NWP 12 Vacated – Utilities May Need New Route for Wetlands Permitting
by Transect Team, on Apr 20, 2020
In an April 15 ruling in Northern Plains Resource Council, et al. v. USACE, a Montana judge vacated (cancelled) Nationwide Permit (NWP) 12 and enjoined (prohibited) the U.S. Army Corps of Engineers (USACE) from using NWP 12 to authorize impacts to federally regulated waterways and wetlands. The ruling argues that the USACE violated the Endangered Species Act because it did not adequately consider the impacts of NWP 12 on federally protected species. This requirement for the USACE to consider federally protected species is promulgated by Section 7 of the Endangered Species Act (ESA). Section 7 requires federal agencies, like the USACE, to ensure that any actions they authorize, fund, or carry out do not jeopardize the existence of any species listed under the ESA.
NWP 12 is a programmatic USACE permit that allows most minor impacts to waterways and wetlands from construction, maintenance, or repair of utility lines to proceed with little to no federal involvement, as long as certain conditions of the permit are met. One of the conditions in NWP 12 is general condition 18, which requires non-federal permittees to notify to the USACE if impacts to protected species may occur as a result of the project that is authorized under the NWP. The USACE has historically relied on project specific reviews and general condition 18 to ensure that protected species were evaluated in accordance with Section 7 of the ESA. However, the ruling states that “Project-level review, by itself, cannot ensure that the discharges authorized by NWP 12 will not jeopardize listed species or adversely modify critical habitat” and calls for programmatic ESA review of NWP 12.
As the judge enjoined NWP 12 nationwide, this ruling will cause immense uncertainty for the millions of miles of proposed and existing pipeline and utility infrastructure that relies on NWP 12 for Clean Water Act permit coverage. It is likely that Department of Justice will seek clarification or narrowing of the order, and it is almost certain that this decision will be appealed. For now though, it appears that utility projects will have to find another route for water and wetlands permitting.
Transect has reflected the change in permit availability in Transect's Regulations and Permits sections for our utility users, and we will keep a close watch as this unfolds. If you need immediate assistance for a pipeline or utility project that is already underway using Nationwide Permit 12, we recommend you contact your legal counsel and/or your USACE project manager immediately to discuss the path forward. In most cases, boring underneath waterways and wetlands will avoid Clean Water Act obligations.
The final ruling is available here.