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Court Upholds Key Use of Wetland Permit for Utility Lines, Denies Initial Challenges to Keystone Pipeline

Tuesday, August 7, 2012 2:04 pm by

On Sunday, August 5, in a closely-watched decision, an Oklahoma Federal Court denied Sierra Club’s request to stop the Keystone Pipeline’s southern leg. The decision was obviously an important step in the construction of the pipeline, but, just as importantly for the rest of the utility industry, it upheld the Army Corps of Engineers’ use of Nationwide Permit 12 to allow small wetland impacts at multiple water crossings along the pipeline’s route.

Before the Court was Sierra Club’s request for a preliminary injunction to halt construction of the project’s 458-mile southern leg from Oklahoma to the Gulf Coast. The Court systematically denied all of the Sierra Club’s arguments, made under the Clean Water Act and the National Environmental Policy Act.

Of most significance to the utility industry was the Court’s refusal to agree with the Plaintiffs that NWP 12 is invalid. The Sierra Club believes the Corps was wrong to use NWP 12 to authorize a number of individual wetland impacts along the course of the pipeline, taking issue with the way NWP 12 defines a “single and complete project.”

As it currently stands, the Corps allows utility lines, including pipelines, to use an expedited wetland permitting process even if they impact multiple wetlands along a route. The main restriction is that there must be less than a half-acre of wetland impacted at each individual water body. Sierra Club believes this allows utility lines and pipelines to accumulate excessive wetland impacts that should be subjected to the full, unexpedited permitting process whenever the impact exceeds half an acre of wetlands on the entire route.

The full permitting process takes more time and requires public notice and comment. It also involves the added complexity of a layer of NEPA review, which itself is lengthy and expensive and requires public notice and comment. A court decision rejecting the use of NWP 12 would have added a great deal of time and additional expense to an already-lengthy process for utility projects of all types.

The Court, however, rejected Sierra Club’s claims, which were based on a number of different individual Clean Water Act and NEPA arguments. It rejected the claim that the Corps should have more fully considered the consequences of an oil spill, ruling that those risks were outside of the Corps’ jurisdiction and are within the purview of the Pipeline and Hazardous Materials Safety Administration, as the Corps had already noted. It also signaled the likelihood that it would again reject the Sierra Club’s claims when the case is heard on the full merits.

For more information on the Court decision or wetland permitting in general, please contact Lowell Rothschild at (202) 828-5817 or lowell.rothschild@bgllp.com.


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