For all of our friends in the land development arena, F&R has some important (albeit technical) regulatory news!

In April 2020, the United States District Court of Montana vacated the Section 404 Nationwide Permit 12 (NWP 12), which is utilized for permitting minor wetland and stream impacts associated with utility line projects throughout the country. The ruling vacated NWP 12 on the premise that it failed to provide appropriate review for compliance to the Endangered Species Act (ESA). The United States Army Corps of Engineers (USACE) historically had conducted reviews of impacts to threatened and endangered species on a “project-level” without conducting a “programmatic review”, considering the cumulative effects of impacts. The case against the USACE specifically references the Keystone XL pipeline, but only as illustrative, demonstrating that NWP 12 lacks the lawfully required programmatic review as detailed in Section 7 of the ESA. The initial ruling in April vacated NWP 12 in its entirety, affecting projects as large as interstate pipelines and as small as municipal park waterline extensions.

However, on May 11, 2020, the Montana District Court judge issued an amended judgment order, which narrowed the April NWP 12 ruling and includes language that will allow for many utility projects to move forward as planned. According to the amended order, projects not associated with construction of new oil and gas pipelines are allowed to continue to be authorized under NWP 12 in its current form. However, construction of new oil and gas pipelines will be required to seek alternative permitting methods (e.g. individual permit, other NWPs, applicable regional permits, etc.) until the USACE and the courts have demonstrated compliance with the ESA Section 7 standards.  The amended order now allows for water, sewer, telecommunications, and other “non-pipeline utility projects” to continue to be authorized under NWP 12.

Some interpretations of the amended judgement order raised question as to the continued use of NWP 12 for water line and sewer line projects specifically since they could be considered “pipelines” and would thus still not be able to be authorized under the amended order; however, F&R has confirmed with multiple USACE districts that NWP 12 is now a viable permitting avenue for any non-oil or gas utility line project that meets the conditions specified within the NWP, and this exception specifically includes water and sewer infrastructure projects. Additionally, maintenance, inspection, and repair of existing oil and gas pipelines are also allowed under the amended order. It is likely that appeals and additional amendments may be in the future for NWP 12, but for the time being it appears that many projects that were feared to be in jeopardy as a result of the original ruling will now be able to move forward under NWP 12.

F&R continues to stay at the forefront of the regulatory environment and will be monitoring this evolving situation closely.

If you have questions regarding how the initial or amended court order may impact your upcoming project, please contact Elias Ruhl, Regional Environmental Services Manager.

Regulatory update prepared by Eric Kessler and Elias Ruhl.