On January 13, 2021, during the final week of the Trump administration, the U.S. Army Corps of Engineers (“Corps”) published a new rule (“Rule”) that revises 12 existing 404 Nationwide Permits (“NWPs”) and issued four new ones. NWPs are “general” permits that authorize on a streamlined basis, under Section 404 of the Clean Water Act (“CWA 404”) and Section 10 of the Rivers and Harbors Act of 1899, certain specified activities that have only a minimal adverse effect on the aquatic environment. The vast majority of activities regulated under CWA 404 have historically been authorized under NWPs. The other 40 existing NWPs are not changed or impacted by this new Rule. The Rule is scheduled to take effect on March 15, 2021.
A. Revised NWP 12 Applies Exclusively to Oil and Natural Gas Pipeline Activities
One of the twelve existing NWPs revised and replaced by the Rule was NWP 12, which historically applied to all utility line activities. In this Rule, the former NWP 12 was divided into three separate new NWPs: revised NWP 12 (solely for Oil or Natural Gas Pipeline Activities); new NWP 57 (Electric Utility Line and Telecommunications Activities); and new NWP 58 (Utility Line Activities for Water and Other Substances). This separation was based in part on the ongoing judicial challenges to NWP 12 as previously used to authorize the Keystone XL Pipeline and other oil and gas-related pipelines, is designed to address the differences in how disparate types of utility line projects are constructed and the substances they convey, and was intended to help ensure the covered activities are sufficiently similar within each NWP.
The new revised NWP 12 now covers only activities required for the construction, maintenance, repair, and removal of an “oil and natural gas pipeline” and “associated activities.” It broadly defines “oil or natural gas pipeline’’ to account for the wide variety of products that may be derived from oil or natural gas and transported by pipeline. Specifically, that definition includes “any pipe or pipeline for the transportation of any form of oil or natural gas, including products derived from oil or natural gas, such as gasoline, jet fuel, diesel fuel. heating oil, petrochemical feedstocks, waxes, lubricating oils, and asphalt.” “Associated facilities” covered by revised NWP 12 include pipeline substations and access roads in non-tidal waters. As under the previous NWP 12, the covered work may not permanently fill or destroy more than half an acre of regulated waters or wetlands, but where there are multiple crossings of the same waterbody, or crossings of multiple waterbodies by the same utility line, each crossing is still considered a “separate and complete project” for purposes of this limit and the PCN triggers noted below.
Under the former NWP 12, there were eight conditions that triggered a “pre-construction notification” (“PCN”) requirement. When a PCN is triggered, an applicant must submit prescribed details about the proposed NWP-covered activities to the Corps, which must then evaluate the proposed activities on a case-specific basis, to ensure the activities have only a minimal adverse effect. The revised NWP 12 removes five of the previous PCN triggers and adds a new one. The revised PCN triggers under the replacement NWP 12 are oil and gas pipeline-related activities that: (1) require authorization under Section 10 of the Rivers and Harbors Act of 1899 (because they cross larger “traditionally navigable” waters); (2) will result in a loss of greater than 1/10-acre of waters of the United States; (3) are associated with an overall project that is greater than 250 miles in length and the project purpose is to install a new pipeline (vs. conducting repair or maintenance activities) along most of the length of the project; (4) will adversely affect federally-listed endangered or threatened species; or (5) will adversely affect historic properties. The Rule preamble clarifies, however, that additional PCN requirements may be added by the Corps through regional conditions applicable to a specific state or area.
B. 15 Other New or Revised NWPs
The other eleven replacement NWPs are:
- NWP 21: Surface coal mining activities
- NWP 29: Residential developments
- NWP 39: Commercial and institutional developments
- NWP 40: Agricultural activities
- NWP 42: Recreational activities
- NWP 43: Stormwater management activities
- NWP 44: Mining activities
- NWP 48: Commercial shellfish and mariculture activities
- NWP 50: Underground coal mining activities
- NWP 51: Land-based renewable energy generation facilities
- NWP 52: Water-based renewable energy generation pilot projects
For ten of these revised NWPs, the Corps removed the limits of 300 linear feet of stream bed disturbance and also made some other individual NWP revisions, usually to make the NWP less restrictive. Operators should carefully review these replacement NWPs prior to using or relying on them, to ensure their projects meet the new NWP qualifications, conditions, and requirements.
