Down to the Wire, the U.S. Army Corps of Engineers Reissues Nationwide Permits

On January 6, 2017, the U.S. Army Corps of Engineers (“Corps”) published the final rule reissuing 50 nationwide permits (“NWPs”) and issuing two new NWPs. The NWPs will take effect on March 19, 2017, and will replace the existing NWPs that are set to expire on March 18, 2017 (“2012 NWPs”).

States and industry groups had previously expressed concern that if the NWPs were not finalized in early January, there would be inadequate time for mandatory state coordination under Section 401 of the Clean Water Act and the coastal consistency provisions of the Coastal Zone Management Act, resulting in the need to issue individual permits for development projects. While achieving state approval of the NWPs in the next seventy days will be challenging, states and the Corps are highly motivated to complete the NWP reissuance process by the March 18, 2017 deadline since the 2012 NWPs cannot be administratively extended.

The NWPs authorize a variety of activities, including aids to navigation, utility line crossings, erosion control activities, road crossings, stream and wetland restoration activities, residential developments, mining activities, and agricultural activities. The two new NWPs authorize the removal of low-head dams and the construction and maintenance of living shorelines.

Of keen interest to the pipeline industry and environmental groups is the reissuance of NWP 12, which authorizes utility line crossings. Utility lines include oil and gas pipelines. In response to the proposed rule, the Corps received more than 54,000 comment letters, of which approximately 53,200 were form letters pertaining to NWP 12.

Viewed as a win by project developers, the Corps reissued NWP 12 with only a few, albeit important, modifications. NWP 12 was revised to clarify that the NWP authorizes discharges of dredged or fill material into waters of the United States and structures or work in navigable waters of the United States for crossings of those waters associated with the construction, maintenance, repair, and removal of utility lines, including outfall and intake structures.

In addition, NWP 12 was modified to authorize, to the extent that Corps authorization is required, discharges of dredged or fill material into waters subject to section 404 of the Clean Water Act and structures and work in waters subject to section 10 of the Rivers and Harbors Act of 1899, necessary to remediate inadvertent returns of drilling fluids that can occur during horizontal directional drilling operations to install utility lines under jurisdictional waters and wetlands.

The definition of ‘‘utility line’’ was also expanded to include optic cables and other lines that communicate through the internet. However, the Corps rejected comments that recommended removing oil and gas pipelines from coverage under the NWP. NGOs had sought to require oil and gas pipelines to obtain individual permits for each waterbody crossing along the pipeline route.

Significantly, the Corps added a new note to NWP 12 to confirm the Corps’ long-standing practice, articulated in the NWP regulations at 33 CFR 330.2(i), in which each separate and distant crossing of waters of the U.S. by linear projects (such as pipelines) is authorized by NWP 12. Note 2 provides that “for utility line activities crossing a single waterbody more than one time at separate and distant locations, or multiple waterbodies at separate and distant locations, each crossing is considered a single and complete project for purposes of NWP authorization.” Consequently, as under the 2012 NWPs, even if a pipeline crosses multiple waterbodies along its route, the pipeline can obtain coverage for each crossing under NWP 12 if the other requirements of the NWP are met.

The continued applicability of NWP 12 to oil and gas pipeline projects is a huge blow to environmental groups who seek to make it more difficult for companies to construct oil and gas pipelines throughout the United States. Lawsuits challenging the issuance of all of the NWPs are expected, but given recent tensions surrounding pipeline development, legal challenges to NWP 12 may prove to be the most contentious.