U.S. Army Corps of Engineers Issues 2017 Nationwide Permits for Streamlined Permitting
On January 6, 2017, the U.S. Army Corps of Engineers (the Corps) issued a new set of nationwide permits to replace existing permits that expire on March 18, 2017. Congress authorized the Corps to issue these types of nationwide permits to streamline the permitting process for the discharge of dredged or fill material into waters of the United States, under Clean Water Act Section 404 or work in or affecting navigable waterways, under Rivers and Harbors Act Section 10, in either case when it has no more than a minimal individual or cumulative adverse effect on the environment. The 2017 nationwide permits closely mirror the draft version the Corps released for public comment in June 2016, generally with only minor revisions and clarifications. In addition to reissuing 50 existing nationwide permits, the Corps issued two new permits, one for the removal of low-head dams, and another for “living shorelines” used to stabilize banks and shores in coastal waters. The nationwide permits are frequently used for development activities ranging from navigational aids and bank stabilization to linear projects and commercial developments.
Concern about “fast-track” permitting. In the preamble to the final notice, the Corps responded at length to numerous comments critical of the Corps’ nationwide permitting program, including allegations that it allows the Corps to inappropriately “fast-track” development projects that some argue should require individual permits or public comment. According to the Corps, the average evaluation time for a nationwide permit authorization is 40 days, compared to an average evaluation time of 217 days for an individual permit. The Corps strongly defended its nationwide permitting program because it reduces administrative burdens on the Corps and the regulated public while maintaining environmental protection, by efficiently authorizing activities that have no more than minimal adverse environmental effects.
Some nationwide permits are available for use without notice to or review by the Corps, as long as the activity complies with all limits and conditions of the permit. For those that require pre-construction notification and Corps’ verification, the applicant can proceed with the activity if the Corps does not respond within 45 days of receiving a complete notification package. The Corps did not make significant changes to these provisions or to the suspension of the 45-day clock if additional consultation or permissions are needed to meet other statutory requirements (such as consideration of effects to species under the Endangered Species Act or to cultural resources under the National Historic Preservation Act, or authorization for occupying or altering civil works projects under the Rivers and Harbors Act, also known as a “Section 408” authorization).
Attacks on pipeline permitting. A significant portion of the Corps’ response concerned pipelines and tribal rights, which is not surprising given high-profile opposition and litigation over the development of the Dakota Access Pipeline, the Keystone XL Pipeline, the Flanagan South Pipeline, and other recent pipeline projects. Numerous environmental groups filed comments opposing the Corps’ continued use of Nationwide Permit 12, which applies to utility lines. In fact, of the 54,000 comments the Corps received on the proposed rule, nearly all dealt with Nationwide Permit 12, including 53,200 form letters opposing the permit. Nationwide Permit 12 covers activities required for the construction, maintenance, repair and removal of utility lines and associated facilities. A “utility line” is defined 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 for any purpose of electrical energy, telephone, and telegraph messages, and internet, radio, and television communication.
These attacks on Nationwide Permit 12 failed to persuade the Corps that the proposed restrictions and limitations were warranted. Many commenters argued that the Corps should require individual permits for all oil pipelines because the Corps is often the only federal agency granting any approvals related to an oil pipeline project, and because oil pipelines may spill or leak oil or contribute to climate change impacts by transporting fossil fuels that will eventually be combusted. The Corps reiterated that it regulates the discharge of dredged and fill material and work in or affecting navigable waters, not the construction or operation of oil and gas pipelines per se. The Corps explained that other federal agencies have jurisdiction over pipeline operations and spills (such as the Department of Transportation for the transportation of hazardous liquids; the Environmental Protection Agency for oil spills in inland waters and required spill prevention, control, and countermeasure plans and facility response plans; and the U.S. Coast Guard for oil spills in coastal waters). The Corps also noted its lack of jurisdiction in uplands and defended its long-standing practice of separately authorizing “separate and distant water crossings” for linear projects.
Another change affecting the use of nationwide permits for pipelines is the Corps’ decision to revise one of its general conditions relating to tribal rights in response to public comments. In order to address the full suite of tribal rights and to align with Department of Defense policy, the Corps revised General Condition 17 to expand a previous reference to tribal rights, reserved water rights, and treaty hunting and fishing rights. The new language clarifies that no nationwide permit activity may cause more than minimal adverse effects on “tribal rights (including treaty rights), protected tribal resources, or tribal lands.” The Corps did not, however, adjust its approach to consultations under Section 106 of the National Historic Preservation Act, which has been an issue in the recent Dakota Access Pipeline dispute. The Corps defended its Section 106 approach, affirming that the Corps or an applicant can proceed under a nationwide permit if the permitted activity results in no potential to affect a historic property, and only where there is such a potential will the Corps undertake the Section 106 process.
Permit effective dates and grandfathering. Nationwide permits can only be issued for up to five years, and the current 2012 nationwide permits expire on March 18, 2017. For activities authorized under the 2012 nationwide permits where the work has already commenced or is under contract, the work authorized by the 2012 nationwide permit must be completed within one year of the expiration of the 2012 nationwide permit. Work not completed within one year, or work that has not commenced or gone under contract by March 18, 2017, must be authorized under the new 2017 nationwide permits (though the Corps does recognize that depending on circumstances some consultations, such as those required under the Endangered Species Act, may not need to be redone).
Although the new nationwide permits are effective March 19, 2017, before any regulated activity is authorized states, Indian Tribes, and the Environmental Protection Agency must still issue, condition, or waive water quality certification under Section 401 of the Clean Water Act and states must make consistency determinations under the Coastal Zone Management Act, as applicable. These processes, as well as the development and finalization of additional regional conditions at the Corps district or state level, may further limit the utility of nationwide permits to developers and state permitting agencies.
Nationwide permit applicants with plans to work or mobilize in the late winter and spring months should carefully review their schedules and the new nationwide permits to ensure they will have the correct authorization at the time they need it to avoid any construction delays.