Landowner Notification, Expanded Categorical Exclusions, and Other Environmental Filing Requirements; Notice of Proposed Rulemaking

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 2, 153, 157, 380

[Docket No. RM98-17-000]

Landowner Notification, Expanded Categorical Exclusions, and

Other Environmental Filing Requirements; Notice of Proposed Rulemaking

April 28, 1999.

AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is

proposing to amend its regulations under the Natural Gas Act (NGA) by

adding certain early landowner notification requirements that will

[[Page 27718]]

ensure that landowners who may be affected by a pipeline's proposal to

construct natural gas pipeline facilities have sufficient opportunity

to participate in the Commission's certificate process. The Commission

also proposes to amend certain areas of its regulations to provide

pipelines with greater flexibility and to further expedite the

certificate process, including expanding the list of activities

categorically excluded from the need for an environmental assessment in

section 380.4 of the Commission's regulations; (2) expanding the types

of events that allow pipelines to rearrange facilities under their

blanket construction certificate; and (3) allowing pipelines to drill

observation wells under their blanket construction certificate.

Finally, the Commission also proposes to require that pipelines

consult with the National Marine Fisheries Service concerning essential

fish habitat as required by regulations implementing the Magnuson-

Stevens Fishery Conservation and Management Act; and apply the Upland

Erosion Control, Revegetation and Maintenance Plan and the Wetland and

Waterbody Construction and Mitigation Procedures to activities

conducted under the pipeline's blanket construction certificate.

DATES: Comments are due June 21, 1999.

ADDRESSES: Send comments to: Office of the Secretary, Federal Energy

Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426.

FOR FURTHER INFORMATION CONTACT:

John S. Leiss, Office of Pipeline Regulation, Federal Energy Regulatory

Commission 888, First Street, N.E., Washington, D.C. 20426, (202) 208-

1106

Carolyn Van Der Jagt, Office of the General Counsel, Federal Energy

Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426,

(202) 208-2246

SUPPLEMENTARY INFORMATION: In addition to publishing the full text of

this document in the Federal Register, the Commission also provides all

interested persons an opportunity to inspect or copy the contents of

this document during normal business hours in the Public Reference Room

at 888 First Street, N.E., Room 2A, Washington, D.C. 20426.

The Commission Issuance Posting System (CIPS) provides access to

the texts of formal documents issued by the Commission from November

14, 1994, to the present. CIPS can be accessed via Internet through

FERC's Home page (http://www.ferc.fed.us) using the CIPS Link or the

Energy Information Online icon. Documents will be available on CIPS in

ASCII and WordPerfect 6.1. User assistance is available at 202-208-2474

or by E-mail to [email protected].

This document is also available through the Commission's Records

and Information Management System (RIMS), an electronic storage and

retrieval system of documents submitted to and issued by the Commission

after November 16, 1981. Documents from November 1995 to the present

can be viewed and printed. RIMS is available in the Public Reference

Room or remotely via Internet through FERC's Home page using the RIMS

link or the Energy Information Online icon. User assistance is

available at 202-208-2222, or by E-mail to [email protected].

Finally, the complete text on diskette in WordPerfect format may be

purchased from the Commission's copy contractor, RVJ International,

Inc. RVJ International, Inc. is located in the Public Reference Room at

888 First Street, N.E., Washington, D.C. 20426.

I. Introduction

The Federal Energy Regulatory Commission (Commission) is proposing

to amend its regulations under the Natural Gas Act (NGA) by adding

certain early landowner notification requirements that will ensure that

landowners who may be affected by a pipeline's proposal to construct

natural gas pipeline facilities have sufficient opportunity to

participate in the Commission's certificate process. The Commission

also proposes to amend certain areas of its regulations to provide

pipelines with greater flexibility and to further expedite the

certificate process, including: (1) Expanding the list of activities

categorically excluded from the need for an environmental assessment in

section 380.4 of the Commission's regulations; (2) expanding the types

of events that allow pipelines to rearrange facilities under their

blanket construction certificate; and (3) allowing pipelines to drill

observation wells under their blanket construction certificate.

Finally, the Commission also proposes to: (1) require that

pipelines consult with the National Marine Fisheries Service concerning

essential fish habitat as required by regulations implementing the

Magnuson-Stevens Fishery Conservation and Management Act; and (2) apply

the Upland Erosion Control, Revegetation and Maintenance Plan and the

Wetland and Waterbody Construction and Mitigation Procedures to

activities conducted under the pipeline's blanket construction

certificate.

