Federal District Court Holds the United States Army Corps of Engineers Violated the Endangered Species Act in Reissuing Nationwide Permit 12 Without Initiating Section 7 Consultation

In Northern Plains Resource Council v. U.S. Army Corps of Engineers (D. Mont. 2020) — F.Supp.3d – (2020 WL 1875455), the U.S. District Court for the District of Montana overturned Nationwide Permit 12 (“NWP 12”). Of practical importance, the court’s ruling on this matter applies throughout the nation.

Under the Clean Water Act (“CWA”) (33 U.S.C. § 1251 et seq.), the Army Corps of Engineers (“Corps”) is authorized to issue general nationwide permits to streamline the permitting process for certain categories of activities. Nationwide permits may last up to five years, at which point they must be reissued or allowed to expire. NWP 12 authorizes impacts to waters of the United States as a result of construction, repair, maintenance, and removal of utility infrastructure. All nationwide permits, including NWP 12, are subject to 32 general conditions contained in the federal regulations. As relevant here, General Condition 18 prohibits the use of any nationwide permit for activities that are likely to directly or indirectly jeopardize threatened or endangered species or designated critical habitat for such species under the Endangered Species Act (“ESA”) (16 U.S.C. § 1531 et seq.)

NWP 12 is one of 52 nationwide permits the Corps reissued in 2017. In reissuing NWP 12, 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 further concluded that NWP 12 complied with both the ESA and the National Environmental Policy Act (“NEPA”) (42 U.S.C. § 4321, et seq.). The Corps determined there would be “no effect” to ESA-listed species or critical habitat and did not initiate consultation with the U.S. Fish and Wildlife or National Marine Fisheries Service (collectively, the “Services”). Pursuant to NEPA, the Corps prepared an Environmental Assessment and issued a Finding of No Significant Impact.

Northern Plains Resource Council, et al. challenged the Corps’ action to reissue NWP 12, alleging it violated the ESA, NEPA, and the CWA.

Specifically, plaintiffs argued that the Corps’ failure to initiate programmatic consultation with the Services violated the ESA. The Corps, in response, contended that it did not need to conduct programmatic consultation because project-level review and General Condition 18 ensure that NWP 12 will not affect listed species or critical habitat. The court disagreed, finding there was substantial evidence supporting the contrary conclusion, therefore requiring the Corps to initiate consultation to ensure that activities authorized by NWP 12 complied with the ESA. The court emphasized that the Corps had acknowledged the many risks associated with discharges authorized by NWP 12 when it was reissued in 2017. For example, the Corps found that the construction of utility lines “will fragment terrestrial and aquatic ecosystems” and further stated that activities under NWP 12 “will result in a minor incremental contribution to the cumulative effects to wetlands, streams and other aquatic resources.” Moreover, the Corps had initiated consultation when it reissued NWP 12 in 2007 and 2012. The court also relied on expert declarations submitted by plaintiffs stating that the Corps’ issuance of NWP 12 authorized discharges that may affect endangered species and their habitats.

The court further held that General Condition 18 fails to fulfill the Corps’ obligations under the ESA. General Condition 18 requires the permittee to submit a pre-construction notification to the district engineer if the permittee believes that its activity “might” affect listed species or critical habitat. The court found that this improperly delegated the Corps’ responsibility to make the initial effect determination under the ESA.

Holding that the Corps’ “no effect” determination and resulting failure to initiate consultation prior to reissuance of NWP 12 was arbitrary and capricious, the court remanded NWP 12 to the Corps for compliance with the ESA. The court determined that it need not decide the plaintiffs’ remaining claims as it anticipated that Section 7 consultation will inform the Corps’ assessment under NEPA and the CWA based on the findings of the consultation.