Oil & Gas Industry Update on the U.S. Army Corps of Engineers Nationwide Permits
On September 15, 2020, the U.S. Army Corps of Engineers (Corps) proposed new and modified Nationwide Permits (NWPs) and comments are due November 16, 2020. See: Department of the Army, Corps of Engineers Proposal To Reissue and Modify Nationwide Permits 85 Fed. Reg. 57298 (September 15,2020). The current NWPs were issued on January 6, 2017 and went into effect on March 19, 2017. See: 82 Fed. Reg. 1860 (January 6, 2017).
NWPs authorize certain activities within streams and wetlands under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The Corps is proposing to reissue its existing NWPs and associated general conditions and definitions, with some modifications. They are also proposing to issue five new NWPs. Two of those proposed new NWPs would authorize certain categories of mariculture activities (i.e., seaweed and finfish mariculture) that are not authorized by NWP 48. They are proposing to divide the current NWP that authorizes utility line activities (NWP 12) into three separate NWPs that address the differences in how different linear projects are constructed, the substances they convey, and the different standards and best management practices employed. Specifically, they are proposing to modify the current utility line NWP 12 to authorize only oil and natural gas pipeline activities. Two proposed new NWPs would authorize activities associated with the construction, maintenance, repair, and removal of electric utility lines/telecommunication lines and utility lines that convey water, sewage, and other substances. The fifth proposed new NWP would authorize discharges of dredged or fill material into jurisdictional waters for the construction, expansion, and maintenance of water reuse and reclamation facilities.
NWPs can be issued for a period of no more than 5 years and the current NWPs are not scheduled to expire until March 18, 2022. While the Corps generally updates the nationwide permits every five years, there have been three times where the Corps issued or modified NWPs outside of the normal 5-year cycle. The first time occurred on October 5, 1984 when the Corps modified four NWPs and issued one new NWP to comply with the requirements of a settlement agreement. The second time was on July 27, 1995 when the Corps issued a new NWP for single family housing (NWP 29). The third instance occurred on March 9, 2000, when the Corps issued five new NWPs and modified 6 existing NWPs to replace one of its existing NWPs (i.e., NWP 26, which authorized discharges into headwaters and isolated waters). The currently proposed changes to the NWPs address recommendations from Presidential Executive Order (E.O.) 13783, which directed heads of federal agencies to review existing regulations that potentially burden the development or use of domestically produced energy resources. The upcoming election might also be a factor in the timing of this earlier than expected rulemaking; however, it might not be timed so as to avoid potential Congressional Review Act scrutiny if the election results in a change in the White House. NWP 12 has been the focus of much recent legal attention and many believe that trend will continue.
This update is predominately focused on NWP 12 that controls oil and natural gas related construction and maintenance activities within streams and wetlands. In this rulemaking, the Corps is soliciting comments and suggestions for national standards or best management practices for oil and natural gas pipeline activities that would be appropriate to add to this NWP, and within the Corps' legal authority to enforce as terms and conditions of an NWP authorization.
NWP 12. covers “Oil or Natural Gas Pipeline Activities”. It authorizes “activities required for the construction, maintenance, repair, and removal of oil and natural gas pipelines and associated facilities 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.” NWP 12 authorizes discharges of dredged or fill material into waters of the United States and structures or work in navigable waters for crossings of those waters associated with the construction, maintenance, or repair of oil and natural gas pipelines, including outfall and intake structures. There must be no change in pre-construction contours of waters of the United States. An “oil or natural gas pipeline” is defined as any pipe or pipeline for the transportation of any form of oil or natural gas, including petrochemical products, for any purpose.”
