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Project No. 13768-002
FEDERAL ENERGY REGULATORY COMMISSION
WASHINGTON, D.C. 20426
August 17, 2016
OFFICE OF ENERGY PROJECTS
Project No. 13768-002 – Pennsylvania
Montgomery Locks and Dam Hydroelectric Project
Solia 6 Hydroelectric, LLC
Reference: Final Programmatic Agreement for the Montgomery Locks and Dam Hydroelectric Project No. 13768-002
TO THE PARTIES ADDRESSED:
Enclosed for your signature is the final Programmatic Agreement (PA) for Solia 6 Hydroelectric, LLC’s proposed 42-megawatt Montgomery Locks and Dam Hydroelectric Project No. 13768, which would be located at the U.S. Army Corps of Engineers’ (Corps) Montgomery Locks and Dam on the Ohio River in Beaver County, Pennsylvania. The project would occupy approximately 5.1 acres of federal land administered by the Corps.
We issued a draft PA for review and comment on June 16, 2016, and asked whether the Advisory Council on Historic Preservation (Advisory Council) wanted to consult on this PA. We did not receive a response from the Advisory Council and, therefore, conclude that the Advisory Council chooses not to consult.
In preparing the final PA, we considered comments filed on the draft PA. The Pennsylvania Historical and Museum Commission (Pennsylvania SHPO) was the only entity to file comments. A summary of those comments and our responses is included in Appendix A.
Mr. Vince Yearick, Director, Division of Hydropower Licensing, has signed the PA. In order to incorporate the executed PA into any license issued for the proposed Montgomery Hydroelectric Project, we would like to have the PA signed by September16, 2016.
Please sign the appropriate signature page, make a copy for yourself, and return only the page bearing your original signature to Allyson Conner via overnight delivery at the following address: Allyson Conner, Federal Energy Regulatory Commission, 888 First Street, N.E., Room 6M-01, Washington, D.C. 20426. Upon receipt of all signatures, Ms. Conner will forward a copy of the executed PA with signature pages to you and to the Advisory Council for its records.
If you have any questions please contact Allyson Conner at (202) 502-6082, or at .
Sincerely,
John B. Smith, Chief
Mid-Atlantic Branch
Division of Hydropower Licensing
Enclosure: Appendix A
Final Programmatic Agreement
Addressees:
Dr. John Eddins
Advisory Council on
Historic Preservation
401 F Street, N.W., Suite 308
Washington, D.C. 20001-2637
Deborah Campbell
U.S. Army Corps of Engineers
Pittsburgh District
William S. Moorhead Federal Building
1000 Liberty Avenue
Pittsburgh, PA 15222
Kellie Doherty
Vice President, Environmental
Rye Development
745 Atlantic Avenue, 8th Floor
Boston, MA 02111
Douglas C. McLearen, Chief
Pennsylvania Historical and Museum Commission
Bureau for Historic Preservation
Commonwealth Keystone Building,
2nd Floor
400 North Street
Harrisburg, PA 17120-0093
Jeffrey Benedict, P.E.
U.S. Army Corps of Engineers
Pittsburgh District
William S. Moorhead Federal Building
1000 Liberty Avenue
Pittsburgh, PA 15222
APPENDIX A
COMMENTS ON THE PA
Comment: The Pennsylvania SHPO inquires if the PA should include “Maintenance” in the title since maintenance is referred to in the first “Whereas” clause.
Response: We have included “Maintenance” in the title.
Comment: The Pennsylvania SHPO requests that known historic properties that would be affected by the undertaking, such as the locks and dam, be identified in a “Whereas” clause.
Response: The PA is written in our standard format, which was developed in coordination with the Advisory Council, and we prefer not to alter or revise this language. The second “Whereas” clause requires that all historic properties that could be affected by the proposed project be identified in the historic properties management plan (HPMP). We believe the HPMP is the appropriate place to describe each historic property in the area of potential effect (APE) that could be affected by the proposed project.
Comment: The Pennsylvania SHPO suggests that a map of the APE be attached to the PA rather than a verbal description.
Response: To protect sensitive and non-public cultural resources information, we do not require a map of the APE in the PA. This information is classified as “Privileged” in our eLibrary system to avoid any potential for public identification, access, or disruption to known archaeological sites. The APE map will be submitted with the final HPMP, as required in Stipulation I.C.1.
Comment: The Pennsylvania SHPO recommends including a “Whereas” clause that references 36 C.F.R. section 800.14(b)(1) and describes why a programmatic approach is needed.
Response: We have added a “Whereas” clause referencing 36 C.F.R. section 800.14(b)(1)(ii) which states that a PA may be used when effects on historic properties cannot fully be determined prior to an undertaking.
Comment: The Pennsylvania SHPO states that the PA should contain a “Whereas” clause indicating the Advisory Council, tribes, and consulting parties have been notified and any responses should be included.
