Type: Law Bulletins
Date: 04/30/2020

Energy Infrastructure Projects Evaluate Alternative Wetland Permitting Strategies in Wake of Recent Court Order

On April 15, 2020, a federal court in the District of Montana issued an order that could impact infrastructure projects across the nation. In Northern Plains Resource Council v. U.S. Army Corps of Engineers, the court held that the U.S. Army Corps of Engineers’ (Corps) re-issuance of Nationwide Permit (NWP) 12 in 2017 for the Keystone XL Pipeline project was arbitrary and capricious and violated Section 7 of the Endangered Species Act (ESA). NWP 12 authorizes discharges of dredged or fill material into jurisdictional waters as a result of construction, maintenance, repair and removal of utility infrastructure that otherwise would be prohibited by Section 404 of the Clean Water Act. While the challenge was specific to the Keystone XL Pipeline, the court vacated the NWP 12 nationwide and remanded it to the Corps to complete consultations with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service under Section 7 of the ESA. The court also specifically enjoined the Corps from “authorizing any dredge or fill activities” under NWP 12 until the consultation is complete.

Although the court’s order was issued with regard to a specific, and often controversial, project, because NWP 12 is one of the most commonly-used NWPs, the order could have significant implications for other transmission line, pipeline or water infrastructure projects across the U.S. In fact, on April 17, 2020, after receipt of the Northern Plains decision, the Corps headquarters notified regional chiefs that the Corps districts should not verify any pending pre-construction notifications for compliance with NWP 12 under 33 C.F.R. 330.6 until further direction from the headquarters is issued.

On April 28, 2020, the federal district court denied the Corps’ request for an immediate stay to delay the nationwide impact of its April 15 order. The Corps had requested an immediate stay of those portions of the order that vacate NWP 12 and broadly enjoin the Corps from authorizing any dredge or fill activities under the permit, or, at a minimum, to limit the application of the ruling to the Keystone XL Pipeline. The Corps argued that the court’s order provides unjustified and overbroad relief, including relief that was not requested by the plaintiffs. Despite denying the request for an immediate administrative stay, the court will still consider the Corps’ motion for a stay pending the Corps’ appeal of the court’s order. The court also granted the Corps’ motion for expedited briefing, ordering the completion of the briefing by May 8, 2020. Absent relief from the federal district court, the Corps intends to appeal to the Ninth Circuit the day after the court rules on the motion to stay, which the Corps has requested be no later than May 11, 2020.

While the Corps has issued guidance to its regional chiefs regarding what actions should not be taken at this time related to NWP 12, broad guidance on alternative permitting options has not been communicated by the Corps. Instead, it is critical that project sponsors work closely with their wetland staff and consultants in coordination with legal counsel on developing appropriate alternatives for their projects. Taft is assisting clients across multiple regions and remains available to assist in developing permitting strategies around NWP 12. These strategies include cooperative solutions with Corps districts and permit managers that may involve transitioning a project from coverage under NWP 12 to a different NWP, if available, or addressing a project’s potential to impact wetlands under permissions or approvals separate from the NWPs. This includes evaluating the applicability of the new Navigable Waters Protection Rule to wetlands to be crossed by a project.

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