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
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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