[Federal Register Volume 87, Number 107 (Friday, June 3, 2022)]
[Notices]
[Pages 33756-33763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11881]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Notice of Virtual Public and Tribal Meetings Regarding the
Modernization of Army Civil Works Policy Priorities; 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, Civil Works, to include the U.S.
Army Corps of Engineers (Corps) (together, ``Army''), are publishing
this notice to announce an effort to modernize the
[[Page 33757]]
Civil Works program of the Corps through a number of related policy
initiatives. This effort includes a series of public and Tribal virtual
meetings, as well as a public docket, to gather oral and written input
that will be used to inform future decision-making related to: Native
American/Tribal Nation issues; potential rulemaking actions regarding
the Corps' Regulatory Program's implementing regulations for the
National Historic Preservation Act as well as Civil Works
implementation of the Principles, Requirements, and Guidelines; and,
environmental justice, including definitions of certain terms used in
policy making.
DATES: Written recommendations must be received on or before August 2,
2022. The Army will hold a virtual overview of the policy initiatives
on June 22, 2022. The Army will hold public virtual meetings on the
following dates: July 11, 2022, July 14, 2022, July 18, 2022, July 20,
2022, and July 26, 2022. In addition, the Army will hold Tribal virtual
meetings on the following dates: July 7, 2022, July 12, 2022, July 19,
2022, July 21, 2022, and July 27, 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-2022-0006, 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]. Include Docket ID No. COE-2022-0006 in the subject
line of the message.
Mail: Stacey M. Jensen, Office of the Assistant Secretary
of the Army (Civil Works), 108 Army Pentagon, Washington, DC 20310-
0108.
Hand Delivery/Courier: Due to security requirements, we
cannot receive comments by hand delivery or courier.
Instructions: All submissions received must include Docket ID No.
COE-2022-0006. Please group comments into the specific topic areas
identified below in the headers of the Supplementary Information
section, as applicable. 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, Joseph Redican, in writing at Headquarters USACE, 441 G Street NW,
Washington, DC 20314-1000; by telephone at 202-761-4523; and by email
at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The Department of the Army, Office of the Assistant Secretary of
the Army for Civil Works, is seeking to modernize and advance the U.S.
Army Corps of Engineers (Corps) Civil Works program through policy
actions consistent with Administration priorities and statutory
authorities. A primary focus for the modernization effort is to
identify ways to better serve the needs of Tribal Nations \1\ and other
disadvantaged and underserved communities. The priority policy actions
include: (1) Tribal issues, to include updating the Corps' Tribal
consultation policy and implementation of the Tribal Partnership
Program; (2) Rulemaking actions, to include revisions to the Regulatory
Program's implementation of Section 106 of the National Historic
Preservation Act found at 33 CFR 325, Appendix C, as well as a
rulemaking action for implementation of the Principles, Requirements,
and Guidelines; and (3) Environmental justice, to include identifying
ways to further advance the Corps' Civil Works commitment to
environmental justice, including compliance with relevant provisions of
the Water Resources Development Act (WRDA) of 2020. Each of these
priority policy actions is described in more detail below, including
how they align with the advancement of the Administration's priorities.
The policy priority actions have overlapping content and work together
to provide a comprehensive modernization strategy for the Civil Works
program.
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\1\ Tribal Nations and Tribes as used in this Federal Register
notice refers to ``Indian tribe'' as defined in Executive Order
13175 (https://www.govinfo.gov/content/pkg/FR-2000-11-09/pdf/00-29003.pdf, accessed May 5, 2022), and Native Hawaiian Organizations
where applicable.
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Before deciding on specific future actions regarding the priority
policy initiatives, the Army wants to gather public and Tribal input to
help shape future decision-making related to these priority policy
initiatives. Details for virtual meetings to receive input from all
stakeholders and Tribes are below in the Public Meetings and Outreach
section. The Army encourages comments on all aspects of these priority
policy initiatives, to include consideration of what a modernized Corps
Civil Works program entails.
For example, one action the Army has already initiated under this
modernization effort is a review of Nationwide Permit (NWP) 12 for Oil
or Natural Gas Pipeline Activities (87 FR 17281). The review of NWP 12
is being undertaken to gather input on potential changes to the NWP
which may be warranted in light of concerns raised and the
Administration's policies under E.O. 13990 (Protecting Public Health
and the Environment and Restoring Science to Tackle the Climate Crisis,
Executive Order 13990, 86 FR 7037). 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. These concerns were raised in the context of the
Corps' implementation of its own authorities under Section 404 of the
Clean Water Act (33 U.S.C. 1344) as well as in the context of other
authorities that the Corps must comply with when issuing the NWPs, such
as the National Environmental Policy Act (42 U.S.C. 4321 et seq.). The
Army sought input on those aspects as well as any others related to NWP
12 through a series of virtual meetings and written docket via a
separate Federal Register notice (87 FR 17281; Docket ID No. COE-2022-
0003-0001).
