2020 was a year of unprecedented circumstances and change, and more change is coming in 2021—this time, in the form of significant modifications to the nationwide permitting program. On September 15, 2020, the Army Corps of Engineers (Corps) published a notice of proposed rulemaking to reissue and modify nationwide permits (NWPs), ahead of the usual five-year reauthorization schedule for the current 2017 NWPs. The Corps is authorized to issue NWPs under section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act. NWPs are general permits that allow for quick permitting of routine projects that cause minimal adverse impact to the environment, as opposed to the expensive and time-intensive individual permitting process. The rulemaking follows an order handed down this spring by the U.S. District Court for the District of Montana in the Keystone XL Pipeline case, vacating the use of NWP 12. Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers et al.,No. 4:19-cv-44 (D. Mont., April 15, 2020). A U.S. Supreme Court order on July 6, 2020, overturned the District of Montana’s nationwide injunction of the use of NWP 12, limiting the injunction to the Keystone XL Pipeline case. U.S. Army Corps of Engineers et al. v. Northern Plains Resource Counsel et al., No. 19A1053 (S. Ct. July 6, 2020). The district court’s modified injunction is on appeal to the Ninth Circuit. The outcome of that case, along with the proposed rule for new NWPs, will result in a changed landscape for section 404 permitting in the new year.

Significant Proposed Changes to NWPs

The first proposed change to the 2017 NWPs is the modification of NWP 12. Proposal to Reissue and Modify Nationwide Permits, 85 Fed. Reg. 57,298 (Sept. 15, 2020). NWP 12 currently covers all construction of utility lines, including oil and gas pipelines. The proposed rule splits NWP 12 into three separate NWPs: NWP C for electric utility lines and telecommunication activities; NWP D for utility line activities for water and other substances; and NWP 12, which will apply only to oil, natural gas, and other petrochemical activities. NWP C will authorize construction, maintenance, repair, and removal of electric utility and telecommunication lines, foundations for overhead lines, and associated access roads in waters of the United States where the project does not result in a loss of greater than ½-acre of those waters. Construction, maintenance, or expansion of substation facilities associated with electric utility lines in nontidal waters is also covered by the permit, with exceptions for projects adjacent to tidal waters. NWP D is similar to NWP C, but applies to construction, maintenance, repair, and removal of utility lines for water and other substances (excluding oil, natural gas, petrochemicals, and electricity) and associated utility line facilities, substations, and access roads.

In addition to the new NWPs, pre-construction notification (PCN) requirements will be eliminated for several activities covered under NWP 12, meaning that a permittee will no longer need to notify and receive confirmation of compliance from the Corps prior to commencing construction under a NWP. Specifically, PCN will no longer be necessary for: (1) activities involving mechanized land clearing in a forested wetland for the utility line right-of-way; (2) utility lines in waters of the United States, excluding overhead lines, exceeding 500 feet; (3) utility lines placed within a jurisdictional area (i.e., water of the United States), running parallel to or along a stream bed that is within that jurisdictional area; (4) permanent access roads constructed above grade in waters of the United States for a distance of more than 500 feet; and (5) permanent access roads constructed in waters of the United States with impervious materials. PCN will still be required under NWP 12, NWP C, and NWP D if a section 10 permit is required, or if the activity will result in a loss of greater than 1/10-acre of waters of the United States. In addition, new construction of oil or natural gas pipelines longer than 250 miles will also require PCN.

These proposed changes to NWP 12 do not, however, directly address the issue identified in the Keystone XL Pipeline litigation: whether the Corps violated section 7 of the Endangered Species Act (ESA) by reissuing NWP 12 to TC Energy Corporation without performing a programmatic consultation with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service. Northern Plains Resource Council, No. 4:19-cv-44 at 9. The proposed rule, instead, reiterates that NWP general condition 18 includes agency-led consultation under section 7 of the ESA that is specific to the permitted activity and requires compliance with the ESA at the activity level. Though the Corps will be able to point to this language in the proposed rule to explain the ESA consultation process, the issue is still open for interpretation by the courts.

In addition to the changes to NWP 12, the proposed rule also eliminates the 300 linear foot maximum limit for losses to stream beds, which previously applied to several NWPs (including NWP 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52). Instead, only the ½-acre limit of loss to waters of the United States would apply, along with any other current PCN requirements. Relatedly, the rule proposes requiring compensatory mitigation for losses of stream beds exceeding 1/10-acre that require a PCN.

The proposed rule also includes changes to NWP 3, which covers maintenance to existing, permitted structures. The rule would expand NWP 3 to include repair, rehabilitation, or replacement of any currently serviceable structure or fill that did not require a permit at the time of construction. Language would also be added to NWP 3 to authorize the placement of new or additional riprap to currently serviceable structures without a PCN, provided the placement of riprap is the minimum necessary to protect the structure or ensure the safety of the structure.

Additional minor changes were also proposed for other NWPs. Of note, three new NWPs were proposed—one for water reclamation and reuse facilities, another for seaweed mariculture activities, and one for finfish mariculture activities.

What Lies Ahead

Comments on the proposed rule were accepted through November 16, 2020. Over 530 comments were received from state and local governments, advocacy and interest groups, trade associations, and other interested parties. The proposed rule also specifically sought comments on exempting federal applicants from PCN requirements, and many comments addressed this issue. Though the proposed rule did not indicate when the 2020 NWPs would go into effect, it is likely that the proposed NWPs will be issued prior to the March 2022 expiration of the 2017 NWPs and the 2017 NWPs will expire the day before the 2020 NWPs go into effect. At that time, previously authorized activities that have commenced, or are contracted to commence, will have 12 months to be completed under 2017 NWP authorization.

Looking forward, many (if not most) of the proposed changes to the NWPs, if finalized, would streamline the permitting process. However, litigation in this arena—including the Keystone XL Pipeline case—has the potential to have the opposite effect and similar legal challenges could ensue depending on the outcome of the Keystone case. Either way, lawyers and their clients should expect changes to nationwide permitting in 2021.

Republished with permission. This article, "Significant Changes Proposed for Nationwide Permitting," was published in  the American Bar Association's Water Quality and Wetlands publication. View the original article from the ABA.