March 3, 2021

Revamp to Nationwide Permits Impacting Oil and Gas Pipeline, Utility and Telecom Line Work.

By: Alex P. Prochaska Special Counsel, Jones Walker LLP.

To avoid delay costs and penalties, contractors involved in pipeline and utilities construction maintenance, repair and removal need to understand how the 43 year old Nationwide Permit (NWP) regime has changed specific to the NWP 12 and what is now required for compliance.  This change is important for contractors who construct, maintain, or repair pipelines that cross or impact waters of the United States, including wetlands. NWPs are a useful tool to streamline construction of a pipeline project, but it is important for contractors to know when certain terms and conditions still apply to the particular NWP and those that have been eliminated.  

On January 13, 2021, the United States Army Corps of Engineers (the Corps) published a final rule that reissued and modified twelve existing NWPs and issued four new NWPs that will take effect on March 15, 2021.1 The remaining 40 NWPs that were not reissued or modified under this rule will continue under the general conditions and definitions of the January 6, 2017 final rule. 2  

By way of background, the Clean Water Act prohibits the placement of dredged and fill materials into waters of the United States, including wetlands, unless such placement is authorized by a permit.3  One way the Corps can authorize activities in waters of the United States is through a NWP.4 A NWP is a general permit issued by the Corps authorizing such certain activities that will cause only minimal adverse environmental effects – usually for certain activities that destroy no more than ½ acre of waters of the United States. Authorization under the NWP is a streamlined process that does not undergo public notice allowing activity to take place in a matter of weeks to immediately. Generally there is no review of the specific project or activity authorized under the NWP 12 unless a pre-construction notice (PCN) is required or the application requests a verification from the Corps that the proposed activity complies with a NWP. Where no PCN is required, the activity can commence without advance notification to the Corps as long as the activity falls under the terms under the respective NWP.  

One of the most interesting NWP modification or issuance in this rulemaking for contractors was the splitting of the old NWP 12, used to authorize utility line activities such as oil and gas, electric utility, and water pipelines, into three separate NWPs. This separation of the NWP 12 functions is significant because previous challenges to NWP 12 authorizations associated with crude oil pipelines and challenges to the NWP 12 itself also affected non-oil and gas authorizations under the NWP 12. This occurrence happened just last year resulting in construction project utilizing the NWP 12 for a water pipeline activities was held up due to a challenge to the Keystone XL pipeline that utilized the NWP 12. Below are the changes of note to the construction industry to the relevant these NWPs.  

Nationwide Permit 12. Oil and Gas Pipeline Activities. 

With this modification, the NWP 12 is now limited to authorizing work associated with oil and gas pipelines and associated facilities, providing such activity does not result in the loss of greater than ½ acre of waters of the United States. These activities include the following: 

  • Oil or Natural Gas Pipelines. The NWP 12 authorizes the construction, maintenance, or repair oil or natural gas pipelines. An Oil and Gas pipeline is defined as “as any pipe or pipeline for the transportation of any form of oil or natural gas, including products derived from oil or natural gas, such as gasoline, jet fuel, diesel fuel, heating oil, petrochemical feedstocks, waxes, lubricating oils, and asphalt.”5 
  • Oil or Natural Gas Pipeline Substations. The NWP 12 also authorizes the construction, maintenance, or expansion of substation facilities (e.g., oil or natural gas or gaseous fuel custody transfer stations, boosting stations, compression stations, metering stations, pressure regulating stations) as long as those activities are associated with an oil and gas pipeline;6  
  • Foundations for above-ground oil or natural gas pipelines. The NWP 12 also authorizes the construction and maintenance of foundations for above-ground oil or natural gas pipelines, provided the foundations are the minimum size necessary;7 
  • Access roads. The NWP also authorizes access roads for the construction and maintenance of oil or natural gas pipelines but does not authorize discharges of dredged or fill material into non-tidal wetlands next to the access roads. Also, the access roads must be the minimum with necessary and must be as near as possible to pre-construction contours and elevations or must be bridged or culverted to maintain surface flows; 
  • Remediation. The NWP 12 authorizes temporary structures, fills, and work required for the remediation of inadvertent returns of drilling fluids to waters of the United States that occur during horizontal directional drilling activities associated with the repair or replacement of oil or natural gas pipelines; and 
  • Mats. The NWP 12 also authorizes the temporary structures, fills, and work, including the use of temporary mats, necessary to conduct the oil or natural gas pipeline activity. 

