Trump Track: Army Corps of Engineers Reissues and Modifies Nationwide Permits

The U.S. Army Corps of Engineers has just finalized its rule reissuing and modifying a dozen existing Nationwide Permits (NWPs), issuing four new NWPs, and revising the general conditions and definitions applying to these permits. This rule (which will take effect 60 days after being published in the federal registrar) was very much anticipated by the oil and gas and utility industries after a federal district court in Montana invalidated NWP 12 in April 2020.

NWP 12 had authorized discharges associated with the construction, maintenance, repair, and removal of utility lines and associated facilities, including oil and gas pipelines, electric transmission and collection lines, telephone, internet and the like. NWPs are issued in lieu of the more onerous individual permit process and authorize certain lower-impact, routine activities under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act (RHA) of 1899.

The Montana federal judge hearing the case invalidated NWP 12 for failure to comply with the Endangered Species Act (ESA) in a case filed against the Keystone XL Pipeline. While limited to the specific dispute involving this pipeline, the decision created some uncertainty for developers while the Corps initiated the ESA consultation process to reissue the permit.

In reissuing NWP 12, the Corps split the permit into three separate permits:

• NWP 12 will focus solely on oil or natural gas pipeline activities;
• NWP 57 will authorize electric utility line and telecommunication activities; and
• NWP 58 will allow utility line activities for water and other substances.

These modifications were in part in response to Executive Order 13738, which encourages agencies to revise existing regulations that "unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law."

In addition, the new rule reduced the number of conditions triggering an applicant's need to submit a pre-construction notification (PCN). The 2017 version required an applicant to submit a PCN when a protected species may be in the vicinity of the project or when a historic property may be affected, as well as seven other circumstances. The 2021 rule removes five of the PCN triggers as redundant, but adds a new trigger for the oil and gas NWP, when the project includes a new pipeline greater than 250 miles in length.

The Corps acknowledges that the new rules are in part a response to the Keystone XL Pipeline ruling, but does not otherwise change its approach to ESA compliance. Environmental groups opposing the pipeline had argued that the Corps should have undertaken programmatic consultation under the ESA when issuing the permit in 2017.

When issuing the new NWPs, the Corps finalized its biological assessment, concluding that the rulemaking in fact had no effect on listed species and designated critical habitat, and that the Corps was not required to seek concurrence from the U.S. Fish and Wildlife Service or the National Marine Fisheries Service. In doing so, the Corps effectively rejected the assertion that it was required to undertake a national programmatic ESA Section 7 consultation as part of the issuance of the NWPs, despite the Keystone case.

Aside from NWP 12, the Corps also replaced:

• NWP 21 - Surface coal mining activities;
• NWP 29 - Residential developments;
• NWP 39 - Commercial and institutional developments;
• NWP 40 - Agricultural activities;
• NWP 42 - Recreational facilities;
• NWP 43 - Stormwater management facilities;
• NWP 44 - Mining activities;
• NWP 48 - Commercial shellfish mariculture activities;
• NWP 50 - Underground coal mining activities;
• NWP 51 - Land-based renewable energy generation facilities; and
• NWP 52 - Water-based renewable energy generation pilot projects.