Army Corps Permits for Oil and Natural Gas Pipelines

Army Corps Permits for Oil and Natural Gas Pipelines

November 29, 2016
Army Corps Permits for Oil and Natural Gas Pipelines
The U.S. Army Corps of Engineers (the Corps) administers
One of the current nationwide permits, NWP 12, is used to
a regulatory program that requires permits for certain
authorize utility line activities, including the construction,
activities in waters of the United States, including wetlands.
maintenance, or repair of utility lines in waters of the
Under Section 404 of the Clean Water Act (CWA, 33
United States. Under this permit, a “utility line” is defined
U.S.C. §1344), the Corps regulates the discharge of dredged
as any pipe or pipeline for the transportation of any
or fill material into these waters. Under Section 10 of the
gaseous, liquid, liquescent, or slurry substance, for any
Rivers and Harbors Act (RHA, 33 U.S.C. §403), the Corps
purpose—including oil or natural gas—and any cable, line,
regulates structures and/or work in or affecting the course,
or wire for the transmission for any purpose of electrical
condition, or capacity of navigable waters.
energy, telephone, and telegraph messages, and radio and
television communication.
Because construction of pipelines of any significant length
will cross or otherwise affect U.S. waters somewhere along
Under the CWA and the RHA, the Corps’ regulatory
their routes, the Corps is usually involved in approving
authority only applies to areas where a pipeline or other
discrete aspects of pipeline siting. The Corps is not the only
utility line activity crosses waters of the United States. The
governmental agency from which location-specific permits
Corps generally does not have regulatory jurisdiction over
may be required for a new pipeline, but its role has received
portions that cross upland areas. As a result, for many
scrutiny recently, particularly in connection with
pipelines, the Corps has jurisdiction over a very small
controversy over siting of the Dakota Access Pipeline
portion of the overall pipeline.
(DAPL). (See CRS Insight IN10567, Dakota Access
Pipeline: Siting Controversy, by Paul W. Parfomak.)
When the Corps proposes to reissue the nationwide permits,
as it did in June 2016, the rulemaking process concludes
Nationwide Permits for Pipelines
with Decision Documents that incorporate analytic
Pipeline construction and other activities that require Corps
requirements under the National Environmental Policy Act
authorization and that are similar in nature with minimal
(NEPA). In the Decision Document for NWP 12, the Corps
environmental impacts (e.g., minor stream crossings) may
estimates that NWP 12 is used on average approximately
qualify for a general permit. Nationwide permits, which
14,000 times per year on a national basis, resulting in
cover a wide range of activities such as aids to navigation,
impacts to approximately 1,750 acres of waters of the
minor dredging, and bank stabilization, are one type of
United States, including wetlands that are regulated under
general permit. Some general permits apply regionally or in
the CWA. (The total includes about 11,500 times per year
a single state. General permits essentially preauthorize a
for activities that involve a PCN to the Corps and about
group of similar activities on a programmatic level. The
2,500 that do not require a PCN.)
Corps uses general permits to minimize the burden of its
regulatory program; general permits authorize applicants to
The 14,000 number includes all utility line activities that
proceed without the more time-consuming need to obtain
are authorized by NWP 12. Because of the broad definition,
standard individual permits in advance. Individual permits
oil or natural gas pipelines are only a part of the total. The
are subject to public notice, public interest review, public
Corps’ data do not break out pipelines versus other types of
hearing, activity-specific environmental documentation, and
utility line activities under NWP 12. Furthermore, while it
case-by-case evaluation, so they typically require more time
covers the large majority of utility line activities, some do
before an activity is authorized. Over 97% of the Corps’
not qualify for a nationwide permit – generally because
regulatory workload—which averages about 63,000
they will have more than minimal environmental impacts –
authorized activities each year—is processed in the form of
and thus they must be authorized by individual Corps
general permits.
permits. The Corps does not have a centralized database or
other information on the number of individual permits that
Many activities covered by nationwide permits can proceed
it issues for pipelines or the number of pipeline and utility
without advance notification to the Corps, while others
line activities that are authorized by NWP 12.
require that the applicant submit a Pre-construction
Notification (PCN) to the Corps and receive written
Tribal Rights Consultation
verification from the Corps before proceeding. Nationwide
In order to qualify for nationwide permit authorization,
permits are issued for five-year terms; the Corps’ authority
proposed activities must meet a number of general
to issue them expires unless they are reissued. The current
conditions, as well as permit-specific restrictions. One of
permits were issued in 2012 and will expire in March 2017;
the general conditions concerns tribal rights: General
in June 2016, the Corps proposed to reissue the nationwide
Condition 17 states that no authorized activity or its
permits. (For background, see CRS Report 97-223, The
operation may impair reserved tribal rights, including but
Army Corps of Engineers’ Nationwide Permits Program:
not limited to, reserved water rights and treaty fishing and
Issues and Regulatory Developments.)
hunting rights. (For information on Corps tribal
https://crsreports.congress.gov

