AGA Comments on Proposed Changes to Nationwide Permits (NWP’s)
On Nov. 16, 2020, AGA filed comments on the U.S. Army Corps of Engineers’ proposal to reissue and revise its slate of general permits for projects that will have no more than minimal impacts on streams and wetlands that fall under federal Clean Water Act (CWA) jurisdiction as waters of the United States (WOTUS). These general permits are known as Nationwide Permits (NWPs). Importantly, the Corps proposed to trifurcate the existing NWP 12 for utility lines, leaving “oil and natural gas pipelines” including distribution utility lines in NWP 12, while separating electric and telecommunications wire projects into a new NWP C and creating yet another NWP to authorize pipe projects for water, sewage and “other industrial products” – potentially including hydrogen – in a new NWP D. AGA questioned the wisdom of splitting utility lines in this manner, and argued that under CWA 404(e), the Corps should group construction activities that are “similar in nature” within the same NWP, rather than according to the product the utility line will transport after construction is complete. Under the 404(e) standard, the Corps should group buried pipe utility lines that use similar construction methods and best management practices for protecting waters from construction sediments within NWP 12. We did not object to a separate NWP for aboveground electric and telecommunications wires, since the construction methods for constructing permanent tower foundations and poles are sufficiently different from the temporary impacts of trenching or boring under a water feature to install, repair or replace buried utility lines. We noted that natural gas utility lines and pipelines will increasingly carry mixtures including renewable natural gas (RNG) and hydrogen, and they often require electric wiring for cathodic protection and monitoring, and the Corps should make it possible to cover these projects under a single NWP. AGA also argued that the Corps has complied with its obligations under the Endangered Species Act, NEPA and the CWA.
In addition, AGA joined NWP Coalition comments generally supporting the NWPs, and we joined the Waters Advocacy Coalition (WAC) Comments asking the Corps to clarify the reissued NWPs for consistency with the Corps’ regulations on the definition of WOTUS.