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Pipeline Plan Could Mean Fewer Stream Protections, Critics Say

Aug. 6, 2020, 10:00 AM

Oil and gas developers may be able to build more pipelines and face fewer needs to protect streams and wetlands if the Army Corps of Engineers moves forward with a plan to change some Clean Water Act permits, according to environmental consultants.

Under the Aug. 3 proposal, companies would no longer be required to notify the Corps if the pipelines they lay require clearing of forested wetlands, or building access roads longer than 500 feet with fill material dredged from streams or wetlands or with impervious materials.

And pipeline companies also wouldn’t be required to notify the Corps if the construction of these pipelines disturb no more than 500 feet of federally protected streams.

Currently, companies must inform the Corps if they build a pipeline that is longer than 250 miles or if the pipeline construction disturbs more than one-tenth of an acre, or if it requires crossing underneath a water body that is used to transport goods.

The plans were part of a proposal to change Nationwide Permit 12, one of the Corps’ streamlined permits used for an array of infrastructure projects including oil and natural gas pipelines. It’s part of an overarching proposal (RIN 0710-AA84) to revise the package of 52 nationwide permits used to authorize work in wetlands and other waters.

The Corps wants to split the Nationwide Permit 12 (NWP 12) into distinct nationwide permits—the new ones dealing with electric utilities and telecommunication, sewage and water lines. The remaining part of NWP 12 would apply only to oil and gas pipelines.

Nationwide Permits, or NWPs, are fast-tracked, streamlined Clean Water Act permits that the Corps issues for specific activities like oil and gas pipeline construction to allow dredging and filling of water bodies and wetlands under Section 404 of the Clean Water Act, and Section 10 of the Rivers and Harbors Act of 1899.

The Corps’ proposal will be open to public comment upon publication.

Consultants Unhappy

If the proposal goes through “fewer oil and gas pipeline projects will receive the scrutiny” they have received from the Corps before it verifies they are eligible for nationwide permits, said Michael Rolband, chief technical officer and chairman of Wetlands Studies and Solutions Inc., a Gainesville, Va-based consultancy that specializes in environmental permits and compliance.

Oil and natural gas pipeline projects won’t have checks on them that the additional scrutiny currently provides, said Jessie Ritter, director of the National Wildlife Federation’s water resources and coastal policy.

More than 97 percent of the Corps’ current regulatory workload is already processed using general permits, including the nationwide permits, according to Ritter.

“Any new nationwide permits—particularly for activities with a potentially significant environmental footprint like utility lines—should be subject to significant scrutiny,” Ritter said. “On top of that, the Corps is proposing weakening the criteria for many of the existing nationwide permits, including by removing limits for losses of streambeds and related agency coordination processes.”

But Parker Moore, a partner with Beveridge & Diamond P.C., said he doesn’t think the protections for wetlands and streams will decrease as long as the Corps makes sure that the NWP 12—which applies to a whole category of pipeline projects—doesn’t result in significant impacts from dredging and filling activities. Moore heads the firm’s project development practice group.

Moore said he expects the Corps district offices that tend to take a harder line on pre-construction notices to add regional conditions that typically are more stringent and prioritize protection of sensitive aquatic resources of greatest concern locally. Those resources include wild and scenic rivers and marine sanctuaries.

The Corps said the proposal still requires companies to notify it if a project requires a Section 10 permit because the pipeline would cross underneath a water body that is used to transport goods.

And the proposal does include a new notification requirement for NWP 12 that companies inform the Corps if they know the pipeline project will extend 250 miles or more in length.

A company still would be required to provide notice if its pipeline project doesn’t meet the general conditions that apply to all nationwide permits, such as affecting the habitat of an endangered species or historic resources, or interfering with critical resource waters or federal navigation, Moore said.

‘Wanton Destruction of Streams’

Currently the Corps requires compensation if pipeline construction causes the loss of more than one-tenth of an acre—or 300 linear feet—of streams. The proposal would more than triple the amount of streams that could be affected before compensation, to one-tenth of an acre—or slightly more than 1,000 linear feet of streams that are about 4 feet wide.

“This means impacts to some smaller streams will no longer require mitigation on projects using NWPs be protected from pipeline projects,” Rolbland said.

Ellen Gilinsky, who served as the Environmental Protection Agency’s associate deputy assistant administrator for water under the Obama administration, told Bloomberg Law that “between the Navigable Water Protection Rule and the Nationwides, the Corps is allowing wanton destruction of streams without permitting or compensation.”

Gilinsky, who now heads a Richmond, Va.-based environmental consultancy under her own name, was referring to the joint Corps-EPA rewrite of the Obama administration’s waters of the U.S. definition. That rewrite stripped away Clean Water Act protections for streams that are ephemeral and intermittent in their flows.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergindustry.com

To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com

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