Nationwide Permit 12 Update: Permit that Allows for Expedited Approval for Certain Oil and Natural Gas Pipeline Activities Undergoing Additional Review
On March 28, 2022, the U.S. Army Corps of Engineers (“Corps”) published notice (“Notice”) that it is undertaking a formal review of Nationwide Permit (“NWP”) 12, one of over 50 general permits available nationwide that allow for streamlined approval of certain categories of activities that may affect federally jurisdictional waters and wetlands when the effects are no more than minimal. NWP 12, which authorizes oil and natural gas pipeline activities, has been a key component in allowing midstream companies and others to construct or repair pipelines in certain circumstances without having to go through the much more time-consuming and costly process of applying for an individual Clean Water Act Section 404 permit or a Rivers and Harbors Act Section 10 permit.
The Notice solicits input from stakeholders to inform the Corps’ decision-making regarding NWP 12, and it poses nine questions. Although some of these questions are within the scope of what the Corps normally considers when reviewing and reissuing NWPs, some go beyond that scope and may foreshadow significant changes in NWP 12, and possibly even its ultimate revocation. Indeed, since the Corps issued NWP 12 for five years only one year ago,1 the fact that the Biden administration has elected to undertake this review four years before the current NWP 12 expires is unusual and likely indicative that the government is considering significant changes. Those interested in providing feedback to the Corps have until May 27, 2022 to submit comments.
The Nationwide Permit Program
The Corps’ NWP program has been an essential part of the U.S. industrial and economic engine since the 1970s, allowing projects to proceed after a streamlined review when effects are no more than minimal. Both the Clean Water Act and Rivers and Harbors Act require that an applicant obtain authorization from the Corps before taking certain actions affecting waters of the United States, such as discharging dredged or fill material into jurisdictional waters or constructing any structure in, over, or under a navigable water. To streamline the permitting process, Congress gave the Corps the ability to issue general permits that can apply state-wide, region-wide, or nationwide for certain types of routine projects that, based on the Corps’ environmental review, will only cause minimal adverse environmental effects. When an activity meets certain criteria designed to ensure effects are no more than minimal, the NWP program allows the permittee to fast-track the permitting process by relying on the general permit rather than going through the cumbersome process of obtaining an individual permit.
There are 57 NWPs, with each permit applying to a different category of activities, such as commercial and residential development, maintenance activities, survey work, stormwater management activities, bank stabilization, renewable energy generation facilities, and electric utility line and telecommunications activities. While the specific location of a particular project and proximity to waters of the United States will determine the permitting requirements, most linear infrastructure projects like pipelines or electric transmission lines, if they are of any appreciable length, are likely to cross waters and wetlands subject to federal jurisdiction. For decades, these projects have qualified for streamlined permitting under the Corps’ NWP program. NWP 12, in particular, is among the oldest NWPs and has historically applied to all sorts of utility lines and pipelines. In January 2021, the Corps split NWP 12 into three separate NWPs — one for oil, gas, and petrochemicals (which remained as NWP 12), one for electric utility line and telecommunications activities (which is now NWP 57), and one for utility line activities for water and other substances (which is now NWP 58).
NWP 12 Under Scrutiny
The NWP program has come under increasing scrutiny in recent years. Opponents of infrastructure projects have focused their attacks on NWP 12, in particular, in an attempt to block new oil and gas pipelines. For example, in April 2020, opponents of the Keystone XL pipeline project temporarily succeeded in obtaining a nationwide injunction against the use of NWP 12. There, a federal district court in Montana determined that the Corps had failed to undertake programmatic consultation under Section 7 of the Endangered Species Act when the Corps issued the permit in 2017.2 In July 2020, the Supreme Court stayed that injunction for all project developers except Keystone XL.3
The Corps has taken the same position on the programmatic consultation issue in its recent NWP reissuances, and that has drawn more litigation. In particular, in its documentation reissuing the January 2021 NWPs, the Corps prepared a new biological assessment concluding that the rulemaking had no effect on listed species and designated critical habitat. The Corps then reaffirmed its conclusion that the general condition requiring additional agency review when listed species might be present in the affected area, and additional ESA Section 7 consultation when any listed species may be affected, satisfies the agency’s obligations under the ESA. Several environmental groups are challenging the Corps’ reissuance of NWP 12 on the same grounds raised in the previous Keystone XL litigation, and that case is pending before the same federal district court judge that oversaw the Keystone XL litigation.4
Issues Raised in the Notice Regarding NWP 12
In the Notice, the Corps seeks input “on the appropriate balance for allowing efficient authorization processes with due consideration for the potential effects of oil and natural gas pipelines as well as the need to engage and inform the public, particularly communities that potentially may be impacted by pipeline construction and operations.” While the Notice calls for input on all aspects of NWP 12, it specifically poses the following nine questions listed alongside commentary that highlights only some of the key issues implicated by the Corps’ review:
|As part of any future action the Army may take with respect to NWP 12, should the Army consider utilization of the procedures in 33 CFR 330.5 in advance of the current cycle for nationwide permit review?
