Nationwide Permit 12 Has Been Vacated. Does That Matter Nationwide?

On April 15, 2020, in response to a challenge by environmental groups connected with opposition to the Keystone XL pipeline, a federal trial court in Montana issued a decision that may affect pipeline and electric transmission projects across the United States.  Many of these "utility line" projects utilize the U.S. Army Corps of Engineers' Nationwide Permit ("NWP") 12 as a basis for streamlined authorization of dredge and fill activities governed by Clean Water Act ("CWA") section 404, 33 U.S.C. § 1344.  In Northern Plains Resource Council v. U.S. Army Corps of Engineers,¹ the U.S. District Court in Montana invalidated the current iteration of NWP 12 based on the Corps' failure to consult with the Fish and Wildlife Service and the National Marine Fisheries Service regarding the permit's potential environmental impact as required by Endangered Species Act section 7(a)(2), 16 U.S.C. § 1536(a)(2), for any action that "may affect" listed endangered species or