Federal District Court Issues Ruling With Potential Significant Implications for Linear and Infrastructure Projects

Infrastructure over Waterway

On April 15, 2020, a judge with the U.S. District Court for the District of Montana issued a decision in Northern Plains Resource Council v. U.S. Army Corps of Engineers, which potentially has significant implications for linear construction and infrastructure projects and permitting for crossings of waters and wetlands throughout the country.

The case involves the plaintiff environmental groups’ challenge to the well-known and controversial Keystone XL oil pipeline.  In the April 15th decision, the court vacated the Army Corps’ Nationwide Permit 12 (NWP 12), which is utilized to provide streamlined approval under § 404 of the federal Clean Water Act for many infrastructure and linear construction projects such as oil and gas pipelines and utility lines.  Specifically, the district court concluded that the Corps violated the federal Endangered Species Act (ESA) by failing to consult with other relevant agencies prior to reissuance of NWP 12 in 2017.  Thus, the court vacated NWP 12 and enjoined the Corps from authorizing dredge or fill activities under the Permit.

The district court’s decision will certainly be appealed by the Army Corps (and other defendants), but for the time being there will be considerable uncertainty about the potential nationwide impact of the court’s injunction and whether projects will require individual § 404 permits.  For more information about permitting under the federal Clean Water Act issues, please contact Andy Thompson, Steve O’Day, or Phillip Hoover.  For a copy of the district court’s decision in Northern Plains Resource Council, click here.

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