Federal Court Ruling for Utility Line Projects

There have been changes to the United States Army Corps of Engineers (Corps) Regulatory Program, Nationwide Permit 12 (utility lines activities) that may disrupt routing and construction projects for utilities, pipeline operators and land developers, among other industries.

On April 15, 2020, the United States District Court for the District of Montana Great Falls Division vacated the Nationwide Permit (NWP) 12 and remanded it to the Corps for compliance with the Endangered Species Act. The court determined that as it was written, NWP 12 failed to comply with the Endangered Species Act (ESA) Section 7. The court ruling has enjoined the Corps from authorizing any dredge or fill activities under NWP 12.

While the case was primarily focused on the Keystone XL pipeline crossings of the Yellowstone and the Cheyenne Rivers, the ruling currently applies to the use of NWP 12 on a national level. At this time, all other NWP’s and General and Regional Conditions remain in full force and effect.  It is not yet determined if this ruling will affect projects retroactively.

What does this mean for your project?

Under the new ruling, the Corps is required to complete a consultation process that ensures project compliance with all other environmental statutes and regulations.

As of now, the Army Corps has stopped new and pending approvals under the permit, which is required for construction projects that will discharge dredged or fill material into waters of the United States.

The final decision is still pending official Corps policy guidance; however, there are alternative permitting options that can be evaluated and applied if deemed applicable. Each project will require a unique solution to minimize disruption.

ENERCON will keep our clients up to date as regulations change and decisions are made. Our specialists can help you navigate uncertainties and determine the best and most streamline path forward for your project.

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