January 2021 Vol. 76 No. 1
Washington Watch
Army Corps on Hot Seat Over Changes to Pipeline Approvals
By Stephen Barlas, Washington Editor
With the arrival of the Biden administration and the ascension of environmental concerns and spike in political pressure, the Army Corps of Engineers may have to rethink its proposed changes to nationwide permits (NWPs) it issues for all sorts of dredge and fill construction activities around wetlands, including gas and water pipelines. The Corps’ proposal last September was in response to a Trump presidential directive requiring federal agencies to review existing regulations that potentially burden the development or use of domestically produced energy resources.
The proposed changes have created an unusual political dynamic. Both pipelines and environmental groups, usually on opposite sides in these matters, are opposed to the changes. Only electric utilities support trifurcating NWP12 into three parts: one for oil and gas pipelines, one for electric and telecommunications pipelines, and another for water pipelines.
But the broad opposition to the proposal may make it difficult for the Army Corps to issue a final rule prior to the Trump administration leaving town on Jan. 20, 2021. If it refuses to make significant changes, or even if it does, the new Congress has an option to delete any final rule within a certain timeframe after a new administration takes office.
There is, too, always the option of a legal challenge to any final rule. “This is an invitation for litigation, as recently occurred with NWP 12, creating uncertainty and delays for the many industries that rely on the NWP program,” stated Holly C. Pearen, senior attorney-ecosystems, Environmental Defense Fund.
One of the major changes the Corps proposed was to NWP12, used extensively by pipelines when doing construction, which causes minimal damage to the environment in and around wetlands. That construction spans large pipeline expansions, maintenance, inspection and repair activities to comply with pipeline integrity requirements; as well as modernization projects, such as replacing pipeline facilities with newer, more efficient facilities, and installing alternative power sources to reduce greenhouse gas emissions from compressor stations.
The Corps estimates that approximately 47,750 NWP12 activities could be authorized over the next five years.
Proposed changes
Regarding NWP12, the Corps proposes two changes. First, it would keep NWP12 for oil and gas pipelines only, and establish an NWP C and NWP D. The NWP C would be for electric utility lines and telecommunication lines, and NWP D for utility lines that convey water and other substances.
In addition, preconstruction notification (PCN) requirements, which determine if an NWP12 application for a Clean Water Act permit needs an extra level of review from the Corps district where the project would take place, would be changed. Five current PCNs would be eliminated, two retained and, most importantly perhaps, a new one added for pipelines over 250 miles in length.
There is a total of 52 NWPs, and they were last issued in 2017 and are in effect until 2022. The Corps wants to “trifurcate” NWP12 because the overwhelming number of applications are for oil and gas pipeline projects. The Corps explained it was subdividing NWP12 to “… address the differences in how different linear projects are constructed, the substances they convey, and the different standards and best management practices that help ensure those NWPs authorize only those activities that have no more than minimal adverse environmental effects.”
While the Trump executive order theoretically dictated deregulatory changes, the Interstate Natural Gas Association of America (INGAA) and the American Petroleum Institute (API) both think the NWP12 changes go in the opposite.
Amy Emmert, senior policy advisor, API, complained, “Proposing three NWPs for the same types of utility line activities when one NWP has been sufficient is the antithesis of streamlining and the USACE’s rationale related to the ‘potential’ need for industry-specific national terms rings hollow especially when there are ample opportunities available for tailoring activities at regional or case-specific level.”
With regard to the threat of “best management practices,” which the Corps hopes to impose on oil and gas NWP12 applications, Steven Kramer, senior vice president, general counsel and corporate secretary, AOPL, argued, “There are no additional best management practices that could be practically or lawfully imposed via NWP 12. Indeed, creating and imposing any such requirements would risk conflict with or redundancy with the many other applicable conditions.”
According to Joan Dreskin, senior vice president and general counsel at INGAA, pipeline, utility and water pipeline construction are very similar, so there is really no reason to have separate and distinct NWP programs for each. In fact, the requirements that would be applicable to NWP12, C and D “are nearly the same,” she argued.
“The record does not include, for example, a comparison of the dredge and fill impacts of constructing a 12-inch natural gas pipeline versus the dredge and fill impacts of constructing a 12-inch water pipeline,” she added.
Keystone
The NWP12 program became something of an environmental cause celebre earlier this year when a federal judge in Wyoming halted the Keystone XL Pipeline because the Corps had failed to consider some environmental concerns back in 2017 – the last time NWP12 was published by the Corps. That lawsuit was brought by anti-pipeline environmental groups which are now lining up with the pipeline industry in opposition to the Corps’ proposed changes and in support of even more radical action – which pipelines would oppose – such as elimination of NWP12.
“The use of NWP12 to authorize massive oil and gas pipelines known to have significant adverse cumulative adverse impacts on aquatic resources violates…the CWA,” stated Jim Murphy, legal advocacy director, the National Wildlife Federation (NWF), “and the Corps should eliminate NWP12 authorizations and require individual permits for such pipelines.”
Jimmy Hague, senior water policy advisor, The Nature Conservancy, argues that if the Corps establishes a mileage threshold in NWP 12, it should be no greater than 25 miles – not the 250 miles the Corps has proposed.
The Corps would mandate three PCNs for NWP12, where: (1) a Rivers and Harbors Act permit is required; (2) the discharge will result in the loss of greater than 1/10th-acre of WOTUS; or (3) the proposed oil or natural gas pipeline activity is associated with a project that is greater than 250 miles in length and has a purpose of installing new pipeline along the majority of the overall project length. •
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