Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

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Oil and Natural Gas Pipelines:

Role of the U.S. Army Corps of Engineers

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R44880

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

Summary

Growth in North American crude oil and natural gas production has led to efforts to expand the

domestic oil and natural gas pipeline network. Pipeline developers are required to obtain

authorizations from the U.S. Army Corps of Engineers (Corps) before constructing certain

pipeline segments. Under the agency’s regulatory program, the Corps is responsible for

authorizing activities that may affect federally regulated waters and wetlands. Under its civil

works program, the agency is responsible for approving activities that cross or may affect Corpsmanaged lands and Corps water resource projects. The agency’s role with respect to pipelines can

be controversial and may raise policy issues for Congress. Congress has a long-standing interest

in pipeline development and the regulation of pipelines because of the role of pipelines in the

domestic energy markets.

Corps Regulation of Water Crossings. The Corps has regulatory responsibilities pursuant to

Section 404 of the Clean Water Act (33 U.S.C. §1344), under which the Corps authorizes

activities that may discharge dredge or fill material into waters of the United States, including

wetlands. The agency also has regulatory responsibilities pursuant to Section 10 of the Rivers and

Harbors Act of 1899 (33 U.S.C. §403), under which the Corps authorizes structures and work in

or affecting the course, condition, or capacity of navigable waters. Because most pipelines cross

or potentially affect U.S. waters and wetlands somewhere along their routes, pipeline developers

routinely are required to obtain Corps authorization for some pipeline segments. The Corps

authorizes most pipeline water crossings using a general permit—Nationwide Permit 12—for

utility-line activities in waters of the United States. A nationwide permit essentially preauthorizes

a group of activities similar in nature that are likely to have a minor effect on waters and wetlands

both individually and cumulatively.

Approvals Related to Corps Land and Corps Projects. A pipeline developer may need

permissions from the agency’s civil works program if a pipeline segment may affect or cross a

Corps water resource project and Corps-managed land. That is, the Corps would need to grant (1)

an easement, typically for a right-of-way, to cross federal land managed by the Corps or (2) a

consent to cross non-Corps land with a Corps real estate interest (typically a federal flood

easement over nonfederal land). Prior to the granting of the easement or consent, the Corps

generally must provide permission for the pipeline to alter the associated Corps water resource

project. The easement at a Corps project for the Dakota Access Pipeline to cross under the

Missouri River in North Dakota was particularly controversial.

Corps Actions Must Comply with Federal Statutes. In carrying out its regulatory and civil

works authorities, the Corps complies with applicable federal requirements. For example, the

Corps identifies and considers the environmental impacts of the agency’s proposed action (e.g.,

Corps permit of an activity affecting a wetland) pursuant to the National Environmental Policy

Act (NEPA; 42 U.S.C. §§4321 et seq.) and considers impacts on historic properties pursuant to

the National Historical Preservation Act (NHPA; 54 U.S.C. §306108).

Policy Issues. Various questions arise in policy debates on Corps’ actions related to pipelines:



How does the Corps determine the direct, indirect, and cumulative impacts of its

decisions to authorize activities in regulated waters or Corps-managed lands?

When the federal role in a pipeline is limited to approving activities at discrete

segments, to what extent should federal agencies influence siting and other

aspects of a pipeline?

Congressional Research Service

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers



How does the use of Corps general permits affect the agency’s review,

information available to stakeholders and the public, and compliance with

NHPA?

These questions reflect some of the basic debates and challenges that Congress and other

policymakers face regarding federal approvals associated with private infrastructure.

Congressional Research Service

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

Contents

Introduction ..................................................................................................................................... 1

Overview of Federal Role in Pipelines ............................................................................................ 3

Corps Involvement in Pipelines ................................................................................................ 3

Regulatory Role .................................................................................................................. 4

Civil Works Role ................................................................................................................. 4

Illustration of Federal Agency Involvement in Approving Pipelines ........................................ 4

Corps Regulatory Program .............................................................................................................. 6

Individual Permits ..................................................................................................................... 7

General Permits ......................................................................................................................... 7

Nationwide Permit 12: Utility-Line Activities .................................................................... 9

General Conditions Required for NWP Authorization ............................................................ 10

Pre-construction Notification ............................................................................................ 12

Nationwide Permit 12: Issues Raised Regarding Current Approach and Use ......................... 13

Corps Civil Works Program .......................................................................................................... 14

Permission to Alter a Corps Project ........................................................................................ 14

Corps Easements or Consents for Pipelines ............................................................................ 16

Congressional Committee Notification ............................................................................. 16

Evaluation of Request and Conditions of Easement or Consent....................................... 17

Illustration of Corps Approval Processes for Pipelines at Corps Projects and Real

Estate .................................................................................................................................... 18

Compliance with Other Federal Statutes During Corps Civil Works Processes ..................... 20

Compliance with Federal Statutes ................................................................................................. 20

Agency-Specific Procedures of the Corps Regulatory Program ............................................. 22

Corps NEPA Procedures ................................................................................................... 22

Corps Procedures for Protecting Historic Properties ........................................................ 24

Policy Issues Raised by Corps’ Pipeline Roles and Decisions ...................................................... 27

Figures

Figure 1. Illustration of Federal Agency Involvement in Approving Pipelines ............................... 5

Figure 2. Major Steps in Corps Approval Processes for Pipeline Segments Crossing

Corps Projects and Real Estate Interests .................................................................................... 19

Tables

Table 1. Selected Federal Laws That Require Outside Agency Review ....................................... 20

Contacts

Author Contact Information .......................................................................................................... 28

Congressional Research Service

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

Introduction

Growth in North American crude oil and natural gas production has resulted in efforts to expand

the domestic oil and natural gas pipeline network.1 Pipelines can be a cost-effective and

comparatively safe means of hydrocarbon transport. Pipelines and their routes also can be

controversial locally, regionally, or nationally. While many new or expanded pipelines have been

proposed and completed in recent years, other proposed pipelines have been unable to satisfy all

the requirements to obtain federal authorizations, have faced barriers among state regulatory

agencies, and have been the subject of litigation. Congress has a long-standing interest in pipeline

development and the regulation of pipelines because of the critical role of pipelines in the

domestic energy markets.2

Failure to construct pipelines may result in various potential effects, such as greater reliance on

road or rail transport and constraints on getting oil and natural gas resources to refineries, power

plants, and other consumers—all of which can create economic inefficiencies.3 Local interests

along proposed pipeline routes regularly have raised concerns about the local environmental and

other impacts of pipeline construction; they also have expressed concerns about the risks during

pipeline operations of accidents that could affect the environment and human health. In recent

years, stakeholders interested in reducing U.S. reliance on fossil fuels or promoting other energy

sources and energy conservation have brought greater public attention both to oil and natural gas

pipelines and to federal and state decisions related to new pipelines in particular. Some of these

pipeline opponents argue that pipelines may facilitate the use of oil and natural gas, thereby

indirectly contributing to the human health, welfare, and environmental effects of oil and natural

gas production and use. Pipeline proponents argue that the impacts of development and use of

natural gas may be less than impacts associated with other energy sources and that both oil and

natural gas pipelines contribute to the nation’s energy security and provide broad benefits to the

U.S. economy.

This report discusses how the U.S. Army Corps of Engineers (Corps) administers its

responsibilities related to certain pipeline segments that require Corps authorizations. The Corps

is one of many federal agencies with responsibilities that may relate to oil and natural gas

pipelines. Interest in federal approvals and requirements for pipelines relates to a broader policy

issue before Congress: What is the appropriate federal role in protecting the environment, public

References in this report to oil pipelines also apply to pipelines carrying refined products, such as gasoline or

kerosene.

Congressional hearings and proposed legislation reflect some of the recent congressional interest related to pipelines.

For example, the House Energy and Commerce Committee’s Subcommittee on Energy held a hearing, Legislation

Addressing Pipeline and Hydropower Infrastructure Modernization, on May 3, 2017

(https://energycommerce.house.gov/hearings-and-votes/hearings/legislation-addressing-pipeline-and-hydropowerinfrastructure), and the Senate Energy and Natural Resources Committee held a hearing, Oversight Hearing on Oil and

Gas Pipeline Infrastructure, on June 14, 2016 (https://www.energy.senate.gov/public/index.cfm/2016/6/hearing-toexamine-oil-and-gas-pipeline-infrastructure-and-the-economic-safety-environmental-permitting-construction-andmaintenance-considerations-associated-with-that-infrastructure). During the 115th Congress, H.R. 2649 would change

the Federal Energy Regulatory Commission’s review process for natural gas pipelines. During the 114th Congress, S.

3498 proposed altering the requirements for actions by the U.S. Army Corps of Engineers (Corps) related to some oil

and natural gas pipelines and Section 1115 of H.R. 8, as passed by the House, would have required the establishment of

national energy security corridors for natural gas pipelines on federal land.

For example, for natural gas produced as part of oil production, transportation constraints potentially may contribute

to flaring or venting of unmarketable natural gas.

Congressional Research Service

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

health, national economy, and domestic energy security when reviewing and authorizing activities

associated with private development of energy-sector or other infrastructure?

The role of the Corps in authorizing oil and natural gas pipelines is limited to (1) the agency’s

regulatory authorities for authorizing activities affecting regulated water bodies and wetlands and

activities that alter or obstruct navigable waters and (2) its civil works authorities, including

allowing a pipeline to cross a Corps water resource project and related lands. Because most

pipelines cross regulated water bodies, the Corps must authorize the activities at those crossings

before construction at those locations can commence. Because the Corps has no broad authority

related to pipelines along their entire domestic routes, the agency’s analyses to support its

authorization decisions are scoped to focus on the application of Corps authorities to specific

pipeline segments.

Controversy regarding the Dakota Access Pipeline (DAPL), a crude oil pipeline from North

Dakota to Illinois, focused attention on the Corps’ authorizations and approvals. This attention to

the Corps may continue, given the renewed efforts for the international Keystone XL,4 proposed

domestic pipelines, and related litigation.

This report provides an overview of the agency’s role with respect to oil and natural gas pipelines.

Because the Corps’ pipeline-related decisions can be controversial, the report also introduces

some of the issues raised.5 After an overview of the Corps and the broader federal role in

approving private oil and natural gas pipelines, the remainder of the report discusses



how the Corps’ regulatory responsibilities apply where pipelines cross water

bodies and wetlands (i.e., Corps regulatory program);

how the Corps’ civil works authorities may apply if a pipeline may alter or affect

a Corps water resource project or may cross Corps-managed land (i.e., Corps

civil works program);

how the Corps complies with various federal statutes as it arrives at pipelinerelated decisions, including the environmental documentation requirements of the

National Environmental Policy Act (NEPA) and the historic preservation

requirements of the National Historic Preservation Act (NHPA);6 and

how the agency’s role in pipelines raises or illustrates various policy issues for

decisionmakers.

For more on Keystone XL, see CRS Insight IN10678, Keystone XL Pipeline: Development Issues, by (name re

dacted) . On May 30, 2017, the developer of the proposed Keystone XL pipeline submitted to the Corps preconstruction notifications (PCNs) for Nationwide Permit 12 (NWP 12). The submittals covered 182 regulated water

crossings in South Dakota, 194 crossings in Montana, and 212 crossings in Nebraska. These Keystone PCNs (with

some information withheld) are available at http://www.nwo.usace.army.mil/Missions/Dam-and-Lake-Projects/PCN/.

For more on NWP 12 and PCNs, see “Corps Regulatory Program.”

