Are OTA and NextEra trying to circumvent federal permitting regulations?
Public Comment on General Permits 12 and 14 due Friday, September 13th
A few weeks ago we were notified that two General Permits were up for renewal with the US Army Corps of Engineers (USACE). A joint public notice was put out by the USACE and the Oklahoma Department of Environmental Quality (ODEQ) with a thirty day comment period. The public comment period ends this Friday, September 13th.
We are asking you to please take two minutes to email them comments. Keep reading for more information.
General Permit 12 and General Permit 14
GP 12 and GP 14 are regional general permits for Utility Line (GP12) and Linear Transportation (GP14) (highways, bridges, railways, trails, airport runways and taxiways) Activities. Once they are approved they last for five years, at which time they must be renewed.
During this renewal cycle, the USACE has amended these two General Permits to include Appendix B and SWS (Sensitive Public and Private Water Supplies) Waters.
Why might this be interesting to you?
The OTA is proposing to build a 7,000 foot long bridge over the South Canadian River, designated an Appendix B water.
The OTA is proposing to build through the Lake Thunderbird Watershed, designated a SWS (Sensitive Public and Private Water Supplies) Waters.
NextEra is running 48-miles of transmission lines across the South Canadian River (Appendix B water) and through the Lake Thunderbird Watershed (SWS waters).
WITH the additions of Appendix B and SWS waters, it may be possible that instead of having to submit an Individual Permit with site specific Environmental Assessments, that NextEra and OTA projects, for example, may fall under the General Permit when they apply to cross either the South Canadian River or the Lake Thunderbird Watershed (or any Appendix B or SWS Waters).
An impact threshold that the General Permit would cover, for example, would be 1000 feet of linear bank disturbance on a river crossing. So, if the bridge embankment and roadway were 499’ wide or less, the bridge could in theory fall under a general permit.
Does it seem to you that the USACE amended this General Permit so that the electric companies and road builders don’t have to go through so much hassle to get their projects approved?
Do you believe in coincidences?
What are Appendix B waters?
Appendix B waters include but are not limited to the National and State parks, forests, wilderness areas, wildlife management areas, and wildlife refuges. Appendix B waters may also include those areas which are inhabited by federally listed, threatened, or endangered species, and other appropriate areas as designated in Oklahoma Water Quality Standards (OWQS) OAC 252:730.
The text on the map is small but it says “The purpose of this map is to provide an unofficial, graphic representation of Areas with waters of recreational and/or ecological significance listed in Appendix B Table 1 and Areas which contain federally Threatened or Endangered Species pursuant to the Federal Endangered Species Act Table 2 of the Oklahoma Water Quality Standards (OWQS). The official version of the OWQS is published by the Oklahoma Secretary of State.”
In our case, the South Canadian River is listed as an Appendix B waterway because it is home to a federally-listed species under the endangered species act, the Arkansas River Shiner.
What are SWS Waters?
SWS waters are defined as a water of the state which constitutes a sensitive public and private water supply, and which is designated as such in OAC 252:730 Appendix A.
What is really going on?
Good question. In multiple calls with multiple people at the USACE, it appears that everyone has a little different take on why these amended General Permits are a good idea. The main take-away that I got was that the USACE was interested in making it EASIER for giant industrial complexes to get 404 (flooding) permits in sensitive water areas.
For example, if you read the text of the “Purpose and Need for GP” it says “Without a GP for transportation crossings as proposed herein, the regulated public is required to obtain an Individual Permit for those activities requiring a Section 404 or Section 10 permit authorization. The revised GP 14 is designed to provide an expeditious review and authorization, where appropriate and applicable environmental impacts are minimal, specifically in waters that Water Quality Certification has been denied.”
The Oklahoma DEQ conducts Clean Water Act Section 401 certification reviews of projects requiring a federal discharge permit. The Federal Environmental Protection Agency (EPA) ceded their permitting power to the ODEQ. The most common federal permits in Oklahoma requiring 401 certifications are Clean Water Act Section 404 permits from the USACE for the discharge of dredged or fill material into waters of the US.
Why would the USACE want to EXPEDITE a 404 (flooding) permit for a large infrastructure project crossing a sensitive water body when the EPA’s 401 permit for Water Quality Certification (as doled out by the ODEQ) would theoretically be denied?
Why would sensitive waters that the ODEQ denies permits through be lumped in with other General Permit waters?
