This week, the United States Army Corps of Engineers (USACE) proposed to split up the existing Nationwide Permit (NWP) 12 for Utility Lines. NWP 12 for above and below ground utility lines is probably the most commonly used nationwide permit. In the US, every oil or natural gas pipeline, electric transmission line, fiber optic line, stormwater pipe, sewer line, etc., relies on NWP 12. Often deemed a “regulatory shortcut” by environmental groups, NWP 12 is a streamlined blanket permit that allows utility projects to go to construction without much regulatory review from USACE, provided that impacts to waterways are minimal and all permit conditions are met.
What is a Nationwide Permit (NWP)?
A Nationwide permit is a general permit that allows certain development activities to continue should the project meet the permit’s requirements.
What is Nationwide Permit 12 (NWP 12)?
NWP 12 permits are blanket permits used by project developers to permit impacts to the jurisdictional waters of the United States under the Clean Water Act Section 404.
Clean Water Act Section 404
CWA section 404 sets the standards for discharging material into jurisdictional waters of the United States (WOTUS). This section specifies the criteria for maintaining water quality and directs the steps developers must follow to protect water quality and the species in these waters. Additional permitting may be required should a species protected by the Endangered Species Act be found in these waters.
Nationwide Permit 12 Past Controversy
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. The threat to listed species, water quality, and the general condition of many U.S. natural resources caused by the Keystone XL pipeline propelled discussions regarding the NWP 12 process for developers. This brought every proposed utility line project in the U.S. to a screeching halt regardless of the type of material.
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. With the resurrection of the NWP 12, a big sigh of relief could be heard around the country. However, the fearsome “what if” for utility developers and the USACE regarding change is still genuine.
Revised NWP Proposal
This week, the United States Army Corps of Engineers proposed to make changes regarding this controversy as part of their Proposal to Reissue and Modify Nationwide Permits. A significant reason for these modifications may be to ensure compliance with the Endangered Species Act and rectify these issues seen with the Keystone XL Pipeline.
Per their proposal:
New NWP Impacts on Utility Line Projects
“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.”
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 mainly structured the same way as the existing NWP 12.
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. While many oil and gas pipelines are struggling to complete environmental reviews or face backlash via public protest, the USACE is ensuring that oil and gas pipeline lawsuits around NWP 12 don’t ever bring down other types of utility projects again.
Preconstruction Notification (PCN) for Pipeline Projects
What is PCN?
This notification occurs when developers must inform Corps engineers about their proposed construction before they begin work that may impact natural resources. This notification allows the engineer to determine if the activity qualifies for an NWP.
Current Standards for PCN
A PCN is required when developers are seeking:
Section 10 Permit
Isolated/ non-404 Wetlands Permit
Impacts on Oil and Gas Projects
While massive transmission lines have been avoided in 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.
The revised NWP 12 allows "the construction, maintenance, repair, and removal of oil and natural gas pipelines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than ½-acre of waters of the United States for each single and complete project."
Specifically, the USACE is proposing a new pre-construction notification (PCN) threshold where PCN is required for new oil and gas pipelines 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 new, simplified standards for oil and natural gas PCNs are projects that:
Need a Section 10 permit (involve navigable water crossing).
Cause more than a one-tenth of an acre loss of waters of the United States.
Involve new pipelines over 250 miles long, not including repair or maintenance activities.
The USACE is currently seeking public comment as the proposed ruling is pending completion. We expect some heated public comments turned in on this part of the proposal- from developers and environmental groups alike. All Nationwide Permits expire every five years - these proposed changes must be amended or finalized no later than March 18, 2022.
UPDATE: Final Rule on Changes to NWP 12
On March 15, 2021, the new NWP standards went into effect. Previously authorized projects that remain compliant with the NWP have approval until March 18, 2022.