Tribal treaty and tribal trust responsibilities, including issues of tribal consultation, have been part of the legal

challenges related to the Corps’ actions in relation to the Dakota Access Pipeline (DAPL). Some of the policy issues

raised include the following: How does the Corps evaluate the impacts of its decisions on tribal treaty rights, and how

does the agency act on specific trust responsibilities or comply with more general trust duties? Because this CRS report

is about the role of the Corps in pipelines generally and not about DAPL or tribal issues specifically, the report does not

address tribal treaty and tribal trust responsibilities in detail. Although requirements to consult with tribes may exist in

law or regulation, how tribal consultation is performed is largely a function of policy.

National Environmental Policy Act (NEPA; 42 U.S.C. §§4321 et seq.); National Historic Preservation Act (NHPA; 54

U.S.C. §306108).

Congressional Research Service

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

Overview of Federal Role in Pipelines

Siting, construction, and operation of oil and natural gas pipelines may be subject to a number of

local, state, tribal, and federal requirements.7 Whether the entire pipeline will require federal

agency authorization generally depends on the commodity the pipeline would transport and

whether it would cross state lines.8 Specifically, the siting, construction, and operation of

interstate natural gas pipelines must be authorized by the Federal Energy Regulatory Commission

(FERC), in accordance with requirements established under Section 7(c) of the Natural Gas Act

of 1938;9 in contrast, domestic oil pipelines and intrastate natural gas pipelines are not subject to

a similar federal authorization for their entire routes.

Federal pipeline safety standards also could affect pipeline siting, construction, operation, and

maintenance. The Department of Transportation’s Pipeline and Hazardous Materials Safety

Administration (PHMSA) is the principal federal agency charged with ensuring the safe interstate

movement of natural gas and hazardous liquids, including crude oil. Congress tasked the

Department of Transportation, working through PHMSA, with regulating key aspects of interstate

pipeline safety, including design, construction, operation and maintenance, and spill response

planning. For more information on the Department of Transportation’s safety program, see CRS

Report R44201, DOT’s Federal Pipeline Safety Program: Background and Key Issues for

Congress, by (name redacted) , and see the box later in this report titled “PHMSA Pipeline

Safety Regulation and Corps Permit Conditions Related to Safety.”

Specific aspects or activities associated with pipelines may be subject to federal agency approval.

For example, separate federal agency authorization (in the form of a permit or other approval)

may be required if the proposed pipeline, in whole or in part, would cross federal land or

potentially would affect an environmental, natural, or cultural resource protected under federal

law. As discussed below, the involvement of the Corps in pipelines generally is limited to those

pipeline segments that would cross Corps-managed federal land (hereinafter referred to as Corps

land) or a Corps-managed federal flood easement on nonfederal land and to those pipeline

activities that may affect or cross waters and wetlands regulated by the agency.

Corps Involvement in Pipelines

Although the Corps has no authority to approve pipelines, certain pipeline segments and their

construction may require Corps authorizations. Under the agency’s regulatory program, the Corps

is responsible for authorizing activities that could affect federally regulated waters and wetlands.

Under its civil works program, the agency is responsible for approving activities that cross or

affect Corps lands and projects.

See CRS Report R44432, Pipeline Transportation of Natural Gas and Crude Oil: Federal and State Regulatory

Authority, by (name redacted) .

This report focuses on the Corps’ roles in authorizing domestic oil and natural gas pipelines because the majority of

crude oil and natural gas pipelines in the United States do not cross an international border. Oil and natural gas

pipelines that would cross the border with Canada or Mexico require Presidential Permits for border-crossing facilities,

in addition to Corps and other permits required for domestic pipelines. For information about Presidential Permits, see

CRS Report R44140, Presidential Permit Review for Cross-Border Pipelines and Electric Transmission, by (name

redacted) and (name redacted), and CRS Report R43261, Presidential Permits for Border Crossing Energy Facilities,

by (name redacted) and (name redacted)

15 U.S.C. §171f. See CRS Report R43138, Interstate Natural Gas Pipelines: Process and Timing of FERC Permit

Application Review, by (name redacted) , and CRS Report R43261, Presidential Permits for Border Crossing Energy

Facilities, by (name redacted) and (name redacted)

Congressional Research Service

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

Regulatory Role

A pipeline developer must have authorization from the Corps regulatory program (sometimes

referred to as its permit program) for any pipeline segment affecting or crossing Corps

jurisdictional water, in accordance with



Section 404 of the Clean Water Act,10 under which the Corps regulates the

discharge of dredged or fill material into waters of the United States, including

wetlands; and

Section 10 of the Rivers and Harbors Act of 1899,11 under which the Corps

regulates structures and/or work in or affecting the course, condition, or capacity

of navigable waters.

Because pipelines of any significant length will cross or otherwise may affect U.S. waters

somewhere along their routes, pipeline developers are routinely required to have authorization

from the Corps under Section 404 of the Clean Water Act (hereinafter Section 404) and/or under

Section 10 of the Rivers and Harbors Act (hereinafter Section 10). The Corps regulates all

activities affecting regulated waters; for pipelines, the Corps regulates activities whether the

pipeline is interstate or intrastate and whether the pipeline is transporting oil or natural gas.

Civil Works Role

A pipeline developer may need certain approvals from the civil works program of the Corps if the

proposed pipeline could affect a Corps water resource project or Corps land and real estate

interests.12 Corps land and other real estate interests (e.g., private lands with a federal flood or

other flowage easement) typically were acquired as part of a water resource project. For pipelines

to cross below, on, or above Corps land and non-Corps land with a Corps real estate interest, the

agency generally will decide on granting both



a Corps permission to alter a Corps civil works project; and

a Corps easement to cross Corps land or a consent to cross non-Corps land with a

Corps real estate interest.

Illustration of Federal Agency Involvement in Approving Pipelines

Figure 1 illustrates pipeline segments over which the Corps may have some role, specifically

segments that would cross Section 404 Corps-regulated waters and wetlands or Section 10 Corpsregulated waters (and therefore would involve a role for the agency’s regulatory program) and

Corps land (and therefore would involve a role for the agency’s civil works program). Figure 1

also illustrates FERC involvement in authorizing the siting and construction of interstate natural

gas pipelines; no federal agency has a similar role for domestic interstate or intrastate oil

pipelines or for intrastate natural gas pipelines. Stakeholders with an interest in pipeline

construction sometimes have focused on the role of the Corps in pipeline-related approvals when

33 U.S.C. §1344. For a discussion of waters regulated under the Clean Water Act, see CRS Report R44585,

Evolution of the Meaning of “Waters of the United States” in the Clean Water Act, by (name redacted)

33 U.S.C. §403.

Most Corps civil works projects and lands are associated with infrastructure the agency built to improve navigation

and flood control and to restore aquatic ecosystems. For more on the Corps civil works program and its evolution, see

the appendix of CRS Report R41243, Army Corps of Engineers: Water Resource Authorizations, Appropriations, and

Activities, by (name redacted) and (name redacted) .

Congressional Research Service

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

no other federal agency has authority to approve the entire pipeline, which primarily is the case

for domestic pipelines transporting crude oil. In the case of the DAPL to transport crude oil, the

pipeline route selected crossed Corps-regulated waters and Corps land at Corps water resource

projects. For more on the DAPL, see the box “Why Was the Corps the Main Federal Agency

Involved in the DAPL Debate?”

Figure 1. Illustration of Federal Agency Involvement in Approving Pipelines

(federal roles for different types and different routes of oil and natural gas pipelines)

Source: Congressional Research Service (CRS).

Notes: Corps land refers to Corps-managed federal land. FERC = Federal Energy Regulatory Commission. The

Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA), which is not

included in this figure, also has primary authority to regulate key aspects of interstate pipeline safety.

International pipelines may have additional federal entities and pipeline segments that are subject to federal

review, approval, or regulation. FERC does not authorize either interstate oil pipelines or intrastate oil pipelines;

the role of the Corps is the same for interstate and intrastate oil pipelines.

Why Was the Corps the Main Federal Agency Involved in the DAPL Debate?

The Dakota Access Pipeline (DAPL) is a 1,170-mile pipeline system to transport oil from North Dakota to Illinois.

The U.S. Army Corps of Engineers (Corps) became the most prominent federal agency in the DAPL debate in part

because other agencies had minimal involvement, given that DAPL is an interstate oil pipeline. Because DAPL

domestically transports crude oil, no federal agency has authority over its entire route or the entire construction

project. Instead, the four states that the pipeline traverses had primary authority for approving the pipeline’s route.

Congressional Research Service

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

The Corps was involved only in approving pipeline segments that overlapped with Corps authorities; that is, the

agency’s jurisdiction was over 37 miles of DAPL’s length. The Corps was involved in DAPL because



the construction of the pipeline required that the Corps authorize activities in regulated waters and wetlands at

202 separate water crossings and



the route selected for DAPL required that the pipeline developer obtain Corps easements and related agency

permissions to cross Corps-managed federal land at the agency’s congressionally authorized water resource

projects on the Missouri River, as well as the consent of the Corps to cross Corps flood easements on

nonfederal land.

The pipeline developer used a Corps-promulgated nationwide permit—Nationwide Permit 12 for utility-line activities

(NWP 12)—as the mechanism to obtain the agency’s authorization for the 202 water crossings. Given the use of

NWP 12, there was no DAPL-specific National Environmental Policy Act (NEPA) environmental documentation

required for the Corps’ verifications of the 202 water crossings.

The easement and related permission for the pipeline to cross under the Missouri River in North Dakota at the

Corps-managed Lake Oahe project and lands received intense public attention, in part because the crossing is 0.55

miles upstream from the Standing Rock Sioux reservation and 73 miles north of the Cheyenne River reservation.

DAPL began transporting crude oil on June 1, 2017.

Some litigation related to DAPL continues in the courts. Much of the litigation relates to the agency’s compliance with

NEPA with respect to the permission and easement decisions at Lake Oahe. A number of these legal challenges

initially were rejected. However, in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, No. 16-1534 (D.D.C. June

14, 2017), the U.S. District Court for the District of Columbia found that “[a]lthough the Corps substantially

complied with NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on

fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be

highly controversial.”

The court reserved judgement on other claims and did not immediately provide for relief, noting the “serious

consequences” of vacating the agency’s approval now that the pipeline is in operation. The court instead scheduled a

new round of briefing on the issue of relief.

Corps Regulatory Program

The Corps is responsible for authorizing activities that may affect waters over which it has

jurisdiction under Section 404 or Section 10. The agency performs this work as part of its

regulatory program. The types of projects that may cause impacts to regulated waters vary widely,

including navigation, coal mining, riverbank stabilization, and transportation projects. One

category of activities is a water or wetland crossing by a utility line, which includes oil and

natural gas pipelines.

The Corps’ regulatory authorities are limited by statute to activities affecting waters and wetlands

regulated pursuant to the Section 404 and Section 10 authorities.13 That is, the agency’s

regulatory jurisdiction does not extend to a pipeline’s entire route; it is limited to the crossings of

regulated waters, as shown in Figure 1. Therefore, the Corps generally does not regulate the

largest components of pipeline projects because it does not have regulatory jurisdiction over

portions of the pipeline that cross upland areas.14

A discussion of the waters regulated under Section 404 and how those are defined is beyond the scope of this report.

For information on that policy issue, see CRS In Focus IF10125, Overview of the Army Corps and EPA’s Rule to

Define “Waters of the United States” (WOTUS) and Recent Developments, by (name redacted)

In other words, the agency’s authorities federalize (i.e., make the private action subject to federal authorization or

approval) only the portions of the pipeline associated with regulated water crossings. For a project such as an oil

pipeline, in which only discrete segments are federalized, the Corps is described as having a “small federal handle”

based on the analogue that the pipeline is the pan and the federal role is limited to a small handle. For more on this

concept, see box titled “Geographic Limits of Corps Environmental Reviews.” For example, in the case of the Flanagan

South pipeline to transport crude oil from Illinois to Oklahoma, the pipeline segments that were subject to the agency’s

(continued...)

