On Friday, the U.S. Army Corps of Engineers issued new, 5 year versions of its general permits (NWPs) addressing dredge/fill and water-related activities regulated under the Clean Water Act and the Rivers and Harbors Act:
www.gpo.gov/…
The permits issued included a re-issuance of NWP 12 addressing “utility lines” with some minor modifications, which include crossings of waters of the United States by crude oil, natural gas and hazardous liquid pipelines. NWP 12 is the only federal permit required for crude oil and hazardous liquid pipelines and it only addresses the physical crossings, and the dredge, fill and construction activities necessary for such physical crossings.
The Army Corps of Engineers action makes clear that ACE only has jurisdiction under Section 404e of the Clean Water Act and provisions of the Rivers and Harbors Act over the actual crossings and not over the entire length of pipeline projects. That such jurisdiction is the case is the reason why the Standing Rock Sioux Tribe and national environmental groups have repeatedly lost in attempts to extend ACE jurisdiction over entire pipeline projects addressing crude oil pipelines.
That ACE re-issued NWP 12 on pipelines means that the recent Obama Administration decision not to issue a real estate easement for the Dakota Access Pipeline did not change the federal government’s extent of jurisdiction over inter and intra-state crude oil pipelines. It also means that any attempt to conduct an National Environmental Policy Act (NEPA) environmental impact review over the entire Dakota Access Pipeline will likely be struck down by the federal judiciary.
The federal jurisdiction issue has already been litigated in the Dakota Access Pipeline case by the DC District federal court and the DC Circuit Court of Appeals in the context of whether the National Historic Preservation Act reviews conducted on DAPL could be extended over the entire length of a crude oil pipeline and Standing Rock Tribe have already lost on that particular issue.