Is the 401 (water quality) EPA/ODEQ permitting being skirted by the expedited USACE 404 (flooding) permit?
The gist of these general permits seems to be an attempt to relax some of the permitting requirements for electric companies and road builders. If the OTA or NextEra is behind any attempt to relax permitting requirements, it would be behind it through possible back door dealings with the USACE.
Public Comment Ends Friday, September 13th
Here’s what we need you to do by FRIDAY!!!! Send two separate emails to CESWT-RO@usace.army.mil with SWT-2024-00012 and SWT-2024-00014 in the subject lines of your email message.
Here are some draft comments you can copy and paste. You can use all of them or any combination of comments that you feel most comfortable with.
Comments for you to use in your email
Any action the US Corps of Engineers may take in this matter is federal action subject to the National Environmental Policy Act (NEPA). As such, any action taken pursuant to this Notice requires full compliance with NEPA, up to and including the completion of a full Environmental Impact Statement to the full extent required by law.
The notice is misleading and unclear. The USACE needs to issue a new notice and
make clear what the changes to the current General Permit 12 and 14 are (e.g., amending the GPs to include Appendix B and SWS waters),
make clear what the purpose is (expedited permitting is not a valid justification in and of itself),
provide a full justification for why the changes are needed beyond simply expedited permitting, and
state exactly what the USACE are requesting comment on.
The notices appear to be a copy and paste job that alternates between a proposed revision to the GP, and a request for comment on specific activities to be conducted under the GP. How can the public know for certain what we are commenting on? The notices for GP-12 and GP-14 lack sufficient detail and clarity, making it difficult to fully understand their content.
While specific water quality comments are apparently directed to ODEQ, the public can only speculate on potential impacts, as there is no clear indication of the specific work planned.
Every Appendix B and SWS designated water is unique, with individual and specific considerations. Use of a GP within sensitive waters is inappropriate since it would reduce the ability for scrutiny, reduce the level of public input, and potentially cause irreparable harm to sensitive water supplies.
It seems that by including Appendix B and SWS waters within the General Permits for utility lines and linear transportation projects, that the USACE is making it easier on giant industrial complexes, such as energy companies and heavy highway builders, to get 404 (flooding) permits over sensitive waters in Oklahoma. Electric companies and highway builders who propose massive world-altering permanent infrastructure projects that forever alter natural rivers and big lakes, for example, should be required to submit INDIVIDUAL PERMITS with extensive Environmental Impact Studies (EIS); especially when crossing Appendix B and SWS waters. The USACE should be making it MORE difficult to obtain a permit over sensitive waters, not easier.
There are many parts within these two amended General Permits that are confusing and unclear. For example, within the GP-14 application under “Purpose and Need for GP” it says “Without a GP for transportation crossings as proposed herein, the regulated public is required to obtain an Individual Permit for those activities requiring a Section 404 or Section 10 permit authorization. The revised GP 14 is designed to provide an expeditious review and authorization, where appropriate and applicable environmental impacts are minimal, specifically in waters that Water Quality Certification has been denied.”
I have several questions about this statement: Why would the USACE want to EXPEDITE a 404 (flooding) permit for a large infrastructure project crossing a sensitive water body when the EPA’s 401 permit for Water Quality Certification (as doled out by the ODEQ) would theoretically be denied?
Why would sensitive waters that the ODEQ routinely denies permits through be lumped in with other General Permit waters?
Is the 401 (water quality) EPA/ODEQ permitting being skirted by the expedited USACE 404 (flooding) permit?
The gist of these general permits seems to be an attempt to relax some of the permitting requirements for electric companies and road builders within sensitive waterways and I don’t think that is a good idea.
I am a proponent of the USACE creating a clearer scope of work and purpose and need for the GP amendments and explaining it to the public in a way that everyone can understand. After those changes are made, I would ask that the USACE re-open the public comment period.
At a minimum, the USACE should reissue a proper notice and open up an additional comment period. Ideally, the USACE should simply seek to reissue the General Permits without the addition of Appendix B and SWS waters.
Amy,
Thank you also for providing the email address and the bullet point suggestions to choose from in compiling our email. This makes sending the email much more doable for those of us not versed in what words to use or questions to ask. Both emails easily sent!
This all smacks of something very underhanded. I do not believe in this kind of coincidence either. Thank you for helping us be aware of this so we can send the emails you suggest.