Congressional Research Service

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

Authorizations pursuant to the Corps regulatory authorities fall under two categories of permits—

individual permits and general permits. Actions authorized through general permits represented

almost 94% of the Corps’ 53,825 regulatory actions in FY2016.15

Individual Permits

Activities that may or are expected to have significant adverse impacts on regulated waters

require individual permits. The Corps (or states that have been delegated the authority to

administer Section 404 permits)16 can process individual permits as standard individual permits or

through an abbreviated process known as a Letter of Permission procedure (which can vary by

state).17 Each standard individual permit is subject to public notice, public interest review, public

hearing, activity-specific environmental documentation, and case-by-case evaluation (including

an evaluation of alternatives), so these permits typically require more time than general permits

before an activity is authorized.18 Public notification is not required for individual permits

processed using Letters of Permission procedures.

General Permits

The Corps issues general permits for activities that are similar in nature and that are expected to

have minimal adverse effect on waters and wetlands both individually and cumulatively.19

General permits essentially preauthorize a group of similar activities on a programmatic level.

(...continued)

regulatory jurisdiction were 2.3% of the total length of the pipeline. (See U.S. Army Corps of Engineers, Decision

Document Nationwide Permit 12, January 6, 2017, at http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2017/

NWP_12_2017_final_Dec2016.pdf?ver=2017-01-06-125514-797. Hereinafter referred to as NWP 12 Decision

Document.)

That is, of the Corps’ 53,825 regulatory actions in FY2016, 60% (32,475 actions) and 34% (18,066 actions) were

pursuant to the nationwide permits (NWPs) and the regional/state general permits, respectively. These figures were

calculated using data in Appendix B of U.S. Army Corps of Engineers, FY2016 Regulatory Annual Report for Section

1006(2)(e) of WRRDA, at http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/section214/

fy16_WRDA214_annual_report.pdf?ver=2017-03-27-075105-620. Figures do not include authorization of actions that

do not require reporting to the Corps. An estimate of the total actions under the nationwide permits (including the

actions that are not required to be reported) is around 61,500 (U.S. Army Corps of Engineers, Regulatory Impact

Analysis for the Proposed 2017 Nationwide Permits, May 18, 2016, p. B-2. Hereinafter referred to as 2016 NWP

Regulatory Impact Analysis).

The Clean Water Act was amended in 1977 to allow for state administration of individual and general permits (33

U.S.C. §1344). In this report, for simplicity the Corps generally is identified as the entity responsible for administering

the permit requirements of Section 404.

Letters of Permission can be used only for activities specified in 33 C.F.R. §325.2(e)(1). For example, Letters of

Permission for Section 404 compliance are limited to activities for which the water quality certification (pursuant to

Section 401 of the Clean Water Act) is waived and, if appropriate, the Coastal Zone Management Act consistency

concurrence is obtained or presumed. For information on state or tribal water quality certification and state coastal zone

management consistency, see “Compliance with Federal Statutes” later in this report.

According to the Corps, the agency’s mean number of days for evaluating complete applications for standard

individual permits and for Letters of Permission are 211 days and 110 days, respectively (2016 NWP Regulatory

Impact Analysis, p. B-2). If additional information is needed from an applicant to complete an application, the

permitting process may take longer. The mean number of days from the initial application (which may or may not

represent a complete application) to the Corps decision is 291 days for standard individual permits and 140 days for

Letters of Permission (ibid., p.10). No data on permit-processing time are available for oil and natural gas pipelinerelated individual permits. For information on processing times for some general permits, see footnote 41.

33 U.S.C. §1344(e). The Clean Water Act does not establish how the Corps is to determine whether or not an impact

is minimal or the degree of certainty required to support such a determination; however, the statute does indicate

(continued...)

Congressional Research Service

Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

The Corps uses general permits to minimize the permit processing burden of its regulatory

program on both itself and applicants. General permits authorize applicants to proceed without

the more time-consuming need to obtain standard individual permits in advance. The lower

processing burden of general permits creates an incentive for applicants to reduce the impacts of

their activities on regulated waters and wetlands in order to qualify for a general permit.

During the process required for the Corps to issue a general permit, the general permit is subject

to public notice, public interest review, public hearing, and environmental documentation; the

specific actions undertaken pursuant to the general permit do not go through these steps. The

Corps issues a range of general permits, including



Nationwide permits (NWPs), which cover a wide range of activities—such as

aids to navigation, minor dredging, and bank stabilization.20 There are 52 NWPs

in force. Regional conditions also can be applied to NWPs.

Other general permits that apply in a single state or regionally. Programmatic

permits are built on an existing state, local, or other federal agency program and

are designed to avoid duplication between the existing program and Corps

efforts.21 Regional permits are a type of general permit issued by a division or

district engineer at the Corps.22

Nationwide and other general permits are issued for five-year terms; the permits automatically

expire and become null and void (and cannot be extended) if they are not modified or reissued

within five years of their effective date.23 The current NWPs took effect on March 19, 2017, for a

five-year period.24

Pipeline 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. It

typically would be NWP 12 (which is discussed in more detail in “Nationwide Permit 12: UtilityLine Activities,” below), unless a state or regional general permit applies. To qualify for NWP

authorization, proposals must meet a number of general conditions (GCs). (See section titled

“General Conditions Required for NWP Authorization” for more information).

Many activities covered by NWPs can proceed without advance notification to the Corps,

whereas other activities that can be pursued under an NWP require that the applicant submit a

pre-construction notification (PCN) and obtain a verification by the Corps for use of that NWP. A

PCN is a request submitted by the applicant to the Corps to confirm (i.e., verify) whether or not a

particular activity is authorized by general permits. If the activity does not require the permittee to

submit a PCN, the permittee determines if the activity qualifies for an NWP. Therefore, the Corps

(...continued)

criteria applicable to Section 404 permits, including categories of impacts (33 U.S.C. §1344(b)).

For more on nationwide permits, see CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits

Program: Issues and Regulatory Developments, by (name redacted) and (name redacted) .

For example, there is a state programmatic general permit (SPGP) for Pennsylvania that allows for the issuance of

general permits on a statewide basis that work in conjunction with a Pennsylvania regulatory program that protects the

environment in a manner equivalent to the Corps regulatory program.

An assessment of the suite of regional and state general permits and how they relate to pipelines is beyond the scope

of this report.

Most standard individual permits also expire after five years and must be reissued or renewed, if the activity that they

authorize is of a continuing nature.

U.S. Army Corps of Engineers, “Issuance and Reissuance of Nationwide Permits, Final Rule” 82 Federal Register

1860, January 6, 2017.

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reviews the activities for which it receives a PCN but does not conduct a review of all the

individual activities potentially authorized by an NWP. (See section titled “Pre-construction

Notification” for more on PCNs.)

If a pipeline-related crossing does not meet the conditions of a general permit or qualify for a

general permit as determined by statute and regulation, the Corps district may use its

discretionary authority to require use of the individual permit process. The Atlantic Sunrise

natural gas pipeline is an example of a pipeline for which the Corps reviewed the application as a

standard individual permit because the proposed activity would exceed the wetland loss threshold

of the applicable general permit.25

Nationwide Permit 12: Utility-Line Activities

One of the 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. The permit

defines a utility line as any pipe or pipeline for the transportation of any gaseous, liquid,

liquescent, or slurry substance—including oil or natural gas—for any purpose and any cable, line,

or wire for the transmission for any purpose of electrical energy, telephone, and telegraph

messages and radio and television communication.26 NWP 12 can be used only if the activity

(e.g., a water crossing) does not result in the loss of more than 0.5 acres of waters of the United

States.

Certain activities under NWP 12 require an approved PCN before the activity authorized by that

permit may commence. An NWP 12 permit applicant must submit a PCN based on various

thresholds and criteria—for example, when a Section 10 permit is required, when mechanized

land clearing in forested wetlands is required for the right-of-way, or when discharges are

expected to cause the loss of more than 0.1 acres of waters of the United States, among other

thresholds and criteria.27 For NWP 12 specifically, the Corps requires that PCNs include

information on other water crossings for the linear project (e.g., the pipeline) that will use NWP

12 that do not require PCNs.

The Corps estimates that NWP 12 is used on average approximately 11,500 times per year on a

national basis, affecting approximately 1,700 acres of U.S. waters, including wetlands regulated

under the Clean Water Act.28 The total includes about 9,000 uses per year for activities that

involve submitting a PCN to the Corps and about 2,500 uses for activities that do not require a

PCN.29

Individual NWP 12 verifications do not require NEPA documentation, nor do they require an

opportunity for public comment.30 The public comment opportunity occurs during the rulemaking

procedure for the NWP itself, not with each verification or use of the permit.31

The applicable general permit would have been a Pennsylvania-specific general permit (see footnote 21). For more

information on Atlantic Sunrise, see U.S. Army Corps of Engineers, Public Notice, March 31, 2017, at

http://www.nab.usace.army.mil/Missions/Regulatory/Public-Notices/Public-Notice-View/Article/1136707/pn17-15williams-gas-pipeline-atlantic-sunrise-project-2014-00475/.

NWP 12 Decision Document, p. 1.

Ibid., p. 43.

Ibid., p. 70.

Ibid.

Ibid., p. 20.

During the NWP rulemaking, the Corps may consult with tribes. Generally this consultation is to determine regional

(continued...)

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Whereas for some pipelines Corps regulatory information is publicly available through Corps

districts, FERC dockets,32 or court documents, no nationally aggregated data are available on

NWP 12 use that is specifically about oil and natural gas pipelines. The 11,500 NWP 12

authorizations cited are not specific to pipelines; the figure includes all utility-line activities.

Furthermore, although NWP 12 covers a large majority of utility-line activities, some pipeline

activities may not qualify for NWP 12 and may require individual permits. The publicly available

database that the Corps maintains on individual permits is not designed to track which individual

permits are related to oil and gas pipelines,33 and no publicly available database is available that

tracks each verification for NWP 12 activities related to pipelines specifically or utility lines more

broadly.

General Conditions Required for NWP Authorization

By statute, activities that have the potential to result in more than minimal individual and

cumulative adverse effects on the aquatic environment cannot be authorized by NWPs, including

NWP 12.34 To ensure that individual activities do not exceed that level of impact, each NWP

rulemaking includes general conditions (GCs) that a permittee must comply with, as applicable.35

The NWPs reissued in 2017 detail 32 GCs that apply to any activity using an NWP for its

authorization, including the following:



Navigation (GC 1). No activity may cause more than minimal adverse effects on

navigation.

Water Supply Intakes (GC 7). No activity may occur in the proximity of a

public water supply intake, except where the activity is for the repair or

improvement of public water supply intake structures or adjacent bank

stabilization.

(...continued)

conditions that may apply to one or more NWPs and to require PCNs for proposed activities in a geographic region that

have the potential to cause more than minimal adverse effects on tribal rights, protected tribal resources, or tribal lands.

According to 82 Federal Register 1953, January 6, 2017, during the 2007, 2012, and 2017 NWP rulemakings, “Corps

Headquarters issued memoranda to its division and district offices that requested that Corps districts consult with tribes

on the NWPs to develop regional conditions, coordination procedures, and other measures to ensure that the NWPs

have no more than minimal adverse effects on tribal trust resources and tribal rights.”