The proposed definition of “oil or natural gas pipeline” in NWP 12 might be a little confusing given that natural gas “transmission”, “distribution” and “gathering” lines are regulated differently within other Federal regulations and a different word, “transportation”, is used in the proposed definition. Natural gas distribution lines are often distinguished as “mains” and “services” and the word “pipeline” often refers to natural gas transmission lines rather than distribution mains. NWP 12 has historically covered all of these and “transportation”, “pipe”, and “pipeline” might be broad enough words to use. If any of these activities were not covered by NWP 12, they might be forced to apply for Individual or Regional permits via a much more expensive and time consuming process and those delays could result in significant operational problems. The Corps seems to assume that natural gas distribution lines are included as the Corps mentions in the Preamble that there are 2,100,000 miles of natural gas distribution pipelines in the USA. Untidy definitions can sometimes be problematic.
Some NWPs continue to include Pre-Construction Notification (PCN) requirements. PCNs give the Corps the opportunity to evaluate certain proposed NWP activities on a case-by-case basis to ensure that they will cause no more than minimal adverse environmental effects, individually and cumulatively. The Corps is proposing to remove the following NWP 12 PCN thresholds:
When utility line activities will involve mechanized land clearing in a forested wetland;
When utility line activities in Waters of the United States exceeds 500 feet;
When a utility line is placed within a jurisdictional area (i.e., water of the United States) and it runs parallel to or along a stream bed that is within that jurisdictional area;
When permanent access roads are constructed above grade in waters of the United States for a distance of more than 500 feet; and
When permanent access roads are constructed in Waters of the United States with impervious materials.
The Corps argues that reduction of the number of PCN thresholds in NWP 12 will reduce burdens on the regulated public, simplify the NWP, and eliminate redundancy. With respect to mechanized land clearing within forested wetlands, the Corps argues that “mechanized land clearing of forested wetlands in a utility line right of way usually results in temporary impacts to the wetlands and other waters as the trees are removed to clear a right-of-way for the utility line. Even though the trees are removed, the disturbed wetland will develop a new plant community, and because of the maintenance that is normally required for utility line rights-of-way to protect the utility line, the plant community will likely consist primarily of herbaceous plants and shrubs. If mechanized land clearing of forested wetlands in the utility line right-of-way results in the loss of greater than 1/10 acre of wetland, then the proposed activity would require a PCN.”
The Corps proposes NWP 12 PCN requirements as follows: “The permittee must submit a pre-construction notification to the district engineer prior to commencing the activity if: (1) A section 10 permit is required; (2) the discharge will result in the loss of greater than 1/10-acre of waters of the United States; or (3) the proposed oil or natural gas pipeline activity is associated with an overall project that is greater than 250 miles in length and the project purpose is to install new pipeline (vs. conduct repair or maintenance activities) along the majority of the distance of the overall project length. If the proposed oil or gas pipeline is greater than 250 miles in length, the pre-construction notification must include the locations and proposed impacts for all crossings of waters of the United States that require DA authorization, including those crossings authorized by NWP would not otherwise require pre-construction notification. (See general condition 32.)”
PCNs are also required under the following NWP General Conditions:
General condition 18 require non-federal permittees to submit PCNs for any activity that might affect listed species or designated critical habitat under the federal Endangered Species Act.
General Condition 20 requires non-federal permittees to submit PCNs for any activity that might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties to comply with Section 106 of the National Historic Preservation Act.
Here are some of the more significant NWP General Conditions that commonly apply to activities authorized under NWP 12:
General Condition 11. Equipment. Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance.
General Condition 18. Endangered Species. (a) No activity is authorized under any NWP which is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation, as identified under the Federal Endangered Species Act (ESA), or which will directly or indirectly destroy or adversely modify the critical habitat of such species. No activity is authorized under any NWP which “may affect” a listed species or critical habitat, unless ESA section 7 consultation addressing the consequences of the proposed activity on listed species or critical habitat has been completed.