II. Tribal
A. Tribal Consultation Policy
On January 26, 2021, President Biden issued the Presidential
Memorandum, Tribal Consultation and Strengthening Nation-to-Nation
Relationships (86 FR 7491). In the Memorandum, he called on each
federal agency to engage in regular, meaningful, and robust
consultation and to implement the policies directed in Executive Order
13175 of November 6, 2000, Consultation and Coordination with Indian
Tribal Governments (65 FR 67249). In addition, President Biden issued
Executive Order 13990, Protecting Public Health and the Environment and
Restoring Science to
[[Page 33758]]
Tackle the Climate Crisis (86 FR 7037), directing agencies to consider
environmental and social justice in their mission areas.
The Corps issued its current Tribal Consultation Policy in November
2012, which provides details regarding Tribal consultation specific to
the Corps' authorities and responsibilities.\2\ The Army recognizes the
important intent of the Presidential Memorandum (86 FR 7491) and
Executive Order 13175 (65 FR 67249), and as such, is committed to
ensuring the Corps' Policy is reviewed and updated to promote early,
regular, meaningful, and robust consultation consistent with its
missions and authorities. As such, the Army is undertaking a review and
update of the Corps' Tribal Consultation Policy.
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\2\ https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/4241 (accessed April 1, 2022).
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The Army has completed an initial review of the Corps' existing
Tribal Consultation Policy and has preliminarily identified several
areas which may be included in an update. For example, consistent with
the Consolidated Appropriations Act of 2004, as amended, the Army
intends to update the Tribal Consultation Policy to provide that the
Corps will consult with Alaska Native Corporations on the same basis as
Indian Tribes under Executive Order 13175.\3\ In addition, the Army
intends to address provisions on culturally-sensitive information
consistent with DoD Instruction 4710.02, dated September 24, 2018.\4\
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\3\ Consolidated Appropriations Act, 2004, Public Law 108-199,
Div. II. Sec. 161, 118 Stat. 3, 452 (2004) as amended by
Consolidated Appropriations Act, 2005, Public Law 108-447, Div. H.,
Title V. Sec. 518, 118 Stat. 2809, 3267 (2004).
\4\ https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/471002p.pdf?ver=2018-11-28-143903-320 (accessed April 1, 2022).
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The Army also intends to address the areas below in an update to
the Corps' Tribal Consultation Policy and solicits public and Tribal
input on how the areas below should be incorporated into the Policy.
In March 2019, the Government Accountability Office (GAO) issued a
Report, ``Tribal Consultation: Additional Federal Actions Needed for
Infrastructure Projects'',\5\ which included a recommendation to
document in the agency's Tribal Consultation Policy how agencies will
communicate with Tribes regarding how tribal input from consultation
was considered in agency decisions on infrastructure projects. The Army
intends to address this GAO recommendation by updating the Corps'
Tribal Consultation Policy to include a requirement to provide a
written response to Tribes on how Tribal input was considered in the
decision-making process.
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\5\ GAO-19-22, https://www.gao.gov/assets/700/698104.pdf
(accessed April 1, 2022).
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One other area the Army seeks to include in an update to the Corps'
Tribal Consultation Policy is to better address how Tribal consultation
should be specifically incorporated into the processes associated with
the Corps' Regulatory Program. Currently, the Corps' Regulatory Program
relies on regulations primarily from 1986 (33 CFR 320-330; 51 FR 41206)
and 1990 (33 CFR 325, Appendix C at 55 FR 27003), which provide very
limited references to Tribal consultation. In addition, there is no
consolidated comprehensive guidance specific to the Regulatory Program
for Tribal consultation. These multiple references can lead to
inconsistency and lack of clarity for the Corps' staff, Tribes, and the
regulated public as to how Tribal consultation is conducted in the
Corps' Regulatory Program. In addition, Tribes have indicated that the
lack of regulations or specific policy suggests that the Corps'
Regulatory Program is not committed to consulting with Tribes.
Therefore, the Army wants to ensure it is clear that the Corps' Tribal
Consultation Policy applies to the Regulatory Program. The Army is also
considering how to address topics specific to the Regulatory Program in
the Corps' updated Tribal Consultation Policy.
For example, the Army intends to address Tribal consultation
requirements for approved jurisdictional determinations issued by the
Corps' Regulatory Program in the update to the Corps' Tribal
Consultation Policy. An approved jurisdictional determination means the
Corps has documented the presence or absence of waters of the United
States on a parcel of land or a written statement and map identifying
the limits of waters of the United States on a parcel of land (see 33
CFR 331.2). Some Tribes have questioned previous issuances of approved
jurisdictional determinations, which are final agency actions under the
Administrative Procedure Act, without pre-decisional government-to-
government consultation. Tribes may be impacted by an approved
jurisdictional determination in terms of which waters may or may not be
jurisdictional under the Clean Water Act and as a result any permit
requirements that may be required. In addition, Tribes may have
information, including Indigenous Traditional Ecological Knowledge
(ITEK), that may assist in making such a determination but is unknown
to the Corps and may only be provided in consultation with Tribes. The
Biden-Harris Administration recently issued a memorandum providing that
ITEK can and should inform Federal Government decision making where
appropriate.\6\ The Army solicits input on conducting Tribal
consultations on approved jurisdictional determinations as a policy
matter.
