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SWCA is tracking this regulatory development and will provide updates when more is known:

On April 15, the U.S. District Court for the District of Montana issued a decision that may have national implications on the use of Nationwide Permit 12: Utility Line Activities (NWP 12) to provide Clean Water Act (CWA) Section 404 authorization for regulated projects. In fact, the ruling could come to have implications for the use of all NWPs across the country.

The case involves the Keystone XL Pipeline and whether the U.S. Army Corps of Engineers (USACE) violated Section 7 of the Endangered Species Act when it issued NWP 12 in 2017 without consulting with the U.S. Fish and Wildlife Service (USFWS). The court ruled that the USACE is enjoined (i.e., prohibited) from authorizing any dredge or fill activities in waters of the U.S. under NWP 12 until USACE completes Section 7 consultation with USFWS and complies with all other applicable environmental laws. 

The court opinion is available here.

This ruling was just released and much of its effect on the regulated utility transmission industry will depend on legal interpretation, expected future legal proceedings, and USACE interpretation. 

If you want to explore how this change could affect one of your projects or would like to discuss alternative regulatory strategies, please reach out to your primary SWCA point-of-contact or Amanda Aurora or Noah Greenberg.