Key Points

• A federal district judge has invalidated the Army Corps of Engineers Nationwide Permit 12 for failure to comply with the Endangered Species Act, in response to a case filed against the notorious Keystone XL pipeline.
• As a result of the decision, the Army Corps has halted new and pending approvals under the permit, which is required for construction projects that will discharge dredged or fill material into waters of the United States.
• Developers of pipelines and utilities across the country will be impacted by this change, which is likely to stall numerous ongoing construction projects.

On April 15, 2020, a federal district court judge in Montana vacated the Army Corps of Engineers Nationwide Permit 12 on the basis that the permit was not properly evaluated under the Endangered Species Act. See Northern Plains Resource Council v. U.S. Army Corps of Engineers (D. Mont., Apr. 15, 2020, No. CV-19-44-GF-BMM) 2020 WL 1875455. The case was filed by several environmental groups against the developers of the Keystone XL Pipeline and the Army Corps to halt construction of the pipeline, which has been the subject of a raging environmental debate over the past decade.¹

The court’s decision on Nationwide Permit 12 (NWP 12) reaches far beyond Keystone XL. NWP 12 is critical to numerous infrastructure projects across the country as developers of pipelines and other utility and linear projects seek permit approval under NWP 12 to protect themselves from Clean Water Act citizen suits and enforcement actions. The court’s decision resulted in the Army Corps immediately halting new and pending approvals for coverage under the permit.²

The Army Corps oversees section 404 of the Clean Water Act, which requires permits³ for construction projects that will discharge dredged or fill material into waters of the United States.⁴ The Army Corps issues individual permits on a case-by-case basis, and has the authority to issue general nationwide permits for certain categories of activities which the Army Corps determines to be “similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment.”⁵

The current NWP 12 was re-issued by the Army Corps in 2017⁶ and authorizes discharges of dredged or fill material into waters of the U.S. “for the construction, maintenance, repair, and removal of utility lines and associated facilities” so long as any single project does not result in the loss of more than one-half acre of waters of the U.S.⁷ Utility lines in this context include, among other things, oil and gas pipelines.⁸

As the Montana district court noted, both the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) “require the Corps to consider the environmental impacts of its actions.”⁹ The court found that the Army Corps violated its obligations under the ESA because it failed to consult the Fish and Wildlife Service (or initiate “programmatic consultation” under the ESA) when it re-issued NWP 12 in 2017.¹⁰

The Army Corps responded that NWP 12 would have no effect on listed species or critical habitat, but the court disagreed, citing to the Army Corps own descriptions of NWP 12 activities which “have resulted in direct and indirect impacts to wetlands, streams, and other aquatic resources.”¹¹ The court also relied on expert declarations asserting that discharges allowed under NWP 12 will affect endangered species.¹²

The court enjoined the Army Corps from authorizing any dredge or fill activities under NWP 12 until it completes the consultation process,¹³ which could take years to work through, making the future of many planned projects uncertain.

¹ See, e.g., Melissa Denchak, NRDC, What is the Keystone Pipeline? How a single project became the epicenter of an enormous environmental battle., (Apr. 7, 2017),

² See Inside EPA, Army Corps Halting CWA Permit Coverage Following Pipeline Ruling (Apr. 22, 2020),.

³ See 33 U.S.C. § 1344(a).

⁴ Also known as “jurisdictional” or “navigable” waters. While outside the scope of this piece, the definition of waters of the United States is a hotly contested issue. See, e.g., Unsettled Waters: Navigable Waters Protection Rule Narrows the Definition of “Waters of the United States” WilmerHale – JDSupra and Sean Herman, et. al., Uncertainty on Maui: How Will Functional Equivalence Work in the Real World? (Apr. 23, 2020), (discussing the U.S. Supreme Court’s recent decision in County of Maui v. Hawai’i Wildlife Fund).

⁵ 33 U.S.C. § 1344(e)(1).

⁶ General permits may last up to five years, at which point they can be re-issued or expire. 33 U.S.C. § 1344(e)(2). Nationwide Permit 12 was issued for the first time in 1977. 82 Fed. Reg. 1860, 1985-86 (Jan. 6, 2017).

⁷ 82 Fed. Reg. 1860, 1985-86 (Jan. 6, 2017).

⁸ 82 Fed. Reg. at 1985.

⁹ Northern Plains Resource Council v. U.S. Army Corps of Engineers (D. Mont., Apr. 15, 2020, No. CV-19-44-GF-BMM) 2020 WL 1875455, at *2. See also 16 U.S.C. § 1536(a)(2) and 42 U.S.C. § 4332(C).

¹⁰ Id. at *3.

¹¹ Id. at *4.

¹² Id. at *6.

¹³ Id. at *9.