Endangered Species Law & Policy

Today, the United States District Court for the District of Montana issued an order amending its previous order, which had invalidated nationwide permit 12 (NWP 12) on the basis that the U.S. Army Corps of Engineers (Corps) failed to engage in a programmatic Endangered Species Act (ESA) section 7 consultation when the Corps reissued NWP 12 in 2017.  The case arose out of the controversy over the Keystone XL Pipeline. The effect of the court’s prior ruling vacated NWP 12 in its entirety and enjoined its use to authorize impacts to waters of the United States under the Clean Water Act.  NWP 12 is frequently used for the construction and maintenance of utility lines—including electric, fiber, water, and oil and gas lines.

Today’s amended order clarifies that NWP 12 will continue to remain available for use for activities other than new construction of oil and gas pipelines.

As today’s amended order constitutes only a partial stay of the court’s previous order, the Corps is expected to appeal the underlying decision to the Ninth Circuit Court of Appeals.