On January 13, the Army Corps of Engineers (the Corps) published
the Reissuance and Modification of Nationwide Permits final rule. The nationwide permit (NWP) program allows the Corps to grant general permits for projects that will likely have a minor effect on jurisdictional waterways per the Clean Water Act. APGA supports the NWP program as it has promoted prompt permitting of critical infrastructure. This final rule reissues and modifies 12 existing NWPs and issues four new NWPs. These 16 NWPs will go into effect on March 15.
Included in the modifications was the splitting of NWP 12, which is used for utility infrastructure construction, into three separate NWPs. The Corps modified the current utility line NWP 12 to authorize only oil and natural gas pipeline activities. Two new NWPs 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.
On November 6, 2020
APGA commented on the proposed rule that the Corps should be agnostic to the product being transported by the utility, as is their mandate, and strive for fewer permits rather than more. In the proposed rule, the Corps outlined three primary reasons for the split. APGA provided comments on the flaws with each of these justifications.
- Perceived differences in best management practices for each utility sector disregards the common approach of joint trenching utility lines.
- The assumed variances in pipe or conduit diameter for each utility sector overlooks the stark differences between gas distribution pipelines and transmission pipelines.
- The historically high percentage of NWP 12s used by the oil and gas sector compared to the other utilities ignores the increased investment in utility projects from all sectors.
While it is clear that the Corps read and responded to APGA’s comments, they were not deterred from their proposal to split NWP 12. It now remains to be seen how the change in administration may impact this rule going into effect. APGA expects NWPs, along with any direction to revisit this rule, to be included in any early Executive Orders on energy infrastructure released by the Biden Administration.
For questions on this article, please contact Erin Kurilla of APGA staff by phone at 202-544-1334 or by email at
ekurilla@apga.org.