Underground Construction - June 2020 - 12

WASHINGTONWATCH

Stephen Barlas | Washington Editor

Federal Court Decision Threatens
Pipeline Work Around Wetlands
Pipeline construction in and around
wetlands faces a major, new legal
impediment, given the significant, midApril decision by a federal district court in
Montana. The court vacated Nationwide
Permit (NWP) 12, which is widely used by
pipelines for trenching activities in and
around potential wetland areas, where
projects would not result in the loss of
greater than 1/2-acre of water.
The U.S. Army Corps of Engineers
(USACE) either approves or rejects these
permits that are available when pipelines
would cross "waters of the United States"
(WOTUS). Otherwise, for big projects
crossing wetlands, pipelines must obtain
individual Clean Water Act permits.
"That is a time-consuming alternative
that is not really appropriate for linear
construction projects, and it is often
fraught with legal challenges as well," stated
Catherine Little, partner and section leader
for Troutman Sanders' Environmental &
Natural Resources Section.
The Montana court ruled in a case
initiated by Northern Plains Resource
Council, which argued Keystone XL should
not have been approved because the
USACE acted "arbitrarily and capriciously"
in not considering requirements of the
Endangered Species Act (ESA). That
should have been done, the Council
claimed, by USACE consulting with
the U.S. Fish and Wildlife Service and
National Marine Fisheries Service when it
issued the latest version of the NWP 12 in
2017. The Corps argued that consultation
was unnecessary.
The court decision impacts other
pipeline projects beyond the Keystone XL,
which would deliver 830,000 barrels per
day of crude oil from Hardisty, Alberta
to Steele City, Neb. It is possible other
pipeline projects in Montana with NWP
12 permits could be stopped, or at least
be vulnerable to lawsuits. The Corps has
announced it will cease processing all
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JUNE 2020 | UConOnline.com

"The WOTUS rule is a positive
development for interstate
pipelines, as compared to
the more expansive 2015
Obama WOTUS rule ... That
said, we do not believe that
this rule will translate into a
significant decrease in existing
permitting obligations for
interstate pipelines."
NWP 12 permits while the court case
moves through appeals.
In late April, the federal court rejected
requests from both the Corps and the U.S.
Justice Department to stay its decision.
Briefs are being filed by both sides and
there is a possibility both federal agencies
will take their appeals to the Ninth Federal
Circuit Court of Appeals.
A spokesman at the Corps did not respond to an inquiry asking how many NWP
12 permits are currently in-house[?] and
what consideration has been terminated.
Little notes that a useful reference point is
the NWP 12 Decision Document issued by
the Corps in December 2016, which estimated it would be used for approximately
11,500 projects per year, nationally.
The Keystone XL project is being built
by TC Energy, formerly TransCanada. A
spokesperson there did not respond to a
request for comment.
If the Montana federal court decision
withstands legal challenges, the Corps
might initiate a rulemaking that requires
completing a Section 7 consultation with
the Fish & Wildlife Service.
"A more likely scenario - again assuming
the Order stands - might be for the Corps
to initiate consultation for the next round
of nationwide permits, which are due to be
issued in 2022," explained Andrea Wortzel,
partner at Troutman Sanders.;

The court decision came a few weeks
before the EPA issued its final rule on
what constitutes "waters of the U.S.,"
a standard that dictates which water
bodies are wetlands and which are not.
Specifically, it qualifies fewer bodies of
water as wetlands compared to an Obama
administration rule in 2015.
"The WOTUS rule is a positive
development for interstate pipelines
generally, as compared to the more
expansive 2015 Obama WOTUS rule,"
added Little. "That said, we do not
believe that this rule will translate into a
significant decrease in existing permitting
obligations for interstate pipelines."

PHMSA Proposal on Valves
Proves Controversial
Flack is hitting the Pipeline and Hazardous
Materials Safety Administration (PHMSA)
from all sides over its proposed rule to
require automatic and remote shutoff
valves on oil and gas pipelines. The
February 2020 proposed rule from PHMSA
attempts to implement mandates from
both the National Transportation Safety
Board (NTSB) and Congress.
The proposal requires the installation of
remote-control valves (RCV) and automatic
shutoff valves (ASV), or equivalent
technology, on all newly constructed
and fully replaced gas transmission and
hazardous liquid lines. PHMSA does
provide an exemption allowing installation
of manual valves, provided operators have
sufficient justification, and appropriately
station personnel to ensure that a manual
valve can be closed within the same
40-minute timeframe.
A second part of the proposed rule
establishes minimum standards for
the identification and mitigation of
ruptures and emergency response within
10 minutes after initial notification or
indication. Valves must be shut off within
a maximum of 40 minutes after rupture
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Underground Construction - June 2020

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