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\6\ Presidential Memorandum on Indigenous Traditional Ecological
Knowledge and Federal Decision Making, November 15, 2021, https://www.whitehouse.gov/wp-content/uploads/2021/11/111521-OSTP-CEQ-ITEK-Memo.pdf (accessed on April 1, 2022).
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In addition to the above, the Army welcomes feedback related to
other key issues, such as identification of ways in which existing
policy has or has not worked, and specific procedures that should/could
be identified to ensure that consultation is regular, meaningful, and
robust. The Army recognizes the vast experience of Tribal Nations in
engagements with the Corps, including perspectives on how consultation
has occurred in the past and how it could occur in the future, and as
such wants to ensure tribal voices are heard during the process to
update to the Corps' Tribal Consultation Policy. In addition to the
written input and listening sessions, Tribal Nations may also request
an initiation of government-to-government consultation on the policy
review and update. The virtual listening sessions for input are
described in the Public Meetings and Outreach section below. Written
comments on this priority policy initiative are also strongly
encouraged and instructions are found in the Addresses section above.
B. Tribal Partnership Program
Section 203 of the WRDA of 2000, as amended (33 U.S.C. 2269),
authorizes the Secretary of Army, in cooperation with Indian Tribes and
the heads of other federal agencies, to carry out water-related
planning activities, and activities related to the study, design, and
construction of water resources development projects with federally-
recognized Tribes that are located primarily within Indian Country or
in proximity to Alaska Native Villages. The Army has been implementing
this authority as the Tribal Partnership Program (TPP). The TPP
includes projects for flood damage reduction, aquatic environmental
restoration and protection, and preservation of cultural and natural
resources; watershed assessments; and other projects determined
appropriate.
Feasibility studies, including water-related planning activities
are cost
[[Page 33759]]
shared at 50 percent federal and 50 percent non-federal expense. The
Tribal partner may request a study to be scoped at the outset to either
result in a report recommending a project plan for design and
construction, or in a more limited report describing an array of
alternatives that are determined to be technically feasible and
economically and environmentally justified. Watershed assessments are
cost shared at 75 percent federal and 25 percent non-federal expense.
Design and construction of projects or separable elements are cost
shared in accordance with the percentages in Sections 101 of the WRDA
of 1986, as amended (33 U.S.C. 2211), for navigation projects, and in
Section 103 of the WRDA of 1986 (33 U.S.C. 2213) for other types of
projects. For projects or separable elements where the federal share is
not greater than $18.5 million, Congress authorized the Corps to
perform design and construction as funding allows (33 U.S.C.
2269(b)(4)(A)), without further Congressional authorization. Congress
must provide separate authorization and appropriations for activities
where the federal share is greater than $18.5 million.
A cost share waiver under Section 1156 of WRDA 1986, as amended (33
U.S.C. 2310), applies to federally recognized Tribes for TPP. Section
135 of the WRDA of 2020 amended this provision to include an annual
inflation adjustment (Division AA of Pub. L. 116-260). Tribes are also
subject to the ability to pay, as determined by the Secretary, which
applies to design and construction agreements as well as to studies,
watershed assessments, and planning activities conducted under the TPP.
Implementation Guidance for Section 1031(a) of Water Resources, Reform
Development Act of 2014 (Pub. L. 113-121) and Section 1121 of WRDA 2016
(Pub. L. 114-322), outlines the procedures for applying the ability-to-
pay factor.\7\
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\7\ https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll5/id/1300 (accessed April 13, 2022).
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The Army has directed development of updated comprehensive
implementation guidance for the TPP. The guidance will cover the TPP
statute, Section 203 of Public Law 106-541, as amended by Section 2011
of Public Law 110-114, Section 1031(a) of Public Law 113-121, Section
1121 of Public Law 114-322, Section 1157(i) of Public Law 115-270, and
Section 303 of Division AA of Public Law 116-260 and any subsequent
legislation enacted before its issuance. The Army seeks input on any
specific topics, challenges, or best practices to include or address in
the comprehensive TPP implementation guidance. For example, the Army
seeks input as to whether additional clarity is needed regarding the
application of the cost share wavier and/or ability to pay provisions,
and if so, recommendations for such clarifications. Input is requested
on ways in which the Corps can improve communication and increase
awareness with Tribes regarding TPP, as well as identification of any
limitations or barriers for Tribes to participate in TPP. The virtual
listening sessions for input are described in the Public Meetings and
Outreach section below. Written comments on this priority policy
initiative are also strongly encouraged and instructions are found in
the Addresses section above.
