On September 15, 2020, the Army Corps of Engineers (“Corps”) released a notice of proposed rulemaking to modify and reissue its existing Nationwide Permits (“NWPs”) and is accepting public comments through November 16, 2020. The Corps uses its NWP program to provide streamlined permitting for certain categories of activities in navigable waters and other waters of the United States that will result in no more than minimal adverse environmental effects. The proposed rule, if finalized, would make several notable changes to the existing NWP program by adding new NWPs, expanding existing NWPs, and removing certain burdensome pre-construction notification (“PCN”) requirements, among other changes.

The proposed rule is timely, as the president issued an executive order on June 4, 2020 on accelerating the nation’s economic recovery from COVID-19 by expediting infrastructure investments and other activities. One NWP in particular has been in the headlines in recent months, as energy companies grapple with the implications of a federal court in the Keystone XL Pipeline litigation striking down NWP 12 in April 2020,¹ which is on appeal in the Ninth Circuit. NWP 12 authorizes linear utility lines such as oil, gas, electric transmission, water, and cable lines. The federal court narrowed its vacatur and injunction in May 2020 to apply only to the construction of new oil and gas pipelines, and the Supreme Court granted a stay of the district court’s order to all uses of NWP 12, aside from Keystone XL, pending appeal. Despite this temporary relief, the issues central to that litigation regarding NWP 12’s compliance with the Endangered Species Act (“ESA”) implicate all of the NWPs and create an opening for similar legal challenges to the NWP program as a whole. In addition to proposing to modify NWP 12 to only apply to oil and gas utilities, with two new utility-specific NWPs proposed for other categories of utilities, the Corps provides a detailed explanation of the NWP program’s ESA compliance framework, in addition to proposing other changes to streamline the NWP process.

The Corps’ proposed rule on reissuing NWPs provides stakeholders with an opportunity to provide comments on a variety of topics, such as national standards and best management practices, that will help shape the permits that are broadly used across the energy industry.

1. The NWP Program

Both the Clean Water Act and Rivers and Harbors Act require that an applicant obtain authorization from the Corps before taking certain actions affecting navigable waters of the United States, such as discharging “dredge and fill” material into the water or constructing any structure in, over, or under a navigable water. Failing to get a permit can result in significant penalties.

Obtaining a standard permit — one that is individual and specific to a project — is time and resource intensive. Congress gave the Corps the ability to issue “general” or “nationwide” permits for certain types of routine projects that 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. By statute, the Corps cannot issue general permits for a period exceeding five years, and the Corps’ general practice over the last few decades has been to reissue its nationwide permits on a roughly five-year schedule. When doing so, the Corps analyzes the environmental impacts of each category of activities that fall within the NWPs. Thus, the Corps need not start from scratch in analyzing the effects of these routine proposed activities every single time a company applies to use the general permit. NWPs have therefore been popular with those seeking to build projects, as they can save significant time and expense.

Once the Corps has issued an NWP, the NWP program allows some activities to be automatically authorized by an NWP as long as the permittee meets all of the NWP’s conditions, and these are commonly known as “non-reporting uses” of the NWP. In other circumstances, the Corps requires prospective permittees to report on its proposed use of an NWP for an activity (i.e., a “reporting use” of the NWP), with the form of that report being a PCN. This allows the Corps to make case-specific verifications of NWP eligibility. The Corps uses this process to ensure that effects will remain no more than minimal individually and cumulatively, and to ensure compliance with other federal legal requirements, such as ESA section 7 consultation.

2. The Corps’ Proposal to Split NWP 12 into Three New Permits, Separating Oil and Gas Pipelines into Their Own Permit

For decades, the Corps has issued and reauthorized a general permit known as NWP 12 for the construction, maintenance, repair, and removal of utility lines, including oil and gas pipelines, and associated facilities in waters of the United States. NWP 12 has been an essential component in supporting the expansion of necessary infrastructure, particularly in the energy sector. In the Keystone litigation, the Corps has estimated that NWP 12 is relied on 14,000 times per year throughout the nation — with around 11,500 of those being submitted as a PCN request for NWP 12 authorization. Any pipeline, transmission line, or other utility line of significant length is likely to cross numerous waters of the United States, and this NWP authorizes those crossings when they have no more than minimal environmental impacts.

