CHAPTER 11 PERMITTING FOR TRANSPORTATION OF MINERAL RESOURCES BY PIPELINE

• Jurisdiction: United States

Mineral Resources Permitting
(Mar 1981)
CHAPTER 11
PERMITTING FOR TRANSPORTATION OF MINERAL RESOURCES BY PIPELINE
L.L. Waggoner
Senior Attorney Northwest Pipeline Corporation
Salt Lake City, Utah

The author wishes to express appreciation to William J. Huhtala, Supervisor, Environmental Affairs, Northwest Pipeline Corporation and to Shellie Collram for her assistance in the preparation of this paper. If there are any mistakes, they are the responsibility of the author and not Mr. Huhtala or Mrs. Collram.

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I. INTRODUCTION

A recent government survey indicated that over 400 permits would be required on one (1) oil shale project alone.¹ The same survey also estimated that permitting requirements through the addition of new permits and procedures varies at the rate of approximately ten percent (10%) per year.² The construction, operation, and maintenance of a pipeline system for the transportation of mineral resources would not require the same number of permits; however, without obtaining certain required permits such a project could never be commenced.

The purpose of this paper is to give the practitioner with little or no knowledge of the permitting requirements for such a system, a basis upon which to determine what types of permits may be required. The paper attempts to provide the practitioner with citations for procedures to obtain the various permits, from which agency or entity the permits should be obtained, and some insights into the time requirements for such permits.

Permitting will be looked at from the perspective of four levels:

(1) Federal

(2) State (The paper will concern itself only with permitting requirements in the states of Colorado, Idaho, New Mexico, Utah and Wyoming. The reason for this limitation is that the natural

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gas transmission line of the author's employer, Northwest Pipeline Corporation, crosses through these states.)

(3) Local (Which includes counties and municipalities.)

(4) The Private Sector

The paper is not exhaustive and cannot by any stretch of the imagination list all of the permits required for any given project. Each project must be looked at on an individual basis and the permitting requirements for such project determined therefrom. It is hoped that this paper will provide some insight for that evaluation.

Each permit will be named, the agency or entity which issues the permit will be indicated. The purpose for the permit given, the procedure for obtaining the permit will be summarized and general comments given on the permit as appropriate.

II. FEDERAL PERMITS

A. 1. Permit: Certificate of Public Convenience and Necessity³

2. Issuing Agency: Federal Energy Regulatory Commission (F.E.R.C.)

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3. Purpose: To allow the construction, operation and maintenance of a pipeline system for transporting natural gas or oil in interstate commerce.⁴ This permit is necessary to exercise the power of eminent domain granted by the Federal Government.⁵

4. Procedures for Acquiring: The procedures for obtaining this permit are found in 18 CFR Part 157 (1980). The procedures required that an original and seven conformed copies be submitted to the Commission.⁶ The regulations provide that notice be given,⁸ an opportunity for intervention be given to those wishing to oppose the application,⁹ and that a hearing be held on the application.¹⁰ The certificate when issued will be subject to certain general conditions.¹¹ The certificate is not effective until the fees required are paid.¹² The certificate is a non-transferable.¹³

The regulations provide for an abbreviated application for budget type certificates.¹⁴ These certificates involve construction of gas-purchase facilities,¹⁵ rearrangement of facilities,¹⁶ underground gas storage facilities,¹⁷ direct sales measuring station and related minor facilities,¹⁸ and field gas compression facilities.¹⁹ These types of abbreviated applications do not require all the data of a regular application.

If no protest or intervention raises an issue of substance, the applicant can request that the application be considered under a shortened procedure.²⁰

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5. Comments: Under normal procedures, the time involved from time of application to time of granting of the certificate will take from one to two years. Additionally, a normal application with all the exhibits will contain enough paper to fill a normal sized loose leaf notebook.

As soon as a project is anticipated, data for the application should be accumulated in order to avoid delays in the approval of the application.