III. Potential Rulemaking Actions
A. Corps' Regulatory Program Procedures for the Protection of Historic
Properties at 33 CFR 325, Appendix C
Section 106 of the National Historic Preservation Act (NHPA) (Pub.
L. 89-665 and amendments thereto; 54 U.S.C. 306108) requires ``the head
of any Federal department . . . having authority to license any
undertaking, . . . prior to the issuance of any license, shall take
into account the effect of the undertaking on any historic property.''
The Advisory Council on Historic Preservation (ACHP) oversees agencies'
compliance and issues regulations governing Section 106 of the NHPA (36
CFR 800), which define how Federal agencies meet their statutory
responsibilities under NHPA. The Army's Civil Works programs, other
than the Regulatory Program, use the regulations promulgated by ACHP
for federal agency compliance with Section 106 of the NHPA.
The Corps' regulations governing Section 106 of the NHPA procedures
specific to its Regulatory Program were promulgated in 1990 (55 FR
27003; 33 CFR 325, Appendix C). Since then, there have been amendments
to the NHPA. For example, the 1992 amendments to the NHPA recognized
and expanded the role of Indian Tribes and Native Hawaiian
organizations (NHOs) in the national preservation program. In response
to these changes, the ACHP revised the Section 106 implementing
regulations to clarify the role of Tribes and NHOs in the Section 106
process (65 FR 77698). ACHP made further amendments to the implementing
regulations in 2004 (69 FR 40544). In response to the NHPA amendments
and regulations promulgated by ACHP to govern federal agency
implementation of Section 106, the Corps' Regulatory Program issued
interim guidance in 2005 \8\ and 2007.\9\ The Corps' Regulatory Program
issued an Advanced Notice of Proposed Rulemaking (ANPRM) in 2004 (69 FR
57662) to gather input on an update to its implementing regulations,
but the Corps has never finalized an update.
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\8\ https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2478 (accessed April 3, 2022).
\9\ https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/4042 (accessed April 3, 2022).
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The Army acknowledges there has been longstanding disagreement
between the Corps and ACHP regarding differences between the Corps'
Regulatory Program Appendix C and the regulations promulgated by ACHP
governing the Section 106 process. For example, the scope of the
undertaking subject to review and the Corps' use of ``permit area''
versus ACHP's use of ``area of potential effect''. In addition, under
the regulations promulgated by ACHP the resolution of adverse effects
can be accomplished via a Memorandum of Agreement or, for certain
complex projects or programs, a Programmatic Agreement, while the
Corps' regulations allow for resolution through a Memorandum of
Agreement or permit conditioning. There are also timeline differences
between the sets of regulations.
The Corps' Regulatory Program's reliance on Appendix C and multiple
guidance documents can result in inconsistency and confusion among the
regulated public, State and Tribal Historic Preservation Offices,
Tribes, and others. In addition, the longstanding disagreement between
Regulatory and ACHP regarding differences between the Corps'
implementing regulations and those promulgated by ACHP concerning the
Regulatory scope for permit area has resulted in lengthy and
challenging consultations. Tribes have also stated that the lack of
updated and consistent implementing regulations reflecting the current
NHPA language for the Corps' Regulatory Program indicates that the
Corps is not meeting their statutory and Tribal trust responsibilities.
As a result, the Army has made clear that rulemaking on Appendix C
is a priority policy initiative which will serve to modernize the
Regulatory Program.\10\ The Army is soliciting input on the best
approach to modernize Appendix C, including consideration for
[[Page 33760]]
options provided in the ANPRM from 2004 (69 FR 57662). Due to the
passage of time since the ANPRM, comments submitted in response to the
ANPRM should be resubmitted for consideration related to this current
initiative. The Army wants to best ensure compliance with the
regulation promulgated by ACHP to govern federal agency implementation
of Section 106 at 36 CFR 800, as well as to best reflect the policy
priorities of the Administration. In particular, the Army seeks input
on whether the Corps should rely on the NHPA regulations at 36 CFR 800
promulgated by ACHP and rescind Appendix C, and if so, whether any
clarifying guidance is needed on the scope of the area of potential
effects for the Corps' Regulatory Program, and whether development of a
Program Alternative (36 CFR 800.14) would allow for clear and
consistent implementation procedures, as well as improved Tribal
consultation. The virtual listening sessions for input are described in
the Public Meetings and Outreach section below. Written comments on
this priority policy initiative are also strongly encouraged and
instructions are found in the ADDRESSES section above.
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\10\ See Fall 2021 Unified Agenda at RIN-0710-AB46; https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=0710-AB46
(accessed April 3, 2022).
