[Federal Register Volume 87, Number 59 (Monday, March 28, 2022)]
[Notices]
[Pages 17281-17283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06458]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Notice of Virtual Public and Tribal Meetings Regarding the Review
of Nationwide Permit 12; Establishment of a Public Docket; Request for
Input
AGENCY: Department of the Army, U.S. Army Corps of Engineers, DoD.
ACTION: Notice; announcement of virtual public and tribal meeting dates
and solicitation of input.
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SUMMARY: The Department of the Army and the U.S. Army Corps of
Engineers (Corps) (together, ``Army''), are publishing this notice to
announce a formal review of Nationwide Permit (NWP) 12 for Oil or
Natural Gas Pipeline Activities. This review includes a series of
public and tribal virtual meetings to gather input to inform future
potential decision-making related to NWP 12 as well as a public docket
to gather written comments.
DATES: Written recommendations must be received on or before May 27,
2022. The Army will hold public virtual meetings on the following
dates: May 10, 2022, May 12, 2022, May 17, 2022, and May 19, 2022. In
addition, the Army will hold tribal virtual meetings on the following
dates: May 11, 2022 and May 18, 2022. Please refer to the SUPPLEMENTARY
INFORMATION section below for additional information on these virtual
meetings.
ADDRESSES: You may send written feedback, identified by Docket ID No.
COE-2022-0003, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
written feedback.
Email: [email protected] and [email protected]. Include
Docket ID No. COE-2022-0003 in the subject line of the message.
Instructions: All submissions received must include Docket ID No.
COE-2022-0003. Written feedback received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. Out of an abundance of caution for the health of members of
the public and staff and to reduce the risk of transmitting COVID-19,
the Army cannot currently accept hand delivery of comments. The Army
encourages the public to submit written feedback via https://www.regulations.gov/ or email, as there may be a delay in processing
mail and faxes.
FOR FURTHER INFORMATION CONTACT: Stacey Jensen, in writing at the
Office of the Assistant Secretary of the Army (Civil Works), 108 Army
Pentagon, Washington, DC 20310-0108; by telephone at 703-697-4671; and
by email at [email protected];
or, David Olson, in writing at Regulatory Program, Headquarters, U.S.
Army Corps of Engineers at 441 G. Street NW, Washington, DC 20314; by
telephone at 202-761-4922; and by email at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On January 13, 2021, the Department of the Army, U.S. Army Corps of
Engineers (Corps) published a final rule (86 FR 2744) reissuing and
modifying 12 existing Nationwide Permits (NWPs) and issuing four new
NWPs, as well as the NWP general conditions and definitions. In
addition, the Corps published another final rule (86 FR 73522)
reissuing 40 NWPs and issuing one new NWP on December 27, 2021. Both
sets of NWPs are currently set to expire on March 14, 2026.
The NWPs authorize certain activities under Section 404 of the
Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899
with no more than minimal individual and cumulative adverse effects to
the environment. Section 404(e) of the Clean Water Act provides the
statutory authority for NWP issuance, after notice and opportunity for
public hearing, for a period of no more than five years after the date
of issuance (33 U.S.C. 1344(e)). Nationwide permits are a type of
general permit and are designed to regulate with little, if any, delay
or paperwork certain activities in federally jurisdictional waters and
wetlands (see 33 CFR 330.1(b)). This program can incentivize project
proponents to reduce the adverse effects of their planned activities
that would otherwise require an individual permit under Section 404 of
the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of
1899, in order to qualify for NWP authorization. The categories of
activities authorized by NWPs must be similar in nature, cause only
minimal adverse environmental effects when performed separately, and
have only minimal cumulative adverse effects on the environment (see 33
U.S.C. 1344(e)(1)). By regulation, NWPs can be modified, reissued,
revoked, or suspended before they expire (see 33 CFR 330.5).
[[Page 17282]]
NWPs were first issued by the Corps in 1977 (42 FR 37122) to
authorize categories of activities that have minimal adverse effects on
the aquatic environment, for the purpose of streamlining the
authorization process for those minor activities. One such activity
authorized in 1977 was for ``Utility lines,'' which included ``any pipe
or pipeline for the transportation of any gaseous, liquid, liquifiable,
or slurry substance, for any purpose, and any cable, line, or wire for
the transmission for any purpose of electrical energy, telephone and
telegraph messages, and radio and television communication'' (42 FR
37146). Over the iterations of the NWPs issued since 1977, this NWP has
evolved and is commonly referred to as ``NWP 12.''