|The referenced regulation, 33 C.F.R. § 330.5, contains provisions on how the Corps can modify, suspend, or revoke nationwide permits. One avenue to block uses of NWP 12 is through the courts, as is showcased above with the NWP 12 litigation in the District of Montana. Another avenue, though, is through pressure on the Corps to administratively narrow NWP 12, or revoke it entirely. The referenced procedures explain how the Corps could do that prior to the current March 2026 expiration of NWP 12, and many of the following questions seem geared to build the record to justify the Corps’ departure from its long-standing and consistent view of NWP 12 and its lack of significant environmental impacts.
|Should modifications be considered to further ensure NWP 12 has no more than minimal individual and cumulative adverse environmental effects under Section 404(e) of the Clean Water Act?
|The issue of cumulative effects from the use of NWP 12 on long linear projects is not new. The Corps treats each separate and distant crossing of jurisdictional waters and wetlands as a separate use of NWP 12, and thus the Corps must ensure that multiple uses of NWP 12 for a longer linear project do not result in significant cumulative effects. As the question indicates, this is important to satisfy Section 404(e) of the Clean Water Act, but it is also necessary to satisfy agency review of major federal actions significantly affecting the human environment under the National Environmental Policy Act (“NEPA”). The Corps’ environmental assessment for NWP 12 analyzed cumulative effects under both statutes and allows the Corps’ district engineer to condition NWP 12, or disallow its use, when cumulative effects may be more than minimal. One reason this issue has elicited scrutiny in recent years is the surprise by some that a long linear pipeline, including a pipeline with one or two thousand water crossings, might not require any additional NEPA analysis when the Corps confirms that effects are no more than minimal individually and cumulatively. Plaintiffs have claimed this tactic avoids mandatory NEPA reviews, but courts have disagreed.5
|Should modifications to NWP 12 be considered to provide notice to and an opportunity to be heard by potentially impacted communities, particularly with regard to environmental justice communities?
|Section 404(e) of the Clean Water Act requires the Corps to provide notice and an opportunity for public hearing before issuing general permits. Requiring a second round of public notice for each future use of NWP 12 would defeat Congress’s intent in providing a pathway for streamlined approvals when effects would be no more than minimal. Nor is there any apparent rationale for limiting this requirement to only NWP 12, since any NWP could affect environmental justice communities, depending on the location of the work. The Corps cites the defunct Byhalia oil pipeline as an example of a project that traversed an environmental justice community and faced significant community opposition but did not have a public notice and comment period or public hearing because it utilized NWP 12. However, adding a notice and comment period to the NWP application process would be a significant departure from the historic implementation of the NWP program and add time to the NWP authorization process, arguably reducing its utility as a streamlined way to authorize projects. It would also potentially increase the number of legal challenges to projects seeking to use NWP 12.
|Would it be prudent for the Corps to consider further limits on the NWP 12, PCN requirements, general conditions, and the ability of division and district engineers to modify, suspend, and revoke NWP authorizations to further ensure that the NWP 12 causes no more than minimal cumulative adverse environmental effects at the national, regional, and site scales?
|This question relates closely to the second question above, as it suggests possible modifications to NWP 12 to address potential cumulative effects issues. By way of background, the Corps already determined that the existing limits on NWP 12, its PCN requirements, the general conditions, and the additional reviews from the district engineer adequately protect cumulative impacts from being more than minimal. Moreover, Corps divisions and districts may already impose additional regional conditions on the use of NWP 12, and for reporting uses of NWP 12, district engineers are already required to make findings that cumulative effects are no more than minimal. To ensure principled and reasoned decision-making, if the Corps reaches a different conclusion following this review, it should explain what changed since it last reissued NWP 12 just over one year ago.
|Should distinctions be drawn between new construction of oil and natural gas pipelines and maintenance of existing oil and natural gas pipelines?
|Several other NWPs draw distinctions between construction of an original facility and maintenance of that facility (see, for example, NWP 3 for general maintenance of previously authorized facilities but not new facilities, and NWP 43 for stormwater management facilities, which does not require a PCN for maintenance work but does for new facilities). However, the Corps has decades of experience in reviewing and confirming that both construction and maintenance of oil and gas pipelines typically results in no more than minimal effects, and thus a distinction between the two, and possibly limiting the use of NWP 12 to maintenance but not new construction, may tread on Congress’s intent in providing for streamlined review of activities that have long been shown to not result in more than minimal impacts.
|Should distinctions be drawn between oil pipelines and natural gas pipelines, especially in consideration of differences in overall Federal regulation of different types of pipelines?