A certificate of this type is not required for a pipeline hauling anything other than natural gas or oil.²¹ However if another synthetic gas or product is commingled with natural gas or oil then a certificate will be required.²²

B. 1. Permit: Environmental Assessment (EA)

2. Issuing Agency: National Environmental Protection Agency (NEPA)

3. Purpose: To determine if the project will have a significant enough impact upon the environment to require an Environmental Impact Statement (EIS), or that no significant environmental impact will be involved.²³

4. Procedure for Acquiring: These procedures are contained in 18 CFR Part 1500 (1980). NEPA supervises the preparation of the EA.²⁴

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However, the actual EA is prepared by and at the expense of the applicant under supervision of NEPA.²⁵ If NEPA permits the applicant to prepare the environmental assessment, it is the responsibility of the agency to assist the applicant by outlining the types of information required.²⁶

5. Comments: Generally pipelines for the transmission of mineral resources will be buried and the surface of the lands restored to its previous condition or better. Therefore, in most instances an EIS will not be required. The submission of the EA will be the basis for a decision that no significant environmental impact will occur because of the construction, operation and maintenance of the system.

The EA must be filed with the application to FERC for the Certificate of Public Convenience and Necessity. On a major pipeline construction project, the EA will be comprised of approxiamtely one (1) standard sized looseleaf notebook. The EA also becomes important when applying to other Federal agencies for Right-of-Way Permits, Special Use Permits, etc.

This is a very important base document and preparation of the document should begin as quickly as possible in order to expedite obtaining other Federal and State Permits.

On a recent project undertaken by Northwest Pipeline Corporation to build a 350 mile pipeline across the states of Oregon, and Idaho, the preparation of the EA took approximately eight (8) months. The

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original EA was filed with FERC along with the application for Certificate of Public Coknvenience and Necessity. Using the same data base an additional EA was prepared for the Bureau of Land Management based upon a different format required by the Bureau of Land Management. The size and complexity of the project to be undertaken will determine the amount of time required to prepare the EA. Data availability will also be an important factor in determining how much time is involved.

C. 1. Permit: Right-of-Way Grants

2. Issuing Agency:

(1) Bureau of Land Management, Department of the Interior

(2) National Forest Service

(3) National Wildlife Refuges

(4) Bureau of Indian Affairs

(5) Other Agencies

3. Purpose: The purpose of a Right-of-Way Grant is to obtain easement rights across Federal lands in which to install the pipeline. Right-of-Way Grants may also be necessary to provide

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access to and from the construction site. Right-of-Way Grants are also issued to cover compressor station sites, and other areas along the pipeline requiring use of the surface of the lands.

4. Procedures for Acquiring:

(a) If the pipeline carries oil and/or gas then the procedures for obtaining a right-of-way across Federal lands under the control of the Bureau of Land Management are contained in 43 CFR 2881.03- to 2882.0 -3(1979). If the right-of-way is not for an oil or gas pipeline and appurtenances, then the right-of-way must be applied for under 43 CFR 2800 through 2802 (1979). The procedures for obtaining a right-of-way permit under these two (2) provisions is the same and those procedures are contained in 43 CFR 2802 (1979). The application must be accompanied by a map prepared by a competent engineer or land surveyor.²⁷

(b) Rights-of-Way across Forest Service lands are governed by 36 CFR 200 (1979). The procedures for obtaining the right-of-way are contained in 36 CFR 200 to 299 (1979).

(c) Rights-of-Way across National Wildlife Refuges are granted under procedures in 50 CFR 29.21 through 29.22 (1980).

(d) Rights-of-Way across Indian lands are governed by the Bureau of Indian Affairs and are granted under the procedures in 25 CFR 161.1 through .28(1976).

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(e) Rights-of-Way across real property under the control of other executive agencies of the United States are governed by 43 CFR 2892 (1979).

5. Comments: Generally the procedure for obtaining rights-of-way from Federal agencies is done by forwarding the application along with a map and the surveyor field notes to the appropriate agency for approval. Once a rifht-of-way is granted it will be limited usually to a...