October 2023, Vol. 250, No. 10
Features
Untangling Environmental Rules Can Lead to Permitting Success
By Crystal Fox, PWS, CE, Environmental Oil, Gas & Chemicals, Burns & McDonnell
(P&GJ) — Oil and gas pipelines are considered critical infrastructure, and the process of routing, permitting, designing and building them often elicits significant public pushback associated with perceived environmental concerns.
Along with public concerns, regulatory oversight is often changing and becoming increasingly rigorous in response to public sentiment and to meet expectations for the expansion of green infrastructure.
Public sentiment regarding environmental concerns and regulatory frameworks can present an obstacle to the required permit approvals needed before construction can begin.
One key to success in gaining permitting approvals is to have a route identified with the fewest obstacles prior to submitting applications.
Though some jurisdictions allow expedited permitting reviews under certain conditions, others have protracted processes that may be extended even longer if there are public objections to a chosen route. In addition, significant impacts to the environment can extend permitting timeframes if it cannot be avoided during the routing process.
It is rare to have a project permitted in which the pipeline follows a nearly straight line from points A to B. The goal is always to secure approved permits, and this requires appropriate due diligence during the initial scoping and siting of the project. Plotting a route that is likely to generate the least public concern and least environmental impact takes considerable time and thought in the early planning phases. This can pay big dividends later.
Permitting Hierarchy
Environmental permitting is the gateway to a successful pipeline project, and understanding the hierarchy of authorities who share jurisdiction over required permitting is a must.
At the top of the pyramid is the U.S. Environmental Protection Agency (EPA). With responsibility for enforcing the national environmental policies enacted by Congress – and often ratified by the courts – the EPA effectively sets the minimum requirements for environmental regulatory compliance that pipeline developers must meet.
Because of its jurisdiction over America’s waterways and wetlands, the U.S. Army Corps of Engineers (USACE) often acts as a sister agency serving as arbiter for interpretation and enforcement of clean water rules and regulations.
USACE and EPA in turn often work with state environmental agencies that may impose even more stringent requirements pertaining to water quality standards, protection of wetlands or natural resources, cultural resources, air quality standards, and stormwater discharges into waters and wetlands, just to name a few.
The final tier of the hierarchy often sits at the municipal level, and this layer of approval may include requirements to comply with even more stringent conditions. At the municipal level, local community interests can advocate for certain specific measures such as noise considerations, tree preservation ordinances, or other environmental regulations which can further complicate the permitting process.
Perhaps the city or town may have concerns about nutrients or other contaminants washing into area streams and lakes. With that backdrop, these local officials can often require affirmative responses on how the project will prevent any further issues with surface or groundwater contamination.
Whether federal, state, local or special interest organizations are in play, there are a variety of topics that must be clearly understood and addressed. No matter the agency or group involved, it is important to identify the correct person to begin consultations. As these complex interests come into consideration, it makes it even more important to have a clear understanding of the priorities and objectives of the project owner.
Defeating Fear
Within the pipeline industry and developer community, there is often a dread of facing environmental compliance concerns due to the common perception that they typically set costly and unreasonable obstacles to project completion.
Though meeting environmental requirements is a process that does require detailed planning and effort, it need not be considered an unmanageable obstacle. The secret is involving the permitting group as early as possible in front-end planning and concepting.
This early involvement will help preparations to plan for the timeframes it typically takes to obtain approvals and to determine studies that may be needed to identify if any protected species, wetlands or waters, contamination, or cultural concerns might be present along the prospective pipeline routes. In fact, early involvement could eliminate the need for certain permits altogether.
For example, USACE has certain blanket approvals for work impacting streams and wetlands that recognize that certain types of construction activity are occurring on a broad basis such as nationwide or regionally and that a general permit for a specific activity is warranted.
These general permits such as a Nationwide Permit or Regional General Permit may specify exceptions for wetlands impacts conditioned on commitments from the project owner such as undertaking horizontal directional drilling beneath waterways to avoid impacts to natural resources or to reroute the pipeline to avoid protected lands or species, among others.
It is important to note that these types of permits are always authorized for use, provided that the project proponent meets all the requirements. If requirements cannot be met, then it will be necessary to notify the USACE and begin a formal permitting process.
Routing studies, along with environmental studies and input, are the key to getting a jump on any of these issues. We typically launch routing studies and environmental review at project inception and environmental studies as early as 30% design completion, but for larger or complex projects starting even earlier can help meet desired completion dates by minimizing or avoiding permitting.
Expect the Unexpected
Despite upfront planning and preparation, some projects still may need revisions and adjustments once the regulatory cycle begins. The regulators may require a public comment period on a specific project. In those cases, routes may be questioned or even denied for various reasons.
This is why it is prudent to have the engineering team draft up multiple routes for pipeline infrastructure to guard against changes and demonstrate that all feasible routes have been evaluated to minimize impacts to the environment and the community.
Condemnation proceedings may be considered for property acquisitions in which the owner or other interested parties will not agree to any proposed offer. Imminent domain laws authorize condemnation with fair value purchases of property under the doctrine that the project is needed to meet certain overriding public interests.
However, these steps should generally be taken as a last resort. A project that proceeds down this pathway must account for the potential cost of reputation for the owner, financial costs of the property acquisition, and legal costs for court proceedings. In addition, lost revenue due to project delays may be a factor as properties move through condemnation proceedings, which can be lengthy.
An experienced permitting and project team working collaboratively can often find acceptable alternatives because they will go to great lengths to pick the route that causes the least resistance and fewest environmental impacts. Balancing public interest with owner priorities requires collecting the right data and getting the right folks in the room to make the most informed decisions possible.
The best preparation for unexpected conditions on linear pipeline projects is often to partner with a team structured to provide close collaboration between real estate and engineering disciplines.
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