The Corps proposes to split the existing NWP 12 into three separate NWPs that each retain the basic structure of NWP 12 as it was issued in 2017.

• NWP 12 would be limited to authorizing only oil, gas, and other petrochemical activities, and two new NWPs would authorize other activities previously covered by NWP 12.

• A new NWP, currently labeled NWP C (entitled “Electric Utility Line and Telecommunications Activities”), would authorize electric utility and telecommunication cables, lines, and wires. This would include foundations for overhead electric utility line and telecommunication line towers, poles, and anchors, as well as access roads and substations as long as they are not constructed in tidal waters or their adjacent non-tidal wetlands.

• A new NWP, currently labeled NWP D (entitled “Utility Line Activities for Water and Other Substances”), would authorize utility lines for any substance that is not oil, gas, petrochemicals, or electricity. This would include authorization of above-ground utility lines, as well as access roads and substations (including pumping and lift stations) as long as they are not constructed in tidal waters or their adjacent non-tidal wetlands. Proposed new NWP D would also authorize utility line activities conveying other substances, such as water, sewage, wastewater, stormwater, brine, or non-petrochemical industrial products.

The Corps explains that the NWP split is intended to address the differences in how the various linear projects are constructed, the substances they convey, and the different standards and best management practices that help ensure that the activities have no more than minimal adverse environmental impacts.

A Request for Input on Best Management Practices

The Corps solicits specific comments on whether there are best management practices specific to each type of utility line that could be added as a global term to the use of the three utility line NWPs, which the Corps notes could reduce or eliminate the need for the Corps adding regional conditions to address utility-specific or geographically specific issues. The Corps suggests that national standards would help to eliminate uncertainty and promote consistency compared to the current use of regional conditions that vary across districts and states. However, this does not fully credit the value in regional conditions that allow the tailored use of conditions that are appropriate in different geographic regions, much like how the Corps uses regional supplements for wetlands delineation. Comments from parties with industry experience will be valuable in educating the Corps on whether particular management practices or engineering applications are appropriate for wide-scale mandated use or are better left to regional conditions that allow greater flexibility.

Fewer PCN Triggers Proposed

The Corps also proposes to reduce the number of PCN triggers for the utility line NWPs. All utility line NWPs would continue to require a PCN for activities that require authorization under section 10 of the Rivers and Harbors Act of 1899 (i.e., for construction of any structure in, over, or under navigable waters to ensure there are no obstructions to navigability) and for activities that result in the loss of greater than 1/10-acre of waters of the United States. The Corps proposes to simplify PCN reporting for utility line projects by removing several additional PCN triggers in the current NWP 12. These include PCNs for mechanized clearing in forested wetlands, line placement in waters of the United States exceeding 500 feet or parallel to or along a streambed, and permanent access road placement using impervious materials or built above-grade for more than 500 feet. As the Corps explains in its proposal, these PCN triggers are primarily addressed by other conditions, and thus removing these PCNs would eliminate redundancy, simplify the NWP, and reduce burdens on prospective permittees.

The Corps also proposes an additional PCN trigger for new oil or natural gas pipelines longer than 250 miles. This PCN trigger would not apply to repair or maintenance activities, or to projects where the new construction was not a majority of the distance of the overall project’s length. It appears that the Corps is proposing this new PCN in response to recent scrutiny over whether it is appropriate to allow long-haul oil and gas pipelines to avoid the onerous requirements of individual permitting, and so the Corps would require these longer pipelines be submitted for review to ensure they have no more than a minimal individual and cumulative impact.

