implementation of its Section 106 responsibilities for the proposed undertaking, STB maintains a publicly accessible website that contains information regarding the project, including all the alternatives under consideration. OEA has also held monthly conference calls with the PA consulting parties to update them about the project and respond to any comments. OEA is committed to ensuring the consulting parties are fully involved in the Section 106 processes for this project. 1/15/15 Email from Colstrip Landowners Group to OEA II. Review of Alternatives. Part C. Step 2: Identification of Historic Properties. “The regulation only authorizes delayed identification and evaluation of historic properties where access is restricted, which is not the case on the Colstrip Alternative.” Link: January 15, 2015 Comments from Carrie La Seur A phased approach is allowable under the Section 106 regulations at 36 C.F.R. § 800.4(b)(2) in cases where the “alternatives consist of corridors or large land areas.” These circumstances apply to this undertaking. 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA III. Area of Potential Effects (APE). Part B. Second Phase-APE if a Build Alternative is Approved. “Everything contemplated after this point is salvage archaeology.” Link: January 15, 2015 Comments from Carrie La Seur III. Area of Potential Effects (APE). Part 1. Defining the APE. “This horizontal APE is inadequate in areas where deep cuts into steep land formations would need to be made to comply with safety regulations.” Link: January 15, 2015 Comments from Carrie La Seur Page 45 – 1/30/2015 Not so. See Stipulation VI, which clearly describes that avoidance of adverse effects through consultation is the preferred alternative for treatment. If avoidance is not possible, then preservation in place through consultation is the next preferred alternative for treatment. Only if avoidance or preservation in place cannot be implemented is data recovery or “salvage archaeology” considered. STB would ensure that the horizontal APE for areas where deep cuts are required would be developed with consideration of applicable safety regulations. The next subsection (III.B.1.b.) has a provision to expand the APE if needed through consultation: “If a build alternative is approved, the STB will consult with the MT SHPO, tribes and other consulting parties to identify any Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action locations where the APE should be extended beyond the buffer zones established during the first phase – that is 200 feet for archaeological and tribal resources and 1,500 feet for built resources.” 1/15/15 Email from Colstrip Landowners Group to OEA III. Area of Potential Effects (APE). Part 2. Amending the APE. Part d. “We need an acknowledgment that this will constitute a final agency action eligible for judicial review, so that genuine recourse will exist.” Link: January 15, 2015 Comments from Carrie La Seur Sentence modified for clarity. 1/15/15 Email from Colstrip Landowners Group to OEA IV. Identification and Evaluation. Part A. First Phase-Review of Alternatives. Part 1. Inventory. “Landowners do not acknowledge that this study includes all the resources named here, particularly informant and ethnographic interviews, which have been almost entirely neglected.” Link: January 15, 2015 Comments from Carrie La Seur Ethnographic interviews are planned for Phase II. Therefore, the words “or ethnographic” have been deleted from the PA. However, spontaneous, unplanned interviews were conducted during the Phase I surveys. All other studies are summarized in Attachment D of this PA, and the Draft EIS will provide additional detail. 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA IV. Identification and Evaluation. Part A. First Phase-Review of Alternatives. Part 1. Inventory. The Phase I Inventory, completed for areas one mile away from each of the alternatives (2 miles total). “Actual scope of survey activity was far less.” Link: January 15, 2015 Comments from Carrie La Seur IV. Identification and Evaluation. Part A. First Phase-Review of Alternatives. Part 2. Alternatives surveys during Phase I. “Pedestrian surveys covered only a small portion of accessible land on the Colstrip Alternative APE.” Link: January 15, 2015 Comments from Carrie La Seur IV. Identification and Evaluation. Part B. Second Phase-Field Surveys if a Build Alternative is Approved. States: Conduct field surveys in the APE that were not completed during Phase I conduct interviews and collect additional information from landowners, and prepare the Identification Reports (ID Reports). “All this can be done at this point. The regulation does not justify postponing these activities on the Colstrip Alternative, where near-total access is available. The Contractor hasn’t even tried.” Page 46 – 1/30/2015 We are merely making reference to the Phase I background research, not field surveys. See directly below in A.2. Pedestrian surveys were undertaken within the APE where access was granted, not the entire parcel. See Table 3 in Attachment D to this PA for details regarding the extent of pedestrian surveys. The purpose of the Phase I field surveys was to collect equivalent data from each of the alternatives in order to compare potential impacts under NEPA. Table 3 in Attachment D shows the acreage and percentage of the APE where archaeologists and tribal members completed pedestrian transect surveys during Phase I for the accessible APE for each alternative. Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA Summary or Excerpts of Communication Response/Action Link: January 15, 2015 Comments from Carrie La Seur IV. Identification and Evaluation. Part C. Second Phase-Determinations of Eligibility if a Build Alternative is Approved. “The timeline is unclear. If a build alternative is approved, it appears that TRRC can go ahead and condemn private land even as these Phase II evaluations go on. These evaluations may be meaningless if they’re happening simultaneously with construction of the railroad.” Link: January 15, 2015 Comments from Carrie La Seur V. Assessment of Effects. Part A. On Previously surveyed areas. “Again, surveys to date have been inadequate.” Link: January 15, 2015 Comments from Carrie La Seur VI. Resolution of Adverse Effects. Part A. “Again, this clause anticipates salvage archaeology rather than preventive analysis and mediation.” Link: January 15, 2015 Comments from Carrie La Seur VI. Resolution of Adverse Effects. Part C. Development of Treatment Plan(s). Part 1. “Sounds as if portions of the railroad may be under construction while Treatment Plans are still in development for others, foreclosing options for rerouting. The PA repeatedly shuts down action alternatives before information is available and fully evaluated, to the benefit of TRRC.” Link: January 15, 2015 Comments from Carrie La Seur Page 47 – 1/30/2015 The evaluations would not be meaningless at specifically identified sites because it would have to be completed prior to any construction at or around that site. Table 3 in Attachment D to this PA indicates how many acres of the APE for each alternative were surveyed. Not so. Data recovery would only be considered in cases where avoidance or preservation in place is not possible. This clause refers to engineering surveys, not construction. It is assumed any “rerouting” would occur inside the originally defined APE, and Stipulation IX describes the process if there is any “rerouting” outside the APE, including consultation and reapplication Stipulations V. through VII for the amended APE. The PA will be signed after the analysis of alternatives in the EIS. Stipulation VI prioritizes treatment alternatives, including: primary consideration of alternatives for avoidance of historic properties; secondary consideration of alternatives that preserve historic properties in place; and only as a last resort consideration of data recovery. Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email Summary or Excerpts of Communication Response/Action VI. Resolution of Adverse Effects. Part C. Development of Treatment Plan(s). Part 3. States: If appropriate, TRRC may attempt to negotiate tribal access to public or private lands that are not currently accessible to tribes for plant gathering purposes. “TRRC is going to negotiate on behalf of the tribes? That is outrageous.” Link: January 15, 2015 Comments from Carrie La Seur VI. Resolution of Adverse Effects. Part C. Development of Treatment Plan(s). Part 5. States: …TRRC shall develop specific procedures… “Now TRRC is developing procedures, not the archaeologists? Unacceptable. Demonstrates the problem of phasing: at this point, TRRC will be in charge, not the agency.” Link: January 15, 2015 Comments from Carrie La Seur VII. Data Recovery. Part C. Data Recovery Plan. States …a Data Recovery Plan will be drafted and incorporated into the Treatment Plan(s). “By whom?” Link: January 15, 2015 Comments from Carrie La Seur VIII. Construction. Part B. “What about the Final Data Recovery Report referenced above? Where does it fit in and how does it differ from the ID Report and Evaluation Report? A timeline graphic would be helpful.” Link: January 15, 2015 Comments from Carrie La Seur IX. Changes to the Rail Line Alignment/Other Areas Subject to Direct Impacts. Part A. States: The STB will ensure that the APE of the ancillary area or reroute is inventoried and evaluated in accordance with Stipulation IV. “Not very convincing, considering how inventories have been handled thus far.” Link: January 15, 2015 Comments from Carrie La Seur X. Discovery. Part A. States: If a previously undiscovered historic property Page 48 – 1/30/2015 Re-worded to clarify. Changed to address comment. STB and Contractor roles are clarified. The Final Data Recovery Report is discussed in Stipulations VII.E. and VIII.C. As mentioned earlier, data recovery would only be reported for those historic properties where the adverse effect could not be resolved by avoidance or preservation in place. We have also added definitions of all report types to the glossary in Appendix C. The comment for a timeline graphic is being considered. See Tables 4 and 5 of attachment D for inventories completed thus far. As noted in this Stipulation IX.A., STB fully intends to inventory and evaluate any new areas that are added to the Direct APE. Text revised to clarify. Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA 1/15/15 Email from Colstrip Landowners Group to OEA Summary or Excerpts of Communication Response/Action is encountered during construction… “Again, who will be responsible for identifying such properties – random construction staff with no archaeological training, whose job is to get the project done on time?” Link: January 15, 2015 Comments from Carrie La Seur X. Discovery. Part B. States: …proper protocol for discovery of previously unencountered sites. “What exactly will that protocol be? Who will write it? Who will enforce it?” Link: January 15, 2015 Comments from Carrie La Seur XII. Curation. Part B. States: Documentation of the return of these materials to the private land owner will be prepared by Contractor and submitted to STB. “Need a timeline for return of materials, not just curation.” Link: January 15, 2015 Comments from Carrie La Seur XIV. Dispute Resolution. “To the extent that any of these provisions waive the landowners’ rights to legal remedies otherwise available to them, including injunction, this stipulation is unacceptable. In any event, it cannot bind “Invited Signatories” who do not sign.” Link: January 15, 2015 Comments from Carrie La Seur Text revised to clarify. Timeline would be completed if collections are recovered from private lands. By its own terms, Subsection B only applies to Signatories and Invited Signatories who sign the PA. 1/15/15 Email from Colstrip Landowners Group to OEA XVI. Public Participation. Part C. “Again, the PA cannot bind non-signatories.” Link: January 15, 2015 Comments from Carrie La Seur Changed to address comment. Section 304 of the NHPA is merely cited and PA consulting parties are encouraged to comply. 1/15/15 Email from Chris Jenkins of the USACE “Would you please remove the reference to the 800 regulations from the Corps paragraph as suggested below? This is necessary given the ongoing controversy the Corps is having with the ACHP and SHPOs over the use of the 800 regs and the Corps’ Appendix C regs. We either have to have both regs mentioned or neither. Neither is easier and causes less consternation with ACHP and SHPO.” Other Federal Agencies 1. USACE: The United States Army Corps of Engineers (Corps or The reference to 36 CFR 800 deleted as requested by the Corps Page 49 – 1/30/2015 Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 1/16/15 Email from Ben Rhodd and Russel Eagle Bear of the Rosebud Sioux Tribe 1/16/15 Email from David Coburn representing TRRC 1/16/15 Email from David Coburn representing TRRC 1/16/15 Email from David Coburn representing TRRC Summary or Excerpts of Communication Response/Action USACE) has regulatory responsibility under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. Any permitting action would be considered a federal undertaking and require the Corps to comply with NHPA. The Corps acknowledges STB as the lead agency responsible for Section 106 compliance in fulfilling our collective responsibilities under Section 106 of the NHPA. The Corps will review STB Section 106 compliance documents to ensure they are acceptable to meet the Corps' Section 106 compliance responsibilities. Link: January 15, 2015 Email from Chris Jenkins “We of the RST-THPO have reviewed the enclosed PA and it meets our expectations for the furthering of this project timelines and goals. We will be expecting that there will be some addressing of verbiage and nuances in the future implementation of this document but that is typically how these things go. Thank you for your diligence and persistence in creating a sound PA that we of the RST-THPO hope will protect those sites, i.e. - cultural landscapes, cultural topography, sites of significance.” Link: January 16, 2015 Email from Ben Rhodd WHEREAS Clause 5 “Effective December 19, 2014, the NHPA was moved to title 54.” Link: January 16, 2015 Comments from David Coburn I. Roles and Responsibilities. Section F. Applicant. “The PA requires that the identification and resolution of effects be complete before construction can commence. Once construction has commenced, there is no reason to continue to provide access since obligations under Section 106 have been fully satisfied.” Link: January 16, 2015 Comments from David Coburn III. Area of Potential Effects (APE). Section B. Second Phase-APE if a Build Alternative is Approved. Part 1. “These edits are made to reflect that the APE is defined below. The language as is suggests that the STB would undertake a future process to establish the APE, which TRRC does not believe is warranted or Page 50 – 1/30/2015 Thank you, we look forward to working with the Rosebud Sioux and all the other tribes as we address the verbiage and nuances in the PA. Confirmed 54 U.S.C. § 306108 is correct. Changes not accepted. Access may be required during construction for site monitoring or discovery. Changes not accepted. The consultation has to occur to define the APE once there is a built alternative and more detail is available. Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 1/16/15 Email from David Coburn representing TRRC 1/16/15 Email from David Coburn representing TRRC 1/16/15 Email from David Coburn representing TRRC 1/16/15 Email from David Coburn representing TRRC 1/16/15 Email from David Coburn representing TRRC Summary or Excerpts of Communication Response/Action consistent with prior PAs. Further, we note that Section III.B.2 allows for amendment of the APE if amendment to the APE is deemed to be necessary at some future point.” Link: January 16, 2015 Comments from David Coburn III. Area of Potential Effects (APE). Section B. Second Phase-APE if a Build Alternative is Approved. Part 1a. “Expansion may not be required. This language has, thus, been revised to reflect that expansion is only a possibility.” Link: January 16, 2015 Comments from David Coburn III. Area of Potential Effects (APE). Section B. Second Phase-APE if a Build Alternative is Approved. Part 1b. “TRRC proposes to delete this sentence because it is redundant of the process to amend the APE that is set forth under III.B.2(a) below. Also, the term “line of sight” is too vague and expands the scope of Section 800.4.” Link: January 16, 2015 Comments from David Coburn III. Area of Potential Effects (APE). Section B. Second Phase-APE if a Build Alternative is Approved. Part 2b. “TRRC proposes to add a definition of “days” in the footnote below to clarify that this term means calendar days since “calendar days” is used in Section XIII.” Link: January 16, 2015 Comments from David Coburn IV. Identification and Evaluation. Section B. Second Phase-Field Surveys if a Build Alternative is Approved. Part 3. “TRRC believes that it is important that a timeframe be defined for this activity.” Link: January 16, 2015 Comments from David Coburn IV. Identification and Evaluation. Section B. Second Phase-Field Surveys if a Build Alternative is Approved. Part 3. “TRRC proposes to delete this sentence because it is redundant of the reference to traditional and cultural properties in the first sentence of this paragraph.” Link: January 16, 2015 Comments from David Coburn Page 51 – 1/30/2015 Changes accepted. Tribal sites of significance are a category of sites included under the term, cultural resources considered under NEPA. It is for this reason that these types of sites are described separately from, “historic properties” discussed in the previous sentence. Line of site is one of the factors for the APE that should be part of the consultation. Calendar days are acceptable. A specific timeframe for tribal response needs to be vetted with the full complement of Consulting Parties. This sentence addresses cultural resources considered under NEPA, not Section 106. Also, this sentence was added at the request of the tribes during the development of the PA. Not deleted. Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence 1/16/15 Email from David Coburn representing TRRC 1/16/15 Email from David Coburn representing TRRC 1/16/15 Email from David Coburn representing TRRC 1/16/15 Email from David Coburn representing TRRC 1/16/15 Email from David Coburn representing TRRC Summary or Excerpts of Communication Response/Action V. Assessment of Effects. Section E. “This timeline is confusing given that different timelines are identified in each of the referenced sections. This sentence is also unnecessary given that the Finding will occur concurrently with the distribution of the Phase II Evaluation Reports." Link: January 16, 2015 Comments from David Coburn VI. Resolution of Adverse Effects. Section A. “TRRC proposes to delete any reference to parties who may enter the consultation process at a later point in time. If parties have not yet entered the consultation process by this time, it is clear that they have no interest in the issues addressed in this Agreement. Further, Section 800.2(c) sets forth mandatory consulting parties, which does not include such other parties. Also, Section 800.3(f) requires that the Board specifically invite such other parties to participate. Thus, at a minimum, any reference to additional parties must be preceded by an invitation by the Board.” Link: January 16, 2015 Comments from David Coburn VI. Resolution of Adverse Effects. Section C. Development of Treatment Plans. Part 3. Tribal Sites of Significance. “Measures must be feasible to be implemented under Section VI.C.2.d. Thus, TRRC requests that the STB (which is the agency here with Section 106 obligations) make a determination as to which measures proposed by the tribes are feasible.” Link: January 16, 2015 Comments from David Coburn VI. Resolution of Adverse Effects. Section C. Development