Yesterday, the U.S. District Court for Montana amended its April 15, 2020, order vacating Nationwide Permit (NWP) 12, which authorizes minimal impacts from “utility line activities” to jurisdictional waters. As we previously reported, despite the case centering on the Keystone XL Pipeline, the court’s April 15 order vacated NWP 12 nationwide for all activities (including broadband, electric, water and sewer) until the U.S. Army Corps of Engineers (Corps) consults with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) pursuant to the Endangered Species Act (ESA). In yesterday’s order, the court amended the vacatur’s applicability by limiting it to the construction of new oil and gas pipelines. Under the amended order, the Corps may continue to authorize the use of NWP 12 for construction of new utility lines for broadband, electric, water, and sewer, as well as “maintenance, inspection, and repair activities” on existing utility lines, including existing pipelines.

The court concluded that major oil and gas pipelines, which potentially affect numerous water bodies and involve the kinds of cumulative impacts to be addressed by the Corps in consultation with the Services, pose the greatest threat to ESA-listed species. According to the court, the species impacts associated with NWP 12 authorizations for these major oil and gas pipelines outweigh the economic disruptions of the vacatur. The court reasoned that new oil and gas pipeline projects may still receive the necessary authorizations through the more cumbersome individual permit process.

In past filings, the federal government indicated that the Solicitor General has already authorized an appeal of the April 15 order to the Ninth Circuit. We expect the Corps to appeal that order and to challenge the court’s underlying ruling that the Corps was required to consult with the Services at the programmatic level. In addition to the implications for the use of NWP 12, that aspect of the April 15 ruling could impact the Corps’ broader Nationwide Permitting program, which authorizes a wide range of activities, including renewable energy projects and commercial and residential developments.