Response: On June 16, 2016, we issued the draft PA that included a cover letter stating that the Advisory Council was notified of the proposed project and to date, we have not received any comments. On September 18, 2012, the Commission issued tribal consultation letters to multiple tribes.[1] On June 3, 2016, Solia 6 Hydroelectric, LLC sent tribal consultation letters to the tribes notified by the Commission and included the Delaware Nation of New York. No tribes expressed an interest in participating in the licensing process and no other parties expressed interest or provided comments prior to or following the Commission’s Technical Conference on April 6, 2016. We only include the Advisory Council, tribes, or consulting parties in a “Whereas” clause if they are going to be a signatory or a concurring party. We note that in Stipulation I.C.7, the applicant is required to include documentation of all consultation, correspondence, and comments related to the HPMP and a discussion of how those comments were addressed in the final HPMP. This would include consultation efforts prior to and during the development of the final HPMP.
Comment: The Pennsylvania SHPO states that the PA should contain a new “Whereas” clause discussing the agency’s public involvement efforts.
Response: Actions taken by the Commission include: designating the applicant as the non-federal section 106 representative on January 5, 2012; sending tribal consultation letters on September 18, 2012; holding a Technical Conference on April 6, 2016; issuing an Environmental Assessment on June 3, 2016; issuing a draft PA on June 16, 2016; and issuing this final PA. We note that in Stipulation I.C.7, the applicant is required to include documentation of all consultation, which would include the Commission’s public involvement.
Comment: The Pennsylvania SHPO requests that it be included in the review of the revised draft HPMP before the applicant submits the final HPMP.
Response: We have included the Pennsylvania SHPO’s request in Stipulation I.A.
Comment: The Pennsylvania SHPO requests that the HPMP reference the 2016 Guidelines for Archaeological Investigations in Pennsylvania.
Response: We cannot include this request in the PA or the HPMP because the Commission does not have the jurisdiction to enforce state laws or guidelines.
Comment: The Pennsylvania SHPO requests that the PA include a discussion of how monitoring activities will be reported to the SHPO and other parties.
Response: We have revised Stipulation I.C.2 of the PA to require protocols in the HPMP for reporting on monitoring activities.
Comment: The Pennsylvania SHPO requests that the HPMP provide a definition of “Cultural Resources Coordinator” and “non-routine maintenance.”
Response: Definitions of important terms, such as “Cultural Resources Coordinator” and “non-routine maintenance,” would be provided in the HPMP.
Comment: The Pennsylvania SHPO provided a revision to the signature page of the PA.
Response: We have revised the signatory page for the Pennsylvania SHPO.
Project No. 13768-002 12
FINAL PROGRAMMATIC AGREEMENT
BETWEEN
THE FEDERAL ENERGY REGULATORY COMMISSION
AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
FOR MANAGING HISTORIC PROPERTIES THAT MAY BE AFFECTED
BY ISSUING AN ORIGINAL LICENSE TO
SOLIA 6 HYDROELECTRIC, LLC
FOR THE CONSTRUCTION, OPERATION, AND MAINTENANCE
OF THE
MONTGOMERY LOCKS AND DAM HYDROELECTRIC PROJECT
LOCATED IN BEAVER COUNTY, PENNSYLVANIA
(FERC No. 13768-002)
WHEREAS, the Federal Energy Regulatory Commission or its staff (hereinafter, “Commission”) proposes to issue an original license to Solia 6 Hydroelectric, LLC to construct, operate, and maintain the Montgomery Locks and Dam Hydroelectric Project (hereinafter, “Project”) as authorized by Part I of the Federal Power Act, 16 U.S.C. sections 791(a) through 825(r) as amended; and
WHEREAS, the Commission has determined that issuing such a license may affect properties included in or eligible for inclusion in the National Register of Historic Places (hereinafter, “National Register” or “historic properties”); and
WHEREAS, a programmatic approach is needed in accordance with 36 C.F.R. section 800.14(b)(1)(ii), which states that a Programmatic Agreement may be used when effects on historic properties cannot fully be determined prior to approval of an undertaking; and
WHEREAS, the area of potential effects (hereinafter, “APE”) for the Project is defined as (1) lands enclosed by the project boundary, which would include: (a) a 340-foot-long, 205-foot-wide intake channel excavated into the riverbed immediately downstream of spillway gate 10 and the fixed crest section on the north side of the river; (b) two 100-foot-wide spill gates located within the intake channel to pass flow equivalent to the Corps’ spillway gate 6 and the fixed crest section; (c) a 150-foot-long, 205-foot-wide, 90-foot-high, reinforced concrete intake structure and trash rack with 5-inch spacing; (d) a 315-foot-long, 205-foot-wide, 105-foot-high, reinforced concrete powerhouse on the north bank of the river; (e) three equally sized horizontal bulb Kaplan-type turbine-generator units with a combined capacity of 42 megawatts; (f) a 280-foot-long, 