Use of Federal Water-Crossing Permit for Pipelines Suspended

The U.S. Army Corps of Engineers has suspended a nationwide permit program used to approve work on pipeline and other utility projects across streams and wetlands after a court ruling involving the Keystone XL pipeline.

The April ruling had the potential to delay or stop a number of infrastructure projects that use the blanket Nationwide Permit 12, which companies have used for years to build qualifying pipeline and other utility projects across streams after minimal environmental review. Electric, internet, cable and other utilities also use the permit. To qualify for it, the project must not cause the loss of more than a half-acre of water or wetlands.

However, the judge hearing the case on May 11 agreed to the limit the scope of the ruling to only new oil and gas pipeline projects, allowing maintenance and repair projects to proceed, while the case continues through the court.

The initial ruling in a Montana challenge by an environmental group to the 1,200-mile Keystone XL pipeline being built from Nebraska to Canada suspended use of the nationwide permit. The court ruled that the issuance of the permit was in violation of the Endangered Species Act (ESA) because the Corps had not adequately reviewed the harm to endangered aquatic wildlife by coordinating with other agencies when reauthorizing the program in 2017. The court not only vacated the permit in question and remanded it to the Corps, but it also barred the Corps “from (authorizing) any dredge or fill activities under NWP 12” until completion of the remand.

Industry representatives said the suspension could result in economic fallout to projects already in progress and significantly delay those in the planning stages that need the permit to cross waterways. But environmentalists have claimed that the blanket permit ignores the cumulative damage caused by thousands of stream crossings, an AP article states.

The agency plans to appeal the entire ruling to the U.S. Circuit Court of Appeals.

“Without Nationwide Permit 12, and in the absence of any other applicable general permit, the prospective permittees for those projects will likely need to apply for an individual permit. The injunction thus operates to require a cumbersome individualized permitting process for thousands of similar projects,” the Corps wrote in its request for reconsideration.

“The Corps estimates that each of those permits - of which there could now be thousands per year - costs the applicant, on average, $26,000 and takes the Corps, on average, 264 days to process,” the petition states.

The judge’s May 11 ruling on a request for a partial stay of the order determined that narrowing the scope to only new pipeline projects will “minimize potential disruption to existing projects and smaller-scale projects while ensuring appropriate protection for endangered and threatened species and their critical habitats.” It also noted that companies can continue to pursue individual permits for pipeline construction. “The public’s interest in ensuring that the Corps follows the ESA trumps any purported tax and energy security benefits of new oil and gas pipelines.”

Energy trade groups fired back, saying that the court overstepped its authority and that the restriction will jeopardize energy projects and jobs in the pipeline industry. The corps also plans to appeal this ruling.