Update (January 15, 2021): The United States Army Corps of Engineers (“the Corps”) has completed its rule-making and published its final rule reissuing and modifying 12 existing nationwide permits (“NWPs”) and issuing four new NWPs. The final rule sets forth how the Corps satisfies its duties under the Endangered Species Act when issuing the new NWPs and specifically those related to pipeline construction. It includes the Corps’ new biological assessment which concludes that the new NWPs have no effect on listed species and designated critical habitat -- addressing the deficiencies identified by a federal district court when it enjoined the use of NWP 12 for authorization of the Keystone pipeline.
The new NWPs were published in the Federal Register on January 13, 2021 and become effective on March 15, 2021.
Update: On September 15, 2020, the Army Corps published a notice of proposed rulemaking in the Federal Register (85 FR 57298) for the reissuance and modification of its Nationwide Permits. The Army Corps is requesting that interested parties submit comments on or before November 16, 2020.
On August 3, 2020, the U.S. Army Corps of Engineers announced a proposal to renew and revise its 52 nationwide permits and issue five new nationwide permits. Nationwide permits, which are general permits that authorize work in wetlands and other regulated waters, offer an abbreviated permitting process for those activities similar in nature that are deemed to cause minimal adverse environmental impacts to aquatic resources, separately or on a cumulative basis.
The corps’ proposal notes that it follows President Trump’s Executive Order 13783, Promoting Energy Independence and Economic Growth, which was issued on March 28, 2017, and instructed federal agencies to review existing regulations that potentially burden the development or use of domestically produced energy resources. The corps identified nine nationwide permits to be revised according to Executive Order 13783 and is proposing to reissue its remaining nationwide permits so all nationwide permits remain on the same five-year approval cycle. The nationwide permits currently in effect were issued in 2017 and are not set to expire until March 28, 2022.
The corps’ proposal includes the issuance of five new nationwide permits, to pertain to:
electric utility line and telecommunications activities
utility line activities for water and other substances
water reclamation and reuse facilities
seaweed mariculture activities
finfish mariculture activities
Significantly, most utility line projects have been governed by the corps’ Nationwide Permit 12 (NWP 12) since 1977. The current proposal involves splitting out NWP 12 into three parts:
oil and natural gas pipelines
electric utility lines and telecommunication lines
utility lines conveying water, sewage and other substances
This is notable in light of recent litigation over NWP 12 (discussed in depth here). The corps states that it is separating out the current activities that NWP 12 authorizes to “address the differences in how different linear projects are constructed, the substances they convey, and the different standards and best management practices that help ensure those NWPs authorize only those activities that have no more than minimal adverse environmental effects.”
The corps anticipates publishing its proposal in the Federal Register within a few weeks, which will trigger the beginning of the public comment period. After review of public comments, the corps will prepare the final nationwide permits to replace those currently in effect.
This is for informational purposes only. It is not intended to be legal advice and does not create or imply an attorney-client relationship.