On January 6, 2017, the U.S. Army Corps of Engineers (USACE) reissued 52 nationwide permits (NWPs) and issued two new NWPs, along with general conditions and definitions.[1] NWPs are a type of general permit authorized under Section 404(e) of the Clean Water Act and 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 impacts. The 2017 NWPs will become effective on March 19, 2017 and will expire on March 18, 2022. Projects relying on the 2012 NWPs may still proceed if they are under contract by March 18, 2017, although NWP-authorized activities must finish within one year.
The NWPs authorize a variety of activities, such as aids to navigation, utility line crossings, erosion control activities, road crossings, stream and wetland restoration activities, residential developments, mining activities, commercial shellfish aquaculture activities, and agricultural activities. Some NWP activities may proceed without notifying USACE, as long as those activities comply with all applicable terms and conditions of the NWPs (including regional conditions imposed by division engineers). Other NWP activities require the project proponent to submit a preconstruction notification, which typically affords USACE 45 days to review the project.[2]
The 2017 NWPs retain the ½-acre and 300-foot caps on impacted acreage and linear feet of stream bed. Some NWPs provide more prescriptive direction on assessment of the caps, and more limitations on the ability of a project proponent to obtain a waiver. Otherwise, USACE generally rejected requests by stakeholders to tighten the caps or impose additional conditions on their use. In particular, USACE retained the neutrality of the NWPs regarding any definition of “waters of the United States” (WOTUS) and deferred any further action on the issue pending further developments in the WOTUS litigation.
In the remainder of this article, we focus on NWP 12 – “Utility Line Activities” – because it is of particular interest to the energy industry. NWP 12 allows activities required for the construction, maintenance, repair, and removal of “utility lines” and associated facilities in WOTUS to proceed without an individual permit, provided the activity does not result in the loss of greater than 1/2-acre of WOTUS for each single and complete project. Because electric transmission lines and oil and natural gas pipelines are included within USACE’s definition of “utility lines,” NWP 12 routinely reduces project timelines by months, if not years.
The overwhelming majority of rulemaking comments received by USACE addressed NWP 12.[3] Many of the comments urged USACE to conduct a more rigorous review of utility crossings under NWP 12. These stakeholders urged USACE to consider a broader range of cumulative impacts, such as the effects of multiple waterbody crossings, potential pipeline leaks and the increased combustion of fossil fuels that might occur as a result of new pipeline infrastructure. USACE generally rejected such positions noting that the scope of its jurisdiction under the Clean Water Act and Rivers and Harbors Act is limited; and that the jurisdiction to regulate the pipeline activities addressed by the comments is vested in other agencies, including FERC, PHMSA and EPA. However, USACE added guidance on horizontal directional drilling and review of utility lines on tribal lands.[4]
Horizontal Directional Drilling
The 2017 NWP 12 adds guidance on coverage of horizontal directional drilling (HDD):
This NWP authorizes, to the extent that Department of the Army authorization is required, temporary structures, fills, and work necessary for the remediation of inadvertent returns of drilling fluids to waters of the United States through sub-soil fissures or fractures that might occur during horizontal directional drilling activities conducted for the purpose of installing or replacing utility lines. These remediation activities must be done as soon as practicable, to restore the affected waterbody. District engineers may add special conditions to this NWP to require a remediation [contingency] plan for addressing inadvertent returns of drilling fluids to waters of the United States during horizontal directional drilling activities conducted for the purpose of installing or replacing utility lines.[5]
The fluids used for HDD operations consist of a water/bentonite slurry. Because these drilling fluids do not fall within the definition of “fill” material,[6] inadvertent returns of drilling fluids are not regulated under Section 404 of the Clean Water Act. However, USACE stated that activities necessary to contain and clean up these drilling fluids may require USACE authorization.
USACE noted favorably that HDD for utility line installation and replacement is an important technique for avoiding and minimizing adverse effects to jurisdictional waters and wetlands during the construction of utility lines. USACE further noted that the HDD fluid mixture is not a toxic or hazardous substance, but that it can adversely affect aquatic organisms if released into bodies of water.
Tribal Lands
Several stakeholders urged that USACE should strengthen protections afforded to waterbody crossings on tribal lands. USACE addressed these comments by revising General Condition 17 to read:
Tribal Rights. No NWP activity may cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands.[7]
USACE also added definitions for “tribal resources,” “tribal rights” and “tribal lands.” The “no more than minimal adverse effects” language duplicates the general scope of the NWPs, arguably making the new language redundant. However, the changes to General Condition 17 more likely signal the likelihood of closer scrutiny of the use of NWP 12 for water crossings on tribal lands, thereby increasing the potential for project proponents to engage in more time consuming individual permitting processes. The effect of the changes to General Condition 17 will primarily affect pipeline projects in the western United States, where tribal lands are more prevalent.
Virtually every pipeline and other infrastructure developer has relied on NWP 12 in permitting new projects. Accordingly, USACE’s reissuance of the NWPs merit close attention from companies in the energy industry.[8] Please contact us with any questions or concerns you may have regarding the reissued NWPs or in formulating permitting strategies for your upcoming projects.
