The Sierra Club has sued the Corps of Engineers in the Western District of Oklahoma to block the Keystone XL Pipeline, but the grounds used in the challenge threaten Corps-issued permits for all pipelines. The Keystone XL Pipeline, and virtually all pipelines, must cross stream and wetland areas regarded by EPA and the Corps of Engineers as “waters of the United States” or “jurisdictional waters.” These activities require a “Section 404” Clean Water Act permit from the Corps.
The Corps maintains two types of permit vehicles: individual permits and nationwide permits (“NWPs”). Nationwide Permits are issued by rulemaking. Each NWP is issued for a category of activities that the Corps has determined will not have more than minimal adverse impact on the aquatic environment, and typically contains restrictions on the extent of filling that can be conducted under the NWP without triggering an obligation to obtain an individual permit.
The primary advantage of a NWP is that the National Environmental Policy Act (“NEPA”) review is performed at the rulemaking stage and not each time someone seeks authorization to utilize the NWP. Thus, for most NWPs, the proposed user of the permit provides the Corps with a preconstruction notice (“PCN”) and can commence construction when the Corps acknowledges that the proposed project qualifies for the NWP. There is no formal opportunity for public notice and comment on a PCN of an intent to use a NWP. By contrast, each application for an individual permit triggers NEPA review and an opportunity for public notice and comment. NEPA review requires the Corps to conduct an Environmental Assessment (“EA”). The EA results in either a “finding of no significant impact” (“FONSI”) or an Environmental Impact Statement (“EIS”)—in either case the process typically takes much longer, and is more complicated than, using a NWP. In addition, because NEPA is triggered each time an individual permit is issued, the Corps’ decision to issue a FONSI or the scope of any EIS it conducts is open to challenge in federal court on a project-by-project basis. Many projects have died as a result of prolonged NEPA challenges.
The Corps maintains NWP 12 for Utility Line Activities. See http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx. It authorizes “[a]ctivities required for the construction, maintenance, repair, and removal of utility lines and associated facilities [including oil and gas pipelines and electric transmission lines] in waters of the United States, provided the activity does not result in the loss of greater than 1/2-acre of waters of the United States for each single and complete project.” 77 Fed. Reg. 10271. The Corps reauthorized this NWP in February 2012. See http://eem.jacksonkelly.com/2012/03/reissuance-of-us-coe-nationwide-permits-12-and-39-oil-and-gas-pipeline-crossings-and-well-pad-constr.html. Significantly, the ½-acre restriction on the use of the permit is applied at each stream crossing and not on a pipeline-wide basis.
According to the Sierra Club’s complaint, the Keystone XL Pipeline has submitted PCNs to several Corps offices. To prevent the use of the NWP, the Sierra Club has claimed not only that the proposed use of NWP 12 is inappropriate in this case (because individual stream crossings will result in disturbance to more than ½ acre of water), but also has challenged NWP 12 itself. One of its claims is that the structure of NWP 12 itself violates Section 404(e) of the Clean Water Act by delaying the finding of no significant impact to a project-specific basis.
To advance its “structural” argument, the Sierra Club relies on language from the Decision Document. That language, it claims, provides that the Corps will verify on a project-specific basis that the use of the NWP will not cause more than minimal adverse effects. In particular, it quotes this passage from the Decision Document:
Although the terms and conditions for this NWP have been established at the national level to authorize most activities that have minimal individual and cumulative adverse impacts on the aquatic environment, division and district engineers have the authority to impose case-specific conditions on an NWP authorization to ensure that the authorized activities will result in minimal individual and cumulative adverse effects…. If the proposed activity will result in more than minimal adverse effects on the aquatic environment, then the district engineer will exercise discretionary authority and require an individual permit.
It contends that Section 404(e) requires the finding of minimal impact to be made before the NWP is issued, and that a NWP which contemplates making this finding on a project-by-project basis is really an “individual” permit. A similar argument was made, and rejected, by the Fourth Circuit in a challenge to former NWP 21 issued for “coal mining activities.” See Ohio Valley Environmental v. Bulen, 429 F.3d 493 (4th Cir. 2005). It also claims that the Corps simply erred in finding that the expected use of the NWP would have no more than minimal adverse impact.
These challenges to the NWP itself threaten its use by all pipeline and electric utility projects—not just the Keystone XL Project—and are likely to form the bases of additional challenges by the Sierra Club as part of its recently announced “Beyond Natural Gas” project.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.