The other changes to the NWP 12 include the removal of preconstruction notices (PCN) for the following activities:8 

  1. activities that involve mechanized land clearing in a forested wetland for the utility line right-of-way;  
  2. utility lines in waters of the United States, excluding overhead lines, that exceed 500 feet;  
  3. utility lines placed within a jurisdictional area (i.e., water of the United States), that run parallel to or along a stream bed that is within that jurisdictional area;  
  4. permanent access roads constructed above grade in waters of the United States for a distance of more than 500 feet; or  
  5. permanent access roads are constructed in waters of the United States with impervious materials.9 

The NWP 12 also adds a PCN requirement for new or oil and gas pipelines that are greater than 250 miles in length.  So now, there are three situations where a PCN is required under the NWP 12: 

  1. Where a section 10 permit is required;  
  2. When the discharge will result in the loss of greater than 1/10-acre of waters of the United States; or  
  3. When 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.10  

Nationwide Permit 57 Electric Utility Line and Telecommunication Activities & Nationwide Permit 58 Utility line Activities for Water and Other Substance. 

The NWP 57 authorizes certain activities regarding an electric utility line and a telecommunication line defined as any cable, line, fiber optic line, or wire for the transmission for any purpose of electrical energy, telephone, and telegraph messages, and internet, radio, and television communication.11  The NWP 58 on the other hand authorizes certain activities involving Utility lines for water and other substances, which does not involve activities authorized by the NWP 12 or NWP 57. A “utility line” is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose that is not oil, natural gas, or petrochemicals.12 This would include sewer, stormwater, wastewater, brine, irrigation water, and industrial products that are not petrochemicals. This would not include French drains or drainage tiles.13  

Both the NWP 57 and NWP 58 authorize the same type of activities as the NWP 12 (construction, maintenance, and repair the respective lines, foundations, access roads, and temporary structures) but the activity must be related to an electric utility line or telecommunication line for the NWP 57 or related to a utility line for water or other substances for the NWP 58.  

A PCN are required under the NWP 57 and NWP 58 in two instances: 

  1. When a section 10 permit is required; or 
  2. When the discharge will result in the loss of greater than 1/10-acre of waters of the United States. 

In conclusion, the activities previously authorized under the old NWP 12 are now split up among three different NWPs, the NWP 12 for oil and gas activities, the NWP 57 for electric and telecommunication activities, and the NWP 58 for water utility and other substances. This rulemaking does not authorize any additional nor restrict any activities that was authorized under the old NWP 12. Contractors who engage in pipeline construction, maintenance, and repair are who wish to use a NWP are encourage to review the appropriate NWP term and conditions to make sure their activity falls within the activity authorized and does not require additional action before operations commences.14   

[1] 86 FR 2744 [2] The effect of this rulemaking to the NWPs that were modified and created that are not subject of this article include the modification to ten NWPs, (the NWP 21(surface coal mining activities), NWP 29 (residential developments), NWP 39 (commercial and industrial development), NWP 40 (agricultural activities), NWP 42 (recreational facilities), NWP 43 (stormwater management facilities), NWP 44 (mining activities), NWP 50 (underground coal mining activities), NWP 51 (land-based renewable energy generation facilities), and NWP 52 (water-based renewable energy generation pilot projects)), to remove the PCN requirement for 300-linear-foot limit for losses of stream bed.  The NWP 48 (commercial shellfish mariculture activities) was modified to authorize new and existing operations involving commercial shellfish mariculture activities. And the new NWP 55 involving structures in the outer continental shelf for seaweed mariculture and NWP 56 involving structures in the outer continental shelf for finfish mariculture activities were issued to cover activities not authorized by the NWP 48.

[3] 33 USC 1301 & 33 USC 1344 [4] 33 USC 1344(e) [5] NWP 12 Decision Document found at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll7/id/16834

[6] Id. [7] Id. [8] [9] Id. [10] 86 FR 2744, 2860. [11] NWP 57 Decision Document found at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll7/id/16848 [12] [13] NWP 58 Decision Document found at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll7/id/16849 [14] This rulemaking has been the subject of scrutiny by environmental groups. On February 7, 2021, the Center for Biological Diversity provided notice that intends to sue the Corps for failing to conduct certain actions under the Endangered Species Act (ESA) in this rulemaking to ensure the 16 NWPs modified or issued will not jeopardize listed or critical habitat under the ESA.

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