The natural gas pipeline industry constructs new pipelines in hundreds of acres of wetlands annually and conducts maintenance operations in approximately 2,800 acres of wetlands. These projects also cross hundreds of thousands of tributaries and streams in a given year. These activities require permitting and mitigation, typically under the Clean Water Act, 33 U.S.C. §§ 1251 et seq., including permits under sections 402 and 404 and State water quality certifications under section 401.
In June 2007, the Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) issued “Guidance Regarding Clean Water Act Jurisdiction After Rapanos.” The Guidance represents the agencies’ interpretation of a decision by the U.S. Supreme Court concerning the scope of federal jurisdiction under the CWA. The Guidance, which includes an 85-page Instructional Guidebook, makes a number of procedural changes to the Corps’ section 404 permitting process that concern INGAA.:
Although INGAA is critical of some of the substantive elements of the Guidance, its comments are focused primarily on the procedural changes to the Corps’ permit process, as INGAA is concerned that these new procedures have the potential to significantly burden its members and negatively impact their ability to obtain in a timely fashion permits for construction, operation, and maintenance of interstate natural gas systems.
While not perfect, the pre-Rapanos Guidance regime for issuing CWA permits (especially nationwide permits) for linear energy infrastructure projects such as natural gas pipelines has worked relatively well for most projects. In contrast, many of the new procedures and obligations in the Rapanos Guidance would undermine the efficiency and clarity of the CWA permitting regime while providing no attendant environmental benefit. As such, INGAA’s chief recommendation is for the agencies to modify the Guidance in order to provide the project applicants the flexibility to either proceed with an informal delineation process (as under the pre-Rapanos system) or to elect a more formal jurisdictional determination from the Corps.
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