II. Background

As part of an ongoing review of its regulations, the Commission

continues to try to find ways to make its certificate process more

efficient and effective. Recently, it has become evident that

landowners that may be affected by a pipeline's proposal to construct

facilities want earlier and better notice of that pipeline's intent to

construct pipeline facilities on or near their property.

Under the Commission's current practice, landowners with property

on a proposed pipeline route, adjacent to compressor station or LNG

plant sites, or adjacent to existing fee-owned rights-of-way which

would be used for a proposed pipeline are generally notified by the

Commission as part of its environmental review of the proposed project.

Specifically, a pipeline seeking authorization to construct these

facilities provides the Commission with a list of names of the

landowners that would be affected by the project when, or shortly

after, it files the construction application. The Commission then

notifies the people on the pipeline's landowner list when it issues a

Notice of Intent to Prepare an Environmental Impact Statement (EIS) or

Environmental Assessment (EA) as required by the National Environmental

Policy Act of 1969 (NEPA).1

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\1\ Specifically, NEPA requires that federal agencies carefully

weigh the potential environmental impact of all their decisions and

consult with federal and state agencies and the public on serious

environmental questions.

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The Notice of Intent is mailed to the affected landowners after the

Commission has begun to process the pipeline's application and after

the Commission notices the application for the new facilities and,

usually, after the intervention period has run.2 The Notice

of Intent: (1) Summarizes the proposed project; (2) describes the

environmental review process; (3) identifies the environmental issues

raised by the project; and (4) explains how the public can participate

in the environmental review process. It also includes the text from the

Commission's pamphlet ``An interstate natural gas pipeline on my land?

What do I need to know?'' The Notice of Intent invites landowners to

participate in the Commission's environmental review process either by

becoming an intervenor for environmental purposes or by submitting

environmentally-related

[[Page 27719]]

comments on the pipeline's proposal. The purpose of the Notice of

Intent is to notify the affected landowners of the environmental review

of the project and only seeks comments on environmental issues.

Generally, the Notice of Intent does not provide the landowners with a

forum to raise non-environmental issues.

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\2\ Once the application is filed, the Commission issues a

notice of the filing, which is published in the Federal Register.

The notice appears approximately 10 days after the filing. The

notice specifies an intervention period, usually 21 days from the

notice date.

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Recently, landowners and other citizens have expressed increasing

interest in participating in the major pipeline projects, especially

the greenfield pipelines and pipeline expansions in heavily populated

areas.3 Generally, landowner groups contend that they are

uninformed and uneducated about their right to participate in the

certificate process and do not know where to go for information.

Further, they assert that they are notified too late in the process to

actively participate or have a say in the proceeding.

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\3\ Greenfield pipelines are pipeline proposals that will be

located in a new pipeline right-of-way for most of their length.

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Senator Fred Thompson and Representative Zach Wamp introduced

legislation (S. 1687 and H.R. 3319, respectively) that would require

that pipelines make a good faith effort to notify property owners from

whom they may seek to acquire a property interest through the exercise

of eminent domain. The proposed legislation required that a notice be

sent by certified mail, and on the same day the company files an

application.

On September 16, 1998, the Interstate Natural Gas Association of

America (INGAA) proposed that the Commission formalize notice

procedures using the proposed legislation as a starting point.

Generally, INGAA proposed that on the business day following the date

the pipeline files the application, the company would make a good faith

effort to notify, by certified mail, any person who is the owner of

record of real property that would be subject to the exercise of

eminent domain under the NGA.

On September 30, 1998, the Commission issued a notice on its intent

to hold a staff technical conference to address, among other things,

concerns regarding its present landowner notification policies.

Additionally, the notice invited interested persons to submit written

comments. The Commission received written comments from approximately

33 commenters. In their filed comments, the industry generally

supported the INGAA proposal or stated that no changes to the current

procedure were necessary. However, in their filed comments the

landowner groups contended that notice should be given before the

application is filed so they have a meaningful opportunity to

participate in the siting process.

The notice also raised other issues related to landowner

notification. One was how the pipeline would notify landowners and get

their consent if the Commission expanded its definition of eligible

facilities to include injection, withdrawal, and observation wells. The

Commission also was concerned about how the pipeline would acquire

landowner consent to use additional work space for replacement

facilities.