The four new NWPs are:
- NWP 55: Seaweed mariculture activities
- NWP 56: Finfish mariculture activities
- NWP 57: Electric utility line and telecommunication activities
- NWP 58: Utility line activities for water and other substances
C. The Rule Creates Additional Complexities and May Face an Uncertain Future
The Rule covers only 16 of the now 56 total NWPs. This means moving forward, unless the Rule is revised, rescinded, or replaced, there will be two separate five-year cycles for expiration and reissuance of NWPs. The 16 NWPs covered in this new Rule will expire in March 2026, but the other 40 NWPs will continue to expire in March 2022. The Rule also adopted or made some changes to the General Conditions and related Definitions in the Corps’ NWP rules that are applicable only to the 16 new or revised NWPs. But the other 40 pre-existing NWPs remain subject to the General Conditions and Definitions set out in the previous, January 6, 2017 final NWP rule (82 FR 1860). States and Corps District offices in the coming year also could adopt state or area-specific conditions on the 16 new or revised NWPs that differ from those for in place for the other NWPs issued in 2017. As a result, entities seeking to use NWPs must now more carefully identify which expiration dates, definitions, and general and area-specific conditions apply to a given NWP.
The Rule preamble notes that these changes are partly in response to the recent court decision in Northern Plains Resource Council, et al., v. U.S. Army Corps of Engineers, et al., (Case No. CV 19–44–GF–BMM), in which the federal District Court in Montana ruled that the former NWP 12 as used to authorize stream crossings for the Keystone XL Pipeline failed to comply with the Endangered Species Act (“ESA”). In issuing the new Rule, however, the Corps does not further consult under or otherwise change the NWP program’s approach to ESA compliance. Rather, the preamble simply states that issuance of the NWPs has “no effect on listed threatened and endangered species and designated critical habitat” and does not require ESA Section 7 consultation. Given the prior legal challenges to NWPs related to the ESA, this position may prompt other ESA-related litigation regarding the new Rule.
While the Rule technically is subject to review and rescission by Congress under the Congressional Review Act (“CRA”), it is unlikely the Biden Administration and Congress will go that route. The CRA allows Congress to overturn some rules issued by federal agencies, but if Congress chooses to do so, the CRA prevents Congress from issuing another rule in “substantially the same form” unless specifically authorized by a subsequent law. Given the broad historic use and programmatic nature of the NWP program, the CRA would not seem to provide a practical tool for Congress to address any technical concerns with the Rule.
The Rule is, however, subject to the January 20, 2021 “regulatory freeze” memorandum issued by Ronald A. Klain, President Biden’s Chief of Staff (“Klain Memo”). The Klain Memo applies to agency actions, like this Rule, that have been published in the Federal Register but have not yet taken effect. For these rules, the Klain Memo directs agencies to “consider postponing the rules’ effective dates” for 60 days, until March 21, 2021. If an agency postpones a rule’s effective date, the Klain Memo directs the agency, during this 60-day period, to:
- “[C]onsider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules”;
- “[C]onsider pending petitions for reconsideration involving such rules”; and
- “[C]onsider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period” (i.e., March 21).
The Klain Memo directs that, after March 21, agencies need not take any action “for those rules that raise no substantial questions of fact, law, or policy.” For rules that do raise “substantial questions of fact, law, or policy,” the next step is unclear; the Klain Memo simply directs agencies to “notify the [Office of Management and Budget] Director and take further appropriate action in consultation with the OMB Director.” As a result, because the Corps’ Rule is subject to the Klain Memo, if the Rule is considered to raise “substantial questions,” the new Administration and the Corps will have the option to open the Rule for further comments, reconsider the Rule (if petitions are received to do so), or further delay the effective date of the Rule.
Any potential NWP users should closely monitor the fate of this Rule and carefully comply with the new or revised qualifications, definitions, and general and area-specific conditions applicable to the affected Nationwide Permits, if and as they are left in place by the Biden Administration.