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Army Corps suspends permit program, threatening delays for thousands of projects

Construction crews bore on June 22, 2018, beneath U.S. 221 in Roanoke County, Virginia, to make a tunnel for the Mountain Valley Pipeline to pass under the highway. The U.S. Army Corps of Engineers recently suspended a nationwide program used to approve oil and gas pipelines, power lines and other utility work. The suspension comes in response to a court ruling that industry representatives warn could slow or halt various projects over environmental concerns. (Heather Rousseau/The Roanoke Times via AP, File)

Construction crews bore on June 22, 2018, beneath U.S. 221 in Roanoke County, Virginia, to make a tunnel for the Mountain Valley Pipeline to pass under the highway. The U.S. Army Corps of Engineers recently suspended a nationwide program used to approve oil and gas pipelines, power lines and other utility work. The suspension comes in response to a court ruling that industry representatives warn could slow or halt various projects over environmental concerns. (Heather Rousseau/The Roanoke Times via AP, File)

By MATTHEW BROWN
Associated Press

BILLINGS, Mont. (AP) — The U.S. Army Corps of Engineers has suspended a nationwide program used to approve oil and gas pipelines, power lines and other utility work, spurred by a court ruling that industry representatives warn could slow or halt infrastructure projects because of environmental concerns.

The directive from Army Corps headquarters, detailed in emails obtained by The Associated Press, comes after a federal court last week threw out a blanket permit that companies and public utilities have used for decades to build projects across streams and wetlands.

The Trump administration is expected to challenge the ruling in coming days. For now, officials have put on hold about 360 pending notifications approving various entities’ proposed uses of the permit, Army Corps spokesman Doug Garman said Thursday.

The agency did not provide further details on the types of projects or their locations.

Representatives of the pipeline and electric-utility industries said the effects could be widespread if the suspension lasts, slowing both the construction and maintenance of possibly thousands of projects. They include major pipelines like TC Energy’s Keystone XL crude oil line from Canada to the U.S. Midwest, the Mountain Valley natural gas pipeline in Virginia and power lines from wind turbines and generating stations in many parts of the U.S.

“The economic consequences to individual projects are hard to overstate,” said Ben Cowan, a Houston-based attorney with Locke Lord LLP who represents pipeline and wind-energy companies. “It could be fatal to a number of projects under construction if they are forced to stop work for an extended period in order to obtain individual permits.”

The Army Corps has broad jurisdiction over U.S. waterways. It uses the blanket permit to approve qualifying pipelines and other utility projects after they’ve undergone a minimal environmental review. That’s a longstanding sore point for environmentalists who say there’s a loophole in water-protection laws that allows officials to ignore the cumulative harm that’s likely to come from allowing the construction of thousands of stream and wetlands crossings

Industry supporters describe the program as crucial for making timely decisions on projects that can stretch across many states and cross hundreds of water bodies. Analyzing each of those crossings would be costly and is unnecessary because most involve little disturbance of land or water, they said.

Since the blanket permit in question, known as Nationwide Permit 12, was last renewed in March 2017, it has been used more than 37,000 times,  said Garman, the Army Corps spokesman. To qualify, projects must not cause the loss of more than a half-acre of water or wetlands.

Last week’s court ruling in Montana was in a lawsuit before U.S. District Judge Brian Morris involving the disputed Keystone XL oil pipeline from Canada. Work began earlier this month on the 1,200-mile line stretching from Alberta to Nebraska, which has been championed by President Donald Trump.

Morris said using the blanket permit for water crossings was illegal because the Army Corps did not adequately consider possible harm to imperiled wildlife species when it re-authorized the permit in 2017. The judge pointed to concerns among scientists that construction could stir up sediment and bury the food source of an endangered, dinosaur-like fish — the pallid sturgeon.

The judge did not limit his findings to Keystone, so the ruling is being interpreted for now to apply to any project using Nationwide Permit 12. The Montana case was cited last week in a lawsuit over a 430-mile natural-gas pipeline in central Texas. Plaintiffs, including the city of Austin, said last week’s ruling invalidated the Army Corps’ work on the Permian Highway Pipeline.

Because there are no streams or other water bodies near the northern Montana border crossing where Keystone XL is currently under construction, that work was not immediately halted. Yet it’s an obstacle to future work given the many water crossings along the line’s path.

Jennifer Moyer, chief of the Army Corps regulatory program, said in an April 17 email obtained by AP that “out of an abundance of caution” she was ordering agency personnel across the nation to stop verifying companies as being in compliance with the blanket permit.

Questions about the directive were referred to the U.S. Department of Justice spokesman Wyn Hornbuckle, who declined comment because the case is still in litigation.

An attorney for one of the environmental groups that brought the Keystone lawsuit said critics of the permit program had pushed for changes when it was last renewed but were rebuffed. To have stayed out of its current situation, the Army Corps should have consulted wildlife agencies to devise a program that would have better avoided harm, said Jared Margolis with the Center for Biological Diversity.

“They knew what they had to do and they were avoiding it and they got caught,” Margolis said.

Labor and industry groups led by the American Petroleum Institute and Interstate Natural Gas Association of America said in a statement that the nationwide permit was “critical to the responsible and efficient development and maintenance of energy and other vital infrastructure.” The groups said the permit had been successfully applied to pipelines, broadband cable, water mains and other utilities.

For electricity providers, the court ruling could undermine efforts to maintain the energy grid by calling into question the status of projects that use the permit, said Emily Sanford Fisher, general counsel for the Edison Electric Institute, which represents investor-owned electric companies in the U.S..

Cowan, the industry attorney, said he anticipates government attorneys will move quickly to file an appeal or a request with Morris to clarify his ruling.

“The fact that this case involves the Keystone pipeline will almost certainly elevate its profile within the administration,” he said.

Copyright 2022 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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