Another area raised in the September 30 notice was the Commission's

plan to designate residential areas as sensitive environmental areas as

defined in section 157.202(b)(11) of the Commission's regulations. The

Commission also sought comments on applying erosion control and stream

and wetland crossing mitigation measures to blanket construction

projects. Finally, the Commission mentioned that it might employ a

negotiated rulemaking procedure as an alternative to its traditional

rulemaking process in this proceeding.

On December 9, 1998, the Commission held the technical conference.

At the conference, the industry was represented by Duke Energy

Pipelines (Duke Energy), Enron Interstate Pipelines (Enron),

Transcontinental Gas Pipe Line Company (Transco), and INGAA. The

landowners were represented by the GASP Coalition, the Citizens

Advocates for Pipeline Safety, the Newton Citizens Committee, and the

Ohio-PA Landowners Association. Representatives for the Pipeline

Contractor's Association and Central Maine Power Company (Central

Maine) also participated. Several parties, including INGAA and GASP,

filed follow-up comments after the conference. The filed comments and

comments made at the technical conference are discussed below.

III. Discussion

A. Landowner Notification

1. Notification Process

a. Comments. Most parties agree that the Commission should modify

its current landowner notification policy. The Process Gas Consumers

Group, the American Iron and Steel Institute and the Georgia Industrial

Group (jointly Process Gas) contends that the Commission's current

notification policy and publication of the notice in the Federal

Register is sufficient to notify landowners. It argues that any new

requirements would create new procedural traps. Williston Basin

Interstate Pipeline Company (Williston Basin) also does not believe

that additional notification requirements are necessary. It argues that

the Commission should make additional notice requirements performance

based and only impose those requirements on problem pipelines. For

example, if the Commission receives no complaints, the pipeline should

be deemed to have performed in a satisfactory manner.

Generally, the industry posits that the landowners should be

notified after the application is filed, whereas, the landowner groups

want to be notified before the application is filed. This latter

position is also supported by the Public Service Commission of the

State of New York (NYPSC). The Iowa Utilities Board (Iowa Board)

suggests that the Commission consider requiring pre-filing

informational meetings.

The Iowa Board and NYPSC state that the pipelines should not

consider landowner notification as an onerous duty, but as an

opportunity to establish an early rapport with landowners and to obtain

information early in the process. They promote informal meetings with

the public before the pipeline files the application. They believe that

this process provides an opportunity for the pipeline to initiate

favorable relationships with landowners and to obtain input to refine

its petition and better determine the best location for the pipeline.

While many of the pipelines claim that they contact many of the

landowners early on during the surveying process, they do not want the

Commission to specifically make this a requirement.4

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\4\ Duke stated that it contacts individual landowners on

proposed rights-of-way early in the project and continues the

process of education by ``notification to public officials, open

house meetings, media notifications, agency meetings, newsletters,

landowner brochures and face-to-face survey permission contracts and

easement negotiations with landowners.'' See Duke's comments, at 3.

El Paso Energy Corporation (El Paso) notes that it generally

contacts landowners along the route in order to conduct required

surveys before a certificate application is filed. Williston Basin

states that it has its initial contact with landowners during the

survey process. Enron agrees pre-filing conferences are useful, but

contends that they do little to foster landowner relationships.

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As stated, the landowner groups want to be notified before the

application is filed. They contend, as does the NYPSC, that there is

significant benefit in obtaining early and ongoing public information

and participation. They state that the initial notification should be

early enough in the planning of a proposed line so that the potentially

affected landowners have the opportunity to participate fully in the

[[Page 27720]]

siting process. They contend that public involvement, including

identification of alternative locations, can help create a process

where issues are identified and addressed in cooperative fashion during

the project development. They envision that such cooperation can

facilitate analyses and the development of environmental reports.

The landowner groups and NYPSC argue that lack of notice to

landowners can generate significant delays. They claim that

notification at time of application is too late. They assert that by

the time the application is filed many decisions may have already

progressed beyond the point of no return. Further, property owners do

not have access to expertise to file timely motions to intervene to

protect their interest. Moreover, even timely intervention is too late

if lines have already been drawn on a filed map and costly resources

committed by the applicant to a particular route.

In response, the pipelines contend that it is confusing and

impractical to formally notify all potentially affected landowners

prior to filing. They also argue that formal notification in advance of

filing creates a threatening environment and would prematurely narrow

the window of negotiation. Finally, they assert that inviting

landowners to collaborate with the pipeline to determine a proposed

route in advance of filing a certificate application would only pit

landowner against landowner. They argue that it is the pipeline's

responsibility to choose the route.

As stated, INGAA generally proposes to send notification by

certified mail on the next business day after the application is filed.

