On April 15, 2020, a federal district court in Montana issued an order vacating the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit (NWP) 12 under the federal Clean Water Act (CWA) due to the Corps’ failure to meet its obligations under the federal Endangered Species Act (ESA). The court remanded NWP 12 to the Corps for compliance with the ESA. In the meantime, however, the court prohibited the Corps from permitting “any dredge or fill activities under NWP 12 pending completion of the consultation process and compliance with all environmental statutes and regulations.”
At issue here are plaintiffs’ allegations that the Corps’ reissuance of NWP 12 in 2017 violated the ESA, the National Environmental Policy Act (NEPA), and the CWA.
Under the CWA, the Corps oversees the permitting process for any party seeking to construct a project that will discharge dredged or fill material into jurisdictional waters. In order to streamline the permitting process, the Corps issues nationwide permits for certain categories of activities that are “similar in nature, will cause only minimal adverse effects when performed separately, and will have only minimal cumulative adverse effect on the environment.”
Specifically, according to the district court’s order, NWP 12 authorizes “discharges of dredged or fill material into jurisdictional waters as required for the construction, maintenance, repair, and removal of utility lines and associated facilities.” Utility lines include “electric, telephone, internet, radio, and television cables, lines, and wires, as well as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, including oil and gas pipelines.”
Both the ESA and NEPA require the Corps to consider the environmental impacts of its actions. If the Corps determines that any action “may affect” listed species or critical habitat under the ESA, it must initiate formal consultation with U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS). If the Corps determines that the proposed action is unlikely to affect listed species or critical habitat, then it does not need to consult with either agency.
Here, the Corps determined that reissuing NWP 12 would not affect listed species or critical habitat; therefore, it concluded that it did not need to consult with FWS or NMFS before reissuing the permit. The court disagreed with the Corps’ assessment, noting that in 2005, a federal district court concluded that the Corps should have consulted with FWS when it reissued NWP 12 in 2002. Additionally, the Corps initiated formal programmatic consultation with both FWS and NMFS when it reissued NWP 12 in 2012.
Because the court found substantial evidence that the reissuance of NWP 12 would affect listed species and critical habitat, it held that the Corps acted arbitrarily and capriciously by failing to undertake consultation with FWS or NMS. As a result, the court remanded and vacated the issuance of NWP 12 pending the Corps’ completion of the consultation process. Additionally, the court enjoined the Corps from authorizing any dredge or fill activities under NWP 12.