Parker Moore Quoted in Bloomberg Law on Army Corps of Engineers Plan to Reissue CWA Nationwide Permits

In an August 6 article titled "Pipeline Plan Could Mean Fewer Stream Protections, Critics Say," Bloomberg Law quoted Principal Parker Moore (Washington, DC) regarding a proposal from the U.S. Army Corps of Engineers to reissue its Clean Water Act (CWA) nationwide permits (NWPs), some with more flexible permitting requirements. As discussed in the article, under the new proposal, oil and gas pipeline companies would no longer be required to notify the Corps before beginning work under NWP 12 if the pipelines they lay require clearing of forested wetlands, or building access roads longer than 500 feet with fill material dredged from streams or wetlands or with impervious materials. According to the article, these "plans were part of a proposal to change Nationwide Permit 12, one of the Corps’ streamlined permits used for an array of infrastructure projects including oil and natural gas pipelines. It’s part of an overarching proposal (RIN 0710-AA84) to revise the package of 52 nationwide permits used to authorize work in wetlands and other waters. The Corps wants to split the Nationwide Permit 12 (NWP 12) into distinct nationwide permits—the new ones dealing with electric utilities and telecommunication, sewage and water lines. The remaining part of NWP 12 would apply only to oil and gas pipelines."

Several wetlands consultants cited in the article argued that, if the proposal goes through, fewer oil and gas pipeline projects will receive the scrutiny they currently receive from the Corps when verifying eligibility for NWP 12 coverage.

However, Parker, who co-chairs the firm's Natural Resources and Project Development Practice Group and its NEPA and Endangered Species Act groups, said he doesn’t think the protections for wetlands and streams will decrease as long as the Corps complies with its legal obligations to ensure that the projects covered under NWP 12 do not individually or cumulatively result in significant impacts. Adding that he "expects the Corps district offices that tend to take a harder line on pre-construction notices to add regional conditions that typically are more stringent and prioritize the protection of sensitive aquatic resources of greatest concern locally."

In addition, a company still would be required to provide notice if its pipeline project doesn’t meet the general conditions that apply to all nationwide permits, such as affecting the habitat of an endangered species or historic resources, or interfering with critical resource waters or federal navigation, Parker said.

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