In 2007, the Corps adopted a regulatory guidance letter on its permit process for proposed natural gas projects,

including interstate natural gas pipelines; the letter indicates that the Corps will provide a copy of its verification letters

to the Federal Energy Regulatory Commission (Letter from Major General Don T. Riley, Director of Civil Works,

Corps Regulatory Guidance Letter, September 19, 2007).

A national database of Corps individual permits is available at http://corpsmapu.usace.army.mil/cm_apex/f?p=

340:1:0::NO. The database includes individual permits; it is searchable by Corps regulatory office, month, and year.

Available data fields include the name of the applicant and project name (which may reference the type of project);

there is no database field for the type of project (e.g., pipeline).

33 U.S.C. §1344(e).

Although noncompliance with the general conditions (GCs) can be the basis for enforcement action, courts have held

that the Corps need not undertake a searching examination of compliance with each GC prior to issuing an NWP

verification (Mobile Baykeeper, Inc. v. U.S. Army Corps of Engineers, 2014 WL 5307850 (S.D. Ala. October 16,

2014)). According to 82 Federal Register 1952, January 6, 2017, “District engineers monitor the use of the NWPs in

specific geographic regions, to ensure that the use of the NWPs does not result in more than minimal cumulative

adverse environmental effects, which includes adverse effects to tribal rights, protected tribal resources, and tribal

lands.”

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Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers



Management of Water Flows (GC 9). To the maximum extent practicable, the

pre-construction course, condition, capacity, and location of water flows must be

maintained.

Proper Maintenance (GC 14). Any authorized structure or fill shall be properly

maintained, including maintenance to ensure public safety and compliance with

applicable NWP GCs, as well as any activity-specific conditions added by the

district engineer to an NWP authorization.36 (For information on how pipeline

safety is addressed and how it relates to GC 14, see box titled “PHMSA Pipeline

Safety Regulation and Corps Permit Conditions Related to Safety.”)

Tribal Rights (GC 17). No NWP activity may cause more than minimal adverse

effects on tribal rights (including treaty rights), protected tribal resources, or

tribal lands.37

Endangered Species (GC 18). No activity may be authorized if it is likely to

directly or indirectly jeopardize the continued existence of a threatened or

endangered species or a species proposed for such designation, as identified

under the federal Endangered Species Act (ESA),38 or if it will directly or

indirectly destroy or adversely modify the critical habitat of such species.

Historic Properties (GC 20). In cases where the district engineer determines that

the permitted activity may affect properties listed, or eligible for listing, in the

National Register of Historic Places, no activity may be authorized until the

requirements of Section 106 of NHPA have been satisfied. Section 106 requires

federal agencies to take into account the effect of their undertakings on any

historic property.

Mitigation (GC 23). The district engineer must consider specific factors when

determining appropriate and practicable mitigation measures to ensure that any

adverse effects on the aquatic environment are minimal (e.g., to the maximum

extent practicable, the activity must be designed and constructed to avoid and

minimize temporary and permanent adverse effects, at the project site, to waters

of the United States).

Water Quality (GC 25). The permittee must obtain an individual water quality

certification or waiver for discharges authorized by the NWP if the state or

authorized tribe has not previously certified compliance of the NWP with Section

401 of the Clean Water Act.39

NWP 12 Decision Document (p. 24) states:

General condition 14, proper maintenance, requires NWP activities to be maintained to ensure

public safety. For NWP 12 activities, this includes maintaining the utility line so that it does not

leak. The Corps does not regulate the operation and maintenance of pipelines, if those activities do

not include activities that require [Department of the Army] authorization. As discussed above,

there are other federal agencies that have legal responsibility for addressing the operation of

pipelines and responding to leaks or spills that may occur. Concerns regarding pipeline leaks or

spills should be brought to the attention of those federal agencies.

According to 82 Federal Register 1953, January 6, 2017, “If a tribe has concerns with how a Corps district is

implementing these NWPs, the tribe should raise those concerns to the district. Disagreements concerning

interpretation of treaties may need to be resolved by other parties.”

16 U.S.C. §1536.

33 C.F.R. §330.4 contains the regulations for implementing Section 401 of the Clean Water Act.

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

Pre-construction Notification (GC 32). The permittee is required to provide a

PCN as specified in each NWP.

Unlike with individual permits, activities in regulated waters can be conducted pursuant to NWPs

without an evaluation of alternatives to those activities (e.g., a water crossing proposed by a

pipeline developer can be authorized under the NWP without the Corps evaluating alternative

crossing locations).40 For verification under an NWP, GC 18 and GC 20 may require the use of

the NWP to be reviewed if the activity may adversely affect federally listed endangered or

threatened species or historic properties. For more on NWP and ESA compliance, see box

“Nationwide Permits and Endangered Species Act Compliance.” For more on historic properties

compliance, see this report’s section titled “Corps Procedures for Protecting Historic Properties.”

PHMSA Pipeline Safety Regulation and Corps Permit Conditions Related to Safety

The Pipeline and Hazardous Materials Safety Administration (PHMSA) largely determines the minimum federal

requirements for interstate pipelines. PHMSA regulations are largely how pipeline safety is addressed in pipeline

design, construction, and maintenance. PHMSA also is responsible for reviewing oil spill response plans (known as

facility response plans) for oil pipelines that might spill oil into navigable waters or on the shoreline. PHMSA reviews

and approves these plans consistent with 33 U.S.C. §1321. Key elements of a facility response plan are, among other

things, a worst-case discharge calculation and location (49 C.F.R. §194) and identification of environmentally and

economically sensitive areas.

Regarding siting of pipelines, PHMSA identifies high consequence areas (HCAs) to reduce the consequences of an

inadvertent release from pipelines. HCAs for natural gas transmission focus solely on populated areas. For hazardous

liquid pipelines, such as oil pipelines, the HCAs are identified based on populated areas, drinking water sources, and

unusually sensitive ecological resources. PHMSA’s Office of Pipeline Safety identifies and maps HCAs for hazardous

liquids because of their complexity, while operators of natural gas pipelines use an equation to calculate a radius of

potential impact and then compare the area of potential impact to populated areas. Pipeline segments in the presence

of HCAs may require extra integrity protection to reduce risk.

Regarding the scope of the treatment of pipeline safety within the agency’s regulatory program, the Corps has stated:

We do not have the authority to regulate the operation of oil and gas pipelines, and we do not have the

authority to address spills or leaks from oil and gas pipelines. ... There are other federal laws that address the

operation of pipelines and spills and leaks of substances from pipelines. Those laws are administered by other

federal agencies. (U.S. Army Corps of Engineers, Decision Document Nationwide Permit 12, January 6, 2017,

p. 1884.)

Instead, when the Corps provides authorization for activities regulated under Section 404 and Section 10, the agency

generally requires that the authorized structures be properly maintained to ensure public safety. For example, under

Nationwide Permit 12, General Condition 14 on proper maintenance requires that any authorized structure be

maintained so that it does not leak.

Pre-construction Notification

GC 32 specifies that the permittee is required to submit a PCN to the Corps pursuant to the

applicable NWP; it also establishes the information required for inclusion in the PCN and the

timing of the agency’s review of the PCN. When a PCN is submitted, the Corps has 30 days to

determine whether a PCN is complete. The Corps district engineer has 45 days to review a

complete notification under most NWPs, including NWP 12, unless the proposed activity requires

an ESA Section 7 consultation and/or NHPA Section 106 consultation.41 If no ESA or NHPA

40 C.F.R. §230.7(b)(1).

NWP 12 Decision Document, p. 10. According to the Corps, the agency’s mean number of days for evaluating

complete applications for verifications pursuant to the NWPs that require PCNs is 41 days (2016 NWP Regulatory

Impact Analysis, p. 10). If additional information is needed in order to complete an application, the permitting process

may take more time. The mean number of days from the initial notification with a PCN under an NWP (which may or

may not represent a complete application) to the Corps decision is 86 days (ibid., p.10). No data on permit-processing

(continued...)

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Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

consultation is required, the proposed work generally may not proceed without written

confirmation from the district engineer; however, if no decision is issued during the 45-day

review period, the permittee may presume that the activity qualifies for the NWP.42 If ESA or

NHPA consultation is required, the proposed work may not begin before receiving a written NWP

verification. PCNs and their verifications are not required to be published, nor must a public

comment opportunity be provided during the review period. The public may not be aware that a

PCN has been submitted to the Corps.

Nationwide Permits and Endangered Species Act Compliance

Section 7 of the Endangered Species Act (ESA) requires federal agencies to consult with the Department of the

Interior’s Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate, to determine whether an

activity an agency might authorize “may affect” a species listed or proposed for listing as threatened or endangered

under ESA. The Corps does not engage in Section 7 consultation on rulemaking for the nationwide permits (NWPs)

because it relies on General Condition 18 and other NWP procedures, such as regional conditions, to ensure that

the NWPs are not likely to jeopardize any threatened or endangered species or harm critical habitat. Consequently,

the Corps may have to ensure ESA compliance for specific NWP verifications. A Corps document indicates that the

agency conducted 1,402 formal consultations and 9,302 informal consultations for specific activities under the NWP

pursuant to Section 7 of the ESA during the period March 19, 2012, to September 30, 2016 (U.S. Army Corps of

Engineers, Decision Document Nationwide Permit 12, January 6, 2017, p. 65). No consultation statistics specific to NWP

12 are available. According to the same Corps document (p. 66), “If the biological opinion concludes that the

proposed activity is likely to jeopardize the continued existence of listed species or adversely modify or destroy

critical habitat, the proposed activity cannot be authorized by NWP and the district engineer will instruct the

applicant to apply for an individual permit.” For more on what is a Section 7 consultation, see CRS Report RL31654,

The Endangered Species Act: A Primer, by (name redacted) and (name reda cted)

Nationwide Permit 12: Issues Raised Regarding Current Approach

and Use

As noted, the majority of oil and natural gas pipeline activities subject to the Corps regulatory

program are authorized via NWP 12. Some stakeholders have criticized the Corps for relying on

NWP 12 to authorize pipeline-related activities. A primary concern is that the NWP process does

not allow for a separate environmental review of each activity or set of activities for a pipeline

project proceeding under NWP 12. The agency’s position is that, if applicable general conditions

and limits for using the NWP are met, the environmental impacts would be minimal.

The Corps has developed the general conditions for the use of NWP 12 to establish compliance

with federal laws related to species, historic properties, and environmental impacts. Some critics

contend that permittees that are not required to submit PCNs make their own determinations

about project-specific conditions without Corps review.

Another criticism relates to the scope of environmental impacts considered for projects under

NWP 12. NWPs can be used only for a “single and complete project” that will cause only

minimal adverse environmental effects, individually or cumulatively.43 The Corps defines a single

(...continued)

times are available for NWP 12 or for oil and natural gas pipeline-related verifications pursuant to NWP 12. As noted,

these data are for the mean; information on the full distribution of evaluation days and application days is not available.

According to the NWP 12 Decision Document (p. 11), “If the district engineer determines after reviewing the PCN

that the cumulative adverse environmental effects are more than minimal, after considering a mitigation proposal

provided by the project proponents, he or she will exercise discretionary authority and require an individual permit.”

