Legal Blogs and Updates

On January 5, 2021, the U.S. Army Corps of Engineers (the Corps) released a new final rule for its nationwide permits (NWPs) program, which is designed to help protect the aquatic environment and the public interest. Under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899, the Corps is authorized to timely issue NWPs for activities that will have minimal adverse impact on the environment. NWPs are useful for project applicants as they reduce some of the permitting processes necessary for Corps approval. The Corps has proposed these modifications to simplify and clarify the NWPs, reduce burdens on the public, and to ensure that authorized activities cause no more than minimal adverse environmental effects.

Of particular note, the new rule revises and/or creates the following permits:

• NWP 12 – now limited to permits for oil and gas pipelines
• New NWP 57 – addresses electric utility line and telecommunications activities (previously addressed under NWP 12)
• New NWP 58 – addresses utility line activities for water (previously addressed under NWP 12)
• New NWP 55 –  addresses seaweed mariculture activities (not currently addressed under NWP 48)
• New NWP 56 – address finfish mariculture activities (not currently addressed under NWP 48)

The new rule revises the framework relating to the NWP 12 permit, limiting it to oil and natural gas pipelines. It further separates the other categories previously addressed by NWP 12 by creating two new permit categories: 1) NWP 57, which will exclusively govern electric utility line and telecommunications activities; and 2) NWP 58, which will address water and sewer pipes. With the new rule, there are now three separate NWPs to address utility line activities.

Previously, the NWP 12 permit authorized utility line activities. Under the permit, a “utility line” was defined as “any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose such as an oil or natural gas pipeline, any cable, line, or wire for the transmission for any purpose of electrical energy, telephone, and telegraph messages, and radio and television communication.” Before the change, NWP 12 allowed dredge-and-fill work and building structures in, over or under water bodies for most oil, gas, electric transmission, water/wastewater, cable and other projects. The NWP 12 was generally known for authorizing and fast-tracking work on pipelines that run across bodies of water.

The Corps has also created two additional permits to address farming seaweed (NWP 56) and finfish mariculture (NWP 57), which were not currently authorized under NWP 48 (shellfish mariculture activities). Prior to the new rule, NWP 48 was the only permit authorized for aquaculture. It generally authorized the installation of “buoys, floats, racks, trays, nets, lines, tubes, containers, and other structures into navigable was of the United States.” The permit also authorizes “discharges of dredged or fill material into waters of the United States necessary for shellfish seeding, rearing, cultivating, transplanting, and harvesting activities.” NWP 48 does not authorize seaweed mariculture activities, and permittees who cultivate seaweed are required to obtain an individual permit, except in some districts where the Corps has issued general permits that cover seaweed mariculture activities.

Additionally, the revised rule eliminates prior preconstruction notice requirements, and loosens the Corp’s oversight over the activities covered by the permit. Under the new rule, developers of surface mines, renewable energy plants and certain other projects will no longer be required to alert the Corps before construction that would impact more than 300 linear feet of streambeds. Notice is also no longer required for some permanent roads or clearing a forested wetland.

These changes come in the midst of highly publicized legal challenges that have delayed construction of big oil and gas pipelines. In the April 2020, a federal district court in Montana vacated a NWP 12 permit relating to the Keystone XL Pipeline, holding the Corps did not properly assess the impact and risks to endangered species and habitats when renewing the permit in 2017. In May 2020, the District Court narrowed its holding from invalidating all NWP 12 permits to just those related to oil and gas line projects. Thereafter, United States Supreme Court invalidated the decision in part by ruling many projects could proceed while environmental reviews are conducted. Notably, however, the ruling excluded the Keystone XL. An appeal is pending before the Ninth Circuit on this issue.

Supporters of the new rule have stated these changes may help the permits withstand future legal challenges. Additionally, the new rule has the potential to reduce regulation, administrative delays and disburden energy production. Opponents of the rule have commented that the Corps was pressured by environmental groups and this change will further delay projects. It is unclear, however, how the new administration will view the new permits and whether further amendments will be forthcoming.

The final rule is scheduled to be published in the Federal Register within the coming weeks. Until published in the Federal Register, current NWPs remain in effect. Additionally, the remaining 40 NWPs from 2017 that were not changed will also remain effective through their scheduled March 2022 expiration date. Notably, the new rule does not have an effective date or expiration date, leading some to comment that there may be confusion over expiration dates for a project authorized with numerous NWPs.

The pre-publication new final NWP rule can be found here.