March 2021, Vol. 248, No. 3


Corps Initiates INGAA-Opposed Permit Changes

By Stephen Barlas, Contributing Editor, Washington D.C.

The Army Corps of Engineers (Corps) finalized changes to wetland pipeline digging permits opposed by the INGAA. But that final rule issued days before President Trump’s exit from office now faces review and revision by the Biden administration, possibly cancelation by the Congress or a lawsuit from environmentalists.  

That the Corps will probably have to review that final rule in some sense is a boon to the gas transmission industry given that final rulemaking changes to Nationwide Permit 12 (NWP12) adopt none of the suggestions the INGAA asked for after the proposed rule was issued in September 2020.  

The Corps proposal covered numerous NWPs, including NWP12, which allows pipelines to get expedited approval for digging in and around wetlands when they dislodge a minimal amount of land and do no environmental damage.  

The Corps issued the final rule on January 16, 2021. It removed electric utility and telecommunications pipelines and water systems pipelines from NWP12 and created separate NWPs (57 and 58, respectively) for them.  

The INGAA had opposed that separation calling it an “arbitrary, abrupt and unjustified departure from its long-standing view that utility lines are activities that are similar in nature.” The Corps’ rationale for separating components of NWP12 was so it could spend more time on pipeline applications, which are much more numerous and potentially more damaging.  

Environmentalists wanted the Corps to eliminate NWP12 entirely. The Corps did not do that.  

The final rule also makes some changes to preconstruction notification (PCN) requirements, which determine if an NWP12 application for a Clean Water Act permit needs an extra level of review from the Corps district in which the project would take place.  

Five current PCNs would be eliminated, two retained and, most importantly perhaps, a new one added for pipelines over 250 miles (402 km) in length. The INGAA opposed the new 250-mile PCN as well as the other PCN changes. 

The Corps stated, “Given the concerns expressed by numerous commenters regarding the potential cumulative adverse environmental effects that may be caused by NWP12 activities, this is not an arbitrary or capricious addition to the PCN requirements for NWP12.”   

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