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INGAA Landowner-Notification Plan Favored over FERC Proposal

INGAA Landowner-Notification Plan Favored over FERC Proposal

A number of interstate pipelines and pipeline customers last week indicated they would oppose any FERC proposed rule requiring pipes to formally notify affected landowners about construction projects prior to filing applications, saying that changes to existing practices were unnecessary, could further snarl the certification process and might even aggravate what are already tense pipeline-landowner relationships. In late September, FERC suggested in a notice of technical conference that it was leaning toward such an initiative in order to involve landowners earlier in the certification process.

In comments filed in advance of a scheduled Dec. 9th technical conference on the issue, the majority of pipelines and industrials instead rallied behind, if not all the specifics, the general thrust of an alternative measure proposed by the Interstate Natural Gas Association of America (INGAA). For some, the INGAA proposal was the lesser of the two evils. It would require interstate pipelines to notify the landowners of record by certified mail as soon as a project application receives a docket number, which is the day after it's filed, and to also send landowners a copy of a FERC brochure that describes in "pretty neutral terms" what their rights are and how they could intervene in the process.

The El Paso Energy Interstate Pipelines agreed with INGAA that landowners should be notified after a project application is filed, but they think requiring notification one day after filing would impose a "significant administrative burden" on pipelines due to the sheer number of landowners usually involved in "greenfield" projects and expansions. A large pipeline expansion, for example, could easily involve notification of 1,000 to 1,500 landowners.

A "more reasonable" requirement, the El Paso pipelines said, is for pipelines to notify landowners within five business days after filing provided the docket number is available on the same day the certificate application is filed. "Because the Commission generally does not notice certificate applications until one to two weeks after they are filed and because the landowner notification will include the Commission docket number and the procedures for intervening in Commission proceedings, landowners will have sufficient time to intervene in the expansion [or greenfield] project proceeding."

Great Lakes Gas Transmission L.P. also supported the gist of the INGAA proposal, but added that it opposed the means of landowner notification - certified mail. From its experience, it noted that many landowners affected by a pipeline project aren't "physically present" on the property, which precludes them from receiving certified mail. Although most can pick up the mail at their local post offices, some landowners "may live out of state during part of the year," and would be unaware of any certified mail sent to them.

"The drawbacks to certified mail are overcome by using regular U.S. mail. First, the item would be delivered to nearly all landowners, including those off-site landowners who forward their mail service to their present or temporary residence," Great Lakes said. Moreover, the additional costs to pipelines of certified mail would be avoided.

Tailored to Situation

Williston Basin Interstate Pipeline, which weighed in against the INGAA proposal, particularly took issue with notifying affected landowners, as well as sending the FERC brochure, by certified mail. It proposes that "the pipeline companies should have the option to hand-deliver such pamphlets any time prior to the filing of the application or up to three business days after such filing." The pipeline said that alerting affected landowners to the possibility of eminent domain by certified mail wouldn't be "conducive to the continuation of [the] good relationship" that it currently has with landowners. The Enron Interstate Pipelines agreed, saying that certified delivery of formal regulatory notification "creates a threatening environment to the landowner and prematurely narrows the window for negotiation."

In the event changes are inevitable, Williston said it favors FERC taking a performance-based approach to landowner-notification regulations rather than using a cookie-cutter approach. "By performance-based, Williston Basin means in instances where there are no complaints from landowners associated with a certain pipeline, that pipeline would be deemed to be performing in a satisfactory manner and the Commission would impose no additional notification requirements. However, in instances where valid complaints are received...from landowners and the Commission determines that the particular pipeline is not doing an acceptable job of landowner notification, the Commission should impose additional notification/reporting requirements on the specific offending pipeline."

Industrials gas customers questioned the need for any changes to the existing process "since the Commission itself already sends to landowners notice of any anticipated environmental assessment process, in addition to publicizing notices of all applications and environmental assessments in the Federal Register. Likewise, pipelines routinely contact landowners from an early stage in order to seek rights-of-way." The Process Gas Consumers (PGC) Group, the American Iron and Steel Institute and the Georgia Industrial Group believe changes to existing regulations could impose "additional procedural burdens" on the certificate process [RM98-17].

The Iowa Utilities Board, a state agency that oversees pipelines in the state and sets standards for land restoration after pipeline construction, favors landowner notification prior to the filing of an application at FERC, saying that this would enable pipelines to "establish an early rapport" with landowners, eliminate "resentment and rumor" and make "appropriate modifications" to their projects early on. It recommended that landowners be alerted 90 days before the actual filing.

On a more narrow issue, the El Paso pipelines don't believe pipes should have to submit to formal notification procedures to acquire additional temporary work space for certain replacement projects where additional damaged pipe or safety hazards are discovered.

The pipelines and industrials further said they would object to any move by FERC to classify residential areas as sensitive environmental areas, causing it to weigh project impact on these areas in the same manner as the more traditional natural resource areas - endangered species habitats, historical places, wetlands and designated wilderness areas.

Industrial gas customers believe "it would be a profound mistake implicitly to elevate NIMBY to a legal principle, particularly since utility lines (water, gas) are routinely built across private property with minimal impact on landowners..." The El Paso interstates said such a move by FERC would subject pipelines to the "whims of individual landowners, homeowners' associations and/or city councils."

On a separate issue, some parties urged FERC to allocate resources to "significantly expand" the scope of its monitoring of post-certificate construction practices, as well as to give greater consideration to powerline safety when routing decisions are made for pipeline projects - many of which are located on or adjacent to existing electric transmission rights-of-way.

"The FERC's lack of attention to powerline safety when routing decisions are made is a significant problem. However, an equally great the absence of any FERC regulatory oversight during the actual construction process," said Central Maine Power.

Environmentalist Anne Marie Mueser, chairman of the GASP Coalition, agreed that a "wide gulf" existed between what the Commission spells out in its certificates and the construction practices that take place in the field. As a remedy, she suggested "the use of performance standards for environmental mitigation measures, required on-the-job training for contractors and all construction personnel, along with timely and rigorous enforcement of permit requirements." At the December conference, she said GASP will present a "practical proposal for monitoring pipeline construction."

Susan Parker

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