On April 15, a federal court in Montana ordered the US Army Corps of Engineers to stop using Nationwide Permit 12 – Utility Line Activities. Nationwide Permit 12 is one of the most commonly used general permits used to construct, maintain, repair, or remove water and sewer lines and for related work such as pump stations and access roads.
The most obvious solution is to determine whether your project can utilize a different Nationwide Permit other than NWP 12 – which is likely in many cases. The worst-case alternative is to develop and individual permit (IP), which will cost 9 to 12 months to your schedule. However, the timeline is less certain if the US Army Corps of Engineers (USACE) is suddenly inundated with individual permits.
The Montana court order relates specifically to the use of Nationwide Permit 12 and a section of the Keystone Pipeline. In the order, the court stated “Programmatic consultation proves appropriate when an agency’s proposed action provides a framework for future proposed actions. 50 C.F.R. § 402.02. Federal actions subject to programmatic consultation include federal agency programs. See 80 Fed. Reg. 26832, 26835 (May 11, 2015); 50 C.F.R. 402.02. A federal agency may develop those programs at the national scale. Id. The Services specifically have listed the Corps’ nationwide permit program as an example of the type of federal program that provides a national-scale framework and that would be subject to programmatic consultation. See 80 Fed. Reg. at 26835. Programmatic consultation considers the effect of an agency’s proposed activity as a whole.” The court found that the U.S. Army Corps of Engineers acted arbitrarily and capriciously in issuing the permit.
The implications of the Montana court order are unclear. “The Corps noted that activities authorized by past versions of NWP 12“ have resulted in direct and indirect impacts to wetlands, streams, and other aquatic resources.” The Corps itself has stated that discharges authorized by NWP 12 “will result in a minor incremental contribution to the cumulative effects to wetlands, streams, and other aquatic resources in the United States.”
So, the issue here can probably best be summed up as ‘how minor is minor?' Do not look for much guidance soon from either the USACE or the courts (although petitions have been filed). Until then, the impact on schedule and budget related to routine construction, maintenance, and repair of water and sewer lines has become much more uncertain.
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