CaseStudy:Highwood Generating Station near Great Falls

In April 2010, the ACHP received formal notification from the U.S. Army Corps of Engineers (Corps) that Southern Montana Electric and Transmission Cooperative, Inc. (SME) had applied for a permit from the Corps under Section 10 of the Rivers and Harbors Act (RHA) for an aerial crossing of an electrical transmission line over the Missouri River related to construction of a gas-fired electrical generating facility near Great Falls, Montana. The plans for the gas-fired facility, the Highwood Generating Station (HGS), represent a change to an undertaking that has been the subject of Section 106 consultation since 2004.

Originally, the USDA Rural Utilities Service (RUS) initiated consultation for the project under Section 106 of the National Historic Preservation Act (NHPA) in 2004 as a result of an application for $350 million in financial assistance in the form of a loan guarantee for construction of a 250-megawatt coal-fired power plant and 6-megawatt wind energy facility at the project location. Early in the Section 106 consultation, consulting parties expressed concerns that the proposed HGS would have an adverse effect on the Great Falls Portage National Historic Landmark (NHL) which marks the location of the 18-mile, 31-day portage route taken by Meriwether Lewis and William Clark and the Corps of Discovery in 1805, around the great falls of the Missouri River. In response to an ACHP request, the National Park Service (NPS) prepared a report under Section 213 of the NHPA to assist the consulting parties in fully understanding the project’s effects on the NHL. In that report, the NPS expressed concern that construction of the HGS at the preferred location would severely and irreversibly compromise the integrity of the NHL requiring a critical review of its integrity, which would likely lead to the loss of NHL status for most, if not all, of the route.

Consulting parties, including the Montana State Historic Preservation Officer (SHPO), National Trust for Historic Preservation (NTHP), NPS - Lewis and Clark National Historic Trail, Montana Preservation Alliance, Sierra Club, Citizens for Clean Energy, Montana Environmental Information Center, and others made it clear they felt that the only way to resolve the effects of the HGS on the NHL was to select another site. At the time, RUS and SME said they had concluded their analysis and would not consider alternative sites. Because consultation had reached an impasse, the ACHP anticipated that RUS would terminate consultation and request ACHP comments pursuant to 36 CFR Part 800.7. However, RUS discontinued the Section 106 consultation in February 2008 after it determined not to consider loan guarantees for the project.

Subsequently, the Corps became the lead agency for Section 106, based on the application for a permit, and held several consultation meetings. In September 2009 the Corps notified consulting parties that SME was proposing changing the undertaking to a natural gas-powered generating station instead of a coal-powered station. In its letter of April 2010, the Corps provided more detail, indicating the natural gas-powered combined cycle generating station would occupy a reduced footprint with smokestacks limited to 100 feet in height, and no longer included a previously proposed rail-spur line and wind turbines.

Relying on the definitions and protocols set forth in Appendix C (“Procedures for the Protection of Historic Properties”) of 33 CFR 325 (“Processing of Department of the Army Permits”), the Corps determined that the “federal undertaking” is limited to the activity requiring the Section 10 RHA permit authorization, and the area of potential effects (APE) is limited to the permit area—the location of the river crossing and directly adjacent uplands. The Corps has also made a determination of “No Adverse Effect” for the revised project. The Montana SHPO has declined to comment on the determination of effect because of an unresolved disagreement about the delineation of the APE for the undertaking and the identification of historic properties that might be affected by the undertaking. In a letter dated May 25, 2010, the ACHP reminded the Corps that the ACHP has never approved Appendix C, issued by the Corps in 1990, as a counterpart regulation to 36 CFR 800, the implementing regulations for Section 106. Over the years, attempts to reconcile these two different historic preservation reviews for Corps permits have caused administrative challenges for Section 106 users and other stakeholders, and too often have led to inadequate consideration of direct and indirect effects on historic properties resulting from projects requiring federal permits.

According to the Section 106 regulations, the undertaking encompasses an entire project, including all its associated activities, not just those isolated activities that are the direct subject of the federal permit or assistance. In the case of the proposed HGS, the undertaking subject to Section 106 involves construction and operation of the combined cycle generating plant, the wells and water pipeline supplying the plant, the gas pipelines constructed to connect the plant to the existing gas transmission system, and the electric transmission lines to connect the plant to the grid, as well as any temporary staging areas related to the project. The APE would include the areas directly affected by the construction of those facilities, including any staging areas, as well as the areas where the context and viewshed of historic properties might be affected. The ACHP advised the Corps that in order to complete the Section 106 process, the Corps must re-evaluate the scope of the undertaking using the definitions of undertaking and APE as set forth in 36 CFR 800, and consult with the SHPO to determine an appropriate APE and scope of identification effort to identify historic properties that might be affected by the undertaking.

At the time Case Digest goes to press, the ACHP is awaiting a response from the Corps regarding the ACHP’s May 25 letter.