No Nationwide Permit 12? What Now?

Those who work with projects that involve wetlands, streams, and federal Clean Water Act permits know that litigation can reshape our world quicker than a flash flood. Nothing can upset a well-planned, carefully designed project quicker than a court decision that seemingly appears out of the blue. Out goes Plan A for your project.

Here at RES, we got our team together, analyzed the ruling and its implications, and put together some insights on what might need to be in your Plan B.

The Case

On April 15, 2020, when the U.S. District Court for the District of Montana issued an order in Northern Plains Resource Council v. U.S. Army Corps of Engineers (Corps). The District Court held that Nationwide Permit 12, approved by the Corps in 2017 for use across the United States, was invalid. The decision was due to the Corps’ failure to properly consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service under section 7 (Section 7) of the Endangered Species Act (ESA).

The Issue

Nationwide Permit 12 (NWP 12) authorizes, through an expedited permitting process, impacts to waters of the United States associated with the construction, maintenance, or repair of utility line crossings. Under this permit, a “utility line” is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose such as an oil or natural gas pipeline, any cable, line, or wire for the transmission for any purpose of electrical energy, telephone, and telegraph messages, and radio and television communication. The Nationwide Permit program, a set of general permits for activities that individually and cumulatively have minimal impacts to waters of the United States, comprise 97% of the permits issued by the Corps under Section 404(e) of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899 (RHA). According to the Congressional Research Service, in 2016, before the 2017 reissuance of the Nationwide Permits, NWP 12 was used approximately 14,000 times per year on a national basis.

The Legal Analysis

Numerous attorneys that specialize in Clean Water Act litigation have analyzed this court case, providing insights on case specifics, the Court’s ruling, and potential policy and litigation outcomes. Two excellent reviews, produced by law firms that RES has worked with on project solutions, can be viewed here:

• Locke Lord LLP: USACE Nationwide Permit 12 Vacated: What You Need to Know

• Nossaman LLP: Federal Court Overturns Nationwide Permit 12, Throws Project Development into Flux

The Aftermath

Initially, experts thought that the Corps would seek to limit the scope of this ruling immediately. However, less than two days after the Court’s holding, Corps Headquarters issued email guidance to its staff to cease verification of any pending NWP 12 pre-construction notifications until further directions are developed and issued to the field. RES staff maintains close contact with Corps regulatory staff across the country, who told RES that NWP 12 was not a viable option for future projects. Individual permits would be the go-to regulatory path for projects that would have qualified for NWP 12 “for the foreseeable future.”

I Might Need Help?

We understand that, right now, you may be reassessing your list of critical projects, looking to see how not only this Court holding may impact you, but also how COVID-19 issues are forcing adjustments to your critical path timeline. If you planned to use NWP 12 to address unavoidable impacts to wetlands and streams, consider the following:

1. Your project may now require individual Section 401 Water Quality Certification

Many states have issued Section 401 Water Quality Certification for NWP 12, either as written or with limited conditions. Now that your project will require an individual Section 404 permit, you will be subject to review by the state or states where your project will be sited. State agencies charged with the review of water quality impacts associated with utility line projects will often require mitigation as a condition of Section 401 Water Quality Certification approval. In some cases, this mitigation may be at a higher level than mitigation required by the Corps.

2. Your project may be subject to a multi-agency review and public comment

Corps Section 404 individual permits, unlike NWP 12, are reviewed and commented on by numerous federal and state agencies. Depending on the scale of the project, it is not unusual for the Corps to receive comments and recommendations for permit conditions from multiple agencies. These agencies may include the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, state-level natural resource agencies, Coastal Zone Management programs, and a host of other governmental agencies. In many cases, these agencies make recommendations for compensatory mitigation that Corps regulators incorporate as final conditions in an approved Section 404 permit. In addition, Section 404 individual permits are available for the public to submit comments, further adding to the likelihood that mitigation will be required.

Let Us Help You with Plan B

RES is a national, fully-scaled operating company providing ecological restoration and water resource solutions. We work closely with developers, operators, landowners, and regulatory agencies to develop customized solutions tailored to our clients’ needs. Our unique operating model combines in-house analytics and technical expertise with on-the-ground construction resources and capabilities. This combination distinguishes us as a leader in the ecological mitigation and restoration sector.

For over a decade, we have helped clients successfully permit more than 3,400 projects, creating rich, high-functioning ecosystems as part of each permit. Our clients include local and state governments, large mining operators, energy production companies, energy transmission companies, Fortune 500 companies, departments of transportations, and other public-sector organizations.

RES employs over 420 dedicated staff in 21 operational hubs across the country. RES’ internal resources include land acquisition specialists, wildlife biologists, Rosgen IV certified stream designers, professional wetland scientists, engineers, hydrologists, QA/QC oversight teams, field ecologists, regulatory project managers, analysts, certified foresters, arborists, landscape architects, construction managers, superintendents, and field crew members as well as supporting project controls, government affairs, public relations, financial, legal, analytical, and environmental, health, safety, and security (EHS&S) staff.

RES’ relevant experience includes:

• Restoration, enhancement, and preservation of over 59,000 acres of wetlands
• Restoration of over 325 miles of streams
• Rehabilitation, preservation, and/or management of over 15,000 acres of special-status species habitat
• Successful close-out of over 100 mitigation sites
• Permitting and development of over 200 permittee-responsible mitigation projects
• Design, permitting, and management of 140 wetland, stream, species and conservation banks
• Delivery of 20,000 acres of custom, turnkey mitigation solutions
• Facilitation of compensatory mitigation and nutrient offsets for over 3,400 federal and state permits

From approved wetland and stream mitigation banks with available credits to project-specific mitigation solutions, we can deliver quickly and cost-effectively. Our team will work seamlessly with yours to meet critical timelines and regulatory requirements.

Not everyone is as well prepared as we are for Plan B. We are ready for this challenge and ready to help you.

Let’s get started – Contact us today.