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B. Principles, Requirements, and Guidelines (PR&G)
1. Background
Section 2031 of the WRDA of 2007 (Pub. L. 110-114) directed the
Secretary of the Army, in consultation with the Secretary of the
Interior, the Secretary of Agriculture, the Secretary of Commerce, the
Secretary of Housing and Urban Development, the Secretary of
Transportation, the Administrator of the Environmental Protection
Agency, the Secretary of Energy, the Secretary of Homeland Security,
the National Academy of Sciences, and the Council on Environmental
Quality, to revise the March 10, 1983, Economic and Environmental
Principles and Guidelines for Water and Related Land Resources
Implementation Studies \11\ (P&G) for Corps use and to address the
following considerations: Advancements in economic and analytic
techniques; public safety; low-income communities; nonstructural
solutions; and integrated, adaptive, and watershed approaches.
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\11\ https://planning.erdc.dren.mil/toolbox/library/Guidance/Principles_Guidelines.pdf (accessed May 4, 2022).
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Since 1983, the P&G has guided the evaluation and formulation of
water resources projects proposed by the Corps and three other Federal
water resources agencies. The 1983 P&G required the agencies to
undertake a broad analysis of all significant effects of a proposed
Federal water resources project and its alternatives. The P&G also
directed these agencies to recommend the alternative with the greatest
net economic benefit consistent with protecting the Nation's
environment, unless the agency head grants an exception to this rule.
The Corps uses the P&G primarily in its commercial navigation and its
flood and storm damage reduction studies.
During the Obama Administration, the Council of Environmental
Quality (CEQ) led an interagency effort to modernize the P&G. That
process began in 2009 and concluded in 2013 and 2014, when the Water
Resources Council issued the Principles, Requirements and Guidelines
(PR&G).\12\ The PR&G emphasizes that water resources projects should
maximize economic development, avoid the unwise use of floodplains, and
protect and restore natural ecosystems. The PR&G is designed to support
water infrastructure projects with the greatest public benefits
(economic, environmental and social benefits).
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\12\ https://obamawhitehouse.archives.gov/administration/eop/ceq/initiatives/PandG (accessed April 4, 2022).
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During the development of the PR&G, which involved an interagency
process, CEQ provided an opportunity for input from the public and
stakeholders, including several workshops on topics such as climate
change, ecosystem services, and Tribal engagement. In addition, input
from a review by the National Academy of Sciences was incorporated into
the final product.
CEQ also directed and coordinated the development of Agency
Specific Procedures (ASPs) by each affected water resources agency in
2014. Those ASPs were completed by all water resources agencies and
approved by CEQ, with the exception of the Corps. For several years,
beginning in 2015, the Congress included direction in the Joint
Explanatory Statement for the annual Corps appropriation that
prohibited the Corps from developing the ASPs to implement the PR&G.
However, Congress has since then directed the Secretary to issue ASPs
in Section 110 of WRDA 2020 (Division AA of Pub. L. 116-260).
An Army memorandum dated January 5, 2021, provided interim
direction to the Corps project planning process.\13\ The memorandum
directed the Corps to give equal consideration in its project studies
to all of the benefits of a proposed project and its alternatives, and
equal consideration of economic, environmental and social categories.
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\13\ https://planning.erdc.dren.mil/toolbox/library/MemosandLetters/ComprehensiveDocumentationofBenefitsinDecisionDocument_5January2021.pdf (accessed April 4, 2022).
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2. Overview of PR&G
The PR&G includes a number of notable features, which govern its
implementation. These include: (1) The concept of public benefits, with
a focus on striving to maximize public benefits (economic, social and
environmental) relative to costs, with no hierarchy among the
interrelated economic, social, and environmental goals when evaluating
alternatives for investments; (2) elevating the Locally Preferred Plan
(LPP), where an LPP exists it should be included in the final array,
promoting transparency from the initial stages and reducing conflict in
cases where a local sponsor has a ``plan'' to solve a problem; (3)
elevating the nonstructural plan, where a nonstructural plan exists, it
must be included in the final array regardless of whether an agency can
implement it; (4) facilitating choices for the recommended project(s),
where the public benefits approach involves tradeoffs among plans and
outputs (economic, social, environmental) resulting in the decision
maker likely having more projects that may be worthy of an investment,
that there may be more than one ``best'' way to solve some of the
nation's increasingly complex water resources challenges, and that
professional judgment in determining which project(s) is best will be
facilitated by appropriate consideration of tradeoff of monetized and
non-monetized effects, resulting in an elevation of the role of
qualitative data and the need for professional judgment in making
recommendations; (5) facilitating collaboration, where a broad
application across a wider array of federal water programs is expected
to facilitate collaboration in terms of data sharing, model development
and agency-to-agency consultations; (6) elevating ecosystem,
sustainable economic development, floodplain, environmental justice,
public safety and watershed considerations in terms of alternatives
that are developed and considered, increasing transparency; (7) level
of analysis, where the PR&G identifies the kinds of activities to
analyze and provides for varying levels of detail, as well as a means
to certify equivalent processes as meeting the intent of PR&G, and the
full analysis is provided for major investments whereas scaled analyses
are provided for smaller investments, where the process is streamlined
and procedures reflect the scope and complexity of the problem being
assessed; and, (8) fiscal resources,
[[Page 33761]]
recognizing limited fiscal resources more directly, potentially
resulting in smaller projects that may not maximize the return on
investment like that of an National Economic Development plan, but
solving a water resources problem at a smaller or different scale.
