Nationwide Permit 12 vacated and remanded to the Army Corps

Bricker & Eckler LLP

Bricker & Eckler LLP

On April 15, 2020, the U.S. District Court for the District of Montana issued an order with potentially broad-sweeping implications for energy-related projects across the country. The case centers on the permitting of the Keystone XL Pipeline, with plaintiffs raising multiple challenges involving the Endangered Species Act, the Clean Water Act and the National Environmental Policy Act. In resolving the plaintiffs’ particular claim that the U.S. Army Corps of Engineer’s 2017 reissuance of Nationwide Permit 12 (NWP12) violated the Endangered Species Act (ESA), the court’s order broadly implicates the validity of the Corps’ NWP12, which authorizes activities required for the construction, maintenance, repair, and removal of utility lines and associated facilities in U.S. waters. In its order, the court found that the Corps failed to comply with the ESA when issuing NWP12 by failing to conduct a programmatic ESA Section 7 consultation. The court vacated NWP12 and remanded the permit back to the Corps, ordering it to complete a programmatic consultation pursuant to ESA Section 7. 

As a result, the decision potentially calls into question all pending pre-construction notices for compliance with NWP12, as well as projects with existing NWP12 coverage. In response to the decision, on April 17, 2020, Army Corps Headquarters instructed Corps Districts across the country not to verify any pending pre-construction notices for compliance with NWP12 pursuant to 33 C.F.R. 330.6 until further direction from headquarters. 

The full impact of the court’s decision is not yet clear. Entities with projects involving NWPs and NWP12 in particular should pay close attention to any additional guidance issued or resulting litigation.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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