By Patrick Skahan and Rebecca Andrews
The U.S. District Court for the District of Montana recently declared that the U.S. Army Corps of Engineers (Corps) violated the federal Endangered Species Act (ESA) when it reissued Nationwide Permit 12 (NWP 12), a streamlined general permit used to approve the Keystone XL pipeline and other pipelines and utility projects pursuant to § 404(e) of the federal Clean Water Act. On April 15, 2020, the court determined the Corps did not properly evaluate NWP 12 under the ESA when it determined that reissuance of the permit would have no effect on listed species or critical habitat. Further, the Corps’ decision not to initiate formal programmatic consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) in reissuing NWP 12 was also “arbitrary and capricious in violation of the Corps’ obligations under the ESA.” The court’s order completely vacated the NWP 12 permit. In a subsequent order dated May 11, 2020, the court narrowed the vacatur to apply only to projects for the construction of new oil and gas pipelines, but not routine maintenance, inspection, and repair activities on existing projects. Thus, the court’s order “prohibit[s] the Corps from relying on NWP 12 for those projects that likely pose the greatest threat to listed species.” [Northern Plains Resource Council v. U.S. Army Corps of Engineers, Case No. CV-19-44-GF-BMM (D. Mt. Apr. 15, 2020, amended order May 11, 2020).]
Factual and Procedural Background
Plaintiffs include six environmental organizations that sued the Corps alleging violations of the Endangered Species Act, the National Environmental Policy Act (NEPA), and the federal Clean Water Act (CWA) following its reissuance of NWP 12 in 2017. The Corps issued NWP 12 for the first time in 1977.
Section 404 of the CWA requires any party seeking to construct a project that will discharge dredged or fill material into jurisdictional waters to obtain a permit. The Corps oversees the permitting process and issues both individual permits and general nationwide permits to streamline the process. The discharge may not result in the loss of greater than one-half acre of jurisdictional waters for each single and complete project. For linear projects like pipelines that cross waterbodies several times, each crossing represents a single and complete project. Projects that meet NWP 12’s conditions may proceed without further interaction with the Corps.
Under § 7(a)(2) of the ESA, the Corps is required to ensure any action it authorizes, funds, or carries out, is not likely to jeopardize the continued existence of any listed species or destroy or adversely modify designated critical habitat. The Corps must determine “at the earliest possible time” whether its action “may affect” listed species and critical habitat. If the action “may affect” listed species or critical habitat, the Corps must initiate formal consultation with the Services. No consultation is required if the Corps determines that a proposed action is not likely to adversely affect any listed species or critical habitat. Formal consultation begins with the Corps’ written request for consultation under ESA § 7(a)(2) and concludes with the Services’ issuance of a Biological Opinion whether the Corps’ action likely would jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.
On January 6, 2017 the Corps published its final decision reissuing NWP 12 and other nationwide permits. The Corps determined that NWP 12 would result in “no more than minimal individual and cumulative adverse effects on the aquatic environment” under the CWA, and that NWP 12 complied with both the ESA and NEPA. The Corps did not consult with the Services based on its “no effect” determination, as the ESA does not require consultation if the proposed action is determined to not likely adversely affect any listed species or critical habitat.
Following the Corps’ final decision, Plaintiffs challenged the Corps’ determination not to initiate programmatic consultation with the Services under ESA § 7(a)(2) to obtain a Biological Opinion.
The District Court’s Decision
The court considered plaintiffs’ claim that the Corps acted arbitrarily and capriciously in reaching its “no effect” determination, and that the Corps should have initiated programmatic consultation with the Services when it reissued NWP 12. The court analyzed whether the Corps “considered the relevant factors and articulated a rational connection between the facts found and the choice made.”
Reissuance of the Nationwide Permit Impacted Listed Species and Habitat
First, the court determined “resounding evidence” existed that the Corps’ reissuance of NWP “may effect” listed species and their habitat. The court quoted statements by the Corps itself in its final determination documents acknowledging the many risks of authorized discharges by NWP 12. The Corps noted that activities authorized by past versions of NWP 12 “have resulted in direct and indirect impacts to wetlands, streams, and other aquatic resources” including “permanent losses of aquatic resource functions and services.” Further, the Corps acknowledged that utility line construction “willfragment terrestrial and aquatic ecosystems” and that fill and excavation activities cause wetland degradation and losses. The court concluded that “[t]he types of discharges that NWP 12 authorizes ‘may affect’ listed species and critical habitat, as evidenced in the Corps’ own Decision Document.” Thus, under the ESA’s low threshold for § 7(a)(2) consultation, “[t]he Corps should have initiated Section 7(a)(2) consultation before it reissued NWP 12 in 2017.” The court also cited plaintiffs’ expert declarations which demonstrated that reissuance of NWP 12 may affect endangered species, including pallid sturgeon populations in Nebraska and Montana, and the endangered American burying beetle. The declarations added to the “resounding evidence” in support of the conclusion that the Corps’ actions “may affect” listed species or critical habitat.
Circumvention of the Consultation Process
Next, the court addressed the Corps’ argument that it was authorized to circumvent § 7(a)(2) consultation requirements for programmatic consultation with the Services by relying on project-level review or General Condition 18, which provides that a nationwide permit does not authorize an activity that is “likely to directly or indirectly jeopardize the continued existence of a” listed species or that “will directly or indirectly destroy or adversely modify the critical habitat of such species.” The court noted that a federal court previously concluded that the Corps should have consulted with the Services when it reissued NWP 12 in 2002. Further, the Corps had a history of consultation when it reissued NWP 12 in 2007 and 2012.
The court concluded that the Corps could not circumvent the consultation requirements of the ESA by relying on project-level review because “[p]rogrammatic review of NWP 12 in its entirety . . . provides the only way to avoid piecemeal destruction of species and habitat.” By contrast, project-level review, “by itself, cannot ensure that the discharges authorized by NWP 12 will not jeopardize listed species or adversely modify critical habitat.” Similarly, General Condition 18, “fails to ensure that the Corps fulfills its obligations under ESA Section 7(a)(2) because it delegates the Corps’ initial effect determination to non-federal permittees.” Thus, the Corps could not delegate its duty to determine whether NWP authorized activities will affect listed species or critical habitat.
Conclusion and Implications
In the end, the District Court concluded that the Corps’ “no effect” determination and resulting decision to forego programmatic consultation “proves arbitrary and capricious in violation of the Corps’ obligations under the ESA.” The court vacated NWP 12 and enjoined the Corps from authorizing activities thereunder. In its amended order, the court limited the scope of its order to the construction of new oil and gas pipelines.
This case emphasizes the low threshold for § 7(a)(2) consultation for any activity that “may affect” listed species and critical habitat, and the need to comply with the ESA’s procedural consultation requirements. The District Court’s decision is available online at: https://ecf.mtd.uscourts.gov/doc1/11112687968