|The question seems geared to elicit comments on the Corps increasing its regulatory scrutiny for oil pipelines over what it requires for gas pipelines, given greater federal oversight of gas pipelines. However, construction impacts typically do not vary between oil and gas pipelines, and for Section 404 authorization for the placement of dredged or fill material, the Corps lacks jurisdiction over the pipelines’ subsequent operation once the construction activities are complete. Moreover, the Corps’ jurisdiction for these types of linear projects is generally limited to the water and wetland crossings and their immediately adjacent uplands, but it does not extend to all uplands. The fact that another federal agency may also review impacts of the project, in both uplands and waters/wetlands, does not change the Corps’ analysis of the impacts of the pipeline’s construction and operation.
|Does the NWP 12 verification process ensure that environmental justice and climate change factors are adequately considered?
|The current verification process already ensures that activities authorized by NWP 12 result in no more than minimal effects, individually and cumulatively. The question signals that the Corps could be considering rebalancing how cumulative impacts are measured, particularly as it pertains to two topics that the Biden administration has prioritized since day one — climate change and environmental justice impacts. Any rebalancing could have the functional effect of raising the bar for the use of NWP 12 to build pipelines in environmental justice communities. For example, “minimal” environmental effects on an environmental justice community suffering historic or systemic environmental and health impacts could be assessed differently than on other areas. Regarding climate change impacts, it is unlikely that any such impacts are proximately caused by the Corps’ authorization of a water crossing, or are reasonably foreseeable. And in any event, no individual activity would result in any physical, discernable climate change impact on the human environment.
|Are the PCN requirements for the current NWP 12 adequate?
|The Corps simplified the PCN requirements for NWP 12 in its recent reissuance after thoroughly considering whether the regulatory burdens were appropriate and whether they adequately protected against impacts that were more than minimal. Any reconsideration of the PCNs should consider the well-reasoned basis that underlies the Corps’ selection of the current PCN triggers.
|Should there be new triggers for oil or natural gas pipeline activities in jurisdictional waters that mandate review under an individual permit?
|This question seems to extend well beyond the scope of NWP 12 and could affect other aspects of the Corps’ regulatory program. Although the Corps may include a “trigger” in NWP 12 that, once exceeded, disallows use of NWP 12 or requires specific verification from the district engineer, it would be inappropriate for NWP 12 to mandate an individual permit if NWP 12 did not apply. Oil and natural gas pipeline activities in jurisdictional waters can be authorized under a number of different nationwide permits (e.g., oil or gas pipelines built as part of a commercial or industrial development under NWP 39) and other general permits (e.g., regional general permits or state programmatic general permits). The question seems to contemplate a programmatic change spanning the Corps’ entire regulatory program, trumping decisions by individual districts to issue other general permits allowing certain oil and gas pipeline activities. It would also result in a significant uptick in individual permit applications submitted to the Corps, creating a backlog and further delays in the Corps’ already time-intensive individual permit process.
Importance of Public Comments
Businesses that make use of NWP 12 should consider filing public comments to share their perspectives and concerns with the questions raised by the Corps. Public comments play an important role in providing feedback to the agency and flagging concerns that the agency may not otherwise consider. In addition, public comments are important for any subsequent court fights over the Corps’ final determination. Public comments make up part of the “administrative record” or body of information that the court will look at when reviewing the Corps’ decision. Comments in response to the Notice are due on May 27, 2022. The Corps is also conducting six virtual public and tribal meetings throughout the month of May.
1 Typically, the Corps reissues the NWPs together in a single rulemaking, which happens roughly every five years. The Corps recently departed from this convention. In January 2021, the Corps reissued 12 of its 52 existing NWPs, issued four new NWPs, and revised general conditions and definitions for these NWPs. Major changes in the January 2021 rule included: (1) splitting NWP 12 as discussed above, (2) reducing the number of conditions that would trigger an applicant’s need to submit a pre-construction notification (“PCN”) before proceeding with its activity, and (3) removing the 300-linear foot limit for losses of stream bed from 10 NWPs. The subsequent December 2021 final rule reissued the remaining 40 existing NWPs, issued one new NWP, and revised the general conditions and definitions. Major changes included clarifying activities considered “maintenance” under NWP 3 and issuing NWP 59 for Water Reclamation and Reuse Facilities. The various NWPs issued in January and December 2021 will expire on March 14, 2026, unless modified or revoked prior to expiration.
2 N. Plains Res. Council v. U.S. Army Corps of Eng’rs, 454 F. Supp. 3d 985 (D. Mont. 2020), amended by 460 F. Supp. 3d 1030 (D Mont. 2020).
3 U.S. Army Corps of Eng’rs v. N. Plains Res. Council, 141 S.Ct. 190 (2020).
4 Ctr. for Biological Diversity v. Spellmon, No. 4:21-cv-00047 (D. Mont. filed May 3, 2021). Vinson & Elkins represents an amicus curiae in this matter.
5 See Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31 (D.C. Cir. 2015); Sierra Club v. Bostick, 787 F.3d 1043 (10th Cir. 2015).
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.