It states that requiring the notification to be sent on the next

business day will allow the pipeline to include the project's docket

number in the notification. El Paso, on the other hand, contends that

one day after filing is not reasonable. It argues that it would be

impossible to get the docket number, incorporate it in a letter,

assemble a landowner package, and effectuate mailing all in one day. It

states that such a procedure would be labor intensive and a significant

administrative burden. It also asserts that certified mailing imposes

additional costs on the pipeline. It recommends that the Commission

require notice within five business days if the docket number is

provided on the day of filing. Williston Basin states that although it

has its initial contact during the survey process, the Commission

should allow the pipelines the option to either deliver the notice by

hand or by the mail either before the application is filed or up to

three business days after filing.5 It contends that

notification by mail is not conducive to the continuation of good

relationships. It believes personal contact is better.

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\5\ In a letter to the Chairman of the Commission concerning the

INGAA proposal, Senator Thompson supports the provision of the INGAA

proposal that the landowners be notified after the application is

filed. He states, ``* * * it is absolutely critical not only that

the landowners receive this information, but that they receive it in

a timely manner * * *''

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As stated, INGAA proposes to notify the landowners by certified

mail. Great Lakes objects to sending the notice by certified mail

because it could delay receipt and could be unduly burdensome. It

contends that many landowners may not be able to accept delivery and

that certified mail creates needless anxiety. It recommends the

Commission only require that the company provide an affidavit signed by

an authorized representative of the company stating that it made a good

faith effort to provide notice to all owners of record by regular mail.

b. Commission Response. We agree with NYPSC and the Iowa Board that

an early dialog and personal contact between the pipeline and the

community and landowners, perhaps in pre-filing informational meetings,

would promote more favorable relationships between the pipelines and

the potentially affected landowners. As stated, many of the pipelines

stated that they do contact landowners prior to filing a construction

application. It is in the pipeline's best interest to attempt to

involve the public early on in the process by seeking their input

before determining the exact route of the proposed pipeline. As the

Iowa Board points out, pre-filing meetings with the potentially

affected landowners provides the pipelines with valuable information

``from persons with knowledge of the route area which may impact

routing or design.'' 6

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\6\ Iowa Board's comments, at 4.

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Further, as stated, in Docket No. RM98-9-000, the more thorough and

the more complete an application is when it is filed, the more

expeditiously the Commission can process that application. Earlier

landowner participation could result in a more definitively defined

route. Specifically, the Commission experiences significant delays in

processing a certificate application because of the time needed to

address and resolve numerous landowner concerns about the placement of

the pipeline on their property. If the pipeline could resolve these

issues prior to filing the application, the Commission could process

the application more expediently.

A recent study conducted by Florida Gas Transmission Company

(Florida Gas) 7 stated that over half the people interviewed

suggested that Florida Gas:

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\7\ The executive summary of the study is located on Florida

Gas' home page at http://www.fgt.enron.com/mmexecutivesummary.doc.

Hold regular public meetings before and during construction to allow

citizens to participate in dialogue about the project, to ask

questions and to provide input to the route selection. * * * Many

cautioned that communications must be honest and open. They said the

company must not be too ``aggressive'' or ``pushy'' but, instead, to

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take the time to build public support up-front.

Further, at the December 9 conference, representatives from Duke and

Enron stated that their companies frequently contact landowners during

the initial planning stage with beneficial results.8

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\8\ Both the Duke and Enron representatives stated that they

contact potential landowners when they are conducting initial

environmental surveys before the application is filed with the

Commission.

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While the Commission encourages pipelines to hold pre-filing

meetings, it does not believe it is necessary to mandate pre-filing

meetings at this time. This is especially true given the indications

that some pipelines are attempting more dialogue early on with

communities and landowners. However, we invite public comment on

whether the Commission should have a more formal (structured) pre-

filing public notification requirement.

Therefore, in accord with INGAA's proposal and the aforementioned

proposed legislation, the Commission proposes new sections 153.3,

157.6(d), and 157.103 to require that for all section 7 projects

pipeline companies notify all affected landowners of record from the

most recent tax rolls by certified or first class mail within three (3)

business days following the date they file their application with the

Commission. The pipeline should file an affidavit with the

Environmental Resource Report 1 as required in proposed section

380.12(c)(10) certifying that the pipeline will notify all affected

landowners as required in proposed section 157.6(d).

