NWP Reissuance, NWP 12 and the Energy Industry
by Transect Team, on Jan 28, 2021
The U.S. Army Corps of Engineers (USACE) manages the Nationwide Permit (NWP) Program, a streamlined process that authorizes project proponents to proceed with work in wetlands, streams, lakes, and tidal waters under Section 404 of the federal Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act by way of categorized general permits. This permit program, along with other general permits, allow for projects that impact wetlands and other federally regulated waters to fall into one of three categories for permit coverage based on the amount and type of impacts: automatic authorization, verified coverage through submittal of a preconstruction notification (PCN), or individual permit coverage.
Why Early Reissuance?
NWPs were first available in 1977 and are designed to expire every five years. The public rulemaking process typically occurs so that the renewed set of NWPs are effective as the existing set expires. The 2017 NWPs were not set to expire until March 18, 2022. However, on September 15, 2020, the USACE published a notice to replace the 2017 NWPs ideally by the end of 2020. According to the USACE, the early reissuance is in response to several executive orders including those in favor of developing domestic energy resources and in support of economic development. Of note is the fact that there have been several court cases over the 2017 NWPs resulting in the partial vacatur of some of them. Timely issuance of revised NWPs could head off the ruling on some of the pending cases as the NWPs before the courts would no longer be in place but could also spur renewed litigation over the reissued permits.
In response to USACE’s proposal to reissue the NWPs, as published in the Federal Register on September 15, 2020, the USACE received 22,700 public comments.
12 NWPs Reissued in January 2021
A final rule reissuing and modifying 12 existing NWPs and issuing four new NWPs was released in January 2021, slated to be effective March 15, 2021. The USACE did not reissue or modify the remaining 40 existing NWPs. However, the effective date is questionable as an executive memo dated January 20, 2021 directs all agencies to consider postponing any rules published in the Federal Register but are not yet effective for 60 days and reopen a 30-day comment period, and take further appropriate action if warranted.
NWP 12 and the Energy Industry
The early reissuance of the NWPs doesn’t eliminate concerns over their availability, as additional litigation is all but certain.
NWP 12 - Utility Line Activities, notably used for linear energy infrastructure and the subject of litigation against the Keystone XL pipeline, was split into three separate NWPs by industry type. NWP 12 covers Oil or Natural Gas Pipeline Activities while two new NWPs cover other types of pipelines: NWP 57 is for Electric Utility Line and Telecommunications Activities and NWP 58 is for Utility Line Activities for Water and Other Substances. While the public notices sites that the split by industry is due to variations in impacts and allows for industry specific measures to be added to the NWPs, it is notable that this safeguards the non-oil and gas utility industries from unfavorable rulings that may result from litigation against the highly targeted oil and gas sector. NWP 12, currently estimated to be used 14,000 times per year, was unavailable to any industry for approximately three months in 2020 as a result of a district court ruling until the Supreme Court narrowed the vacatur to the Keystone XL pipeline only. During those months, uncertainty and even panic loomed for all linear utility infrastructure loomed throughout the U.S.
When the 2020 vacatur was first effected, all NWP 12 users came together and worked toward a common goal to make it available again. Should vacatur or any other negative limitation against NWP 12 users occur under the new NWPs, the heavily scrutinized oil and gas industry would be on its own to manage it. NWPs 12, 57, and 58 authorize the same type of impacts on wetlands or other regulated waters, regardless of commodity as they are largely all narrow, linear projects of varying lengths and diameters and constructed above or below ground. These three NWPs authorize temporary dredge and fill activities and do not contemplate the operation of the project beyond how construction, maintenance or repairs would affect the regulated areas. The fact that a water pipeline, electric line, and natural gas pipeline would be authorized under different permits is somewhat puzzling except for the fact that oil and gas pipelines are more contested by environmental groups and others for their impacts to all resources including wetlands and waterbodies.
A seemingly positive revision of these NWPs is the elimination of several PCN triggers. Specifically for NWP 12, there were previously seven triggers requiring USACE preauthorization for permit coverage. The revised NWP includes only two of the original seven with the addition of a new trigger requiring projects over 250 miles to submit a PCN. The PCN triggers for NWPs 57 and 58 are limited to the same two remaining PCN triggers for NWP 12: if a permit is required under Section 10 of the Rivers and Harbors Act or if discharges result in the loss of greater than 0.10 acre of regulated waters.
The early reissuance of the NWPs doesn’t eliminate concerns over their availability, as additional litigation is all but certain. NWP 12 was temporarily vacated in 2020 because the USACE was found to have neglected its duty to properly consult with the U.S. Fish and Wildlife as required by the Endangered Species Act (ESA) when originally issuing the NWP in 2017. This consultation was also the subject of scrutiny in previous versions of the NWP program even though the USACE initiated formal programmatic consultation in 2007 and 2012 after a federal ruling in 2005. However, they chose not to do so in 2017 and 2020, instead relying on the conclusion that the PCN triggers and NWP General Condition 18 ensure that project-based consultation will occur as warranted in compliance with the ESA.
Ephemeral Stream Rollercoaster
A separate but related topic that is also the subject of continued controversy is the definition of “waters of the U.S.” (WOTUS), which are the waters that the USACE regulates under section 404 of the Clean Water Act. The definition of WOTUS has fluctuated between administrations and as the result of court rulings. The WOTUS definition was revised in 2015 and again under the Trump administration; WOTUS now expressly excludes ephemeral streams from being regulated. As such, the revised NWPs remove waivers and conditions relative to ephemeral streams. Users of the NWPs have reason to be concerned that these exclusions could cause issues should the new Biden administration incorporate ephemeral streams back into the definition of WOTUS.
The Real Struggle is Regulatory Uncertainty
While attempting to address some shortfalls of the 2017 NWP program by reissuing them early has some merit, it does not necessarily propose a long-term solution to the highly debated program that is scrutinized from both sides of the fence. The USACE is tasked with protecting regulated water resources to ensure minimal impacts within a reasonable regulatory framework. However, industry and developers claim it is an inefficient, overly complex and burdensome process, while conservationists and some agencies claim that it does not adequately protect aquatic resources. Something all interested parties can count on is continued uncertainty, debate and likely legal action around these general permits that are intended to protect the nation’s valuable wetland and water resources while balancing the need for efficient development of infrastructure.
Looking for more? Visit the USACE Nationwide Permit Information site here.