On April 15, 2020, the U.S. District Court for Montana vacated the U.S. Army Corps of Engineers (USACE) Nationwide Permit 12 (NWP 12). Specifically, the case involved the challenge by the Northern Plains Resource Council (plaintiffs) to the USACE’s authorization of the use of NWP 12 to permit the discharge of dredged or fill material to waters of the U.S. in connection with the construction of TC Energy’s Keystone Pipeline. The court held that the USACE had failed to comply with the Endangered Species Act (ESA) by not consulting with the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) regarding the effect of NWP 12 on ESA-listed species when it reauthorized NWP 12 and the other NWPs in 2017.
NWP 12 authorizes “activities required for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than 1/2-acre of waters of the United States (WOTUS) for each single and complete project.” These utility lines include electric, internet, phone, radio, television cables, and related wires, and pipes or pipelines, including sewer lines and natural gas and oil pipelines.
The general conditions for all NWPs include conditions regarding endangered species (Condition 18). This condition states in part: “No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of such species. No activity is authorized under any NWP which “may affect” a listed species or critical habitat, unless ESA section 7 consultation addressing the effects of the proposed activity has been completed.”
On May 11, 2020, the U.S. District Court for Montana amended and narrowed its April 15, 2020 order vacating NWP 12, by limiting it to the construction of new oil and gas pipelines, pending completion of the consultation process and compliance with all environmental statutes and regulations. Under the amended order, the USACE may continue to authorize the use of NWP 12 for “maintenance, inspection, and repair activities” on existing projects, including existing pipelines, as well as non-pipeline construction activities (e.g., broadband, electric, water, and sewer).
The reasoning behind the court’s limiting of the order to the construction of new oil and gas pipelines was due to the fact that these large projects are more likely to create significant impacts to water bodies and pose the greatest threat to ESA-listed species. Additionally, the court felt that potential impacts to species associated with these large NWP 12 permitted projects outweighed the economic disruptions of the order. Moreover, the court held that these projects could still receive authorization under the individual USACE Section 404 permit process.
On May 28, 2020, the Ninth Circuit Court denied emergency motions for a partial stay of the order pending an appeal as it held that the “Appellants have not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm to warrant a stay pending appeal.” Therefore, the partial vacation NWP 12 continues to remain in-place for now.