During the previous Administration, a review effort was conducted
consistent with Executive Order 13783, Promoting Energy Independence
and Economic Growth, concluding with a report issued by the Office of
the Assistant Secretary of the Army for Civil Works on October 25,
2017. The November 28, 2017 issue of the Federal Register (82 FR 56192)
published a notice of availability for that report. The report included
recommendations for modifying NWP 12 (e.g., lowering the number of Pre-
Construction Notification (PCN) requirements) which informed the
current version of NWP 12.
In the NWPs published in January 2021 (86 FR 2744), NWP 12 was
modified and reissued expressly for ``Oil or Natural Gas Pipeline
Activities.'' That final rule limited NWP 12 to only include oil or
natural gas pipelines rather than all utility lines, as in previous NWP
12 versions. The January 2021 NWP 12 also removed a number of PCN
requirements previously required for the NWP but also included a new
PCN requirement for new oil or natural gas pipelines greater than 250
miles in length.
For ease of reference, the full text of the current NWP 12 issued
on January 13, 2021 can be found at 86 FR 2860. Note that the general
conditions and definitions, such as ``single and complete linear
project'' (86 FR 2877), issued under the same rule action in January
2021 also apply to NWP 12.
II. Review of the Nationwide Permit 12
Pursuant to Corps regulations, the Chief of Engineers is authorized
at any time to consider whether modifications or other future actions
on an existing NWP 12 may be appropriate. If the Chief of Engineers
determines that an action may be appropriate, it implements any such
action through the procedures set forth in 33 CFR 330.5.
President Biden signed an Executive Order on January 20, 2021,
providing that ``[i]t is, therefore, the policy of my Administration to
listen to the science; to improve public health and protect our
environment; to ensure access to clean air and water; to limit exposure
to dangerous chemicals and pesticides; to hold polluters accountable,
including those who disproportionately harm communities of color and
low-income communities; to reduce greenhouse gas emissions; to bolster
resilience to the impacts of climate change; to restore and expand our
national treasures and monuments; and to prioritize both environmental
justice and the creation of the well-paying union jobs necessary to
deliver on these goals.'' Protecting Public Health and the Environment
and Restoring Science to Tackle the Climate Crisis, Executive Order
13990, 86 FR 7037 (Jan. 25, 2021). The order further ``directs all
executive departments and agencies (agencies) to immediately review . .
. the promulgation of Federal regulations and other actions during the
last 4 years that conflict with these important national objectives,
and to immediately commence work to confront the climate crisis.'' See
also Fact Sheet: List of Agency Actions for Review, available at
https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/ (last visited on March
22, 2022), which included the January 2021 ``Reissuance and
Modification of Nationwide Permits'' (86 FR 2744) in the ``list of
agency actions that heads of the relevant agencies will review in
accordance with the Executive Order.''
Therefore, in conformance with Executive Order 13990, and for the
reasons below, this Federal Register notice announces a formal review
of NWP 12 to determine whether any future actions may be appropriate
under 33 CFR 330.5 for NWP 12 prior to its March 14, 2026 expiration.
The Army seeks input on the appropriate balance for allowing efficient
authorization processes with due consideration for the potential
effects of oil and natural gas pipelines as well as the need to engage
and inform the public, particularly communities that potentially may be
impacted by pipeline construction and operations.
Previous uses of NWP 12 have raised concerns identified in
Executive Order 13990, such as environmental justice, climate change
impacts, drinking water impacts, and notice to impacted communities. By
way of example, in one recent scenario associated with the now defunct
Byhalia oil pipeline, the Corps is aware that disadvantaged communities
in Memphis, Tennessee expressed environmental justice concerns that the
proposed pipeline was to be located in an area which was already the
site of many industrial and emission sources, would result in increased
air emissions, and would be routed through a drinking water well field
providing drinking water to communities and businesses in Memphis from
the Memphis Sand Aquifer. The opposition to the Byhalia pipeline
identified a concern that the NWP 12 process, as applied to the
specific pipeline in question, did not afford any opportunity for
notice to the community, a written comment period or a public hearing
prior to the Corps providing authorization for the pipeline. In July
2021, the Plains All American Pipeline Company announced that it would
not be proceeding with the Byhalia pipeline project or NWP 12. The Army
would be interested in receiving comments on potential revisions to NWP
12, including potential off-ramps, to address the type of concerns
raised in the Byhalia pipeline situation.
