Underground Construction - June 2018 - 8

WASHINGTONWATCH

Stephen Barlas | Washington Editor

Army Corps of Engineers Reviews Policy on Pipeline Cr

P

Pipeline trade associations are
pressing the Army Corps of
Engineers to clarify new, proposed guidelines so that pipeline
projects are not unnecessarily
delayed because of state and
federal bureaucratic review. The
Corps issued a draft Engineer
Circular (EC) which makes some
changes in how the Corps would
review requests for "alterations"
in civil works projects. Alterations
are granted when pipelines, road
and electric lines need to cross
a civil works project authorized
under the Rivers and Harbors Act
of 1899. Alterations are granted
under Section 408 of that law if
they "will not be injurious to the
public interest and will not impair
the usefulness of such work."
The Corps took a first crack at
defining "alteration" rules on July
31, 2014. The Corps has been
working to refine that policy ever
since. Any new, final guidance
will be good for two years,
and then will either be revised,
rescinded or converted to an
Engineer Regulation, which does
not expire.
The American Gas Association
(AGA) and the Interstate Natural
Gas Association of America
(INGAA) must obtain Clean Water
Act (CWA) Section 404 permits
and RHA Section 408 authorizations when natural gas pipeline
projects cross Corps public works
projects such as levees, dams,
bridges and dredged channels.
According to the comments the
two groups submitted to the
Corps, "As a result of non-prescriptive Corps guidance documents confusing implementation
in the various Corps districts, this
process can often be lengthy and
costly and has frequently led to
miscommunication and unnecessary delays in permitting."
One of the shortcomings of
this draft EC is that it does not
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JUNE 2018 | UConOnline.com

establish a categorical permission
for a number of potential alterations that are similar in nature
and have similar impacts. Section
404 of the Clean Water Act, for
example, has nationwide permits,
including NWP 12 for pipelines,
greatly simplifying the process for
a company that wants to cross
a river, stream or wetland with
a pipeline. INGAA and the AGA
want a similar nationwide "alteration" permission for pipelines.
That is important because
some Corps districts have
established such categorical
permission categories but have
excluded pipelines. That is true
of the Sacramento Corps district,
for example. The two pipeline
groups noted that the Sacramento categorical alteration excludes
"requests for new, long-distance
pipelines crossing multiple
[Corps] navigation and flood risk
reduction projects or crossing
a single project in multiple
locations."
Changes to FERC Pipeline
Certiﬁcation Approval?
Republicans and Democrats
in Congress want the Federal
Energy Regulatory Commission (FERC) to make significant
changes in its 1999 pipeline
certification policy, which is now
under formal review dictated by
the Notice of Inquiry the FERC
issued on April 17.
The backdrop for the review is
a concern at FERC and elsewhere

that there might not be adequate,
new pipeline construction,
particularly in the Midwest and
Northeast, given the retirement
of coal- and nuclear-fired generators. Full Energy & Commerce
Committee Chairman Rep. Greg
Walden (R-Oregon) pointed
out at hearings in the energy
subcommittee on April 17 that on
two occasions last winter, New
England power suppliers had
to import LNG from Russia to
keep generators running. Walden
added that he hopes the FERC review will result in "more efficient,
timely decisions."
But subcommittee and committee members had a number
of complaints about how FERC
has reviewed some pipeline
applications, and the concerns
crossed party lines. Rep. Leonard
Lance (R-NJ) cited FERC approval
of the PennEast pipeline last
January, a decision which saw
one commissioner dissent, and
two others offer concurring
opinions with two different sets
of reservations.
The new 116-mile natural
gas pipeline goes from Luzerne
County, Penn., to Mercer County,
N.J. PennEast takes shale gas
from Pennsylvania through
New Jersey, including through
Lance's district. Lance asked the
commissioners whether any new
certificate policy would "assure
robust analysis of economic
need especially where precedent
agreements are signed with

affiliates of owners, such as in
the case of Penn East." Only
155,000 of the 990,000 Dth/d of
firm capacity has been taken by
non-affiliates of the five owners.
In his concurring decision
approving PennEast, Commissioner Neal Chatterjee said, "I do
have concerns about the order's
impact on landowners. For this
project, there are incomplete
surveys due to lack of access to
landowner property."
Commissioner Cheryl
LaFleur also cited concerns
about a significant number of
environmental surveys that are
incomplete due to lack of access.
At the April 17 hearings at the
House subcommittee, she said
she hopes the pipeline certificate
policy review "tees up how we do
our environmental work on the
traditional parts of the pipeline
and downstream impacts such as
climate change."
Republican Rep. Morgan
Griffith (Virginia) was equally
unhappy with FERC's approval
of two Virginia pipelines, which
in areas run very close to one
another with the result that "two
separate communities across
Virginia are being disrupted." The
two pipelines he referred to are
the Mountain Valley Pipeline and
Atlantic Coast Pipeline. Griffith
and Sen. Tim Kaine (D-Virginia) introduced separate bills
aimed at doing the same thing:
give communities more say in
whether and where pipelines are
sited. Griffith's bill is called the
Pipeline Fairness and Transparency Act (H.R. 2893). Griffith said he
doesn't know whether his bill will
come up for a vote soon.
Rep. Frank Pallone (D-NJ), the
top Democrat on the full committee, worried about the public
footing the bill "for unnecessary
pipelines and homeowners in the
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