In general, the PR&G also includes a focus on some of the policy
priorities discussed in this Federal Register notice, as PR&G discusses
climate resiliency and environmental justice in the public benefits
context and they are both also included in the Guiding Principles for
implementing PR&G.\14\
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\14\ https://obamawhitehouse.archives.gov/sites/default/files/docs/prg_interagency_guidelines_12_2014.pdf (last accessed May 4,
2022).
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3. Path Forward Regarding PR&G Implementation
The Army plans to undertake a rulemaking that will propose how
specifically the Army would implement the PR&G.\15\ The Army seeks
input on the appropriate content of this PR&G rulemaking to ensure
consistency with the intent and purpose of PR&G. The Army expects the
rulemaking to cover a range of basic project planning issues. The Army
does not seek to codify the contents of the January 2021 memorandum in
the PR&G rulemaking effort. However, the Army invites comments on which
aspects of this memorandum may be beneficial to carry forward in the
forthcoming PR&G rulemaking effort.
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\15\ See the Fall 2021 Unified Agenda, RIN 0710-AB418 at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=0710-AB41 (accessed April 4, 2022).
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The virtual listening sessions for input are described in the
Public Meetings and Outreach section below. Written comments on this
priority policy initiative are also strongly encouraged and
instructions are found in the Addresses section above.
III. Environmental Justice
A. Interim Guidance Overview
On March 15, 2022, the Assistant Secretary of the Army for Civil
Works issued a memorandum to the Corps providing interim guidance on
environmental justice titled, Implementation of Environmental Justice
and the Justice40 Initiative (Interim Guidance).\16\ The memorandum
outlines the environmental justice policy for the Army and outlines
three key areas of focus: (1) Improving outreach and access to Army
Civil Works information and resources; (2) improving access to Army
Civil Works technical service programs (e.g., Planning Assistance to
States and Floodplain Management Services programs) and maximizing the
reach of Civil Works projects to benefit the disadvantaged communities,
in particular as it relates to climate resiliency; and (3) ensuring any
updates to Army Civil Works policies and guidance will not result in a
disproportionate impact on disadvantaged communities.
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\16\ https://www.army.mil/article/254935/assistant_secretary_of_the_army_for_civil_works_issues_environmental_justice_guidance_to_the_army_corps_of_engineers (accessed April 3,
2022).
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The Interim Guidance focuses on priority action areas for
environmental justice, including the Justice40 Initiative, in Civil
Works. The priority action areas for Civil Works include the Tribal
Partnership Program, Planning Assistance to States program, and
Floodplain Management Services program, as well as more broadly to
study, design, construction, and operation phases of projects primarily
for flood risk management, coastal storm risk management, and aquatic
ecosystem restoration. It also includes the Continuing Authorities
Program and Environmental Infrastructure, where applicable under the
relevant authorities. The memorandum also provides the initial strategy
for the Corps to implement the Justice40 Initiative as envisioned by
the Administration,\17\ pending further Administration guidance. The
Interim Guidance covers areas such as significant but incidental
benefits and strategic outreach. The Interim Guidance details how the
Corps should consider environmental justice until such time as final
guidance is issued and provides a strategy for implementation to
achieve the broader goals of the Administration regarding environmental
justice.
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\17\ See M-21-28, https://www.whitehouse.gov/wp-content/uploads/2021/07/M-21-28.pdf (accessed April 4, 2022).
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The Army seeks input on whether there are additional measures that
the Army should include related to environmental justice, as well as
specific to the Justice40 Initiative. In particular, the Army seeks
input as to whether there are areas to be updated in the Interim
Guidance for consideration in a final environmental justice guidance.
In addition, we seek input as to whether there are specific
considerations regarding the Planning Assistance to States program, the
Floodplain Management Services program, and the Continuing Authorities
Program which could better achieve environmental justice and equity.
Input is requested on ways to improve how these Corps programs advance
environmental justice and equity, and on any current barriers to
achieving these objectives. Input also is requested on recommendations
for how the Army can best ensure that the assistance that it provides
under these programs will directly benefit and advance environmental
justice and equity.
