Lay of the Land
In a far-reaching decision with sweeping implications, a federal district judge in Montana eliminated the Army Corps’ nationwide permit for utility line crossings over waters of the United States. This permit – known as Nationwide Permit 12 – was used to streamline approvals across the country for electrical lines, pipelines, and other utility projects resulting in minor encroachments on wetlands and other waters. Because of this decision’s scope, thousands of projects across the country – including projects in California – may be stalled as they re-think their permitting approach or await further direction from the courts. Even more troubling is the fact that this decision calls into question the legality of over fifty other nationwide permits intended to streamline project approvals, including those issued for housing, industrial, and other development projects
The Keystone XL Pipeline Project and Nationwide Permit 12
This case – Northern Plains Resource Council v. U.S. Army Corps of Engineers – involves a challenge by environmental groups against the embattled Keystone XL Pipeline project, a 1,210-mile pipeline between Alberta and Nebraska that would cross more than 1,000 bodies of water in Montana, South Dakota, and Nebraska. The U.S. Army Corps of Engineers approved certain river crossings impacted by the project pursuant to Nationwide Permit 12, which is one of fifty-two nationwide permits designed to streamline the approval process for certain categories of projects that impact jurisdictional waters under the Clean Water Act. The Corps re-evaluates and reissues the nationwide permits every five years, sometimes modifying or eliminating permits, and sometimes adding new permits. Nationwide Permit 12 was reissued in 2017, and it’s set to expire for further consideration of reissuance in 2022.
Nationwide Permit 12 is critically important for projects involving certain infrastructure work. It authorizes discharges into jurisdictional waters for the construction, maintenance, repair, and removal of utility lines and associated facilities. The Corps has defined “utility lines” broadly to include electric, telephone, internet, radio, and television cables, lines, and wires, as well as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, including oil and gas pipelines.
Like other nationwide permits, the applicability of Nationwide Permit 12 is limited to relatively small amounts of discharge. The discharge may not result in the loss of greater than one-half acre of jurisdictional waters for each single and complete project. For linear projects like the Keystone XL Pipeline project that cross a single waterbody several times at separate and distant locations, or cross multiple waterbodies several times, each crossing represents a single and complete project. As part of its evaluation of whether a linear project qualifies, the Corps evaluates the individual crossings to determine whether each crossing satisfies Nationwide Permit 12.
This approach to permitting utility crossings is typical. The oil and gas industry uses this nationwide permit routinely, and many other industries do, as well. For example, the renewable energy industry often uses Nationwide Permit 12 to authorize work in jurisdictional waters associated with electrical line crossings because that work usually results in only a minimal amount of impact to jurisdictional waters. Nationwide Permit 12 and other nationwide permits are important to industry because the alternative to a nationwide permit is an “Individual Permit,” which entails a far more onerous permitting process, both in terms of time and cost.
The Ruling and Its Implications
One reason why the court’s decision is so important is because of its scope. Instead of simply focusing solely on the applicability of Nationwide Permit 12 to the Keystone XL Pipeline project, the court made rulings on the general validity of Nationwide Permit 12. And those rulings have implications for projects in California and throughout the United States seeking to rely on Nationwide Permit 12 for fill authorization under the Clean Water Act.
One of the most critical aspects of the ruling involved the court’s review of the interplay between the Clean Water Act and the Endangered Species Act. The court found that the Corps’ reissuance of Nationwide Permit 12 violated Section 7 of the Endangered Species Act. Section 7 requires the Corps to ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any listed species or destroy or adversely modify designated critical habitat. When the Corps reissued Nationwide Permit 12 in 2017, it concluded that the reissuance would have no effect on listed species or critical habitat. Based on this conclusion, the Corps did not initiate consultation under Section 7 with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service.
The court held that the Corps’ decision to reissue Nationwide Permit 12 without initiating Section 7 consultation was arbitrary and capricious. The court found that the Corps should have engaged in programmatic consultation to allow for a broad-scale examination of the nationwide permit program’s potential impacts on listed species and critical habitat, particularly in light of the court’s view that there was “resounding evidence” that the Corps reissuance of Nationwide Permit 12 “may affect” listed species and their habitat.
Based on this holding, the court remanded Nationwide Permit 12 to the Corps “for compliance with the [Endangered Species Act],” that is, compliance with the consultation requirements of Section 7. The court’s next rulings are shocking in their sweep: the court vacated Nationwide Permit 12 “pending completion of the consultation,” and “enjoin[ed] the Corps from authorizing any dredge or fill activities under [Nationwide Permit] 12.”
In other words, the court ordered the Corps to stop authorizing the fill of jurisdictional waters using Nationwide Permit 12 until the Corps complies with Section 7 of the Endangered Species Act.
The ramifications of this case cannot be overstated.
- First, the court’s order does not vacate Nationwide Permit 12 or enjoin the use of Nationwide Permit only in Montana. The court’s ruling applies throughout the nation, including of course California.
- Second, vacating and enjoining the use of Nationwide Permit 12 for projects impacting jurisdictional waters could result in significant and additional project costs, as those projects will need to consider instead using an Individual Permit under Section 404 of the Clean Water Act.
- Third, and perhaps most troubling, the court’s rationale could be applied to other nationwide permits reissued in 2017 that were also not subject to Section 7 consultation because the Corps determined that they, too, would have no effect on listed species or critical habitat.
Given the scope and significance of this decision, it’s likely the decision will be appealed to the Ninth Circuit Court of Appeals. In the meantime, applicants for projects with utility line crossings that are proposing to use Nationwide Permit 12 may need to re-evaluate their permitting timelines and costs or consider re-engineering their projects to avoid impacts to jurisdictional waters, neither of which are very attractive options.