On April 15, a federal court in the District of Montana vacated the U.S. Army Corps of Engineers’ (COE) Nationwide Permit (NWP) 12 and remanded it to the COE for reconsideration in compliance with the Endangered Species Act (ESA). The court also enjoined the COE from authorizing any dredge or fill activities under NWP 12 pending completion of the necessary consultation process required by the ESA. NWP 12 authorizes discharges that result in the loss of up to 1/2 acre of waters of the U.S. Discharges resulting in the loss of less than 1/10 acre can be self-certified by the permittee without any notification to the COE, while discharges of more than 1/10 acre require the submission of a pre-construction notification (PCN) to the COE for verification of applicability.
Recognizing the need for clarity and direction in the immediate aftermath of the court’s decision, COE Headquarters issued an e-mail directive to the chiefs of all Regulatory Districts indicating that the COE is still reviewing the order to determine its next steps, but “out of an abundance of caution, effective immediately, Corps Districts should not verify any pending PCNs for compliance with NWP 12 under 33 C.F.R. 330.6 until further direction from this office is issued.”
These events raise a plethora of questions regarding new and existing projects that are being or would have been conducted under NWP 12 – including many pipeline projects. We thank our friends at Locke Lord for summarizing the situation in more detail in their QuickStudy article.