The Nickel Report

On December 27, 2021, the US Army Corps of Engineers (Corps) issued a final nationwide permit (NWP) rule  renewing a critical permitting tool for both the government and the regulated community. To comply with the Clean Water Act (CWA or the Act), projects with minimal adverse environmental effects can obtain authorization for the discharge of dredged or fill material into “waters of the United States” (WOTUS) through the Corps’ streamlined NWP process.  With this rule, the Corps reissued 40 existing NWPs and one new NWP.  These 41 NWPs will combine with 16 NWPs issued on January 13, 2021 to authorize use of the full suite of NWPs through March 14, 2026.

With the federal government shutdown finally over after five weeks, the long-term effects are likely to have a lingering impact on regulatory and permitting programs for months to come. Even those federal agencies that were fully funded during the shutdown, such as the US Army Corps of Engineers (Corps), were stymied in their ability to undertake routine day-to-day operations during the lapse in appropriations. This post highlights two examples of the shutdown’s implications for regulatory reform and permitting in the natural resources arena.

This week, the U.S. District Court for the Middle District of Louisiana granted a preliminary injunction, halting construction of the $750 million Bayou Bridge Pipeline. Judge Shelly D. Dick concluded that the U.S. Army Corps of Engineers, in authorizing the project, did not provide sufficient explanation for how the proposed off-site mitigation would compensate for the loss of wetlands impacted by construction. In addition, the Court found the Corps’ environmental analysis failed to sufficiently consider and address historical impacts to wetlands from similarly situated ...

WOTUS, an acronym that has received a lot of attention in recent years, stands for the “waters of the United States.” When Congress enacted the Clean Water Act (“CWA” or the “Act”) in 1972, it prohibited “the discharge of any pollutant by any person” into navigable waters without a permit. The Act defines navigable waters as the “waters of the United States, including the territorial seas.” 33 U.S.C. §§ 1311(a), 1362(7), (12). But Congress failed to, in turn, define the words “waters of the United States,” and the Supreme Court has noted that these “words themselves are hopelessly indeterminate.” Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (J. Alito, concurring). The meaning of these words matters because violations of the CWA are subject to substantial criminal and civil penalties, so knowing whether a feature on your site is a WOTUS subject to federal jurisdiction has important consequences.

Despite oil already flowing through the pipeline, federal litigation involving the controversial Dakota Access Pipeline (DAPL) took another turn last week when partial summary judgment was granted to tribes challenging the adequacy of the US Army Corps of Engineers’ review of DAPL under the National Environmental Policy Act (NEPA) and other statutes. Two tribes, the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe, filed suit in July 2016 attempting to block construction of the last remaining segment and operation of DAPL. As sometimes is the case, agency approvals came faster than the court’s opinion, and without a stay of proceedings DAPL began operating in early June 2017. Having granted partial summary judgment, the court did not require pipeline operations to cease, instead delaying the question of an appropriate remedy until after further briefing by the parties.