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1 1 (November 29, 2016)

handle is hein.crs/govcewy0001 and id is 1 raw text is: FF. ' riE S-' $. h ,,,. , November 29, 2016 Army Corps Permits for Oil and Natural Gas Pipelines The U.S. Army Corps of Engineers (the Corps) administers a regulatory program that requires permits for certain activities in waters of the United States, including wetlands. Under Section 404 of the Clean Water Act (CWA, 33 U.S.C. §1344), the Corps regulates the discharge of dredged or fill material into these waters. Under Section 10 of the Rivers and Harbors Act (RHA, 33 U.S.C. §403), the Corps regulates structures and/or work in or affecting the course, condition, or capacity of navigable waters. Because construction of pipelines of any significant length will cross or otherwise affect U.S. waters somewhere along their routes, the Corps is usually involved in approving discrete aspects of pipeline siting. The Corps is not the only governmental agency from which location-specific permits may be required for a new pipeline, but its role has received scrutiny recently, particularly in connection with controversy over siting of the Dakota Access Pipeline (DAPL). (See CRS Insight IN10567, Dakota Access Pipeline: Siting Controversy, by Paul W. Parfomak.) Pipeline construction and other activities that require Corps authorization and that are similar in nature with minimal environmental impacts (e.g., minor stream crossings) may qualify for a general permit. Nationwide permits, which cover a wide range of activities such as aids to navigation, minor dredging, and bank stabilization, are one type of general permit. Some general permits apply regionally or in a single state. General permits essentially preauthorize a group of similar activities on a programmatic level. The Corps uses general permits to minimize the burden of its regulatory program; general permits authorize applicants to proceed without the more time-consuming need to obtain standard individual permits in advance. Individual permits are subject to public notice, public interest review, public hearing, activity-specific environmental documentation, and case-by-case evaluation, so they typically require more time before an activity is authorized. Over 97% of the Corps' regulatory workload which averages about 63,000 authorized activities each year-is processed in the form of general permits. Many activities covered by nationwide permits can proceed without advance notification to the Corps, while others require that the applicant submit a Pre-construction Notification (PCN) to the Corps and receive written verification from the Corps before proceeding. Nationwide permits are issued for five-year terms; the Corps' authority to issue them expires unless they are reissued. The current permits were issued in 2012 and will expire in March 2017; in June 2016, the Corps proposed to reissue the nationwide permits. (For background, see CRS Report 97-223, The Army Corps of Engineers'Nationwide Permits Program: Issues and Regulatory Developments.) One of the current nationwide permits, NWP 12, is used to authorize utility line activities, including the construction, maintenance, or repair of utility lines in waters of the United States. Under this permit, a utility line is defined as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose including oil or natural gas and any cable, line, or wire for the transmission for any purpose of electrical energy, telephone, and telegraph messages, and radio and television communication. Under the CWA and the RHA, the Corps' regulatory authority only applies to areas where a pipeline or other utility line activity crosses waters of the United States. The Corps generally does not have regulatory jurisdiction over portions that cross upland areas. As a result, for many pipelines, the Corps has jurisdiction over a very small portion of the overall pipeline. When the Corps proposes to reissue the nationwide permits, as it did in June 2016, the rulemaking process concludes with Decision Documents that incorporate analytic requirements under the National Environmental Policy Act (NEPA). In the Decision Document for NWP 12, the Corps estimates that NWP 12 is used on average approximately 14,000 times per year on a national basis, resulting in impacts to approximately 1,750 acres of waters of the United States, including wetlands that are regulated under the CWA. (The total includes about 11,500 times per year for activities that involve a PCN to the Corps and about 2,500 that do not require a PCN.) The 14,000 number includes all utility line activities that are authorized by NWP 12. Because of the broad definition, oil or natural gas pipelines are only a part of the total. The Corps' data do not break out pipelines versus other types of utility line activities under NWP 12. Furthermore, while it covers the large majority of utility line activities, some do not qualify for a nationwide permit generally because they will have more than minimal environmental impacts and thus they must be authorized by individual Corps permits. The Corps does not have a centralized database or other information on the number of individual permits that it issues for pipelines or the number of pipeline and utility line activities that are authorized by NWP 12. In order to qualify for nationwide permit authorization, proposed activities must meet a number of general conditions, as well as permit-specific restrictions. One of the general conditions concerns tribal rights: General Condition 17 states that no authorized activity or its operation may impair reserved tribal rights, including but not limited to, reserved water rights and treaty fishing and hunting rights. (For information on Corps tribal gognpo goo g , q 'S a X 11LULANJILiN,

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