A recent decision by a federal district court in Montana may be a potential impediment to pipeline construction in and around wetlands. In April, the court vacated Nationwide Permit 12, which is widely used by pipelines for trenching activities in and around potential wetlands, where projects would not result in the loss of great than 1/2 acre of water. The Army Corps of Engineers either approves or rejects these permits that are available when pipelines would cross “waters of the United States” (WOTUS). Otherwise, for projects crossing wetlands, pipelines must obtain individual Clean Water Act permits.
“That is a time-consuming alternative that is not really appropriate for linear construction projects, and it is often fraught with legal challenges as well,” Catherine D. Little tells Pipeline & Gas Journal.
The Montana court decision came a few weeks before EPA issued its final rule on what constitutes “waters of the United States,” qualifying fewer bodies of waters as wetlands compared to an Obama administration rule in 2015.
“The WOTUS rule is a positive development for interstate pipelines generally, as compared to the more expansive 2015 Obama WOTUS rule. That said, we do not believe that this rule will translate into a significant decrease in existing permitting obligations for interstate pipelines,” Little concluded.