One area not addressed in the Interim Guidance is the Corps'
Regulatory Program. The Army intends to issue guidance specific to the
Regulatory Program but seeks input on how best to incorporate
consideration of environmental justice in the Regulatory Program. The
Army requests recommendations as to how to accomplish such
incorporation. The virtual listening sessions for input are described
in the Public Meetings and Outreach section below. Written comments on
this priority policy initiative are also strongly encouraged and
instructions are found in the Addresses section above.
B. Outreach and Tools
To achieve the goals outlined in the Interim Guidance, there will
be an evolution as to how the Army engages and builds relationships
with communities. This Federal Register notice provides the national-
level engagement effort for environmental justice outreach for the
Army. The virtual sessions on environmental justice will highlight the
services and programs that the Corps provides and then provide an
opportunity for stakeholder input on how the Army can best leverage its
capabilities and authorities, as well as leveraging those of other
partners and federal agencies, to meet the needs of disadvantaged and
underserved communities. Following this national-level engagement, the
Army will have a more targeted focus of outreach at the local level.
The Army will engage Tribal, state, and local governments, and local
communities to discuss these matters and to raise public awareness of
the available programs and their benefits. The Army must strive to
align its missions and authorities with the disadvantaged and
underserved community's vision of the future to address the community's
needs and enable community resilience to the maximum extent
practicable. The Army seeks input on what forms of outreach are best to
engage disadvantaged and underserved communities for Army programs.
As required by Executive Order 14008 on Tackling the Climate Crisis
at Home
[[Page 33762]]
and Abroad,\18\ CEQ recently released a beta version of the Climate and
Economic Justice Screening Tool \19\ to provide a consistent
government-wide identification of disadvantaged communities that are
marginalized, underserved, and overburdened by pollution. The Army will
use this Tool for purposes of implementing the Interim Guidance,
focusing on the climate change and the critical clean water and waste
infrastructure (e.g., as implemented through the Corps' Environmental
Infrastructure program) categories and their associated definitions.
However, there are additional tools, such as the Environmental
Protection Agency's EJScreen tool,\20\ which are available for use to
provide further support and description of these communities for
purposes such as the National Environmental Compliance Act compliance
and outreach to disadvantaged and underserved communities for our
technical services programs. The Army seeks input on recommendations
regarding the assessment of benefits directed towards those communities
specific to the Civil Works program.
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\18\ https://www.govinfo.gov/content/pkg/FR-2021-02-01/pdf/2021-02177.pdf (accessed May 5, 2022).
\19\ https://screeningtool.geoplatform.gov/en (accessed April 1,
2022). CEQ notes on the web page that the beta version is ``an
early, in-progress version of the tool with limited datasets that
will be regularly updated.'' The Army is not soliciting input on the
CEJST as that effort is being led by CEQ in a separate action.
\20\ https://www.epa.gov/ejscreen (last accessed May 5, 2022).
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C. Water Resources Development Act
Section 160 of the WRDA of 2020 (Pub. L. 116-260) (Act) directs the
Secretary of the Army to issue guidance defining the term
``economically disadvantaged community'' for the purposes of that Act
and the amendments made by that Act, and provides that to the maximum
extent practicable, the Secretary shall utilize the criteria under
section 301(a)(1) and (2) of the Public Works and Economic Development
Act of 1965 (42 U.S.C. 3161) to the extent that such criteria are
applicable in relation to the development of a water resources
development project.
The Biden-Harris Administration released Interim Implementation
Guidance for the Justice40 Initiative on July 20, 2021,\21\ which
included an interim definition of ``disadvantaged community'':
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\21\ https://www.whitehouse.gov/wp-content/uploads/2021/07/M-21-28.pdf.
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Community--Agencies should define community as ``either a group of
individuals living in geographic proximity to one another, or a
geographically dispersed set of individuals (such as migrant workers or
Native Americans), where either type of group experiences common
conditions.''
Disadvantaged--Agencies should consider appropriate data, indices,
and screening tools to determine whether a specific community is
disadvantaged based on a combination of variables that may include, but
are not limited to, the following:
[cir] Low income, high and/or persistent poverty
[cir] High unemployment and underemployment
[cir] Racial and ethnic residential segregation, particularly where the
segregation stems from discrimination by government entities
[cir] Linguistic isolation
[cir] High housing cost burden and substandard housing
[cir] Distressed neighborhoods
[cir] High transportation cost burden and/or low transportation access
[cir] Disproportionate environmental stressor burden and high
cumulative impacts
[cir] Limited water and sanitation access and affordability
[cir] Disproportionate impacts from climate change
[cir] High energy cost burden and low energy access
[cir] Jobs lost through the energy transition
[cir] Access to healthcare.
