Dredging Ahead: Army Corps Proposes to Reissue Nationwide Permits

Key Takeaways

The Army Corps’ proposed reissuance of 56 NWPs is the latest in a series of efforts by the Trump administration and Congress to promote domestic energy development and streamline permitting. By reissuing key energy-related NWPs (among numerous other NWPs that apply to activities across many industries) with only minor changes while responding to past litigation that threatened to impede these permits, the Army Corps is setting the stage for continued energy and infrastructure development. Though the Army Corps predicts NWP 12 will be used fewer times per year than in prior years (likely due to recent Supreme Court precedent narrowing the scope of federal jurisdiction under the Clean Water Act), development-related NWPs continue to be used thousands of times per year, and opponents will likely continue to file challenges to energy-related NWPs. As the preamble to the proposed reissuance discusses at length, the Army Corps lays out the predicate for how its reissuance satisfies statutory requirements, including those that served as the basis for prior legal challenges.

The New NWPs in the Context of Energy Development

While the proposal does not reference recent executive orders supporting the energy industry, it aligns with ongoing federal efforts to facilitate the development of domestic energy resources. A number of NWPs streamline the permitting process for necessary infrastructure projects called out in President Trump’s Unleashing American Energy executive order, like supply pipelines essential for energy export projects (NWP 12), offshore oil and gas structures (NWP 8), hydropower projects (NWP 17), geothermal and other renewal energy generation facilities (NWP 51), and electrical and other transmission lines (NWPs 57 and 58).

The NWP program, first established in 1977, reduces regulatory burdens by allowing project developers to proceed with activities that have no more than minimal individual and cumulative adverse environmental effects without the need to go through the process to obtain an individual permit, which can take from one to several years. By statute, the Army Corps can issue general permits like NWPs for up to five years. The current NWPs, issued in two phases during 2021, are set to expire on March 14, 2026. In January 2021, just before President Trump left office, his administration finalized the NWP program’s general conditions and reissued 12 of the more contentious existing NWPs while creating 4 new ones. Later, in December 2021, the Biden administration reissued the remaining 40 NWPs and added one more, bringing the total to 57. The Army Corps proposes to reissue 56 NWPs and to introduce a new permit focused on improving fish and aquatic organism passage, while not reissuing the NWP related to aquaculture.

Many of the NWPs related to energy project and infrastructure development are among the more-utilized NWPs. In its environmental assessment of each NWP, the Army Corps estimates how many times per year a particular NWP will be used. As a sampling of the frequency of use, the Army Corps estimates the following:

The Army Corps’ NWP program continues to support efficient permitting for a wide variety of projects—including those that are industrial, commercial, residential, navigational, and environmentally restorative. The Army Corps noted in one draft environmental assessment that uses of NWPs also “significantly reduce[] adverse effects to the aquatic environment” since project proponents are incentivized to conform their activities to the confines of a NWP to take advantage of the streamlined process.

Notably, NWP 12, which authorizes certain activities for oil and natural gas pipeline development, is being reissued without substantive modification from the January 2021 version—only minor clarifications to encourage permittees proposing projects in navigable waters to share information with the U.S. Coast Guard. Prior to 2021, NWP 12 covered activities associated with not only oil and gas lines, but also other utility lines associated with water and electrical or telecommunication lines. In response to controversy surrounding NWP 12 authorizations for oil and gas pipelines, the Army Corps separated out non-oil and non-gas utility line activities into two new NWPs in January 2021—NWP 57 for electric utility line and telecommunications activities and NWP 58 for other utility line activities. Separating these from NWP 12 could have had the effect of distancing them from the litigation morass surrounding NWP 12—though the alleged deficiencies raised in those lawsuits (discussed below) would undermine all of the NWPs, from routine maintenance of authorized structures (NWP 3) to aquatic ecosystem restoration, enhancement, and establishment activities (NWP 27). The Army Corps’ current proposal retains the separation of NWPs 12, 57, and 58.

Reviews, Litigation, and Endangered Species Act Considerations

The Army Corps’ proposal, especially as it relates to the framework of Endangered Species Act (“ESA”) consultation, has been shaped by the history of litigation against NWP 12. In 2020, the U.S. District Court for the District of Montana vacated NWP 12 nationwide after environmental groups persuaded a district court judge that the Army Corps needed to have completed a programmatic consultation under ESA Section 7 when reissuing NWP 12 in 2017. The Ninth Circuit later found that the 2021 reissuance of NWP 12 mooted the litigation and revised the vacatur to apply only to the parties to the litigation.

Following the January 2021 reissuance, environmental groups again challenged NWP 12 in the District of Montana, asserting that the reissuance again violated the National Environmental Policy Act and the Clean Water Act and failed to reflect any programmatic ESA Section 7 consultation. After briefing and argument, the case was transferred to the U.S. District Court for the District of Columbia for a merits decision on summary judgment but remains unresolved.