33 C.F.R. §330.2(i).

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Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

and complete project as a portion of a total project that includes all crossings of a single water

body at a specific location.44 Thus, NWP 12 can be used multiple times for a single pipeline with

numerous water crossings if each crossing does not result in the loss of greater than 0.5 acres of

waters of the United States. Therefore, the “project” that is subject to Corps authorization is not

the entire pipeline but rather the discrete segments that cross waters subject to the agency’s

regulatory jurisdiction. Critics say that such segmenting of a pipeline when NWPs are used fails

to account for cumulative effects. Legal challenges to the use of NWPs along these lines of

argument have been largely unsuccessful.45

Corps Civil Works Program

If a proposed nonfederal pipeline of any type or other nonfederal activity would cross or

otherwise use federal lands, the developer generally is required to obtain the appropriate real

estate interest (e.g., an easement providing a right-of-way for the pipeline) from the federal

agency authorized to administer that land. The Corps owns 7.6 million acres of land and manages

another 4.1 million acres, often through federal flowage easements on nonfederal, frequently

private, land.46 The Corps is responsible for these lands because they are part of Corps civil works

projects. The agency’s inventory of civil works projects includes 702 dams and associated

reservoirs and 14,500 miles of Corps-constructed levees. A pipeline developer also is required to

obtain the agency’s permission prior to altering or otherwise affecting the operations of a Corps

civil works project.

For requests to have pipelines cross below, on, or above Corps land and non-Corps land with a

Corps real estate interest, the Corps generally will decide on whether or not to grant both a

permission to alter a Corps civil works project and an easement to cross Corps land or a consent

to cross non-Corps land with a Corps real estate interest.

Permission to Alter a Corps Project

Corps authority to allow alterations to its projects derives from Section 14 of the Rivers and

Harbors Act of 1899, also known as Section 408 based on its codification at 33 U.S.C. §408. This

provision states that the Secretary of the Army may “grant permission for the alteration or

permanent occupation or use of any of the aforementioned public works when in the judgment of

the Secretary such occupation or use will not be injurious to the public interest and will not

impair the usefulness of such work” (emphasis added).

According to 82 Federal Register 2007, January 6, 2017, “For linear projects crossing a single or multiple

waterbodies several times at separate and distant locations, each crossing is considered a single and complete project

for purposes of NWP authorization.”

See, for example, Sierra Club v. United States Army Corps of Eng'rs, 990 F. Supp. 2d 9 (D.D.C. 2013) related to the

Flanagan South oil pipeline; Mobile Baykeeper, Inc. v. U.S. Army Corps of Engineers, 2014 WL 5307850 (S.D. Ala.

October 16, 2014) related to the use of NWP 12 for 12 water-crossing authorizations for a 41-mile pipeline transporting

oil from Alabama to Mississippi; and Sierra Club v. Bostick, 787 F.3d 1043 (10th Cir. 2015) related to the 485-mile

Gulf Coast Pipeline to transport oil with more than 2,000 regulated crossings authorized using NWP 12. A dissent in an

earlier opinion in the Sierra Club v. Bostick litigation contrasts with the previously noted opinions, in that it attributed

significance to the absence of a Corps NEPA document for the cumulative impacts of the more than 2,000 NWP 12

verifications (Sierra Club v. Bostick, No. 12-6201, 539 Fed. Appx. 885, 896, 2013 U.S. App. LEXIS 20667, 2013 WL

5539633, at *9 (10th Cir. Oct. 9, 2013)).

U.S. Army Corps of Engineers, Information Paper: Civil Works Program Statistics, March 20, 2013. Flowage

easement land is non-Corps-owned land on which the Corps has acquired certain perpetual rights, including the right to

flood the land.

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A Section 408 permission is required for all alterations to Corps projects, not only alterations by

pipelines.47 For pipelines over 24 inches (24″) in diameter, the Corps conducts a technical review

of the proposed pipeline’s effects on Corps projects pursuant to Engineer Circular (EC) 1165-2216, Policy and Procedural Guidance for Processing Requests to Alter US Army Corps of

Engineers Civil Works Projects Pursuant to 33 USC 408.48 For more details on the technical

review conducted for deciding to grant, grant with conditions, or deny a Section 408 permission,

see the box “Section 408 Permissions: Guidance Since 2015 and Congressional Action.” For

smaller pipelines and other encroachments of a more routine or minimal nature, the Corps

complies with Section 408 by following the process established in Chapter 17, “Non-Recreation

Outgrant Policy,” of Engineer Regulation (ER) 1130-2-550, Recreation Operations and

Maintenance Policies.49

Section 408 Permissions: Guidance Since 2015 and Congressional Action

In 2015, the Corps released new regulations for how the agency would process requests for Section 408

permissions—Engineer Circular (EC) 1165-2-216. The regulations require the Corps to review (1) whether granting

the 408 permission would impair the usefulness of the specific Corps project and (2) whether the proposed alteration

to the Corps project would be injurious to the public interest based on probable, including cumulative, impacts. EC

1165-2-216 states:

Evaluation of the probable impacts that the proposed alteration to the [Corps] project may have on

the public interest requires a careful weighing of all those factors that are relevant in each particular

case. The benefits that reasonably may be expected to accrue from the proposal must be compared

against its reasonably foreseeable detriments. The decision whether to approve an alteration will be

determined by the consideration of whether benefits are commensurate with risks.

EC 1165-2-216 also states:

Factors that may be relevant to the public interest depend upon the type of [Corps] project being

altered and may include, but are not limited to, such things as conservation, economic development,

historic properties, cultural resources, environmental impacts, water supply, water quality, flood

hazards, floodplains, residual risk, induced damages, navigation, shore erosion or accretion, and

recreation. This evaluation should consider information received from the interested parties,

including tribes, agencies, and the public.

As part of the technical review, the Corps complies with other federal statutes, such as the National Environmental

Policy Act (NEPA), and provides public notice of the opportunity for public input. As part of the technical review and

accompanying documents for NEPA compliance, the Corps considers reasonable feasible alternatives. In practice, the

alternatives considered are generally limited to (1) the proposed alteration in place and (2) the proposed alteration

not in place. According to EC 1165-2-216, examination of alternatives not proposed by the applicant should be

The Corps received 1,437 applications (also referred to as requests) in FY2016 for Section 408 permissions. There is

no available information on how many of these requests were related to oil and natural gas pipelines (Email from U.S

Army Corps of Engineers staff to Congressional Research Service, November 10, 2016). The Corps processed a total of

847 requests in FY2016; of these, the Corps approved 755 and denied 42, and 52 requests were withdrawn (ibid.).

There are no data on how often the Corps used environmental assessments or the more-detailed environmental impact

statements as part of its NEPA compliance for the agency’s Section 408 permission reviews (ibid.). No data on

processing times for Section 408 permissions are publicly available.

U.S. Army Corps of Engineers, Policy and Procedural Guidance for Processing Requests to Alter US Army Corps of

Engineers Civil Works Projects Pursuant to 33 USC 408, Engineer Circular (EC) 1165-2-216, September 30, 2015

(June 21, 2016, update), at http://www.publications.usace.army.mil/Portals/76/Publications/EngineerCirculars/

EC_1165-2-216.pdf?ver=2016-09-01-111054-827.

U.S. Army Corps of Engineers, Recreation Operations and Maintenance Policies, Engineer Regulation (ER) 1130-2550, October 1, 1999, at http://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/

ER_1130-2-550.pdf?ver=2014-05-06-112352-670. EC 1165-2-216 states that easements and other approved uses of

federal lands by nonfederal entities issued pursuant to ER 110-2-550, Chapter 17 meet “the intent of Section 408.”

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evaluated only to the extent necessary to allow a complete and objective evaluation of the public interest and an

informed decision regarding the permission. At the end of the Section 408 process, the Corps chooses to provide or

deny permission for the alteration to the Corps project; the Corps also can attach conditions to its Section 408

permission, including conditions that should be applied to the easement or consent.

EC 1165-2-216 (as drafted in 2015 and updated in 2016) provided some time frames for specific steps within the

agency’s review process; it did not specify guidance on or requirements for a timeline for completing the entire

permission process. EC 1165-2-216 also did not specify that the Corps needed to identify an application as complete

or incomplete. Instead, it indicated that Corps district would work with the applicant to determine the level of detail

necessary to make a decision for a particular request and that the Corps district may request additional information

from the applicant during the agency’s review.

The 114th Congress addressed the agency’s Section 408 permission process in legislation enacted in December 2016.

Specifically, Section 1156 of P.L. 114-322 amended the Section 408 authority to require the Corps to



indicate whether the application is complete within 30 days of receiving the application,



decide on the Section 408 permission or provide a schedule of when the decision would be made within 90 days

of receiving a complete application, and



coordinate its NEPA review of an activity requiring a Section 408 permission with other NEPA reviews related

to that activity (including any review under the agency’s regulatory authorities or led by another agency).



Section 1156 also allowed the Corps to accept and expend funds received from nonfederal public and private

entities to evaluate an alteration or permanent occupation or use of a work built by the United States. In June

2017, the Corps released its implementation guidance for Section 1156. The guidance indicates that EC 1165-2216, which is set to expire on September 30, 2017, is in the process of being revised to include lessons learned

and to implement the changes made in statute in 2016 and 2014 (Section 1007 of P.L. 113-121).

Sources: U.S. Army Corps of Engineers, Policy and Procedural Guidance for Processing Requests to Alter US Army Corps of

Engineers Civil Works Projects Pursuant to 33 USC 408, EC 1165-2-216, September 30, 2015 (updated June 21, 2016);

U.S. Army Corps of Engineers, Implementation Guidance for Section 1007 of the Water Resources Reform and

Development Act of 2014 (WRRDA 2014), Expediting Approval of Modifications and Alterations of Projects by Non-Federal

Interests and Section 1156 of the Water Resources Development Act of 2016 (WRDA 2016), Structures and Facilities

Constructed by Secretary, Memorandum for Distribution, June 2, 2017.

Corps Easements or Consents for Pipelines

Federal agencies, including the Corps, may grant an easement for oil and natural gas pipelines to

cross federal land in accordance with the provisions of Section 28 of the Mineral Leasing Act

(MLA).50 The Corps also can consent to a pipeline crossing non-Corps lands with a Corps real

estate interest (e.g., flowage easement) using a broad, military-wide real estate authority.51

If a Section 408 permission is needed, the easement or consent is contingent upon the granting of

the Section 408 permission.

Congressional Committee Notification

Since 1973, the MLA requires that two congressional authorizing committees—the House Natural

Resources Committee and the Senate Energy and Natural Resources Committee—be notified if

the developer of an oil or natural gas pipeline with a diameter of 24″ or greater is requesting to

cross federal land.52 The Corps also must notify the committees if it intends to grant an easement

30 U.S.C. §185.

10 U.S.C. §2668. Corps consents do not grant a right or interest in a property.

30 U.S.C. §185(w)(2). The Secretary of the Interior or the head of the federal agency appropriate for the land being

crossed is required to perform this notification. The remainder of this section of the report discusses these requirements

and the related policies of the Corps for Corps-managed, federal lands.

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and must provide “detailed findings as to the terms and conditions” to be imposed on the

applicant.53

The MLA is not more specific about what the contents of these notifications, nor does it provide

guidance about when an agency may grant the rights-of-way application in relation to the

committee notification.54 The Corps released a policy guidance memorandum in 2008 for

easements of pipelines that are 24″ or larger.55 The policy direction therein regarding

congressional notification and the granting of the rights-of-way states: “If the Committee does not

provide an affirmative response, [the Corps] District will wait 14 days following Committee

notification before execution of the easement.”56 The Administration can waive this policy-based

waiting period.

