Nov 16, 2020 Energy Association Joint Comments Re: USACE Proposal to Reissue and Modify Nationwide Permits
“The Associations” together represent a broad spectrum of the oil and natural gas industry, including but not limited to entities involved In upstream, midstream, downstream refining, marketing, and petrochemical operations as well as market development/Liquified Natural Gas (“LNG”) activities. We are pleased to submit comments on the proposal to reissue and modify Nationwide Permits (“NWPs”) (“Proposal”) by the U.S. Army Corps of Engineers (“USACE”).
Our comments represent a thorough assessment of the NWPs significant to our industry, as well as a comprehensive review of over 40 states’ regional conditions. Our comments contain extensive citations to the current proposal, applicable statutes and regulations, relevant case law, and an annex encompassing our District submissions regarding the proposed regional conditions in 44 states and 2 U.S. territories. To aid review, we have included a concise Executive Summary, as well as a Table of Contents with helpful headings.
While we support the NWP program as essential to the U.S. economy and a strong motivator for developers to design projects In a way that reduces environmental impacts, we regrettably cannot support the proposed division of NWP 12 Into three separate permits. The proposed division contains multiple fundamental definitional issues that will certainly confuse both applicants and USACE staff. Moreover, the varying conditions in the federal proposal and multiple USACE Districts validate this confusion, and could be vulnerable to arbitrary and capriciousness challenges because the same 12-inch pipe (with similar and often indistinguishable impacts to aquatic resources within the USACE’s jurisdiction) would be treated differently based solely on the contents of that pipe (which is outside the jurisdiction of the USACE). Finally, the economics support a single combined permit – as the USACE’s proposal Identified no cost savings from the division and seems to have significantly underestimated the costs associated with implementing a division based on ambiguous definitions and a lack of clarity among districts as well as even among individual states within districts. We therefore believe the most expeditious route for the USACE to address these deficiencies is to simply reissue the 2017 version of NWP 12 for all utility lines with a new effective date, and we urge the USACE to do so without delay.
