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APGA Comments on Nationwide Permit Program Proposed Rule

By Erin Kurilla posted 11-19-2020 10:40 AM

On November 6, APGA submitted comments to the Army Corps of Engineers’ proposed rule to Reissue and Modify Nationwide Permits. APGA supports the Nationwide Permit (NWP) program as it has promoted prompt permitting of critical infrastructure. Since the NWP program began in the 1970s, the Army Corps of Engineers (Corps) must renew the program every five years. While the program is not up for renewal until 2022, the Corps decided to propose an interim rulemaking that would renew the program with some modifications.

Although the proposal contained many elements, APGA focused our comments on the proposal to split Nationwide permit 12 (NWP 12) and issue two new Nationwide permits (NWPS). The Corps proposed to modify the current utility line NWP 12 to authorize only oil and natural gas pipeline activities. The two proposed new NWPs would authorize activities associated with the construction, maintenance, repair, and removal of electric utility lines/telecommunication lines and utility lines that convey water, sewage, and other substances. APGA believes this proposal conflicts with the purpose and intent of the NWP program to streamline permitting.

APGA commented that the Corps should be agnostic to the product being transported by the utility, as is their mandate, and strive for fewer permits rather than more. In the proposed rule, the Corps outlines three primary reasons for the split. APGA provided comments on the flaws with each of these justifications.

• Perceived differences in best management practices for each utility sector disregards the common approach of joint trenching utility lines.
• The assumed variances in pipe or conduit diameter for each utility sector overlooks the stark differences between gas distribution pipelines and transmission pipelines.
• The historically high percentage of NWP 12s used by the oil and gas sector compared to the other utilities ignores the increased investment in utility projects from all sectors.

With the pending change in administration, it remains unclear whether this proposed rule will progress towards finalization. Regardless if a final rule includes the splitting if NWP 12, it is assumed that the rule will meet significant legal challenges if finalized.

For questions on this article, please contact Erin Kurilla of APGA staff by phone at 202-464-2742 or by email at