Evaluation of Request and Conditions of Easement or Consent

To decide on easements and consents, the Corps follows Chapter 8 of ER 405-1-12, Real Estate

Handbook,57 and Army Regulation (AR) 405-80, Management of Title and Granting Use of Real

Property.58 ER 405-1-12 requires that the Corps find that “the proposed easement will not be

inconsistent with the authorized purposes of the Federal installation or project.”59

According to ER 405-1-12, site-specific environmental, cultural, and operational requirements

may be added to the easement or consent; also, the Corps is to impose any special requirements

for safe operation of a pipeline or related facilities.60 For example, according to the Corps, the

Lake Oahe easement for DAPL “contains 36 conditions that are intended to further mitigate risk

of rupture at the Lake Oahe crossing,” including specific coatings to prevent corrosion, corrosion

Ibid.

In 1990, P.L. 101-475 removed a requirement for a waiting period following congressional notification (emphasis

added):

The Secretary or agency head shall notify the House and Senate Committees on Interior and Insular

Affairs promptly upon receipt of an application for a right-of-way for a pipeline twenty-four inches

or more in diameter, and no right-of-way for such a pipeline shall be granted until sixty days (not

counting days on which the House of Representatives or the Senate has adjourned for more than

three days) after a notice of intention to grant the right-of-way, together with the Secretary’s or

agency head’s detailed findings as to terms and conditions he proposes to impose, has been

submitted to such committees, unless each committee by resolution waives the waiting period.

H. Rpt. 101-833 and S. Rpt. 101-471 provide information on the congressional discussion surrounding these changes.

The congressional notification and waiting period had been added in 1973, as part of the amendments to the Minerals

Leasing Act (30 U.S.C. §185(w)(2)) made in legislation.

Letter from Scott L. Whiteford, Acting Director of Real Estate, Corps Real Estate Policy Guidance Letter No. 27,

October 29, 2008. Hereinafter Corps Real Estate Policy Guidance Letter No. 27.

Corps Real Estate Policy Guidance Letter No. 27 also states that “If the pipeline only crosses an area held in less than

fee, such as an easement, then the [Corps] District will follow the process to consent to the fuel-carrying pipeline. No

notice to Congress is required for a Consent.”

U.S. Army Corps of Engineers, Real Estate Handbook, Engineer Regulation (ER) 405-1-12, Washington, DC,

September 30, 1994.

These guidance documents do not specify a time frame within which the Corps is to complete its process for granting

or denying a request for an easement or consent. Department of the Army, Management of Title and Granting Use of

Real Property, Army Regulation 405-80, Washington, DC, October 10, 1997, at http://usahec.contentdm.oclc.org/cdm/

ref/collection/p16635coll11/id/1556/.

According to ER 405-1-12, the district engineer of the Corps district in which the pipeline easement application is

being reviewed will provide notice and a public hearing where appropriate; however, no further hearings are required if

the pipeline proposal has been scrutinized through NEPA procedures or other hearings held by federal or state agencies.

ER 405-1-12, pp. 8-110 and 8-113.

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surveys after installation, more stringent enforcement of the pipeline’s oil spill facility response

plan, mainline valve and automatic shutdown requirements, and measures for initial and ongoing

leak and crack detection.61

If the Corps finds that the pipeline is not inconsistent with the authorized purposes of the Corps

project and its lands, the Corps signs a real estate instrument that grants the easement.62 If the

pipeline crosses lands administered by the Corps and at least one other federal agency, the

Secretary of the Interior is authorized, after consultation with the agencies involved, to grant or to

deny the easement.63 Each agency head remains responsible for administering and enforcing the

easements, as they involve lands under the agency head’s jurisdiction.

Illustration of Corps Approval Processes for Pipelines at Corps

Projects and Real Estate

Figure 2 illustrates the relationship between the Section 408 permission, the real estate or consent

process, and the MLA congressional notification requirements for proposed pipelines. The

Section 408 permission process is shown in the grey boxes on the left side of Figure 2. The

process to grant or deny the easement or consent is shown in the tan boxes on the right side of

Figure 2. The MLA notification requirements are shown in the green boxes in Figure 2.

U.S. Army Corps of Engineers’ Opposition to Standing Rock Sioux Tribe’s Motion for Partial Summary Judgment

and Cross Motion for Partial Summary Judgment at 9, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers,

No. 16-1534 (D.D.C. filed July 27, 2016), ECF No. 172.

According to ER 405-1-12, the Assistant Secretary of the Army for Installations, Energy, and Environment executes

easements for pipelines 24 inches in diameter or larger. The use of not inconsistent (rather than a determination of

consistency) reflects the language used in the underlying authority at 33 U.S.C. §408.

For example, the Bureau of Land Management (BLM) on behalf of the Secretary of the Interior renewed in 2011 the

easement for the natural gas pipeline owned by the Northern Border Pipeline Company to cross the same Corps lands

on the Missouri River as DAPL; the renewal also included easements to cross U.S. Forest Service and BLM lands.

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Figure 2. Major Steps in Corps Approval Processes

for Pipeline Segments Crossing Corps Projects and Real Estate Interests

Source: CRS.

Notes: Corps land refers to Corps-managed federal land. House NR = House Natural Resources Committee;

Senate ENR = Senate Energy and Natural Resources Committee. Information within parentheses refers to the

U.S. Code (U.S.C.) for the guiding statutory authority or to Corps documents, including Engineer Circulars (EC),

Engineer Regulations (ER), and Army Regulations (AR).

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Compliance with Other Federal Statutes During Corps Civil

Works Processes

As part of the process of granting an easement or consent, the Corps must comply with federal

statutes. The Corps typically evaluates this compliance as part of its NEPA documentation. For a

request that requires both a Section 408 permission and an easement or consent by the Corps, the

NEPA document is produced as part of the technical review for the Section 408 permission. As

part of the technical review process, the Corps documents and demonstrates that it has gathered

relevant information from the pipeline developer and that it has analyzed that and any additional

information necessary to determine what federal requirements may apply to the Corps’ actions.

During that process, the Corps determines the resources potentially affected by granting the

permission and easement or consent, and it determines whether the impacts to those resources

would trigger actions necessary for compliance with other federal laws, such as Section 106 of

NHPA and Section 7 of ESA, among others.64

Compliance with Federal Statutes

As previously noted, Corps regulatory actions and civil works actions may be subject to other

federal statutes, such as NEPA, NHPA, and ESA.65 Part of the compliance may include

consultation or input from other entities. Table 1 lists selected federal laws that, if applicable to a

Corps pipeline-related action, may require the Corps to consult with relevant state or tribal

entities or with other federal agencies. Most requirements listed in the table are limited to actions

taken by federal agencies. For example, an oil pipeline constructed on private land that does not

require a federal agency approval (e.g., a pipeline that does not cross Corps jurisdictional waters

or federal lands) would not be subject to NEPA or NHPA.

Table 1. Selected Federal Laws That Require Outside Agency Review

(additional laws often applicable to activities authorized by the Corps)

Law/Requirement

Description/Agency Consultation Requirement

National Environmental

Policy Act

(NEPA; 42 U.S.C.

§§4321 et seq.)

Requires federal agencies to identify and consider the potential impacts of their

proposed actions (e.g., a proposed rulemaking or an applicant’s request to approve a

specific project) and to inform the public of those impacts before making a final

decision whether to proceed with the action. When preparing the necessary NEPA

analysis, the Corps (the lead agency) must request comments and other assistance

from any other federal agencies (cooperating agencies) that have jurisdiction by law or

special expertise with respect to any environmental impact involved in a proposal.

Cooperating agencies may include state and tribal agencies.

Section 106 of the

National Historic

Preservation Act, as

amended

(NHPA; 54 U.S.C.

§306108)

Requires federal agencies to take into account the effects that activities they may

authorize are likely to have on historic properties listed in, or eligible for listing in, the

National Register of Historic Places. Agencies must consult with state historic

preservation officers (SHPOs) and tribal historic preservation officers (THPOs) and,

for certain proposed activities, the Advisory Council on Historic Preservation.

The Corps also may be required to or may follow policies that result in the agency taking steps to address tribal

treaties and tribal trust responsibilities; however, as discussed in footnote 5, these tribal topics are largely not within the

scope of this report.

Although executive orders, regulations, and executive branch policies also may result in the Corps taking certain

actions, the discussion herein is limited primarily to requirements associated with statute.

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Law/Requirement

Description/Agency Consultation Requirement

Section 7 of the

Endangered Species

Act, as amended

(ESA; 16 U.S.C. §1536)

Requires federal agencies to consult with the Department of the Interior’s Fish and

Wildlife Service or the National Marine Fisheries Service, as appropriate, to determine

whether an activity that a federal agency may authorize “may affect” a species listed or

proposed for listing as threatened or endangered under ESA. No activity may be

authorized by the Corps that is likely to jeopardize the continued existence of such a

species or to destroy or adversely modify its critical habitat. After the consultation,

the Corps may add special conditions to its permit or approval to ensure that the

activity does not jeopardize endangered or threatened species or destroy or adversely

modify critical habitat.

Section 401 of the

Clean Water Act, as

amended

(33 U.S.C. §1341)

Requires a permit applicant to obtain a water quality certification from the U.S.

Environmental Protection Agency or an authorized state or tribal agency if the activity

subject to permitting may result in the discharge of a pollutant into waters of the

United States. The certification specifies any conditions the permittee must meet to

ensure compliance with applicable effluent limitations and water quality standards. No

nationwide permit or other Corps permit can be authorized until the activity receives

a water quality certification from the authorized agency within a reasonable period of

time (which shall not exceed one year) or the agency waives certification.a

Coastal Zone

Management Act of

1972, as amended

(CZMA, 33 U.S.C

§1456)

If the proposed activity is located or would affect the coastal zone of a state with a

coastal zone management program approved by the Secretary of Commerce, Section

307(c) of the CZMA, as amended, requires that the applicant must furnish a

consistency concurrence that the proposed project is in compliance with the state’s

approved coastal zone management program. The state’s concurrence with the

applicant’s certification should be obtained prior to the issuance of the Corps permit.b

Source: CRS.

a. Under the nationwide permits (NWPs), the Corps district engineer may issue a provisional verification for

an activity that requires a Section 401 certification, but the activity is not authorized until the Section 401

water quality certification or waiver is obtained.

b. Under the NWPs, the Corps district engineer may issue a provisional verification for an activity that

requires CZMA consistency, but the activity is not authorized until the CZMA consistency concurrence or

the presumption of concurrence is obtained.

As shown in Table 1, federal licenses and approvals, such as Corps individual permits, generally

are conditioned on the permittee obtaining a state or tribal water quality certification pursuant to

Section 401 of the Clean Water Act and a state or tribal consistency concurrence pursuant to the

Coastal Zone Management Act.66 For the NWPs, compliance with Section 401 of the Clean Water

Act is accomplished by satisfying GC 25. The state or tribe can certify all activities authorized by

an NWP or require that verifications of certain activities under an NWP obtain state or water

quality certification. The state or tribe can approve, deny, or condition its certification. Although

the Corps is not part of the process for the permittee to obtain a state or tribal water quality

certification, the denial of a water quality certification can affect the Corps’ regulatory

authorizations for pipelines. For example, the developer of the Northern Access Pipeline to

transport natural gas from Pennsylvania to New York has planned on using the NWP 12 for 276

wetland and 192 stream crossings. In April 2017, the New York State Department of

Environmental Conservation (NYSDEC) denied the state water quality certification pursuant for

the April 2016 application for the 94-mile pipeline.67 Until the pipeline developer complies with

For the NWPs, Coastal Zone Management Act of 1972, as amended (CZMA, 33 U.S.C §1456) compliance is

pursued through GC 26 on coastal zone management. The state can provide a consistency concurrence to all activities

authorized by an NWP or require that verifications of certain activities under an NWP obtain a consistency

concurrence. The state can approve, deny, or condition its concurrence.