As stated, the Commission currently mails the Notice of Intent to

the people on the pipeline's list of potential landowners. Many of the

notices are returned as undeliverable. Therefore, as part of the

Commission's landowner notification procedure we propose in section

157.6(d)(4) to require that the pipelines make a good-faith effort to

determine the correct address for any returned notices and to send

notices to the corrected addresses. The pipeline

[[Page 27721]]

also would be required to file an updated landowner list with the

corrected addresses within 30 days of filing the application as

proposed in section 157.6(d)(5). We believe that it will benefit the

pipeline to attempt to obtain the correct addresses earlier on in the

process. The pipeline will need to have accurate addresses for the

necessary landowners to obtain the easements for the project.

Therefore, determining the proper address sooner as opposed to later

will alleviate any potential delay in obtaining the necessary

easements.

As stated, the landowner groups contend that notification after the

application is too late because the route has already been determined.

We disagree. Although we do require that the pipeline file for the

route it proposes to use, the pipeline route frequently is modified

during the certificate process. As discussed at the December 9

conference, pipelines do modify their proposal as a result of

negotiations with landowners. Additionally, the Commission frequently

makes route modifications to accommodate specific landowner or other

environmental concerns.

Finally, in section 380.12(c)(5), the Commission is proposing to

require that pipelines consult with landowners prior to abandoning

facilities and the associated right-of-way or easement to determine if

the landowners would prefer to have the facilities removed from their

property. The pipeline, in consultation with the landowner, should

determine if the pipeline should be abandoned in place or removed. If

it determines that it is not practical to honor any requests to remove

facilities, it needs to explain why in Resource Report 1.

We propose this requirement because we believe the landowner's

opinion should be actively sought in cases where the pipeline is

relinquishing all rights to the land it has obtained temporary use of

from the landowner. As the pipeline may have no responsibility for the

facilities left on such property, we should know whether the landowner

would like the land back the way the pipeline found it. We are not

requiring the pipeline to automatically agree to the landowner's

wishes, because there may be valid reasons to leave the facility in the

ground.

2. Affected Landowners

a. Comments. INGAA proposes that the pipeline make a good faith

effort to notify any person who is the owner of record of real property

that may be subject to eminent domain as a result of the project. El

Paso states that the Commission should not require that the pipelines

do a full title search. INGAA argues that the Commission's ``affected

public'' standard is vague and difficult to define. It contends that it

might be interpreted to require that the pipeline provide notice to

competing pipelines before the application is filed. It recommends that

the ``affected landowners'' be defined as ``the individual noted in the

most recent county tax records as receiving the tax notice for property

that may be subject to eminent domain as a result of approval of the

certificate application.'' It states that only landowners directly

impacted by either the permanent right-of-way or temporary work spaces

should be notified.

Landowner groups recommend that various persons and groups be

notified, including the entire community, public officials, landowners,

abutters,9 and local newspapers. Some recommend that all

landowners directly affected and nearby owners of land with property

lines within one half a mile radius of the pipeline and one mile for

strictly agricultural areas be included. Others recommend that the

landowners or residents located within 220 yards of proposed right-of-

way or all landowners who share common land within 220 yards of

proposed right-of-way be notified.

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\9\ Abutters are owners of properties which share a common

boundary with the facility site or the right-of-way.

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NYPSC requests that the pipelines provide notice to potential

properties that may be affected directly or indirectly by the project.

For example, it recommends that the pipeline notify owners of property

adjacent to or within the range of influence of aboveground or noise

producing equipment such as compressor stations, blow-down valves, pig

launchers or similar facilities. It also recommends that notice be

given to nearby or adjacent property owners where construction will

introduce significant visual elements or remove visual buffers. Where

the route is uncertain, the Commission should consider notice to all

owners of record of potentially-affected property.

Senator Thompson's legislation provided for a: ``good faith effort

to provide notice by certified mail to any person who is the owner of

record of any interest in property which may be subject to the exercise

of eminent domain under [the NGA].''

b. Commission Response. In section 157.6(d)(2), the Commission

proposes to define affected landowners to include owners of: (1)

Property directly affected by the proposed activity, including all

property subject to the right-of-way and temporary work space; (2)

property abutting an existing right-of-way (owned in fee by a utility)

in which the facilities would be constructed; (3) property abutting a

compressor or LNG facility; or (4) property over new storage fields or

expansion of storage fields and any applicable buffer zone.

