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USACE is proposing to split up Nationwide Permit 12; PCN may be required for all new pipelines over 250 miles

by Transect Team, on Aug 7, 2020

This week, the U.S. Army Corps of Engineers (USACE) proposed to split up the existing Nationwide Permit (NWP) 12 for Utility Lines. NWPs are blanket permits used by project developers to permit impacts to federally protected waters in accordance with Clean Water Act Section 404. NWP 12 for above- and belowground utility lines is probably the most commonly used nationwide permit. Every oil or gas pipeline, electric transmission line, fiber optic line, stormwater pipe, sewer line, etc. in the US relies on NWP 12. Often deemed a “regulatory shortcut” by environmental groups, NWP 12 is a streamlined blanket permit that allows utility lines to go to construction without much regulatory review from USACE, provided that impacts to waterways are minimal and all permit conditions are met.

NWP 12 became a hot topic earlier this spring when a Montana judge vacated the permit as part of a ruling on the Keystone XL pipeline, bringing every proposed utility line project in the U.S., regardless of type or material, to a screeching halt. Additionally, without the ability to streamline permitting through NWP 12, the USACE was staring wide-eyed at an enormous backlog of lengthy standard permit applications that would have to be processed by an already understaffed agency. NWP 12 was later resurrected, and a big sigh of relief could be heard around the country, but the PTSD of the “what if” for utility developers and the USACE is still very real.

So, this week, the USACE proposed to do something about it as part of their Proposal to Reissue and Modify Nationwide Permits. Per their proposal:

“We are also proposing… to divide the current NWP that authorizes utility line activities (NWP 12) into three separate NWPs that 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”

Between March 19, 2017 and March 18, 2019, USACE found that 58 percent of the authorized activities under NWP 12 were for oil and gas pipelines. In a time when many oil and gas pipelines are struggling to complete environmental reviews or are mired in public protest, the USACE is making sure that oil and gas pipeline lawsuits around NWP 12 don’t ever bring down other types of utility projects again.

While massive transmission lines have been able to avoid most preconstruction USACAE reviews in the past, USACE is now proposing to take a detailed look at these long pipeline projects ahead before construction as these projects and the USACE are increasingly subject to public protests and lawsuits. Specifically, the USACE is proposing a new preconstruction notification (PCN) threshold where PCN is required for new oil and gas pipelines that are over 250 miles in length. So much for each water crossing being a “single and complete project.” We expect some heated public comments turned in on this part of the proposal.

The USACE says the new Nationwide Permits for (1) electric utility line and telecommunications activities and (2) other utility line activities that convey other substances, such as potable water, sewage, wastewater, stormwater, brine, or industrial products that are not petrochemicals, will be structured largely the same way as the existing NWP 12.

The USACE is currently seeking public comment. All Nationwide Permits expired every 5 years - these proposed changes must be amended or finalized no later than March 18, 2022.

Topics:Clean Water Act