For the notice and explanation of the state’s denial of this water quality certification, see letter from John Ferguson,

(continued...)

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Section 401 of the Clean Water Act, the Corps will be unable to allow the permittee to proceed in

New York under NWP 12 because of the permit’s GC 25 on water quality. Individual permits also

require state water quality certification. The pipeline developer can address the concerns that led

to the NYSDEC denial and submit a new application to NYSDEC for a state water quality

certification or pursue a public hearing within 30 days of the denial consistent with New York

regulations.68 A detailed discussion of how state approvals, and the state water quality

certification in particular, may affect federal approvals for pipelines is beyond the scope of this

report.

The remainder of this section addresses two agency-specific procedures that the Corps has

adopted for its regulatory program: NEPA procedures and historic properties procedures.

Agency-Specific Procedures of the Corps Regulatory Program

The Corps regulations implementing the agency’s regulatory program include procedures to

implement NEPA and to provide for the protection of historic properties.69 Those procedures

reveal the agency’s interpretation of the limits to its jurisdiction; that is, the procedures reflect that

the Corps interprets its regulatory authorities under Section 404 and Section 10 as not extending

to private actions upland of regulated waters.

Corps NEPA Procedures

NEPA requires federal agencies to identify and consider the environmental impacts of an action

before a final decision is made about that action. Regulations implementing NEPA were

promulgated by the Council on Environmental Quality (CEQ).70 Those regulations identify

federal actions subject to NEPA to include those over which a federal agency has some control or

responsibility.71 Each federal agency was required to adopt the CEQ regulations, supplement

them as necessary to include procedures relevant to that agency’s authority, and ensure that those

(...continued)

Chief Permit Administrator, New York State Department of Environmental Conservation, to National Fuel Gas Supply

Corporation and Empire Pipeline, Inc., April 7, 2017, at http://www.dec.ny.gov/docs/permits_ej_operations_pdf/

northaccesspipe42017.pdf. In 2016, the New York State Department of Environmental Conservation (NYSDEC) also

denied the state water quality certification for the Constitution Pipeline (John Ferguson, Chief Permit Administrator,

New York State Department of Environmental Conservation, to Constitution Pipeline Company, LLC, April 22, 2016,

at http://www.dec.ny.gov/docs/administration_pdf/constitutionwc42016.pdf). In 2017, NYSDEC established a special

condition for the use of the NWP 12 during its five-year term from 2017 to 2022 in the state; the condition is

Utility Line activities that cross multiple waterbodies or cross the same waterbody at multiple

locations, while viewed as multiple ‘single and complete’ projects for the purposes of the

Nationwide Permit program, will be considered by the Department as a single project for all

crossings for the entire length of the project in New York State for the purpose of obtaining Water

Quality Certification from New York State and determining the disturbance threshold of 300 linear

feet or ¼ acre.

(Letter from Kent P. Sanders, Deputy Chief Permit Administrator, New York State Department of Environmental

Conservation, to Stephan A. Ryba, Chief Regulatory Branch, U.S. Army Corps of Engineers, March 7, 2017, at

http://www.dec.ny.gov/docs/permits_ej_operations_pdf/wqcnwp2017.pdf.)

Each state develops its own processes for addressing appeals related to denials or required conditions of state water

quality certifications.

33 C.F.R. Part 325.

See Council on Environmental Quality, “Regulations for Implementing the Procedural Provisions of the National

Environmental Policy Act,” in 40 C.F.R. Parts 1500-1508 (43 Federal Register 55990, November 28, 1978).

See 40 C.F.R. §1508.18.

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procedures implementing NEPA are integrated into the agency’s broader decisionmaking

procedures.72 The Corps adopted and supplemented the CEQ regulations in its own Procedures

for Implementing NEPA.73 Further, the Corps provides additional procedural guidance for

preparing and processing NEPA documents for regulatory actions in Appendix B to the

regulations implementing its regulatory program.74

Under NEPA, a project known to have a significant impact on the environment requires the

preparation of an environmental impact statement (EIS). When impacts are uncertain, an

environmental assessment (EA) is prepared to determine if an EIS is needed or a finding of no

significant impacts (FONSI) may be issued. The Corps has identified “regulatory actions” (i.e.,

issuance of a permit) among the actions that normally require an EA but not necessarily an EIS.75

The Corps does not require NEPA review for individual NWP verifications.76 Instead, to date, the

federal action subject to NEPA has been issuance of NWP 12. During the public rulemaking for

each of these five-year permits, NEPA compliance has involved preparation of an EA that resulted

in Corps issuance of a final decision document (its version of a FONSI).77 The Corps EA/decision

document for NWP 12 has been prepared, in part, to identify conditions that must be met to

ensure that authorization via an NWP is appropriate. Part of the process to develop the decision

document is the identification of general conditions to ensure that activities related to a single and

complete project will have minimal adverse environmental effects (i.e., no significant impacts

that would require the preparation of an EIS).

Understanding the scope of Corps NEPA reviews is useful in recognizing how far upland the

Corps will evaluate the impacts of a larger project (e.g., a pipeline that extends beyond Corpsregulated waters). As noted, under NEPA, the Corps is required to evaluate the impacts of an

action over which it has control and responsibility. Depending on the details of the activity

subject to Corps approval, the agency’s interpretation of the extent of its control and

responsibility over a proposed action will dictate the geographic area over which environmental

impacts are evaluated (i.e., how far upland from regulated waters the agency will review the

impacts of a larger project).78 For a discussion of the geographic limits of Corps environmental

reviews for pipelines, see the box titled “Geographic Limits of Corps Environmental Reviews.”

See directives included in 40 C.F.R. §§1505.1 and 1507.3.

33 C.F.R. Part 230.

Specifically, “NEPA Implementation Procedures for the Regulatory Program” in Appendix B to 33 C.F.R. Part 325.

33 C.F.R. §230.7(a).

82 Federal Register 1861, January 6, 2017.

All “2017 Nationwide Permit Final Decision Documents” are available at http://www.usace.army.mil/Missions/

Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/2017_NWP_FinalDD/.

See requirements applicable to “scope of analysis” associated with an “EA/FONSI document” in 33 C.F.R. Part 325,

Appendix B(7)(b). Specifically, see the typical factors to be considered in determining whether sufficient control and

responsibility exists in Appendix B(7)(b)(2), including the discussion of the extent of federal control and

responsibility—“Federal control and responsibility will include the portions of the project beyond the limits of Corps

jurisdiction where the cumulative Federal involvement of the Corps and other Federal agencies is sufficient to grant

legal control over such additional portions of the project”—and examples in Appendix B(7)(b)(3), such as “[f]or those

regulated activities that comprise merely a link in a transportation or utility transmission project, the scope of analysis

should address the Federal action, i.e., the specific activity requiring a DA [Department of Army] permit and any other

portion of the project that is within the control or responsibility of the Corps of Engineers (or other Federal agencies).”

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Geographic Limits of Corps Environmental Reviews

Whether an entire pipeline or activities associated with segments of a pipeline are subject to federal authorization or

approval shapes how a federal agency scopes its environmental review. This is sometimes referred to as the extent to

which the project is federalized, particularly for purposes of complying with the National Environmental Policy Act

(NEPA). Some of the controversy over the actions of the Corps related to pipelines stems from the limits of the

agency’s authorities. When an agency has a limited role in a private action the federal authority is sometimes

characterized as a small federal handle. That term refers to the limits of federal authority related to projects that are

largely nonfederal but become partially federalized because some aspect of the project is subject to a federal permit

or approval. In contrast, as previously noted, the Federal Energy Regulatory Commission (FERC) is authorized to

approve interstate natural gas pipelines; therefore, in its evaluation, FERC must identify and consider the impacts of

the entire pipeline.

A privately funded linear project, such as an oil pipeline, built largely on nonfederal land is an example of a project

with a small federal handle for the Corps. For example, the Corps interprets its permitting authority under Section

404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 to mean that it is required to

evaluate the environmental impacts of only those activities associated with the geographically discrete segments of the

pipeline related to regulated waters and wetlands. Generally, the review by the Corps does not encompass private

activity outside the scope of the sum of the geographically limited federal authorizations. A 2015 court decision

related to Flanagan South oil pipeline’s more than 2,000 water crossings authorized under NWP 12—Sierra Club v.

U. S. Army Corps of Engineers, 803 F.3d 31, 34 (D.C. Cir. 2015)—stated:

We hold that the federal government was not required to conduct NEPA analysis of the entirety of the

Flanagan South pipeline, including portions not subject to federal control or permitting. The agencies’

respective regulatory actions—in the form of easements, Clean Water Act verifications, and authorization

to harm or kill members of endangered species without incurring liability under the Endangered Species Act

(ESA)—were limited to discrete geographic segments of the pipeline comprising less than five percent of its

overall length. As explained below, the agencies were required to conduct NEPA analysis of the foreseeable

direct and indirect effects of those regulatory actions. However, on the facts of this case, the agencies were

not obligated also to analyze the impact of the construction and operation of the entire pipeline.

Corps Procedures for Protecting Historic Properties

The Corps established “Procedures for the Protection of Historic Properties” in Appendix C to its

regulations applicable to Department of the Army permits.79 The Corps follows Appendix C to

fulfill the procedural requirements set forth in NHPA, other applicable historic preservation laws,

and presidential directives as they relate to the Corps regulatory program.

Section 106 of NHPA provides that federal agencies, prior to expending federal funds or granting

a license to any undertaking over which they have direct or indirect jurisdiction, must “take into

account the effect of [the] undertaking on any historic property.”80 If historic properties might be

33 C.F.R. Part 325, Appendix C; also see U.S. Army Corps of Engineers, “Revised Interim Guidance for

Implementing Appendix C of 33 C.F.R. Part 325 with the Revised Advisory Council on Historic Preservation

Regulations at 36 C.F.R. Part 800,” April 25, 2005, at http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/

techbio/InterimGuidance_25apr05.pdf; and U.S. Army Corps of Engineers, “Clarification of Revised Interim Guidance

for Implementing Appendix C of 33 C.F.R. Part 325 with the Revised Advisory Council on Historic Preservation

Regulations at 36 C.F.R. Part 800 Dated 25 April 2005,” January 31, 2007, at http://www.usace.army.mil/Portals/2/

docs/civilworks/regulatory/inter_guide2007.pdf. The Corps uses its own procedures for the regulatory program, rather

than the standard procedures for complying with Section 106, which are established in Subpart B of the Advisory

Council on Historical Preservation (ACHP) Section 106 regulations (36 C.F.R. Part 800). See footnote 81 for more

information.

P.L. 89-665, as amended; 54 U.S.C. §306108. The law defines a historic property as “any prehistoric or historic

district, site, building, structure, or object included on, or eligible for inclusion on, the National Register [of Historic

Places], including artifacts, records, and material remains relating to the district, site, building, structure, or object” (54

U.S.C. §300308). The Section 106 regulations promulgated by ACHP add to this definition by stating that “[t]he term

includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization

and that meet the National Register criteria” (36 C.F.R. §800.16(l)(1)).