Non-federal permittees must submit a pre-construction notification to the district engineer if any listed species or designated critical habitat might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat, and shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized. For activities that might affect Federally-listed endangered or threatened species or designated critical habitat, the pre-construction notification must include the name(s) of the endangered or threatened species that might be affected by the proposed activity or that utilize the designated critical habitat that might be affected by the proposed activity. The district engineer will determine whether the proposed activity “may affect” or will have “no effect” to listed species and designated critical habitat and will notify the non-Federal applicant of the Corps' determination within 45 days of receipt of a complete pre-construction notification. For activities where the non-Federal applicant has identified listed species or critical habitat that might be affected or is in the vicinity of the activity, and has so notified the Corps, the applicant shall not begin work until the Corps has provided notification that the proposed activity will have “no effect” on listed species or critical habitat, or until ESA section 7 consultation has been completed. If the non-Federal applicant has not heard back from the Corps within 45 days, the applicant must still wait for notification from the Corps.
General Condition 19. Migratory Birds and Bald and Golden Eagles. The permittee is responsible for ensuring that an action authorized by NWP complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is responsible for contacting the appropriate local office of the U.S. Fish and Wildlife Service to determine what measures, if any, are necessary or appropriate to reduce adverse effects to migratory birds or eagles, including whether “incidental take” permits are necessary and available under the Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a particular activity.
General Condition 20. Historic Properties. (a) In cases where the district engineer determines that the activity may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places, the activity is not authorized, until the requirements of Section 106 of the National Historic Preservation Act (NHPA) have been satisfied. Non-federal permittees must submit a PCN to the district engineer if the NWP activity might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. For such activities, the pre-construction notification must state which historic properties might have the potential to be affected by the proposed NWP activity or include a vicinity map indicating the location of the historic properties or the potential for the presence of historic properties. Assistance regarding information on the location of, or potential for, the presence of historic properties can be sought from the State Historic Preservation Officer, Tribal Historic Preservation Officer, or designated tribal representative, as appropriate, and the National Register of Historic Places
General Condition 21. Discovery of Previously Unknown Remains and Artifacts. Permittees that discover any previously unknown historic, cultural or archeological remains and artifacts while accomplishing the activity authorized by NWP, they must immediately notify the district engineer of what they have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed. The district engineer will initiate the Federal, Tribal, and state coordination required to determine if the items or remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places.
General Condition 23. Mitigation. Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that exceed 1/10-acre and require pre-construction notification, unless the district engineer determines in writing that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal, and provides an activity-specific waiver of this requirement.
General Condition 32. Pre-Construction Notification. (a) Timing. Where required by the terms of the NWP, the prospective permittee must notify the district engineer by submitting a PCN as early as possible. The district engineer must determine if the PCN is complete within 30 calendar days of the date of receipt and, if the PCN is determined to be incomplete, notify the prospective permittee within that 30 day period to request the additional information necessary to make the PCN complete. The request must specify the information needed to make the PCN complete. As a general rule, district engineers will request additional information necessary to make the PCN complete only once. However, if the prospective permittee does not provide all of the requested information, then the district engineer will notify the prospective permittee that the PCN is still incomplete and the PCN review process will not commence until all of the requested information has been received by the district engineer. The prospective permittee shall not begin the activity until either: (1) He or she is notified in writing by the district engineer that the activity may proceed under the NWP with any special conditions imposed by the district or division engineer; or (2) 45 calendar days have passed from the district engineer's receipt of the complete PCN and the prospective permittee has not received written notice from the district or division engineer. However, if the permittee was required to notify the Corps pursuant to general condition 18 that listed species or critical habitat might be affected or are in the vicinity of the activity, or to notify the Corps pursuant to general condition 20 that the activity might have the potential to cause effects to historic properties, the permittee cannot begin the activity until receiving written notification from the Corps that there is “no effect” on listed species or “no potential to cause effects” on historic properties, or that any consultation required under Section 7 of the Endangered Species and/or section 106 of the National Historic Preservation Act has been completed.