of Treatment Plans. Part 4. Other properties listed on or eligible for the National Register. “Same comment as above.” Link: January 16, 2015 Comments from David Coburn VIII. Construction: “The PA cannot require that the STB make decisions on which alternative to approve. Further, the PA only takes effect once the STB makes a decision to approve a build alternative.” Page 52 – 1/30/2015 Sentence re-written to better clarify the timeline. The ACHP asked that this be included in the December working group. Changes not accepted, but section clarified. Proposed change accepted. Proposed change accepted. Text not deleted, but revised to clarify. Response to Comments Regarding the Development of the Programmatic Agreement Tongue River Railroad Project, Docket No. FD 30186 Date and Form of Correspondence Summary or Excerpts of Communication Response/Action Link: January 16, 2015 Comments from David Coburn 1. i 1. Consistent with 36 C.F.R. § 800.3(b) and § 800.8, the STB coordinated its NEPA review with the Section 106 process. Under NEPA, the STB considered the No Action Alternative and five build alternative r build alternative routes: the Colstrip Alternative (the applicant’s preferred alternative), the Tongue River Alternative, the Tongue River Road Alternative, the Moon Creek Alternative, and the Decker Alte 2. In the EIS, the OEA analyzed the potential environmental impacts associated with the construction and operation of the proposed rail line and compared the potential impact of each of the alternatives o cultural resources and tribal sites of significance to inform its eventual recommendation of the preferred alternative. The EIS was distributed to the public, including all PA consulting parties, for their rev from the PA consulting parties were reviewed to inform the STB’s choice of the preferred alternative. 3. 2. 4. 5. Consistent with 36 C.F.R. § 800.3(b) and § 800.8, the STB coordinated the four-step Section 106 process set forth in 36 CFR § 800.3 through § 800.6 with the NEPA review of alternatives as follows: Step 1: Initiation of the Section 106 Process Establish Undertaking: Pursuant to 36 C.F.R § 800.3, the STB established that its potential approval of the TRRC project is an Undertaking as defined at 36 C.F.R. § 800.16(y). Identify the appropriate SHPO: Pursuant to Section 36 C.F.R. § 800.3(c),the STB sent a letter to the Montana SHPO initiating Section 106 consultation on October 22, 2012, and since then actively sought undertaking. Identify consulting parties: From October 2012 to December 2012, the STB sent letters initiating Section 106 consultation with the PA consulting parties, and added additional consulting parties in 2013 a the PA consulting parties since February 2013 to inform them of updates on the NEPA process, and progress on the Section 106 steps. The STB held in person meetings with the PA consulting parties in L and in Billings, Montana on February 13-14, 2014, which included information about the alternatives being considered and discussions about the Section 106 process. Plan to involve the public: the STB held ten scoping meetings in multiple locations in the project vicinity from November 12-16, 2012. These meetings included maps of the alternatives and allowed for pu including cultural resources and historic properties. The project website, available to the general public at www.tonguerivereis.com, was updated regularly and has a page devoted entirely to historic pre the public and comments received were reviewed to inform the STB’s choice of the preferred alternative. Step 2: Identification of Historic Properties Pursuant to 36 C.F.R. § 800.4(b)(2), the STB is deferring final identification and evaluation of historic properties. For the analysis of impacts under NEPA, the STB utilized crews of archaeologists, triba historians to conduct field surveys in the APE of the build alternatives where access was granted to the STB by landowners. This information gathered follows the Section 106 process and is being use selection of a preferred alternative. The results of the identification effort were reported to the PA consulting parties, and were documented in the EIS for additional review and comment by the PA Step 3: Assessment of Adverse Effect Pursuant to 36 C.F.R. § 800.5(a)(3), the STB phased the application of the criteria of adverse effect. The EIS documented the adverse effects of the build alternatives for cultural resources identified potential adverse effects in areas that were not surveyed. 6. 7. 3. 4. REVIEW OF ALTERNATIVES 5. Step 4: Resolution of Adverse Effect A Draft of this PA, which includes ways to avoid, minimize, and mitigate potential adverse effects on historic properties discussed among the PA consulting parties, was included in the Draft EIS for fu with 36 C.F.R. § 800.6(a), should the STB approve a build alternative, the STB shall continue consultation with the PA consulting parties to avoid, minimize and mitigate the potential adverse effects o tribal sites of significance. 