We believe that these properties potentially could be significantly

impacted by the proposed pipeline projects. Property owners whose

property abuts existing rights-of-way should be notified because they

may be affected and the Commission would like their input. Property

owners abutting a compressor or LNG facility should be notified for the

same reason. Finally, property owners over new or expanded storage

fields or in buffer zones for these areas should be notified because

their property rights may be affected, natural gas may be stored under

their property, and facilities might ultimately be constructed on their

property.

We note that the Commission will continue to notify state and local

government agencies and representative, and additional landowners on a

case-by-case basis as necessary as part of its environmental review

when the Notice of Intent is issued. Further, the proposed regulations

are only a minimum requirement and the pipelines and the Commission can

notify any additional landowners as necessary.

3. Notification Contents

a. Comments. Senator Thompson's letter to the Commission in

response to INGAA's proposal stated that the rulemaking should:

Include a specific and conspicuous description of the rights of

property owners to participate in any proceeding relating to the

granting of eminent domain authority and a specific and conspicuous

statement of who the property owners may contact at the appropriate

federal agency relating to the proceeding.

Other recommendations made by others for information that should be

in the notice, included: (1) Information about the pipeline company;

(2) a general description of the project, its purpose, and its proposed

timetable; (3) when the pipeline intends to file the application; (4)

up to date information on the proposed route,10 construction

process and timing, and the type of easement sought; (5) an explanation

of

[[Page 27722]]

the pipeline construction process, including methods and restoration

plans; (6) an explanation of the Commission's certificate process,

including the rights of landowners to file comments or intervene; (7)

details on how to file as an intervening party, an appropriate list of

agency contacts and principal parties involved (including pipeline

company officials), including phone numbers, addresses, and web

addresses, and applicable regulations; (8) a statement that points out

that the route is in a preliminary stage and is subject to revisions

and adjustments; (9) an explanation of the easement rights the pipeline

company will seek to acquire for the project; (10) an explanation about

how the company will pay for damages; (11) the Commission's pamphlet

``An interstate natural gas pipeline on my land? What do I need to

know?''; (12) a full copy of the application; and (13) an explanation

of who the project would benefit and a justification of the end use.

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\10\ Including a map of the route. For large projects there

should be a map showing the entire route, and another map showing

the landowner's local area (such as the county).

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b. Commission Response. The Commission proposes that the notice

should include: (1) The docket number of the filing; (2) a detailed

description of the proposed facilities including specific details of

their location, the purpose of the project, and the timing of the

project; (3) a description of the applicant; (4) the name of specific

contacts at the pipeline where the landowner can obtain additional

information about the project; and (5) a location where the applicant

has made copies of the application available.11

Additionally, the notice should either include map(s) of the project or

information where detailed map(s) of the project can be viewed or

obtained. The pipeline contact should be knowledgeable about the

project and should be able to answer specific questions concerning the

project.

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\11\ In new section 157.10, promulgated in RM98-9-000, the

pipelines are required to make complete copies of the application

available in each county in the project area.

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The notice should also include a copy of the Commission's pamphlet

``An interstate natural gas pipeline on my land? What do I need to

know?''. The pamphlet generally explains the Commission's certificate

process and addresses the basic concerns of landowners. It includes

information on how to get a copy of the pipeline's application and how

to participate in the proceeding. It also includes general information

on pipeline rights-of-way including, among other things: (1) how the

pipeline obtains a right-of-way; (2) the size of the right-of-way and

how it is maintained; and (3) building on the right-of-way. The

pamphlet explains the responsibilities of the pipeline company. It also

discusses safety and environmental issues. Finally, the pamphlet lists

the phone number of the Commission's Office of External Affairs which

the landowner can contact if there are further questions concerning the

certificate process.

B. Landowner Notification Under Sections 157.202 and 2.55 of the

Commission's Regulations

In the September 30 notice, the Commission stated that it is

considering changes to sections 157.202 and 2.55 of its regulations.

Specifically, under section 157.202(b)(2) the Commission is considering

expanding the definition of eligible facilities to include injection,

withdrawal, and observation wells. Under section 2.55, it is

considering allowing the use of additional work space for replacement

facilities. However, under both sections the Commission stated that it

was concerned about how the pipeline would obtain the landowner's

consent before beginning construction.

In general, the landowner groups state that the pipeline should

notify the landowners, via certified mail, to obtain their consent any

time they plan to enter on the property even if the pipeline has a

valid easement. The pipelines generally believe that any additional

Commission regulations in this area are unnecessary. They contend that

the pipelines must have the necessary property rights before engaging

in any construction activities on the landowner's property.