Army Corps Permits for Oil and Natural Gas Pipelines
consultation requirements and policy, see CRS Insight
cumulatively (33 CFR 330.2(i)). A “single and complete
IN10608, Army Corps Projects and Tribal Consultation:
project” is a portion of a total project that includes all
Requirements, Policies, and Controversy, by Nicole T.
crossings of a single waterbody at a specific location. Thus,
Carter.)
NWP 12 can be used for each individual crossing of a
waterbody, even if it is part of a large pipeline project that
Endangered Species Consultation
consists of multiple stream crossings.
Other general conditions apply if a project has potential to
affect a threatened or endangered species or critical habitat.
Because the Corps interprets its authority as limited to
When a PCN is submitted to the Corps, the applicant must
individual water crossings, it believes that it must evaluate
identify endangered species issues, if any are present, and
pipeline water crossings in this segmented fashion. It does
may not begin work without written verification from the
not evaluate the environmental or other impacts of the
Corps that allows the activity to proceed. General Condition
totality of water crossings for a pipeline or a pipeline from
18 states that no activity may be authorized if it will
end-to-end. This approach has led to criticism that, by
directly or indirectly jeopardize a threatened or endangered
reviewing discrete geographic segments, the Corps fails to
species or critical habitat. Furthermore, no activity is
evaluate whether the full scope of a pipeline may have
authorized that “may affect” a listed species or critical
adverse environmental effects. Considered in totality, a
habitat unless consultation pursuant to Section 7 of the
pipeline’s impacts might require authorization under a
Endangered Species Act (ESA, 16 U.S.C. §1536) has been
standard individual permit, not a nationwide permit, critics
completed. Through ESA consultations and coordination
say. The Corps’ response is that under the CWA and the
with the U.S. Fish and Wildlife Service and/or the National
RHA, its regulatory jurisdiction does not cover aspects in
Marine Fisheries Service, the Corps establishes procedures
upland areas on private property. Critics say that such
to ensure that nationwide permits are not likely to
segmenting of pipeline projects fails to account for
jeopardize any threatened or endangered species or result in
cumulative effects that can have more than minimal impact
the destruction or adverse modification of designated
on aquatic resources, but legal challenges to use of this
critical habitat.
permit have been largely unsuccessful.
Historic Properties Consultation
A related criticism of the Corps’ reliance on NWP 12 to
General Condition 20 states that when an activity may
authorize pipeline construction activities is that the
affect properties listed, or eligible for listing, in the
nationwide permit process does not allow for project-
National Register of Historic Places, the activity is not
specific public input or environmental review. The agency’s
authorized until requirements of Section 106 of the National
position in its environmental assessment of NWP 12 is that,
Historic Preservation Act (NHPA, 54 U.S.C. §306108)
with the qualifying conditions and limits that are attached to
have been satisfied. Section 106 requires federal agencies to
the permit, the Corps has determined that environmental
consider the effects of actions that they carry out, approve,
impacts will be no more than minimal. Furthermore, the
or fund on historic properties. The Corps’ rules for meeting
Corps maintains that its procedures for addressing possible
these requirements are detailed in 33 CFR Part 325,
impacts on threatened or endangered species or historic
Appendix C. If such properties are identified by the
property meet all requirements of other federal laws,
applicant in a PCN for a nationwide permit, the Corps is
including the ESA and the NHPA. The Corps asserts that
responsible for initiating Section 106 review and
the action of issuing or reissuing the NWPs per se has no
consultation, most of which takes place between the agency
effect on listed species or their critical habitat and that
and state and tribal or Native Hawaiian historic preservation
General Condition 18 and Corps rules ensure that ESA
officials. Agencies consult with officials of federally
Section 7 consultation will take place on an activity-specific
recognized Indian tribes when activities have the potential
basis wherever appropriate at the field level between the
to affect historic properties on tribal lands or historic
Corps and other federal agencies. Critics contend that under
properties of significance to such tribes located off tribal
the nationwide permits, private project proponents can
lands. Once General Condition 20 is triggered, the activity
make their own project-specific determinations about the
cannot proceed unless the Corps district engineer completes
presence of threatened or endangered species or historic
a site-specific analysis and verifies either (1) that the
properties, through submission of a PCN. The Corps, they
activity will not affect any eligible historic site, or (2) that
say, generally only responds to information presented in a
the consultations required by the NHPA are complete. The
PCN, because it is not independently responsible for
Advisory Council on Historical Preservation (ACHP) may
determining their presence on a project site.
be involved in consultation under certain circumstances,
such as those involving substantial impacts to important
It has been more than 15 years since Congress examined the
historic properties, but it does not have a veto over the
Corps’ nationwide permit program through oversight
Corps’ decision. Section 106 requires agencies to consult,
hearings or legislation. Whether recent controversies about
but it does not require agencies to avoid impacts.
NWP 12 and its use in siting aspects of pipeline and utility
line projects will lead to greater congressional interest in
Issues Related to NWP 12
the program is unknown for now.
Environmental advocates have frequently criticized several
of the current nationwide permits, including NWP 12.
Claudia Copeland, Specialist in Resources and
Under Corps regulations, nationwide permits can be used
Environmental Policy
for a “single and complete project” that will cause only
minimal adverse environmental effects, individually or
IF10528
https://crsreports.congress.gov

Army Corps Permits for Oil and Natural Gas Pipelines

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF10528 · VERSION 2 · NEW