The nationwide permit (NWP) program managed by the U.S. Army Corps of Engineers (USACE) in accordance with Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act is intended to provide authorization for projects that will have minimal environmental impact. Obtaining a NWP is a rapid approval process (typically 30-45 days), as compared to the Individual Permit process (typically up to a year). The NWP is generally the preferred approach for applicants, provided the project meets the general requirements for the NWP.
The NWP program is typically updated every five years; however, an early update to the NWP program is currently underway. In September 2020, the USACE published its proposal to reissue and modify its more than 50 NWPs. The USACE is initiating this reissuance a year earlier than scheduled, likely as a result of recent court challenges in an effort to maintain compliance with the Endangered Species Act (ESA) and to break down NWP 12 — a blanket permit heavily used by utility projects — into more specific project conditions.
The most significant change proposed in the 2020 NWP update involves modifications to NWP 12. Since 1977, NWP 12 covered activities associated with the construction, maintenance and repair of utility line projects, which included oil and gas pipelines, electric transmission lines and other utility lines. The proposed USACE modifications would limit NWP 12 to the authorization of oil and natural gas pipeline activities and create new NWPs to cover other utility line activities previously authorized under NWP 12 — one for electric utility line and telecommunications activities and another for other types of utility lines not covered, such as those for water or wastewater. The separation of NWP 12 into three separate permits should streamline the process and allow for industry-specific considerations in the permit conditions.
These proposed changes come as NWP 12 has been the subject of ongoing litigation related to the Keystone XL pipeline, which prompted the USACE to vacate and then reauthorize the use of NWP 12 earlier this year, resulting in the crippling of many major projects. By separating oil and gas pipelines from other linear projects, these proposed modifications minimize the potential impact future oil and natural gas pipeline-related litigation may have on the rest of the industries originally covered under NWP 12. The new NWP 12 will authorize “the construction, maintenance, repair and removal of oil and natural gas pipelines and associated facilities in Waters of the United States, provided the activity does not result in the loss of greater than one half-acre of waters of the United States for each single and complete project.”
Many of the existing oil and gas pipeline requirements under NWP 12 will not be impacted; however, the USACE seeks to simplify the thresholds for when preconstruction notification (PCN) may be required, reducing the PCN thresholds. The proposed rule would require a PCN for oil and natural gas projects that:
- Require a Section 10 permit (crossing a navigable water).
- Result in the loss of greater than one-tenth of an acre of Waters of the U.S.
- Involve new pipelines more than 250 miles in length, not including repair or maintenance projects.
The proposed new NWPs for electric lines and other lines — currently referred to as NWPs C and D — will also require a PCN for projects requiring a Section 10 permit or impacts greater than one-tenth of an acre; however, projects are not required to submit a PCN based on overall project length. All three of these NWPs remain consistent with the previous NWP 12, where each crossing of a regulated water is considered a single and complete project for the purposes of NWP authorization.
The 60-day public comment period for the proposed rule closed on Nov. 16, 2020. The USACE will review all comments and strive to publish a final rule to the federal register in the spring of 2021.
Navigating the permitting process for natural gas pipeline construction projects is complicated. Awareness of common application pitfalls and an understanding of how to prepare for them can streamline the process.