Vol. 28, No. 4 ● April 21, 2020
Nationwide Permit 12 Vacated
NWP 12 addresses utility project impacts to wetlands and other Waters of the U.S.
On April 15, 2020, the United States District Court for the District of Montana, Great Falls Division vacated the Nationwide Permit (NWP) 12 on the grounds that the U.S. Army Corps of Engineers (Corps) failed to comply with the Endangered Species Act Section 7 when it reissued the NWP 12 in 2017. The NWP 12 is issued by the Corps and is used to authorize utility impacts to wetlands and other Waters of the U.S. While this case is in reference to the Keystone XL Pipeline, this ruling could have serious implications for to all NWP 12 permits and applications nationwide and would affect other utility lines beyond petroleum, such as electric transmission, water, sewer, and telecommunications lines. As of now the Corps has not responded to the ruling, neither clarifying if it truly will have nationwide implications, nor stating whether or not this ruling will affect existing NWP 12 authorizations. We anticipate that the Corps will likely issue a clarification on this in the near future. At this time the only information we have been given by the Corps is that they are currently not issuing any new NWP 12 authorizations.
If you have questions in the meantime, please contact Christie Blevins or Robbie Clark in our Gainesville, Virginia office, Mark McElroy in our Virginia Beach office, or Mike Klebasko in our Millersville, Maryland office.