On January 5, 2021, the U.S. Army Corps of Engineers (the Corps) released the final version of a rule revamping certain nationwide permits (NWPs) under the Clean Water Act (CWA). The CWA authorizes the Corps to issue general permits authorizing categories of activities that have minimal individual and cumulative adverse environmental effects. These permits remain in effect for no more than five years, at which point the Corps must renew the permits.
This rule reissues and modifies 12 nationwide permits (NWPs) and issues four new NWPs. Of these 16 NWPs, the most impactful changes are to NWP 12.
NWP 12 controversy
Until this new rule, NWP 12 applied to “activities required for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States.” The Permit defined a “utility line” as “any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance for any purpose, and any cable, line, or wire for the transmission of any purpose of electrical energy, telephone, and telegraph messages, and internet, radio, and television communication.” Under NWP 12, utility line projects that meet certain requirements may proceed with no individual review and minimal delay, provided that the conditions of the nationwide permit are met.
NWP 12 has been at the center of some controversy since a Montana federal judge vacated the NWP in an order issued April 15, 2020. In May, the same judge narrowed the ruling to apply only to oil and gas pipeline projects. Finally, in July, the U.S. Supreme Court further limited the ruling to only apply to the specific pipeline at issue in that case.
Changes to NWP 12
The rule splits NWP 12—previously covering all “utility line activities”—into three parts based on the utility type. NWP 12 will continue to authorize oil and gas pipelines. New NWP 57 will authorize electric utility line and telecommunications, and NWP 58 will serve utility line activities for water and other substances.
The rule also modifies NWP 12 by removing pre-construction notification (PCN) requirements for:
- activities involving mechanized land clearing in a forested wetland for the utility line right-of-way;
- utility lines in waters of the United States (WOTUS), excluding overhead lines, that exceed 500 feet;
- utility lines placed within a jurisdictional area (i.e., WOTUS) that run parallel to or along a stream bed that is within the jurisdictional area;
- permanent access roads constructed above grade in WOTUS for a distance of more than 500 feet; or
- permanent access roads constructed in WOTUS with impervious materials.
The new rule adds a PCN for new oil or natural gas pipelines more than 250 miles in length.
Response to the NWP 12 changes
Environmental groups have continually opposed the new rule regarding NWPs. In particular, they argue that it gives developers and oil drillers the “green light to destroy or pollute streams and wetlands.” Additionally, they contend that the changes “lack scientific or legal justification and threaten important waterways.”
With the administration change, it is uncertain whether this rule will remain in effect. In its August 2020 proposal for the rule, the Corps cited President Trump’s March 2017 executive order directing agencies to review regulations that could be burdening energy production. Environmental groups are hopeful that the Biden administration will quickly undo the changes brought by this rule.