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[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
```