[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]
BILLING CODE 3720-58-P