Section 404 Updates on Navigable Waters Protection Rule and Nationwide Permit 12

Over the last few months, two actions have the consultant industry monitoring agency websites and press releases to better understand how these actions will affect permitting future projects pursuant to Section 404 of the Clean Water Act. Whereas the regulatory agencies are still awaiting and developing formal guidance, Halff’s permitting specialists have been in communication with local agency contacts to provide this interim guidance.

On April 21, 2020, the EPA and Department of the Army issued the final rule defining waters of the United States regulated under Section 404 of the Clean Water Act (Section 404). The rule seeks to clearly define categories of regulated and non-regulated waters, and may reduce the breadth of jurisdiction under Section 404 to certain waters. For example, ephemeral streams would no longer be classified as waters of the United States, potentially greatly reducing the permit burden on developers.

The proposed rule becomes effective on June 22, 2020, and additional procedural guidance on implementing the rule will likely follow from regional U.S. Army Corps of Engineers districts. Whereas this may increase due diligence efforts on the front end of projects, it could still have the potential to reduce permitting and mitigation burden on certain projects.

Also noteworthy is several state attorneys general and other interest groups have filed complaints challenging the new rule. It is possible in the following weeks or months that court actions may rescind the rule, effectively returning waters of the United States assessment to the current methodology and definitions. Halff will provide updates regarding the June 2020 effective date, or any potential court decisions that may delay the effective date.

On April 15, 2020, a Montana District court ruled to vacate the use of Nationwide Permit 12—Utility Line Activities (NWP 12) at the national level. Although the case centered on a specific oil and gas pipeline project, the vacatur applied nationwide without any specificity to pipeline type. This meant NWP 12 was unavailable for authorizing water lines, sewer lines and several other activities allowed under NWP 12.

Pending appeal, the federal defendants requested a partial stay to narrow the scope of the vacatur. On May 11, 2020, the district court amended the vacatur to state NWP 12 is vacated as it relates to the construction of new oil and gas pipelines, and remained available for maintenance, inspection and repair of existing NWP 12 projects.

Halff has remained in contact with local USACE districts, and has received confirmation from the USACE Fort Worth District that NWP 12 remains available to authorize water supply, wastewater and cable utility projects. The USACE Fort Worth District also has Regional Permit 11—Exploration and Production Wells which may be able to authorize collection, distribution and water supply pipelines associated with the oil and gas industry.

Please contact Russell Marusak at (214) 346-6367 or Brandyn Littleton at (512) 942-6214 for more information.

Additional Resources

• EPA Waters of the U.S. fact sheet

• NWP 12 Vacatur

• NWP 12 Vacatur Amendment