In response to this litigation, the Army Corps’ current proposal includes a lengthy discussion explaining how the NWPs and their associated regulations comply with the ESA. For instance, the Army Corps explains that it does not need to conduct interagency consultation with the U.S. Fish and Wildlife Service (“USFWS”) or the National Marine Fisheries Service (“NMFS”) under ESA Section 7 at the programmatic level. The Army Corps maintains that activities authorized by NWPs have no effect on listed species or designated critical habitat, citing a 2021 biological assessment and the requirement under General Condition 18 for applicants to submit a preconstruction notification if a project “might affect” or is “in the vicinity of” a listed species or critical habitat, which is a lower bar than the ESA’s “may affect” threshold for consultation with the NMFS and USFWS. According to the Army Corps, this conservative measure ensures that any activities potentially needing Section 7 consultation will not proceed until the Army Corps reviews the activity and completes any necessary consultation. The Army Corps asserts that this approach means that programmatic consultation during NWP issuance is not required under the ESA, though ongoing litigation leaves the legal sufficiency of this rationale unresolved.

Along with the above arguments, the Army Corps also notes that prior programmatic consultations conducted for past NWPs in 2007 and 2012 were voluntary. Instead, the Army Corps states that it will coordinate with regional USFWS and NMFS offices to determine whether any regional conditions are necessary to protect listed species or critical habitat, and that regional programmatic Section 7 consultations may also be used to satisfy the requirements of the general condition dealing with ESA consultations (General Condition 18) if a proposed activity is covered by that programmatic consultation. The Army Corps also notes that its approach to consultation is more efficient for permit applicants, the agency, USFWS, and NMFS. Further, obtaining an NWP does not authorize a project proponent to “take” a listed species. By laying out these legal arguments in advance, the Army Corps aims to mitigate likely legal challenges to this proposal.

Separate from challenges on ESA grounds, the Biden administration initiated a review of NWP 12 in 2022, including tribal consultations and public comments, to determine whether it should modify the NWP to better address concerns highlighted in a Biden-era executive order related to environmental justice, public drinking water, and climate change. However, this review stalled during the latter half of the Biden administration. Although President Trump ultimately rescinded the Biden-era executive order that was cited as one of the reasons for the review, the Army Corps stated that it is incorporating what it learned during that prior review into the current rulemaking but is not proposing material modifications to NWP 12. The Army Corps clarifies that comments submitted for the 2022 review will need to be resubmitted for consideration in the Army Corps’ latest proposal.

Other Changes to NWPs

The Army Corps’ proposal modifies other NWPs and general conditions to clarify the scope of a given permit or incorporate updates from recent litigation:

• NWP 13 (Bank Stabilization Activities): revised to encourage permittees to use soft-bank and nature-based approaches that are more sustainable and result in reduced environmental impacts;
• NWP 27 (Aquatic Ecosystem Restoration, Enhancement, and Establishment Activities): various changes proposed to promote a more efficient and cost-effective process for voluntary restoration activities, including clarifying that activities authorized under this NWP must resemble ecological references, removing a list of example activities so as to not needlessly limit restoration activities, clarifying that dam removal activities are not authorized by the NWP, and proposing enhanced reporting requirements to aid in the Army Corps determining if the proposed restoration activity complies with the terms of the NWP;
• NWP 56 (Finfish Mariculture Activities): proposed to not reissue NWP 56 for finfish mariculture activities due to low use rates and litigation that previously vacated the NWP;
• NWP A (Activities to Improve Passage of Fish and Other Aquatic Organisms): new proposed NWP aiming to expand coverage to authorize projects not qualifying under NWP 27; and
• General Condition 28 (Use of Multiple NWPs): revised to specify that the total acreage loss of waters from a single and complete project may not exceed the acreage limits of the NWP with the highest specified limit when multiple NWPs are used for an activity, and that if two or more NWPs with specified acreage limits are used for a single project, the acreage loss of water authorized by each of those NWPs cannot exceed the specified limits of each of those NWPs.

Public and Agency Involvement

The reissuance process is just beginning, with the Army Corps accepting public comments through July 18, 2025. The Army Corps will also address compliance with Section 307 of the Coastal Zone Management Act (“CZMA”) and Section 401 of the Clean Water Act as part of this process. Under Section 401 of the Clean Water Act, states review the proposed NWPs and then certify that discharges associated with NWPs will comply with state water quality standards. States can also waive certification or, as an exercise of the veto authority they have under the Clean Water Act’s cooperative federalism approach, certify with conditions or deny certification altogether. States with coastal areas also have the opportunity to determine whether the NWPs are consistent with the states’ enforceable policies included in the states’ coastal management plans under Section 307 of the CZMA. The Army Corps provides states six months to grant (with or without conditions), deny, or waive Section 401 water quality certification, and states have 60 days to make their CZMA consistency determinations. All comments to the Army Corps’ proposal, whether from individuals or states or in response to the proposal or regional conditions added through the water quality certification or CZMA review, are directed to a single docket, COE-2025-0002, on regulations.gov.

We will continue to monitor developments related to Army Corps nationwide permits. Comments to the proposal are due by July 18, 2025. Please reach out to your Vinson & Elkins team to discuss this matter and its implications for your business.