On Thursday, January 14, 2021, the United States Army Corps of Engineers (the Corps) released a pre-publication version of a final rule that reissued and modified 12 existing Nationwide Permits (NWPs) and issued four new NWPs that will take effect on March 15, 2021. 86 FR 2774. This final rule split the NWP 12, used to authorize utility line activities such as pipelines, into three separate NWPs. This separation of the NWP 12 functions is significant because previous challenges to NWP 12 authorizations associated with crude oil pipelines and challenges to the NWP 12 itself also affected non-oil and gas authorizations under the NWP 12. 

The NWP 12 was used to authorize pipeline and utility line installations in waters of the United States with little or no delay where there are minimal impacts. In this rulemaking, the Corps split the previous NWP 12 into three separate NWPs based on the activity it authorized. The NWP 12 was amended to authorize only the construction, maintenance, repair, and removal of only oil and natural gas pipeline activities. The newly issued NWP 57 will authorize activities associated with the construction, maintenance, repair, and removal of electric utility lines and telecommunication lines. And the proposed NWP 58 would authorize utility line activities for water, sewage, wastewater, stormwater, brine, and industrial products that are not oil, natural gas, or electricity. 

The most notable challenge to the previous NWP 12 occurred in connection with the Keystone XL pipeline where, on April 15, 2020, Chief Judge Morris of the US District Court for the District of Montana, in Northern Plains Resource Council, et al. v. U.S. Army Corps of Engineers, cv-19-44-GF-BMM, ordered that the NWP 12 be vacated and remanded to the Corps for compliance with the Endangered Species Act. As a result of this decision, the Corps could not issue any new NWP 12 authorizations for any other project, such as for an electric utility line. Although the Supreme Court issued an order on July 6, 2020, that limited the district court’s ruling to the Keystone XL, for those few months prior to the Supreme Court’s decision, utility line and any other projects hoping to utilize the NWP 12 were left with either seeking the authorization under a standard individual permit or revising their project. Under this rulemaking, any challenges to a project or to a specific NWP itself may not have the same effect as what occurred in the Keystone XL matter. Obviously, this rulemaking itself may be challenged in court and/or, as an agency rulemaking immediately prior to the transition to a new presidential administration, be subject to congressional oversight.