However, construction impacts associated with pipeline installation are the same regardless of what product eventually flows in the pipe, and concerns for long-distance pipelines qualifying for streamlined permitting would equally apply to other in-the-ground utility lines, such as water or sewer pipes. One potential difference raised by infrastructure opponents is the threat of spills from the pipeline. However, the Corps’ consistent legal position is that the Corps does not authorize spills under Section 404, and so they are not an effect of the Corps’ authorization for an application to place dredged or fill material in waters of the United States. Other agencies (such as the Pipeline and Hazardous Materials Safety Administration and similar state agencies) have jurisdiction and oversight, and there are other regulatory and enforcement mechanisms available. The Corps’ draft environmental assessment discusses these for NWP 12. Moreover, it is unclear whether this new PCN would result in any significant increase in PCNs submitted to the Corps for longer oil and gas pipelines. Most long-distance pipelines would already require a PCN given the much higher likelihood that they cross a section 10 water, occur in the vicinity of ESA-listed species or designated critical habitat, or may affect historic resources.

3. Lengthy Discussion of the ESA Framework

The proposed rule also includes a lengthy discussion of the NWP program’s compliance with section 7 of the ESA. Although the proposal does not make an explicit connection between the discussion on ESA compliance and recent Keystone XL litigation in the District of Montana challenging the Corps’ use of NWP 12 for an oil pipeline, it seems apparent that the Corps focused on this issue when drafting its preamble language to educate the public on how its approach complies with the ESA, notwithstanding a court decision to the contrary.

By way of background, on April 15, 2020, a federal court in the District of Montana vacated NWP 12, stating that its reissuance was arbitrary and capricious and violated the ESA. The ruling enjoined the Corps from authorizing any dredge or fill activities under NWP 12, pending completion of necessary ESA consultations. The district court viewed the NWP program as delegating to permittees the responsibility to make an initial ESA effects determination, and the court concluded that the Corps had failed to undertake a programmatic consultation the court believed was required. Although the case specifically challenged the Corps’ verification of the NWP 12 PCN that authorized river crossings by the Keystone XL Pipeline, the vacatur was applied to all activities utilizing NWP 12 nationwide. The district court later amended its order to limit the vacatur to the construction of new oil and gas pipelines. The district court’s order was immediately appealed to the Ninth Circuit, and then to the Supreme Court, which issued a stay pending appeal that made NWP 12 once again available for use nationwide (with the exception of the actual litigants in the Keystone suit).

Although this litigation is specific to NWP 12, the court’s ruling raises broader concerns for the Corps’ NWP program. Indeed, the same rationale in the court’s order in the Keystone litigation could be used to challenge other Corps’ NWPs, since all rely on the same ESA consultation framework. Thus, the Corps’ extensive discussion of the history and reasoning behind the NWP program’s ESA section 7 consultation framework appears to be aimed at fending off such attacks by clarifying the programmatic nature of NWP reissuance and emphasizing the activity-specific focus of the Corps’ ESA section 7 compliance framework. While these proposed modifications are unlikely to impact the existing litigation, they appear strategic at forecasting the Corps’ defense of similar claims.

The proposal thoroughly explains the Corps’ ESA consultation approach. The requirements of NWP general condition 18 ensure ESA section 7 compliance at the activity-specific level. This general condition requires non-federal permittees to submit PCNs for any activity that might affect listed species or designated critical habitat, including when any listed species might be in the vicinity. This is to ensure that it is the Corps, and not the permittee, who evaluates the implications of the presence of listed species or designated critical habitat, makes an effects determination, and determines the need for additional section 7 consultation. If the Corps determines that the activity “may affect” a listed species or critical habitat, then it completes a formal or informal ESA section 7 consultation. The Corps goes into further detail about its ESA section 7 consultation framework for the NWP program and ultimately states that, because no NWP can or does authorize an activity that may affect a listed species or critical habitat absent either an activity-specific or applicable regional programmatic ESA section 7 consultation, the issuance or reissuance of NWPs has “no effect” on listed species or critical habitat.

