Court Order Impacts Section 404 Permitting for Utility Lines

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Rick Zarate

Environmental Scientist

On April 15, Federal Judge Brian Morris of the Montana District Court issued a summary judgement challenging the decision of the U.S. Army Corps of Engineers (Corps) to reissue Nationwide Permit (NWP) 12 in 2017.

The action was brought forth by the Northern Plains Resource Council (Plaintiffs) against the Corps for its decision on the Keystone XL Pipeline. TC Energy, the project proponent, and  the State of Montana and American Gas Association are listed as Intervenor-Defendants in the case. The Plaintiffs claim that the Corps’ reissuance of NWP 12 violated the Endangered Species Act (ESA), the National Environmental Policy Act and the Clean Water Act. The summary judgement concludes the Corps failed to initiate required consultation under Section 7 of the ESA and remands NWP 12 back to the Corps for compliance with the ESA and all environmental statutes and regulations. Furthermore, Judge Morris’ order vacates NWP 12 and enjoins the Corps from authorizing further activities under NWP 12 until Section 7 consultation and other environmental compliances are complete.

Read the full court order here.

This Federal court ruling made against the Keystone XL Pipeline may have broader implications for utility companies, municipalities and other entities that use NWP 12 across the nation to permit dredge and fill activities in waters of the U.S. While the full ramifications of the Court’s decision are yet to be determined, Freese and Nichols has been in contact with local USACE districts. Currently, the USACE has suspended issuance of pending or future verifications under NWP 12. Prior authorizations are not affected at this time.

Concerned about your project?

This situation is rapidly evolving, but FNI Environmental Scientists are available to discuss how the court ruling may affect your project and potential options for Section 404 permitting. Please contact any of your local area experts to discuss your specific needs or concerns:

Fort Worth, Oklahoma and Georgia

Michael Votaw : 817-735-7312 or


Richard Aldredge: 214-217-2384 or


Tom Dixon: 512-617-3140 or


Dan Gise: 713-600-6808 or

North Carolina

Ian Jewell: 919-418-8430 or

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Rick Zarate, PWS, CA, is an Environmental Scientist in Fort Worth.