The Army has drafted a proposed definition of ``economically
disadvantaged community,'' consistent with the WRDA provision, to
include: For purposes of the Army Civil Works program implementation of
WRDA 2020 an economically disadvantaged community is defined as meeting
one or more of the following:
(1) Low per capita income--The area has a per capita income of 80
percent or less of the national average; (2) Unemployment rate above
national average--The area has an unemployment rate that is, for the
most recent 24-month period for which data are available, at least 1
percent greater than the national average unemployment rate; (3) Indian
country as defined in 18 U.S.C. 1151; (4) U.S. Territories.\22\
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\22\ This can also be found at: https://www.usace.army.mil/Missions/Civil-Works/Project-Planning/Legislative-Links/wrda_2020/
(accessed May 4, 2022) with other information regarding WRDA 2020
implementation.
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The Army seeks input and recommendations on the proposed definition
of economically disadvantaged community. The Army also seeks input on
readily available data sources for the proposed definition. The virtual
listening sessions for input are described in the Public Meetings and
Outreach section below. Written comments on this priority policy
initiative are also strongly encouraged and instructions are found in
the Addresses section above.
IV. Public Meetings and Outreach
The Army will hold a series of virtual public meetings intended to
solicit input to inform their review of potential future actions
regarding the policy priority initiatives related to Tribal issues,
potential rulemaking actions to include Appendix C and PR&G, and
environmental justice. The Army will hold 11 virtual meetings in total,
including one virtual meeting to provide an overview for the public and
Tribes of all of the policy priority initiatives to help inform their
comments, followed by a series of 10 virtual meetings to gather
comments. There will be one virtual meeting on the Tribal issues open
to all stakeholders, one virtual meeting on each of the rulemaking
actions open to all stakeholders, and two virtual meetings on the
environmental justice policy priority initiative open to all
stakeholders. In addition, there will be two virtual meetings on the
Tribal issues with leaders of Tribal Nations or their designated staff,
one virtual meeting each on the potential rulemaking actions for the
Regulatory Program's Appendix C as well as PR&G specific with leaders
of Tribal Nations or their designated staff, and one virtual meeting
for the environmental justice policy priority initiative with leaders
of Tribal Nations or their designated staff. Registration information
for the virtual public and Tribal meetings is below. Separate
notification to Tribal leaders is also being provided initiating Tribal
consultation where applicable, with additional outreach to Tribal staff
occurring at the local District level. In addition, more community-
level engagement will occur at the local District level on these policy
priority initiatives to encourage participation and input on this
notice.
Registration is required for all meetings. Spots are limited and
those unable to attend are encouraged to provide written comments to
the docket which will be given equal consideration. Additional meetings
may be added if needed based on number of registrations. Attendees will
be asked to provide their name and email address to register.
Registration links are provided below and instructions with
additional
[[Page 33763]]
background information can also be found at the following website:
https://www.army.mil/asacw. Persons or organizations wishing to provide
verbal input during the virtual meetings will be selected on a first-
come, first-served 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 virtual meetings is as follows:
--Overview virtual meeting: June 22, 2022, 1 p.m. to 3 p.m. Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJItdeGvqDoqHLDhqGkGCo2XDqvJPTrrQ1E
--Public virtual meeting on Tribal issues: July 11, 2022, 1 p.m. to 3
p.m. Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJItdu2hqDMqHahppbA2q3HVKm31LbxqMqU
--Public virtual meeting on Appendix C: July 14, 2022, 2 p.m. to 4 p.m.
Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJIscOqtqT4jHopjlJy1l5JnRlnt5OOxkic
--Public virtual meeting on PR&G: July 18, 2022, 1 p.m. to 3 p.m.
Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJItdu6upjguG5LbfOXUWkUAEz7m3-NZ5V0
--Public virtual meetings on Environmental Justice: July 20, 2022, 1
p.m. to 3 p.m. Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJIsceqgpjgpH0DUKHEotfCGnZWEs10jtqI
July 26, 2022, 2 p.m. to 4 p.m. Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJIsfuiuqzwoG4F4fnSJmInSQZY4vZwEVGE
--Tribal virtual meetings on Tribal Issues: July 7, 2022, 1 p.m. to 3
p.m. Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJIscO-upzIsGQaR8o8fvQb23U8CBjScxBA
July 12, 2022, 2 p.m. to 4 p.m. Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJItce-vqjwvG8Kjy6JX2ohci3WsBGSVLis
--Tribal virtual meeting on Appendix C: July 19, 2022, 2 p.m. to 4 p.m.
Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJItdemoqjkuE29OGf1xq1vB9cJrAGyoX1g
--Tribal virtual meeting on PR&G: July 21, 2022, 1 p.m. to 3 p.m.
Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJItd-6rqzMpHO_oqn8OTcV30Fe7Af5hW9E
--Tribal virtual meeting on Environmental Justice: July 27, 2022, 1
p.m. to 3 p.m. Eastern.
Registration link: https://www.zoomgov.com/meeting/register/vJIsdeutpjspEp7MCdx6i2KfGISuML0S83o
Michael L. Connor,
Assistant Secretary of the Army (Civil Works).
[FR Doc. 2022-11881 Filed 6-2-22; 8:45 am]
BILLING CODE 3720-58-P