As the general condition 18 framework demonstrates, the NWP program has been structured to focus ESA section 7 compliance at the activity-specific scale rather than at the programmatic scale. The Corps notes that the U.S. Fish and Wildlife Service (“FWS”) and National Marine Fisheries Service (“NMFS”) have explained that a framework programmatic action, where a federal action that approves a framework for the development of future actions that are authorized, funded, or carried out at a later time, does not require an incidental take statement at the programmatic level, since the framework programmatic action itself does not authorize any action and cannot result in a take. Instead, ESA section 7 consultations for such actions should occur as specific activities are authorized, funded, or carried out. Indeed, FWS and NMFS specifically identified the Corps’ NWP program as an example of such a programmatic framework action where ESA section 7 consultation requirements should be addressed as specific activities occur.²

In the end, the lengthier discussion in the proposal is not related to any change in the Corps’ approach to using general condition 18 to guide agency-led section 7 consultation; rather, the Corps likely uses it to reiterate its predicate for why it proposes to maintain the course on ESA consultation, notwithstanding the conclusions made in the Keystone XL litigation.

4. Possible Help for Infrastructure Projects: Return of Some Flexibility For Existing, Permitted Structures (NWP 3)

The proposed rule also contains some modifications to another NWP that could aid some energy and infrastructure development: NWP 3, which authorizes maintenance activities to existing, permitted structures. First, the Corps proposes to reinsert language that existed in the NWP years ago, clarifying that it could be used to authorize the repair, rehabilitation, or replacement of any currently serviceable structure or fill that did not require a permit at the time it was constructed. The current NWP 3 language is more restrictive, only applying to structures previously authorized. Reinstating this authorization would streamline simple repair and maintenance work for prospective permittees and provide consistency with other NWPs (e.g., NWP 31 for maintenance of existing flood control facilities) that also authorize maintenance of certain facilities that were constructed at a time when Corps authorization was not required for that construction.

Second, the Corps proposes to re-insert into NWP 3 language last in the NWP in 2007 to explicitly authorize the placement of new or additional riprap to protect a currently serviceable structure, provided that the placement of riprap is the minimum necessary to protect or ensure the safety of the structure. The Corps recognized that placement of riprap is arguably allowable as a “minor deviation” under the current text of NWP 3, but this explicit inclusion would allow riprap placement without a PCN and provide regulatory certainty to prospective permittees.

5. A New Threshold for Environmental Effects: Removal of 300-Linear Foot Limit for Losses of Stream Bed

Several of the current NWPs limit their use to activities that result in the loss of no more than 300-linear feet of stream bed and 1/2 acre of waters of the United States. The Corps proposes to remove the 300-linear foot limit for losses of stream bed and instead rely on 1/2-acre limit and other PCN requirements to ensure that activities authorized by NWP result in no more than minimal adverse environmental effects. The Corps’ NWP program overall uses a variety of tools to limit the loss of jurisdictional waters, including numeric limits on losses of waters of the United States in individual NWPs, PCN and compensatory mitigation requirements for losses of waters of the United States over a 1/10-acre threshold, NWP terms that limit the volume of dredged or filled material that can be discharged into waters of the United States, and limits on activities authorized by NWPs. The Corps believes that this shift is justified, as it will result in more accurate quantification of losses authorized by NWP, provide consistency in numeric limits for NWPs, and ensure that activities authorized by NWP result in no more than minimal adverse environmental effects.

The Corps also offers an alternative hybrid approach for establishing consistent quantitative limits for losses of stream beds. Under this approach, losses would continue to be quantified in linear feet as long as the activities authorized would result only in the loss of stream bed. If an NWP-authorized activity would result in the loss of stream bed plus other waters of the United States, then the losses of the waters of the United States would be quantified in acres and subject to the 1/2-acre limit. The Corps has requested public comments on the proposal to remove the 300-linear foot limit for losses of stream bed and the alternative hybrid approach.

6. Potential PCN Exemption for Federal Agencies

The proposed rule also seeks comments on a suggestion that originated in a Trump administrative outline for potential statutory revisions to bolster infrastructure development³ — that Federal agencies should be exempt from PCN requirements. The Corps repeats the justification provided in that legislative outline, suggesting that Federal agency staff are environmental experts and have high levels of proficiency in achieving environmental compliance and securing permits. Although the Trump administration outline conceives of this measure as one requiring statutory revisions by Congress, the Corps is exploring its ability to make this change through regulation without any associated change to the Clean Water Act.