When oil and natural gas lines are installed beneath streams and wetlands via Horizontal Directional Drilling (HDD) methods, drilling mud used in such processes can sometimes find its way into these waterbodies to effect State water quality standards and/or listed species or designated Critical Habitat. Therefore, the Corps is proposing “to retain the NWP 12 paragraph that authorizes, to the extent that Corps authorization is required, temporary structures, fills, and work necessary for the remediation of inadvertent returns of drilling fluids to waters of the United States through sub-soil fissures or fractures that might occur during horizontal directional drilling activities conducted for the purpose of installing or replacing oil or natural gas pipelines.” While the Corps proposes to continue authorizing activities to cleanup these drilling mud discharges, authorization for these inadvertent discharges themselves is not addressed in the NWPs.
A very important issue associated with the NWPs reissuance is the promulgation of any Regional Conditions, State Water Quality Certifications, and Coastal Zone Management Act Consistency Determinations. Each of these promulgations can restrict the use of various NWPs or add significant additional requirements. Non-exhaustive examples of Corps regional conditions that might be included are:
Restricting the types of waters of the United States where the NWPs may be used (e.g., fens, bogs, bottomland hardwood forests, etc.) or prohibiting the use of some or all of the NWPs in those types of waters or in specific watersheds.
Revoking certain NWPs in a watershed or other type of geographic area (e.g.,a state or county).
Adding PCN requirements to NWPs to require notification for all activities or lowering PCN thresholds, in certain watersheds or other types of geographic areas, or in certain types of waters of the United States.
Restricting activities authorized by NWPs to certain times of the year in a particular waterbody, to minimize the adverse effects of those activities on fish or shellfish spawning, wildlife nesting, or other ecologically cyclical events.
Conditions necessary to facilitate compliance with the “Endangered Species” general condition, to appropriately enhance protection of listed species or critical habitat under the Endangered Species Act.
Conditions necessary for ensuring compliance with the “Historic Properties” general condition, to appropriately protect historic properties.
Primary oil and gas industry takeaways:
Before conducting any activity authorized by NWP 12, diligent assessments are essential to ensure that the activity will not affect listed species or designated critical habitat under the federal Endangered Species Act.
Before conducting any activity authorized by NWP 12, diligent assessments are essential to ensure that the activity does not have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties to comply with Section 106 of the National Historic Preservation Act.
Before installing oil and gas lines beneath streams and wetlands by HDD methods, geotechnical assessments are advisable to understand the subsurface geology in order to design the crossing to prevent inadvertent drilling mud discharges into waterbodies and to develop contingency plans for any inadvertent drilling mud discharges into these waterbodies. Whether any potential drilling mud discharges warrant CWA Section 402 or Section 404 permitting might need to be considered. It is important to consider potential impacts to State water quality standards, listed species, or critical habitats.
The loss of all Waters of the United States that will be caused by the activity should be delineated and quantified.
If any previously unknown historic, cultural or archeological remains and artifacts are discovered while accomplishing the activity authorized by NWP, the Permittee must immediately notify the Corps of what they have found, and to the maximum extent practicable, avoid construction activities that may affect the remains and artifacts until the required coordination has been completed.
Permittees are responsible for ensuring that any action authorized by a NWP complies with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. The permittee is responsible for contacting the appropriate local office of the U.S. Fish and Wildlife Service to determine what measures, if any, are necessary or appropriate to reduce adverse effects to migratory birds or eagles, including whether “incidental take” permits are necessary and available under the Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a particular activity.
Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures must be taken to minimize soil disturbance.
The Corps' NWP regulations state that an “activity is authorized under an NWP only if that activity and the permittee satisfy all of the NWP's terms and conditions.”
Stakeholders will likely be very involved in shaping additional requirements and restrictions on the use of NWPs as Regional Conditions, State Water Quality Certifications, and Coastal Zone Management Act Consistency Determinations are promulgated.
NOTE: This is a very limited and abbreviated update on the U.S. Army Corps of Engineers plans to reissue and modify the Nationwide Permits. This is not an exhaustive analysis of the rulemaking and should not be relied upon for decision-making by any organization. Please consult with your legal counsel to determine how the proposed policies affect particular circumstances or organizations.