Prior to using any land for any work, the pipelines state that they

must have an easement or property rights to use the land. They assert

that the agreements with the landowner would: (1) Govern the pipeline's

use of the property; (2) determine what type of notice is required; and

(3) would detail any compensation that may be due the property owner.

If the right to use the property is not controlled by an easement

agreement, the pipelines contend that they would have to acquire the

appropriate property rights or consent from the landowner prior to

commencing any project under automatic authority in order to avoid

claims of criminal and trespass charges and to maintain good working

relationships with the landowners. Therefore, the pipelines believe

that the Commission should provide flexibility to allow each pipeline

to implement notification of landowners in a manner best suited to its

own landowner situations. They argue the Commission should respect the

bargains the pipelines have already negotiated and obtained from the

landowners and not impose any additional requirements. Finally, they

argue that there is no forum under the blanket certificate where the

landowner could raise issues.12

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\12\ However, we note that the suggested changes were to require

landowner notification under these sections, not to notify the

Commission.

---------------------------------------------------------------------------

b. Commission Response. As stated in the September 30 notice, the

Commission stated that it was considering expanding the definition of

eligible facilities under section 157.202(b) of the regulations to

include injection, withdrawal, and observation wells. Upon

reconsideration of this issue, the Commission has determined that it is

not appropriate for the pipeline to construct new injection and

withdrawal wells under its blanket certificate. Such activity would

expand upon the authorization granted in the original certificate by

increasing the capacity and deliverability of the storage field. We

believe such activity is beyond the original intent of the blanket

certificate which was to ``enable pipelines to construct relatively

minor facilities and undertake relatively routine services without the

burden of a case-specific determination.'' 13

---------------------------------------------------------------------------

\13\ Interstate Pipeline Certificates for Routine Transactions,

Order No. 234-A, 47 FR 38,871 (September 3, 1982) FERC Stats. and

Regs. Regulation Preambles 1982-1985 para. 30,389, at 30,258 (1982).

---------------------------------------------------------------------------

However, we do propose to allow the pipelines to drill observation

wells under their blanket certificate. Observation wells generally are

needed for the pipelines to adequately monitor their storage fields.

Further, they do not change the characteristics of the storage fields

and do not result in any significant changes to the underlying

certificate authorization. Accordingly, we propose to add a sentence to

section 157.202(b)(2)(i) specifically including observation wells as

eligible facilities.

We also believe, upon further consideration, that it is premature

for the Commission to address expanding the allowed area for additional

workspace under section 2.55. Section 2.55 exempts certain activities

from NGA section 7 jurisdiction. Acquiring additional land for

construction activities is a section 7 activity and, therefore, does

not qualify for the section 2.55 exemption.

While we do not intend to expand the definition of eligible

facilities to include injection or withdrawal wells or to allow

additional work space under section 2.55, we agree with the landowners'

request that they be notified of construction to be performed

[[Page 27723]]

under these sections. Accordingly, the Commission intends to add a

landowner notification requirement for construction activities

conducted under section 2.55 and Subpart F of Part 157 of the

Commission's regulations. Under proposed sections 2.55(b) (1)(iv) and

157.203(d)(1), the pipeline will have to notify the affected landowner

30 days prior to commencing construction. The notification should

include: (1) a brief description of the facilities to be constructed/

replaced and the effect the construction activity will have on the

landowner's property; (2) the name and phone number of a company

representative that is knowledgeable about the project; and (3) a

description of the Commission's Enforcement Hotline procedures

explained in section 1b.21 of the Commission's regulations and the

Enforcement Hotline phone number.

In the event the landowners have further questions concerning the

project, they can contact the company representative for more details.

If the landowners need further information concerning the Commission's

role in these types of projects, they can contact the Commission's

enforcement staff.

The Commission proposes the similar requirements in section

157.203(d)(2) for prior notice filings. Except under 157.203(d)(2), we

propose to require that the pipeline notify the affected landowner

within three (3) business days after filing the prior notice

application with the Commission and to include the docket number in the

notice. We also propose that the include the following paragraph in the

notice:

This project is being proposed under the Commission's prior notice

requirements of its blanket certificate program. Under the

Commission's regulations, you have the right to protest this project

within 45 days of the date the Commission issues a notice of the

pipeline's filing. If you file a protest, you should include the

docket number listed in this letter and provide the specific reasons

for your protest. The protest should be mailed to to the Secretary

of the Federal Energy Regulatory Commission, 888 First St., N.E.,

Room 1A, Washington, DC 20426. A copy of the protest should be

mailed to the pipeline at [pipeline address]. If you have any

questions concerning these procedures you can call the Commission's

Office of External Affairs at (202) 208-1088.