The Corps specifically acknowledges one odd outcome if this suggestion is incorporated into the next round of NWPs: Exempting Federal agencies from PCN requirements may unintentionally result in absolving Federal agencies of their compensatory mitigation requirements. Currently, compensatory mitigation obligations are made legally binding permit conditions through the Corps’ affirmative verification of NWP use, which follows from submission of a PCN. If exempted from PCN requirements, the Corps would need to develop alternative means to ensure compensatory mitigation obligations are appropriately met.

Moreover, a wholesale exemption for Federal agencies from PCN requirements seems contrary to the Corps’ insistence that PCNs are necessary to verify that an activity complies with all terms and conditions in an NWP. It also seems to weaken the Corps’ argument that PCNs are necessary in all circumstances where called for in the NWP program, as many prospective permittees already undertake an internal “self-certification” process that serves the same function as the Corps’ PCN verification process. Last, the Corps concedes that private parties often hire consultants with similar experience to Federal agency employees. The Corps requests comments and studies that examine differences in proficiency between Federal agency environmental staff and private environmental consultants in achieving environmental compliance and securing Corps permits.

7. How Soon Could the New NWPs Take Effect and What Will it Mean for Projects Relying on Existing NWPs?

The proposed rule leaves open the possibility that the Corps may issue its 2020 NWPs prior to the 2017 NWP’s expiration and states that it may change the expiration date of the 2017 NWPs to expire the day before the 2020 NWPs go into effect. This is a departure from recent NWP modifications and reissuances, where the newly modified NWPs went into effect at the tail end of the then-current NWPs’ 5-year period. The Corps has solicited comments on whether to change the expiration date of the 2017 NWPs to the day before the 2020 NWPs go into effect, implying that the new NWPs could be issued well in advance of the March 2022 expiration. The Corps has not indicated when it expects the 2020 NWPs to go into effect and has only stated that the date would be published with the final 2020 NWPs in the Federal Register.

These date changes can affect how a company plans and schedules project permitting and development in the near-term, particularly if the company has obtained or needs to obtain authorization under an existing NWP where that activity may no longer be authorized under the revised NWPs (e.g., a project may qualify under the current linear feet of stream impacts but not under the new acreage of stream impacts). The Corps notes that if the NWPs are reissued prior to March 18, 2022 and the 2017 NWPs’ expiration date is moved forward in time, then a previously authorized activity remains authorized so long as it complies with the terms and conditions of the new 2020 NWP. However, if a previously authorized activity does not comply with the terms and conditions of the 2020 NWP, then the project proponent would have 12 months to complete the authorized activity as long as the activity has commenced or is under contract to commence before the 2020 NWPs go into effect. Companies whose projects could be affected here would need to ensure that they have commenced, or are under contract to commence, their projects before the 2020 NWPs go into effect in order to avoid needing to seek another form of Corps authorization. Thus, project proponents should be diligent about commencing authorized activities to ensure that their authorization will not expire if the 2020 NWPs are reissued quickly.

8. Other Proposed Changes to the NWPs

The proposed rule also includes a variety of additional changes, including:

• Centralizing Regional Conditions: The proposal would require Corps district engineers, states, tribes, and other agencies to publish final copies of regional conditions, section 401 water quality certifications with conditions, and Coastal Zone Management Act (“CZMA”) consistency concurrences with conditions for the NWPs on the docket for issuance or reissuance of the NWP program. This would provide a centralized location for all NWP issuance documents and complying with the spirit of the Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents by improving access to important agency documents.
• Minor Dredging: NWP 19 would be modified to increase the limit for the amount of material dredged during minor dredging from 25 cubic yards to 50 cubic yards. The Corps is soliciting public comments on whether a different cubic yard limit, such as 30 or 100, would be more appropriate.
• Coal Mining Activities: PCN will still be required for certain coal mining activities (NWPs 21, 49, and 50), but a written verification letter will no longer be required before permittees are allowed to proceed with authorized work. This would make PCN requirements for coal mining activities consistent with the PCN handling and deadlines required of other NWPs, including the potential for authorization via Corps NWP waiver.
• Coral Restoration Activities: NWP 27 would be modified to include coral restoration activities to the example list of authorized activities.
• Irrigation Ditches: NWP 41 would be modified to add irrigation ditches to its current authorization of reshaping of existing drainage ditches.
• Commercial Shellfish Mariculture Activities: NWP 48 would be modified to remove the 1/2-acre limit for impacts to submerged aquatic vegetation in project areas that have not been used for commercial shellfish aquaculture activities during the past 100 years. Additionally, both existing PCN thresholds for NWP 48 would be removed.
• Renewable Energy NWPs: The Corps proposes an additional, minor change to the two renewable energy NWPs (NWP 51 for land-based renewable energy generation facilities and NWP 52 for water-based renewable energy generation pilot projects) — clarification that the Corps, and not the permittee, will send documentation of the PCN and verification to the Department of Defense Siting Clearinghouse.
• Seaweed Mariculture Activities: The Corps proposal includes a new NWP to authorize structure and work in marine waters for seaweed mariculture activities, including structures anchored to the seabed in federal waters over the outer continental shelf. All activities authorized under this NWP would require a PCN.
• Finfish Mariculture Activities: The proposal also includes a new NWP to authorize structures and work in marine estuary waters for finfish mariculture activities, including structures anchored to the seabed in federal waters over the outer continental shelf. Similar to the Seaweed Mariculture NWP, all activities authorized by the Finfish Mariculture NWP would also require a PCN.
• Water Reclamation and Reuse Facilities: The Corps proposes to issue a new NWP to authorize activities associated with the construction, expansion, and maintenance of water reclamation and reuse facilities, including vegetated areas enhanced to improve water infiltration and constructed wetlands to improve water quality. This proposed NWP has no PCN requirements.
• Acreage Limitations: The proposal would establish a 1/10-acre threshold for requiring compensatory mitigation for losses of stream beds that require PCN. This modification would strengthen mitigation measures for NWPs where the Corps is proposing to remove the 300-linear foot limit for losses of stream bed.
• Use of Multiple NWPs: General Condition 28 allows the use of more than one NWP to authorize a single and complete project. When the NWPs used to authorize the project have different acreage limits, the wording of the existing condition allows the use of an NWP with a higher limit to avoid the limit imposed by the other NWP. The Corps proposes to close this loophole by adding language to state that the activities authorized by each respective NWP cannot exceed that NWP’s specified acreage limits. The Corps proposes to include an example to illustrate how this condition would be applied, but no example is provided in the current proposal.
• Section 401 and CZMA General Conditions: The general conditions for Section 401 water quality certifications and CZMA consistency concurrences would be modified to note that if the state, authorized tribe or EPA (whichever is the relevant authority) issued a certification or concurrence for the issuance of an NWP and the permittee cannot comply with all of its conditions, the permittee may submit an application to the relevant authority to receive an individual certification or concurrence from the state (or 401 waiver, if applicable) and still qualify for the NWP.
• Updated PCN Form: The Corps also proposes to add specific reference to the Corps’ recently released new form for PCN submission — Form ENG 6082, though the Corps would continue to accept letter submissions.

¹ See N. Plains Res. Council v. U.S. Army Corps of Eng’rs, No. CV-19-44-GF-BMM, 2020 WL 3638125 (D. Mont. Apr. 15, 2020).

² See U.S. Fish and Wildlife Service and National Marine Fisheries Service, Final Rule: Interagency Cooperation—Endangered Species Act of 1973, as Amended; Incidental Take Statements, 80 Fed. Reg. 26,832, 26,835 (May 11, 2015).

³ The outline proposes to “[a]uthorize Federal agencies to select and use nationwide permits without additional review” and circumvent the PCN requirement. See The White House, Legislative Outline for Rebuilding Infrastructure in America Part 3—Infrastructure Permitting Improvement, I.C.1.a at 44 (2018) (available online at https://www.whitehouse.gov/wp-content/uploads/2018/02/INFRASTRUCTURE-211.pdf).