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 has recently taken place. 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 separate NWP 12 — a blanket permit heavily used by utility projects — into more specific project permits.
The most significant change to the NWP program involves modifications to NWP 12. Since 1977, NWP 12 has 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 new NWPs 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. NWP 57 is for electric utility line and telecommunications activities and NWP 58 is for utility line activities for water and other substances. The separation of NWP 12 into three separate permits should streamline the process and allow for industry-specific considerations in the permit conditions.
These 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, resulting in the crippling of many major projects. By separating oil and gas pipelines from other linear projects, these 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 authorizes “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 ½-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 are not impacted; however, the USACE has simplified the thresholds for when preconstruction notification (PCN) may be required, reducing the PCN thresholds. The NWP 12 requires 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 new NWPs 57 and 58 for electric lines and water lines 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 2021 NWPs went into effect March 15, 2021. Previously authorized projects remain approved until March 18, 2022, as long as the project remains in compliance with the NWP terms and conditions.
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.