Since we previously reported on the District of Montana’s broad-reaching decision that called into question Nationwide Permit (NWP) 12, there has been much debate about the fate of the longstanding nationwide permit that allows pipelines, cables, and other utility lines to cross federally protected waters without having to undergo a lengthy review for each crossing.
Questions immediately arose concerning the implications of the decision beyond the Keystone XL pipeline and what it meant for project proponents across the country. Fueling this debate was a directive from the US Army Corps of Engineers’ headquarters to the chiefs of all regulatory districts that, while the decision was still being reviewed to determine next steps, “out of an abundance of caution, effectively immediately, Corps Districts should not verify any pending PCNs for compliance with NWP 12 under 33 CFR 330.6 until further direction … is issued.”
We may now get clarity. Yesterday, the Army Corps filed a motion for partial stay pending appeal. Supported by the declaration of Regulatory Program chief Jennifer Moyer, the Army Corps has requested that, pending appeal, the court stay those portions of its decision that vacated NWP 12 and broadly enjoined the Army Corps from authorizing any dredge and fill activities under the permit.
In doing so, the Army Corps argued it is likely to prevail on appeal because the court:
- Failed to provide the Army Corps any notice or meaningful opportunity to provide facts or argument in opposition to the broad remedies
- Failed to undertake an analysis of the issuance of broad remedies
- Ignored the plaintiffs’ lack of standing necessary to support the broad relief granted
- Disregarded key elements of NWP 12 that ensure the permit does not authorize any activity that may affect a protected species or critical habitat
The Army Corps also asserted the injuries to the Army Corps and public at large are significant and extend nationwide and across multiple industries, including many project proponents who were not parties to the case.
Citing Rule 54(b) of the Federal Rules of Civil Procedure, the Army Corps maintained the court has the authority to sua sponte revise its decision based on the arguments set forth in its motion. As such, in order to retain the court’s authority to do so, the Army Corps reported it has not yet filed a notice of appeal, although the solicitor general has authorized an appeal.
The Army Corps is seeking expedited consideration of its motion for partial stay as well as an administrative stay pending a decision on the motion. To this end, the Army Corps has asked the court to rule on its motion by May 11, at which time the Army Corps will file a notice of appeal and seek relief directly from the Ninth Circuit on May 12.
In the meantime while NWP 12 is unavailable, project proponents have limited options. They can try to redesign their project to avoid the Army Corp’s jurisdiction or, for certain projects, attempt to seek coverage under another NWP—the latter of which may not be possible depending on the project’s impacts or specific regional or state conditions. As such and explained in the Moyer’s declaration:
“Thousands of routine utility line project activities that otherwise could proceed under NWP 12 (some without any advance notice to the Corps), will now only be able to proceed after receiving Clean Water Act and/or Rivers and Harbors Act of 1899 authorization through the time and labor intensive standard individual permit process.”
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, chair of the Environmental and Lobbying & Election Law Compliance Practice Areas and co-team leader of the Oil & Gas, Linear Infrastructure, and Energy Markets Teams, at yhennessey@barclaydamon.com.