4. In the event the STB approves a build alternative, the STB would ensure that the stipulations that follow shall be implemented. Page 53 – 1/30/2015 2. ii ROLES AND RESPONSIBILITIES A. Federal Agency Consistent with the requirements of 36 CFR 800.2(a), the STB remains legally responsible for ensuring that the terms of this PA are carried out. In addition to Section 106, the STB is responsible for complying with other sections of the NHPA, including Section 101(d)(6)(B) for consultation with tribes that attach religious and cultural significance to historic properties, Section 110(f) for NHLs, and Section 304 for confidentiality of location or character of certain properties. The STB is responsible for notifying the ACHP if a Memorandum of Agreement (MOA) is required and determining ACHP’s participation and for notifying the signatories to this PA when Section 106 is concluded. The STB reserves the right to seek qualified independent expert consultation through a third-party contractor in order to fulfill its responsibilities under this PA. B. 1. Other Federal Agencies USACE: The United States Army Corps of Engineers (Corps or USACE) has regulatory responsibility under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. Any permitting action would be considered a federal undertaking and require the Corps to comply with NHPA and 36 CFR 800. The Corps acknowledges the STB as the lead agency responsible for Section 106 compliance in fulfilling our collective responsibilities under Section 106 of the NHPA. The Corps will review the STB Section 106 compliance documents to ensure they are acceptable to meet the Corps' Section 106 compliance responsibilities. BLM: If a selected alternative or associated infrastructure crosses lands managed by the U.S. Bureau of Land Management, BLM is responsible for issuing a right-of- way under Title V of the Federal Land Policy and Management Act (43 U.S.C 1701) as amended. Crossing BLM managed lands would be considered a Federal undertaking and require BLM to comply with NHPA and 36 CFR 800. If the southern route (Decker Alternative) is selected the right-of-way would avoid the BLM Wolf Mountain Battlefield Area of Critical Environmental Concern (ACEC) because the ACEC is closed to rights-of-way. MDT: If the STB selects a build alternative that crosses a highway, modifies a highway alignment, or the railroad would impact the highway right-of-way in any way, MDT will notify the STB of specific MDT’s requirements with which the STB must comply. USDA-ARS: If a selected alternative or associated infrastructure crosses land managed by the United States Department of Agriculture, Agricultural Research Service, USDA-ARS is responsible for negotiating changes to the Easement Deed entered into between USDA-ARS and the applicant on May 24,1989 and its amendments (1994 and 1996). Changes will be based on current conditions on the grounds of Fort Keogh. 2. 3. 4. C. ACHP The ACHP shall be responsible for providing technical guidance, monitoring the effectiveness of this PA, participating in dispute resolutions if needed, and notifying the STB if ACHP will participate in consultation for an MOA if needed. D. SHPO The SHPO shall be responsible for reviewing project documentation in a timely manner and participating in consultation as set forth in this PA. Page 54 – 1/30/2015 E. Tribes 1. In 2013 to 2014, participating tribes were consulted during initial identification efforts, participated in field identification efforts and in the development of this PA. During circulation of the Draft EIS in 2015, tribes were requested to comment on the Draft EIS, which included an analysis of the alternatives being considered, potential eligibility, and effects. 2. If the STB decides to license any build alternative, the consulting tribes shall be responsible to assist in the identification of tribal sites of significance in the APE and to notify the STB and SHPO whether the properties are eligible for the National Register. Below ground excavation is not anticipated. Consulting tribes shall be responsible to assist the STB in assessing effects on sites of tribal significance in the APE and how to resolve adverse effects. Tribes will adhere to the time frames in the stipulations. F. Applicant Once the TRRC has gained access to the right-of-way, the TRRC shall be responsible for providing information to accurately delineate the APE, and providing access to the right-of-way so that the STB and its contractor, tribes, and SHPO can complete the stipulations set forth in this PA. If specific circumstances arise that other consulting parties need to access the APE in order to complete their review under the PA, and the STB authorizes the request, the TRRC shall be responsible for providing access until the line is constructed. G. Other Consulting Parties The other participating consulting parties shall be responsible for reviewing project documentation in a timely manner and participating in consultation as set forth in this PA. Page 55 – 1/30/2015