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Landowners, Pipes Square Off Over Notification Issues

Landowners, Pipes Square Off Over Notification Issues

Landowners and interstate pipelines actually agreed on something earlier this week -- neither were particularly thrilled with some of the initiatives proposed by FERC for carving out a greater role for landowners in the certificate process. But the reasons for their dissatisfaction were completely disparate.

In commenting on the notice of proposed rulemaking (NOPR) dealing with landowner notification, landowners argued that the Commission was so wrapped up with "details" in the NOPR that it missed the crux of the landowner-pipeline problem, which they believe could be partly remedied if FERC were to require pipes to notify potentially affected landowners of new greenfield projects "prior" to filing applications at FERC and to engage in collaboration from the outset. They contend the Commission's NOPR, which was issued in late April, falls far short on this score. It proposes that pipelines alert landowners about new Section 7(c) projects by certified mail within three business days "after" filing their applications at FERC [RM98-18].

"The pipeline industry seems more willing to quarrel about the details of how to deal with landowners than to face the heart of the problem. Should landowners be involved sooner rather than later? .....Should the letters [to landowners] go out the day before, the day of, or the day after the filing of an application with the Commission? Should the letters include the FERC docket number? Should letters be sent certified mail, or is first class good enough? Details and more details. So what?" said Dr. Anne Marie Mueser of the GASP Coalition, which represents landowner interests, in comments submitted to FERC on Monday. "Sending a letter to [landowners] is a nice touch, but it does not cure what is wrong with the process."

Although citing its appreciation for FERC's efforts, GASP said the notification process outlined in the NOPR would not create a "level playing field" and would be "insufficient to resolve problems" between landowners and pipelines. It further accused the Commission of being "unable or unwilling to control abuses" of pipelines towards landowners, and said that pipelines' use of eminent domain to take landowners' property was "unconstitutional as well as unconscionable."

The Interstate Natural Gas Association of America (INGAA), in contrast, supported the three-day, post-filing notification requirement for Section 7(c) projects, saying it "strikes an appropriate balance" between the needs of affected landowners and the needs of the pipelines for timely Commission review of their project filings. In order to comply with the requirement, however, the pipeline group asked FERC to assign docket numbers at the time pipeline applications are filed. If that isn't possible, it recommended that the Commission revise its proposal to allow for landowner notification within three business days after a docket number is assigned.

But INGAA and individual pipelines strongly objected to any sort of mandate requiring formal pre-filing notification of landowners, such as through pipeline-landowner meetings, to give them a greater role in the project siting process. Most pipelines already voluntarily hold such meetings, and find them to be "beneficial" for working out problems associated with their projects, Great Lakes Gas Transmission L.P. told FERC. But mandating such "pre-filing meetings where [a] pipeline either lacks sufficient details about a project's route or even its size is more likely to create issues than to resolve them.....The timing and breadth of those meetings should not be dictated by the Commission." The Process Gas Consumers Group (PGC), a group of industrial gas users, agreed, saying the meetings "should be left to the discretion of the pipeline."

Pipelines also took issue with a NOPR initiative requiring them to give landowners at least 30 days notice prior to starting construction on replacement facilities or under their blanket certificate. Although they favor landowner notification for case-specific certificate applications, INGAA and others insist such a requirement shouldn't be imposed on unplanned replacement projects (i.e. plugging a leak, equipment failure or corrosion) because often these projects can't wait 30 days to be addressed. "Clearly, pipelines must be able to perform unplanned maintenance work quickly," INGAA said.

INGAA called FERC's 30-day notification proposal for blanket-certificate projects unessential. "If a pipeline is going to perform new construction under its blanket certificate, the pipeline must already have or have obtained the necessary right-of-way, and in the normal course of business would notify the resident prior to entering the property. Therefore, the Commission's notification requirement is unnecessary." Specifically, it asked FERC to reduce the proposed prior notice period for blanket-certificate projects to three days from 30 days, and to eliminate it altogether for unplanned maintenance and replacement projects.

Some pipelines also had problems with what they believed was FERC's all-inclusive definition for an "affected" landowner, who would be subject to pipeline notification. The Columbia Energy pipelines took issue with including landowners whose property "abuts an existing right-of-way or facility site" in this category, saying this departed from a "reasoned approach" to who was or who wasn't affected by a proposed project. "Abutting landowners will not have [pipeline] facilities on their property, will not be subject to condemnation and will not have restrictions on their use of their property. At most, abutting landowners may bear a portion of the temporary impact of construction (for example the sound of construction equipment) - an impact not so significant as to justify inclusion in this special class."

The Columbia lines further opposed labeling landowners whose property would be located in the vicinity of new storage facilities as "affected" parties. "Columbia recommends that this category be limited to properties on which facilities (above or below ground) will be constructed. The focus should properly be upon those surface landowners who will be directly affected by the construction proposals in contrast to others within the new storage field whose property will not be disturbed."

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ISSN © 2577-9877 | ISSN © 1532-1231
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