On March 28, 2022, the U.S. Army Corps of Engineers (“Corps”) published notice (“Notice”) that it is undertaking a formal review of Nationwide Permit (“NWP”) 12, one of over 50 general permits available nationwide that allow for streamlined approval of certain categories of activities that may affect federally jurisdictional waters and wetlands when the effects are no more than minimal. NWP 12, which authorizes oil and natural gas pipeline activities, has been a key component in allowing midstream companies and others to construct or repair pipelines in certain circumstances without having to go through the much more time-consuming and costly process of applying for an individual Clean Water Act Section 404 permit or a Rivers and Harbors Act Section 10 permit.
The Notice solicits input from stakeholders to inform the Corps’ decision-making regarding NWP 12, and it poses nine questions. Although some of these questions are within the scope of what the Corps normally considers when reviewing and reissuing NWPs, some go beyond that scope and may foreshadow significant changes in NWP 12, and possibly even its ultimate revocation. Indeed, since the Corps issued NWP 12 for five years only one year ago,1 the fact that the Biden administration has elected to undertake this review four years before the current NWP 12 expires is unusual and likely indicative that the government is considering significant changes. Those interested in providing feedback to the Corps have until May 27, 2022 to submit comments.
The Nationwide Permit Program
The Corps’ NWP program has been an essential part of the U.S. industrial and economic engine since the 1970s, allowing projects to proceed after a streamlined review when effects are no more than minimal. Both the Clean Water Act and Rivers and Harbors Act require that an applicant obtain authorization from the Corps before taking certain actions affecting waters of the United States, such as discharging dredged or fill material into jurisdictional waters or constructing any structure in, over, or under a navigable water. To streamline the permitting process, Congress gave the Corps the ability to issue general permits that can apply state-wide, region-wide, or nationwide for certain types of routine projects that, based on the Corps’ environmental review, will only cause minimal adverse environmental effects. When an activity meets certain criteria designed to ensure effects are no more than minimal, the NWP program allows the permittee to fast-track the permitting process by relying on the general permit rather than going through the cumbersome process of obtaining an individual permit.
There are 57 NWPs, with each permit applying to a different category of activities, such as commercial and residential development, maintenance activities, survey work, stormwater management activities, bank stabilization, renewable energy generation facilities, and electric utility line and telecommunications activities. While the specific location of a particular project and proximity to waters of the United States will determine the permitting requirements, most linear infrastructure projects like pipelines or electric transmission lines, if they are of any appreciable length, are likely to cross waters and wetlands subject to federal jurisdiction. For decades, these projects have qualified for streamlined permitting under the Corps’ NWP program. NWP 12, in particular, is among the oldest NWPs and has historically applied to all sorts of utility lines and pipelines. In January 2021, the Corps split NWP 12 into three separate NWPs — one for oil, gas, and petrochemicals (which remained as NWP 12), one for electric utility line and telecommunications activities (which is now NWP 57), and one for utility line activities for water and other substances (which is now NWP 58).
NWP 12 Under Scrutiny
The NWP program has come under increasing scrutiny in recent years. Opponents of infrastructure projects have focused their attacks on NWP 12, in particular, in an attempt to block new oil and gas pipelines. For example, in April 2020, opponents of the Keystone XL pipeline project temporarily succeeded in obtaining a nationwide injunction against the use of NWP 12. There, a federal district court in Montana determined that the Corps had failed to undertake programmatic consultation under Section 7 of the Endangered Species Act when the Corps issued the permit in 2017.2 In July 2020, the Supreme Court stayed that injunction for all project developers except Keystone XL.3
The Corps has taken the same position on the programmatic consultation issue in its recent NWP reissuances, and that has drawn more litigation. In particular, in its documentation reissuing the January 2021 NWPs, the Corps prepared a new biological assessment concluding that the rulemaking had no effect on listed species and designated critical habitat. The Corps then reaffirmed its conclusion that the general condition requiring additional agency review when listed species might be present in the affected area, and additional ESA Section 7 consultation when any listed species may be affected, satisfies the agency’s obligations under the ESA. Several environmental groups are challenging the Corps’ reissuance of NWP 12 on the same grounds raised in the previous Keystone XL litigation, and that case is pending before the same federal district court judge that oversaw the Keystone XL litigation.4
Issues Raised in the Notice Regarding NWP 12
In the Notice, the Corps seeks input “on the appropriate balance for allowing efficient authorization processes with due consideration for the potential effects of oil and natural gas pipelines as well as the need to engage and inform the public, particularly communities that potentially may be impacted by pipeline construction and operations.” While the Notice calls for input on all aspects of NWP 12, it specifically poses the following nine questions listed alongside commentary that highlights only some of the key issues implicated by the Corps’ review:
Importance of Public Comments
Businesses that make use of NWP 12 should consider filing public comments to share their perspectives and concerns with the questions raised by the Corps. Public comments play an important role in providing feedback to the agency and flagging concerns that the agency may not otherwise consider. In addition, public comments are important for any subsequent court fights over the Corps’ final determination. Public comments make up part of the “administrative record” or body of information that the court will look at when reviewing the Corps’ decision. Comments in response to the Notice are due on May 27, 2022. The Corps is also conducting six virtual public and tribal meetings throughout the month of May.
1 Typically, the Corps reissues the NWPs together in a single rulemaking, which happens roughly every five years. The Corps recently departed from this convention. In January 2021, the Corps reissued 12 of its 52 existing NWPs, issued four new NWPs, and revised general conditions and definitions for these NWPs. Major changes in the January 2021 rule included: (1) splitting NWP 12 as discussed above, (2) reducing the number of conditions that would trigger an applicant’s need to submit a pre-construction notification (“PCN”) before proceeding with its activity, and (3) removing the 300-linear foot limit for losses of stream bed from 10 NWPs. The subsequent December 2021 final rule reissued the remaining 40 existing NWPs, issued one new NWP, and revised the general conditions and definitions. Major changes included clarifying activities considered “maintenance” under NWP 3 and issuing NWP 59 for Water Reclamation and Reuse Facilities. The various NWPs issued in January and December 2021 will expire on March 14, 2026, unless modified or revoked prior to expiration.
2 N. Plains Res. Council v. U.S. Army Corps of Eng’rs, 454 F. Supp. 3d 985 (D. Mont. 2020), amended by 460 F. Supp. 3d 1030 (D Mont. 2020).
3 U.S. Army Corps of Eng’rs v. N. Plains Res. Council, 141 S.Ct. 190 (2020).
4 Ctr. for Biological Diversity v. Spellmon, No. 4:21-cv-00047 (D. Mont. filed May 3, 2021). Vinson & Elkins represents an amicus curiae in this matter.
5 See Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31 (D.C. Cir. 2015); Sierra Club v. Bostick, 787 F.3d 1043 (10th Cir. 2015).