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Federal Court Decision Casts Doubt on Nationwide Permit 12

April 23, 2020

In an April 15 ruling on Northern Plains Resource Council, et al. v. Army Corps of Engineers, the U.S. District Court for the District of Montana vacated (voided) the Army Corps of Engineers’ Nationwide Permit (NWP) 12 (in use on the Keystone XL pipeline project) on an Endangered Species Act procedural concern. The court stated, in part: “The Corps should have initiated ESA Section 7(a)(2) consultation before it reissued NWP 12 in 2017.” The court’s order prohibits the Corps from authorizing “any dredge or fill activities under NWP 12 pending completion of the [ESA Section 7] consultation process.” 

At this point, there is a lot of uncertainty about the aftermath and scope of the April 15 ruling.  At present, the Corps is reportedly not authorizing new activity under NWP 12, but there is a lack of guidance on how the ruling will impact already permitted projects currently underway.  The court rejected a stay request the U.S. Department of Justice filed to limit the scope of the ruling to the project that was at the center of the case.  Industry experts expect DOJ to appeal the ruling.  It is also uncertain how this ruling will impact the reissuance of the NWPs currently underway.

Without NWP 12 as an option, some projects can use another NWP for related activities, but others may have no alternative but to file for an individual permit: adding significant time and cost.  NWPs are used to authorize standard activities with minimal impact to a waters of the United States (WOTUS). These “general” permits allow some activities to move forward without going through the intensive process for an individual permit under Section 404 of the Clean Water Act---saving considerable time and money for routine activities. NWP 12 is a commonly used permit for construction and maintenance activities related to utility work (cable, oil and/or gas, water, etc.), including transportation projects with a component of utility work included.

For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.

Article updated: May 7, 2020

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