On September 15, 2020, the United States Army Corps of Engineers (Corps) issued its “Proposal to Reissue and Modify Nationwide Permits” (Proposed Rule). Under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899, the Corps issues nationwide permits (NWPs) that authorize activities that will result in no more than minimal individual and cumulative adverse environmental effects. These permits are designed to streamline the permitting process for certain activities, while also ensuring that jurisdictional waters are protected. Most significant to the oil and gas industry, the Corps proposes to (1) modify NWP 12 to be limited to the authorization of oil and natural gas pipeline activities, and (2) streamline and reduce pre-construction notice requirements for pipelines subject to NWP 12. The comment period under the proposed rule closes on November 16, 2020.

Since 1971, NWP 12 has broadly authorized activities associated with the construction, maintenance, and repair of utility line crossings, including oil and natural gas pipelines. In its Proposed Rule, the Corps seeks to repurpose NWP 12 so that it only authorizes those activities associated with oil and natural gas pipelines, which accounts for a majority of the activities permitted under NWP 12. Specifically, the revised NWP 12 will authorize “activities required for 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 half-acre of waters of the United States for each single and complete project.” The Corps plans to issue new NWPs to cover other utility lines that were previously authorized under NWP 12 (e.g., electric utility lines and utility lines that carry substances other than oil and natural gas, such as wastewater).

While many of the existing requirements under NWP 12 that govern the activities associated with oil or natural gas pipeline will not be impacted by the Proposed Rule, the Corps seeks to reduce the thresholds for when pre-construction notification (PCN) may be required. PCN requirements generally govern when notice must be provided to the Corps so that a planned activity can be reviewed to ensure that it complies with the requirements of an NWP. Under the Proposed Rule, PCN will no longer be required for five of the seven existing thresholds:

  • activities involving mechanized land clearing in a forested wetland for the right-of-way;
  • pipelines in waters of the United States, excluding overhead lines, that exceed 500 feet;
  • pipeline placed within a jurisdictional area (e., water of the United States), and runs parallel to or along a stream bed that is within that jurisdictional area;
  • permanent access roads are constructed above grade in waters of the United States for a distance of more than 500 feet; and
  • permanent access roads are constructed in waters of the United States with impervious materials.

The Corps believes that removing a number of the thresholds for PCN in NWP 12 will “reduce burdens on the regulated public, simplify the NWP, and eliminate redundancy.” Notwithstanding the lower PCN thresholds under the revised NWP 12, regional district engineers would continue to have the authority to lower PCN thresholds under NWP 12.

Under the Proposed Rule, PCN under NWP 12 will only be required (1) if a permit is required under Section 10 of the Rivers and Harbors Act; (2) if the discharge of dredged or fill material will result in the loss of greater than 1/10-acre of waters of the United States; or (3) the activities are associated with the installation of a new pipeline (as opposed to repair or maintenance) that is greater than 250 miles in length. The third criterion is new, and the Corps has specifically requested comment on it.

The Proposed Rule comes as NWP 12 has been the subject of ongoing litigation in the Ninth Circuit. As previously reported, a Montana district court in litigation centering around the Keystone XL pipeline previously vacated the use of NWP 12 for the construction of new oil and gas pipelines, pending completion of the consultation process and compliance with all environmental statutes and regulations. The Corps appealed the decision to the United States Court of Appeals for the Ninth Circuit and requested that the court lift the injunction pending the appeal. The Ninth Circuit denied the request to lift the injunction pending the appeal. In July 2020, the Supreme Court temporarily overturned the nationwide injunction and limited the district court’s decision to the construction of the Keystone XL pipeline. By reissuing the existing NWPs, including NWP 12, the Proposed Rule may result it new litigation on the same issues raised in the current litigation as well as new issues raised in the Proposed Rule.

Comments in response to the Proposed Rule must be submitted by November 16, 2020.