The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) to authorize discharge of dredged or fill materials to waters of the U.S. (WOUS) that require Department of the Army permits under Section 404 of the Clean Water Act and/or Section 10 of the River and Harbors Act of 1899.  Section 404(e) of the Clean Water Act allows the Corps to issue NWPs, a type of general permit designed to regulate with little, if any, delay or paperwork certain activities in jurisdictional waters and wetlands that have no more than minimal individual and cumulative adverse environmental effects. Nationwide permits can be issued for a 5-year period and must be renewed before they expire.  There are currently 52 NWPs for activities such as bank stabilization and residential development; the NWPs were last reissued on December 21, 2016, and became effective March 19, 2017.  According to the Corps, the NWP program authorizes approximately 65,000 activities each year.

On March 28, 2017, President Trump issued Executive Order (EO) 13783, Promoting Energy Independence and Economic Growth.  Executive Order 13783 states that, 

[I]t is in the national interest to promote clean and safe development of our Nation’s vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation[.]  

In light of that policy statement, EO 13783 requires the review of existing regulations that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear resources.  The Corps reviewed 12 NWPs for modifications to encourage the development of, and reduce the regulatory burden associated with the production of, energy resources, consistent with the policy directives of EO 13783.  This e-alert discusses the Corps’ proposed changes to NWP 12, Utility Line Activities, which includes oil and gas pipelines.

Nationwide Permit 12 authorizes discharges of dredged or fill material into WOUS and structures or work in navigable waters for crossings of those waters associated with the construction, maintenance, or repair of utility lines, which include linear pipes, cables, or wires to transport physical substances or electromagnetic energy from a point of origin to a terminal point. It also authorizes the construction, maintenance, or expansion of substation facilities associated with a power line or utility line in non-tidal WOUS, foundations for overhead utility lines, and the construction and maintenance of utility line access roads.  The Corps’ regulations define “utility line” as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose, and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone, and telegraphy messages, and internet, radio, and television communication.  

Under certain circumstances, those seeking authorization under NWP 12 must submit a "pre-construction notification" (PCN) to the Corps to ensure that the proposed activity qualifies for NWP authorization. The Corps’ current regulations require a PCN in the following seven circumstances: 

• The permit holder wants to clear land in a forested wetlandA Rivers and Harbors section 10 permit is required 
• The utility line in WOUS exceeds 500 feet
• The utility line is placed within WOUS, and the utility line runs parallel to or along a stream bed within the same WOUS 
• The proposed discharge would result in the loss of greater than 1/10-acre of WOUS
• Permanent access roads are constructed above grade in WOUS for a distance of more than 500 feet
• Permanent access roads are constructed in WOUS with impervious materials.

In a report dated September 25, 2017, the Corps recommends simplifying NWP 12 by reducing the number of PCN thresholds from seven to two. In its proposal, a PCN would be required only for utility lines crossing navigable waters subject to section 10 of the Rivers and Harbors Act and for utility line activities resulting in the loss of greater than 1/10-acre of WOUS.

Under the current and proposed revisions to NWP 12, the 1/10-acre limit applies to each “single and complete” project, which the Corps defines as each crossing of a single waterbody at a separate and distant location, not as the entire pipeline. In other words, if a utility line only results in the loss of a 1/10-acre of WOUS (or less) at each crossing, so long as those crossings are distant from each other, it can cross the same (or different) WOUS as many time as necessary to get from point A to point B under multiple NWP 12 authorizations.

Although the Corps’ proposed modifications to NWP 12 respond directly to EO 13783’s focus on reducing regulatory burdens with respect to the development, production, and use of fossil fuel and nuclear energy resources, the Corps’ proposed revisions to NWP 12 would apply to all utility line activities authorized under NWP 12, including, for example, electric transmission lines servicing renewable energy projects and telecommunications cables, not just oil and gas pipelines.