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affected, the agency must consult with the state historic preservation officer or tribal historic

preservation officer, as applicable, about alternatives to avoid, minimize, or mitigate adverse

effects to those properties.81 The Advisory Council on Historical Preservation (ACHP), an

independent federal agency established under NHPA to promote and advise on historic

preservation,82 also may be involved in consultations under certain circumstances.83

Procedures for NHPA Section 106 compliance for the regulatory program of the Corps have been

the subject of disagreements with the ACHP and some other stakeholders. According to 2016

ACHP communications to the Corps, the ACHP has not accepted the Corps procedures as being

consistent with ACHP regulations.84 Some federal district courts have declined to apply the

agency’s procedures, on the bases of inconsistency with NHPA or non-approval by the ACHP;85

however, others have cited or applied the Corps procedures.86

The ACHP has objected particularly to the decision by the Corps to review each water crossing

by a linear project, such as a pipeline, as a separate undertaking.87 The ACHP regulations define

an “undertaking” as “a project, activity, or program funded in whole or in part under the direct or

indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal

agency; those carried out with Federal financial assistance; and those requiring a Federal permit,

license or approval.”88 The ACHP contends that this definition would in many cases require the

36 C.F.R. Part 800. These regulations implementing Section 106 are promulgated by the ACHP under 54 U.S.C.

§304108(a).

A description of the council’s duties is at 54 U.S.C. §304102.

NHPA Section 106 does not require an agency to ensure that adverse effects to historic properties are avoided; the

agency is required only to consult on potential alternatives. However, regulations implementing Section 106 (36 C.F.R.

§800.6) discuss potential ways to resolve situations in which adverse effects may occur, such as through a

memorandum of agreement among the agency and other stakeholders on a plan to minimize damage to the historic

property.

See, for example, letter from the ACHP to Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works, August

19, 2016, at http://www.achp.gov/docs/asadarcy.pdf. Under 36 C.F.R. §800.14, agencies are allowed to develop their

own procedures for complying with Section 106, but those procedures must be consistent with the ACHP’s regulations

and must be approved by the ACHP. More specifically, Subpart C of the regulations establishes five program

alternatives that federal agencies may use to meet their obligations under Section 106. One of these program

alternatives is the development of alternate procedures, whereby agencies may “develop procedures to implement

Section 106 and substitute them for all or part of” the ACHP rules, “if they are consistent with the Council’s

regulations” (36 C.F.R. §800.14(a)). The agency official must submit the proposed alternate procedures to the ACHP

for a 60-day review period; if the ACHP finds them to be “consistent” with the ACHP regulations, the alternate

procedures may be adopted in lieu of the standard regulations (36 C.F.R. §800.14(a)(2)).

See, for example, Sayler Park Vill. Council v. U.S. Army Corps of Eng’rs, 2002 U.S. Dist. LEXIS 26208, *23-24

(S.D. Ohio 2002) (finding that “the Corps Interim Guidance is inconsistent with the ACHP Interim Guidance and

irrelevant”); Comm. to Save Cleveland’s Huletts v. U.S. Army Corps of Eng’rs, 163 F. Supp. 2d 776, 792 (N.D. Ohio

2001) (holding that the Corps “cannot rely on its own regulations to define the scope of its notice obligations or to

define the ‘permit area’”). See also, for example, McGee v. U.S. Army Corps of Eng’rs, No. 3:11-CV-160-H, 2011

U.S. Dist. LEXIS 56652, at *16-17 (W.D. Ky. May 23, 2011) (recognizing “possibility of conflict” between the two

sets of regulations but finding no conflict under the circumstances).

See, for example, Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 205 F. Supp. 3d 4 (D.D.C. 2016) (“[I]t

falls squarely within the expertise of the Corps, not the Advisory Council, to determine the scope of the effects of

construction activities at U.S. waterways.”); Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 234, 251 (D. Vt.

1992) (“Procedurally the Corps is in technical violation.... However, this violation is not fatal, given the NHPA’s

permission that its regulations ‘may be implemented in a flexible manner.’”).

CRS personal communication with the ACHP, March 27, 2017; and ACHP, “Section 106 Reviews for United States

Army Corps of Engineers Permits and Undertakings with Small Federal Handles,” November 2015, at

http://www.achp.gov/docs/fapc.pdf.

36 C.F.R. §800.16(y).

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Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

Corps to conceive of the “undertaking” as broader than a single water crossing. The approach

used by the Corps, the ACHP states, “dismiss[es] the potential for effects to historic properties

that may be located within the broader project area of an undertaking when properly defined

under the Section 106 regulations.”89 The Corps maintains that its procedures for historic

properties in Appendix C satisfy the requirements of NHPA Section 106.90 The Corps explained

its interpretation of an undertaking related to pipelines as follows:

For oil pipelines and other utility lines, the activities that are subject to the Corps’

regulatory authorities and require DA [Department of Army] authorization are crossings

of jurisdictional waters and wetlands, as well as utility line substations, foundations for

overhead utility lines, and access roads, that involve discharges of dredged or fill material

into waters of the United States or structures or work in navigable waters of the United

States. Segments of an oil pipeline or other utility line in upland areas outside of the

Corps’ jurisdiction, or attendant features constructed in upland areas, do not require DA

authorization and therefore are not, for the purposes of the Corps’ compliance with

section 106 of the NHPA, “undertakings.” The Corps does not have direct or indirect

jurisdiction over pipeline segments in upland areas. The Corps does not regulate oil

pipelines, or other utility lines per se; we only regulate those components of oil pipelines

or other utility lines, that involve activities regulated under our authorities (i.e., section

404 of the Clean Water Act and section 10 of the Rivers and Harbors Act of 1899).91

The Corps indicates in this statement its position that the agency has neither direct nor indirect

jurisdiction over the entire pipeline and that its control does not extend to areas upland of

regulated waters.92 The essence of this interpretation was adopted by one district court, the U.S.

District Court for the District of South Dakota, in Standing Rock Sioux Tribe v. U.S. Army Corps

of Engineers.93 However, as noted above, other district courts have declined to apply other

elements of the agency’s procedures on the basis of inconsistency with NHPA or lack of approval

by the ACHP.94

Letter from the ACHP to Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works, August 19, 2016, at

http://www.achp.gov/docs/asadarcy.pdf. The ACHP did not specify in its letter whether the “broader project area”

would encompass an entire pipeline or a more broadly defined area around each water crossing.

See, for example, Federal Defendants’ Opposition to Plaintiff-Appellant’s Emergency Motion for Injunction Pending

Appeal at 9 and 10, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, No. 16-5259 (D.D.C. Court of

Appeals filed September 14, 2016), ECF No. 1635700.

NWP 12 Decision Document, p. 18.

33 C.F.R. §325 Appendix C, in Section (2)(c), states:

The district engineer will take into account the effects, if any, of proposed undertakings on historic

properties both within and beyond the waters of the U.S. Pursuant to Section 110(f) of the NHPA,

the district engineer, where the undertaking that is the subject of a permit action may directly and

adversely affect any National Historic Landmark, shall, to the maximum extent possible, condition

any issued permit as may be necessary to minimize harm to such landmark (emphasis added).

Appendix C (5)(f) provides additional detail in this paragraph:

The Corps of Engineers’ responsibilities to seek eligibility determinations for potentially eligible

historic properties is limited to resources located within waters of the U. S. that are directly affected

by the undertaking. The Corps responsibilities to identify potentially eligible historic properties is

limited to resources located within the permit area that are directly affected by related upland

activities. The Corps is not responsible for identifying or assessing potentially eligible historic

properties outside the permit area, but will consider the effects of undertakings on any known

historic properties that may occur outside the permit area.

205 F. Supp. 3d 4, 30-32 (D.D.C. 2016).

See footnote 85 and accompanying text.

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Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers

Separately, stakeholders have raised concerns about the Corps’ procedures whereby the permit

applicant, rather than the Corps itself, is responsible for identifying historic properties that may be

affected by a pipeline activity under an NWP. The ACHP regulations specify that “[i]t is the

statutory obligation of the Federal agency to fulfill the requirements of section 106,” including

identification of historic properties that may be affected by an undertaking.95 For pipeline

activities that occur under NWP 12, GC 20 provides that the Corps must initiate Section 106

review and consultation when an applicant identifies historic properties in a PCN.96 Once a PCN

is submitted, the activity cannot proceed until the Corps district engineer completes a site-specific

analysis and verifies either that the activity will not affect any eligible historic site or that the

consultations required by NHPA are complete. However, the Corps does not undertake the

analysis unless the project applicant raises the issue through a PCN. For pipeline activities that

require individual permits, by contrast, the Corps district engineer is responsible for identifying

historic properties that may be affected by the permitted activity and completing consultations as

necessary.

Policy Issues Raised by Corps’ Pipeline Roles

and Decisions

Growth in North American crude oil and natural gas production has led to efforts to expand the

domestic oil and natural gas pipeline network. Pipeline construction and operation may impact

the environment, human health, and welfare. The interest in expanding the domestic pipeline

network and the concerns about the local, regional, and national effects of pipeline construction

and operation have raised policy questions about how the Corps’ regulatory authorities and civil

works processes may influence the development and approval of pipelines and their routes. The

Corps is authorized as part of its regulatory program to regulate certain pipeline activities that

may affect certain waters and wetlands; it also is authorized to grant permissions, easements, and

consents for pipeline segments that cross Corps water resources projects and associated lands.

These Corps roles in pipelines are not without controversy. Some of the issues raised center on

the following policy questions:



Impacts. How does the Corps determine the geographic area for its evaluations

of impacts on the environment, historic properties and cultural resources,

communities, and specific population groups? How does the Corps evaluate

cumulative impacts?

Limits of Agency Authority. When a pipeline is largely a nonfederal

undertaking and the federal role is limited to discrete segments, to what extent

should the federal government shape siting and other aspects of the pipeline?

Risk and Safety. To what extent is the Corps authorized to address oil and

natural gas pipeline safety (e.g., risk of spills) as part of its regulatory

authorizations and civil works decisions? How are low-probability, highconsequence safety risks considered and addressed in the Corps’ decisionmaking

processes?

36 C.F.R. §800.2.

The permit applicant may seek the assistance of a state historic preservation officer or tribal historic preservation

officer and may consult the National Register of Historic Places to identify relevant properties that either are on the

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Oil and Natural Gas Pipelines: Role of the U.S. Army Corps of Engineers



Public Interest. How does the Corps arrive at and document its assessment of

public interest in its pipeline-related regulatory and civil works activities? That

is, how are anticipated costs and benefits (both monetized and non-monetized)

for one group weighed relative to costs and benefits for another group, and how

is the national public interest considered?

General Permits. How does the use of general permits (rather than individual

permits) for Corps-regulated pipeline segments affect the agency’s review of

proposed water crossings, the information available to stakeholders and the

public, and compliance with the requirements of NHPA?

An extensive discussion of each of these questions is beyond the scope of this report. Many of

these questions are not unique to pipelines or to the Corps; that is, many of them have been the

subject of past (and ongoing) court cases related to other Corps approvals or to similar actions by

other federal agencies. As Congress considers the Corps’ current and future roles and the federal

role in pipelines more broadly, these questions reflect some of the basic debates about federal

actions associated with private infrastructure.

Author Contact Information

(name redacted)

Specialist in Natural Resources Policy

[redacted]@crs.loc.gov

, 7-....

(name redacted)

Analyst in Natural Resources Policy

[redacted]@crs.loc.gov

, 7-....

(name redacted)

Analyst in Environmental Policy

[redacted]@crs.loc.gov

, 7-....

(name redacted)

Specialist in Energy and Infrastructure Policy

[redacted]@crs.loc.gov , 7-....

Acknowledgments

Prior to her retirement from CRS, (name redacted) ( former Senior Specialist in Environmental Policy)

made major contributions to this report, especially the discussion of the regulatory program of the Corps.

(name redacte d)

and (name redacted)

in the American Law Division of CRS also provided assistance to the

authors.

Congressional Research Service

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