The economy may be stalled, but the use of Nationwide Permit (NWP) 12 just opened back up for non-oil and gas pipeline projects. A recent decision rocked the permitting community as a judge vacated NWP 12 outright because the U.S. Army Corps of Engineers (Corps) violated the Endangered Species Act (ESA) by not consulting with the U.S. Fish and Wildlife Service prior to reissuing NWP 12. However, earlier this week, Judge Morris amended the remedy provided in his April 15, 2020 order, which vacated all continuing use of NWP 12. The parties together requested a narrowing of the decision, specifically asking that the vacatur of the rule only apply to new oil and gas pipelines, which would still prevent the construction of the Keystone XL pipeline under NWP 12 at issue in N. Plains Res. Council v. U.S. Army Corps of Engineers. The court stated that under its amended order:
The Corps may not approve the discharge of dredged or fill material under NWP 12 for projects constructing new oil and gas pipelines. NWP 12 will remain in place during remand insofar as it authorizes non-pipeline construction activities and routine maintenance, inspection, and repair activities on existing NWP 12 projects.
NWPs are used to authorize the discharge of dredge and fill materials under the Section 404 permitting requirements of the Clean Water Act (CWA). These permits cover activities that will have a minimal impact on waters of the U.S. NWP 12 is widely used for activities surrounding maintenance and construction of utility lines, such as pipelines, wire cable lines, transmission lines, etc. Under this new order, the vacatur remains for oil and gas pipeline projects, forcing these projects to take different avenues for CWA compliance, which may include avoiding jurisdictional waters, finding coverage under different NWPs, or seeking an individual permit. However, non-oil and gas pipeline projects, that will disturb less than 1/10 acre, may utilize NWP 12 for CWA compliance. Additionally, the Corps may continue authorizing those non-oil and gas pipeline projects disturbing more than 1/10 of an acre who submitted notification to the Corps under a Preconstruction Notification (PCN).
With this litigation continuing, and other challenges potentially issuing for other NWP, their use continues to provide uncertainty in the world of permitting. Our Environmental Team is monitoring the litigation and any guidance issued by the Corps and can provide up-to-date information.
For more information about this decision and any permitting questions you may have, please contact a member of Husch Blackwell’s Environmental team, several of whom regularly work on WOTUS matters, including: jurisdictional determinations, permitting requirements, compliance and more. Megan Caldwell, and Daniel Fanning.