Last month, the U.S. District Court for the District of Montana granted summary judgment to an environmental group, ruling that the U.S. Army Corps of Engineers violated Section 7(a)(2) of the Endangered Species Act (“ESA”) by failing to formally consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries. The Court held that the Corps’ re-issuing its Nationwide Permit 12 (“NWP 12”) without complying with the ESA “may affect” protected species or critical habitat.

Nationwide permits are available under the Clean Water Act (“CWA”) for categories of activities that are “similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1). NWP 12 authorizes discharges of dredged or fill material into covered waters as required for the construction, maintenance, repair, and removal of utility lines and associated facilities, which include natural gas pipelines such as Keystone XL. The Corps originally issued NWP 12 in 1977 and has re-issued it every five years.

The Court explained that unlike for the 2007 and 2012 renewals of NWP 12, with the 2017 renewal, the Corps did not formally consult with the appropriate federal service. The Corps contended that no consultation was necessary because reissuance of NWP 12 would result in “no more than minimal individual and cumulative adverse effects on the aquatic environment” under the CWA. Citing the Corps’ formal consultations with the federal services in 2007 and 2012, and expert testimony on the adverse effect of activity under NWP 12 on the pallid sturgeon and the American burying beetle, both endangered species, the Court found that the Corps violated the ESA. The Court vacated NWP 12 and enjoined the Corps from authorizing any dredge or fill activity under NWP 12 until it re-issued the permit in compliance with the ESA.

Northern Plains Resource Council v. U.S. Army Corps of Engineers, No. 4:19-cv-44 (D. Mont., April 15, 2020).

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