Before deciding on a path forward regarding any potential future
actions which may be taken on NWP 12, the Army wants to gather public
and tribal input on NWP 12 to make an informed decision. One important
function of this engagement is to receive input from all stakeholders
and perspectives. A series of questions are posed below in the
Stakeholder Engagement Section to assist in receiving such input. The
Army encourages comments on all aspects of NWP 12, to include
consideration for going beyond the current construct towards what any
new or revised NWP 12 should look like.
The Army acknowledges that there is not a single Federal agency
charged with the responsibility for regulating oil pipeline routes or
construction as well as the fact that the Corps has limited statutory
authorities for construction of such pipelines in jurisdictional
waters. However, that does not preclude consideration of alignment of
the NWP 12 with Administration priorities and policies established in
Executive Order 13990 (86 FR 7037), Executive Order 14008, ``Tackling
the Climate Crisis at Home and Abroad'' (86 FR 7619), as well as due
consideration of environmental justice and climate change factors. In
addition, input related to compliance with the statutory authority for
the NWP program (Section 404(e) of the Clean Water Act) is also of
pertinent interest. The Army further acknowledges that current world
events have highlighted the unstable nature of energy production and
that domestic oil and natural gas production and
[[Page 17283]]
distribution will be considered in the review of NWP 12.
III. Stakeholder Engagement
The Army poses a series of questions detailed below for stakeholder
input. These questions are only guideposts for comments. Input on all
aspects of NWP 12 are welcome. Written input to the docket as well as
verbal input during the virtual meetings are strongly encouraged.
(1) As part of any future action the Army may take with respect to
NWP 12, should the Army consider utilization of the procedures in 33
CFR 330.5 in advance of the current cycle for nationwide permit review?
(2) Should modifications be considered to further ensure NWP 12 has
no more than minimal individual and cumulative adverse environmental
effects under Section 404(e) of the Clean Water Act?
(3) Should modifications to NWP 12 be considered to provide notice
to and an opportunity to be heard by potentially impacted communities,
particularly with regard to environmental justice communities?
(4) Would it be prudent for the Corps to consider further limits on
the NWP 12, PCN requirements, general conditions, and the ability of
division and district engineers to modify, suspend, and revoke NWP
authorizations to further ensure that the NWP 12 causes no more than
minimal cumulative adverse environmental effects at the national,
regional, and site scales?
(5) Should distinctions be drawn between new construction of oil
and natural gas pipelines and maintenance of existing oil and natural
gas pipelines?
(6) Should distinctions be drawn between oil pipelines and natural
gas pipelines, especially in consideration of differences in overall
Federal regulation of different types of pipelines?
(7) Does the NWP 12 verification process ensure that environmental
justice and climate change factors are adequately considered?
(8) Are the PCN requirements for the current NWP 12 adequate?
(9) Should there be new triggers for oil or natural gas pipeline
activities in jurisdictional waters that mandate review under an
individual permit?
IV. Public Meetings and Outreach
The Army will hold a series of public virtual meetings intended to
solicit input to inform its review of potential future actions
regarding NWP 12. The Army will hold four virtual meetings open to all
stakeholders and an additional two virtual meetings specific for tribal
input. Registration information for the public and tribal virtual
meetings is below. Separate notification to tribal leaders is also
being provided.
Registration of members of the public who wish to attend the
virtual meeting is required. Spots are limited and those unable to
attend are encouraged to provide written comments to the docket which
will be given equal consideration. Attendees will be asked to provide
their name, title, affiliation, and contact information to include
email address and daytime telephone number at registration.
Registration instructions can be found at the following website:
https://www.army.mil/article/254909. Persons or organizations wishing
to provide verbal input during the meetings will be selected on a
first-come, first-serve basis. Due to the expected number of
participants, individuals will be asked to limit their spoken
presentation to three minutes. Once the speaking slots are filled,
participants may be placed on a standby list to speak or continue to
register to listen to the input. Supporting materials and written
feedback from those who do not have an opportunity to speak can be
submitted to the docket as described above. The schedule for the NWP 12
virtual meetings is as follows:
Public virtual meetings:
--May 10, 2022, from 1 p.m. to 3 p.m. Eastern,
--May 12, 2022, from 6 p.m. to 8 p.m. Eastern,
--May 17, 2022, from 1 p.m. to 3 p.m. Eastern, and
--May 19, 2022, from 2 p.m. to 4 p.m. Eastern.
Tribal virtual meetings:
--May 11, 2022, from 1 p.m. to 3 p.m. Eastern, and
--May 18, 2022, from 2 p.m. to 4 p.m. Eastern.
Michael L. Connor,
Assistant Secretary of the Army (Civil Works).
[FR Doc. 2022-06458 Filed 3-25-22; 8:45 am]
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