210-foot-wide tailrace excavated into the riverbed to discharge water from the powerhouse; (g) a 15-foot-long, medium-voltage, buried cable from the powerhouse to the substation; (h) a 50-foot-long by 60-foot-wide substation; (i) a 392-foot-long, 69-kilovolt, overhead transmission line within a 35-foot-wide right-of-way to connect the project substation to an existing distribution line; (j) an approximately 383-foot-long, 28-foot-wide access road; (k) appurtenant facilities; and (l) a new fishing access walkway leading from a parking area with eight designated parking spaces to a fishing platform in the project tailrace; and (2) lands outside of the project boundary, where the authorized project uses may cause changes in the character or use of historic properties, if historic properties exist; and
WHEREAS, the U.S. Army Corps of Engineers (hereinafter, “Corps”) manages lands within the Project boundary and has responsibilities for issuance of permits under the Archaeological Resources Protection Act (16 U.S.C. sections 470aa to 470ll; hereinafter, “ARPA”) to Solia 6 Hydroelectric, LLC for archaeological work on their lands; and
WHEREAS, the Commission has consulted with the Pennsylvania State Historic Preservation Office (hereinafter, “Pennsylvania SHPO”) pursuant to 36 C.F.R. section 800.14(b) of the Advisory Council on Historic Preservation’s (hereinafter, “Advisory Council”) regulations (36 C.F.R. section 800) implementing section 106 of the National Historic Preservation Act (54 U.S.C. section 306108; hereinafter, “section 106”); and
WHEREAS, Solia 6 Hydroelectric, LLC has participated in the consultation and has been invited to concur in this Programmatic Agreement; and
WHEREAS, the Corps has participated in the consultation and has been invited to concur in this Programmatic Agreement; and
WHEREAS, the Commission will require Solia 6 Hydroelectric, LLC to implement the provisions of this Programmatic Agreement as a condition of issuing an original license for the Project; and
NOW THEREFORE, the Commission and the Pennsylvania SHPO agree that the Project will be administered in accordance with the following stipulations in order to satisfy the Commission’s section 106 responsibilities during the term of the Project’s license.
S T I P U L A T I O N S
The Commission will ensure that, upon issuing a license for this Project, Solia 6 Hydroelectric, LLC implements the following stipulations. All stipulations that apply to Solia 6 Hydroelectric, LLC will similarly apply to any and all of Solia 6 Hydroelectric, LLC’s successors. Compliance with any of the following stipulations does not relieve Solia 6 Hydroelectric, LLC of any other obligations it has under the Federal Power Act, the Commission’s regulations, or its license.
I. HISTORIC PROPERTIES MANAGEMENT PLAN
A. Within one year of license issuance for the Project, Solia 6 Hydroelectric, LLC will file with the Commission for approval a final Historic Properties Management Plan (hereinafter, “HPMP”) specifying how historic properties will be managed in the Project’s APE, as defined in 36 C.F.R. section 800.16(d), during the term of the license. During development of the HPMP, Solia 6 Hydroelectric, LLC will consult with the Pennsylvania SHPO, and the Corps, as defined in 36 C.F.R. section 800.2(c).[2] Solia 6 Hydroelectric, LLC will give the Pennsylvania SHPO at least 30days to review the revised draft HPMP and will seek the Pennsylvania SHPO’s concurrence on the final HPMP before submission to the Commission.
B. Solia 6 Hydroelectric, LLC will take into account the “Archeology and Historic Preservation: Secretary of the Interior's Standards and Guidelines” (Federal Register, September 29, 1983, Vol. 48, No. 190, Part IV, pp. 4471644740; hereinafter, “Secretary’s Standards”) and the “Guidelines for the Development of Historic Properties Management Plans for FERC Hydroelectric Projects,”[3] while developing the HPMP. The HPMP will be developed by, or developed under the direct supervision of, a person or persons who meet, at a minimum, the professional qualifications standards for architectural history or archaeology in the Secretary's Standards (48 FR 44738-39). To develop the HPMP, the individual or individuals need not possess both qualifications.
C. The final HPMP will incorporate the draft HPMP filed on October 6, 2015 with the following provisions, at a minimum:
1. a discussion regarding how the APE for the project was defined and revised APE and resource location maps that delineate both the APE and the project boundary;
2. cultural resources monitoring of ground disturbance in the vicinity of known archaeological resources to be conducted by either the Cultural Resources Coordinator or by a qualified cultural resources professional, and protocols for reporting of monitoring activities;
3. a list of activities that are exempt from further section 106 consultation;
4. a description of Native American consultation efforts undertaken by Solia 6 Hydroelectric, LLC to date, justification for the selection of Tribes to be consulted for the project, and the inclusion of appropriate Tribes as consulting parties regarding prehistoric archaeological resources and human remains;