We note that requiring that the pipeline inform the landowners of their

right to protest a prior notice filing when the pipeline constructs

facilities under its blanket certificate resolves the Commission's

concerns over adding residential areas to its definition of sensitive

environmental areas. Accordingly, we do not believe it is necessary to

include residential areas in the list of sensitive environmental areas

at this time.

C. Mitigation Measures for Blanket Certificates

1. Comments

The Commission also requested comments on the need to apply the

same erosion control and stream and wetland crossing mitigation

measures to blanket projects as are routinely used in the regular

certificate process. Currently, there are no such mitigation measures

imposed on blanket construction projects, although the impacts are

similar to those encountered in the traditional 7(c) projects. The

Commission needs to ensure that the pipelines are following such

mitigation measures.

Generally, the pipelines do not object to the Commission's

proposal. However, they recommend that the Commission view the

mitigation measures as guidelines and not mandate them in all

instances. They contend that the Commission should allow the pipelines

the flexibility to deviate from the guidelines as appropriate.

National Fuel states that there are problems with the Commission's

measures and that the pipelines frequently find it necessary to seek

deviations from certain measures to meet the recommendations of state

or local agencies or implement appropriate site specific construction

procedures.

2. Commission Response

In fulfilling its mandate under NEPA, the Commission routinely

requires that pipeline facilities constructed under case-specific NGA

section 7 certificates follow some type of erosion control and stream

and wetland crossing mitigation measures. We believe that to apply NEPA

consistently the Commission should require the same measures be applied

to pipeline facilities constructed under the pipeline's blanket

certificate. Therefore, we propose to add section 157.206(b)(3)(iv) to

the regulations to require that, unless it gets a variance, the

pipelines constructing facilities under their blanket certificates

adhere to the Commission staff's current ``Upland Erosion Control,

Revegetation and Maintenance Plan'' (Plan) and ``Wetland and Waterbody

Construction and Mitigation Procedures'' (Procedures). The documents

are available on the Commission's Internet home page or from the

Commission's staff.

If the pipelines cannot follow the mitigation measures for a

particular project or if an agency with responsibility for protecting

the relevant resource (soil, wetland, or waterbodies) specifies a

measure that conflicts with a measure in the Plan or Procedures, a

variance can be obtained. In either case, an alternative measure

specified in writing by the appropriate agency may be used.

Alternatively, the pipeline can apply to the Director of the Office of

Pipeline Regulation to request a waiver of the mitigation measures or

permission to apply alternative measures.

D. Magnuson Act

The Magnuson Act requires all Federal agencies to consult with the

National Marine Fisheries Service on the effects that their activities

may have on ``essential fish habitat.'' The National Marine Fisheries

Service's regulations at Chapter 50 Part 600 of the Code of Federal

Regulations describe the process that should be followed. We are

currently discussing the details of how the Commission can best comply

with this act in the long-term, but in the interim, we will simply

state that the requirements of this act are important for the companies

to consider at the same time they address Endangered Species Act

considerations. Companies should be contacting the National Marine

Fisheries Service to address what level of consultation is required for

their project for appropriate consideration of ``essential fish

habitat.'' Accordingly, we propose to add references to the Magnuson

Act in both the blanket certificate regulations, at section

157.206(b)(2)(xii), and for case-specific NGA section 7 filings, at

section 380.12(e)(5), requiring that pipelines consult with the

National Marine Fisheries Service with respect to ``essential fish

habitat''.

E. Categorical Exclusions

Section 380.4 of the Commission's regulations lists projects or

actions that the Commission has determined normally do not have a

significant environmental impact and are, therefore, categorically

excluded from the need for an Environmental Assessment. The Commission

proposes to add several new categories to the list, including: (1)

Abandonment of facilities by sale that only involve minor or no ground

disturbance to disconnect the facilities from the system (proposed

section 380.4(a)(31)); (2) conversion of facilities from use under the

Natural Gas Policy Act to use under the NGA (proposed section

380.4(a)(32)); (3) construction or abandonment of facilities conducted

entirely in Federal offshore waters which has been approved by the

Minerals Management Service and the Corps of Engineers, as necessary

(proposed section

[[Page 27724]]

380.4(a)(33)); (4) abandonment or construction of facilities on an

existing offshore platform (proposed section 380.4(a)(34)); (5)

abandonment, construction, or replacement of a facility (other than

compression) solely within an existing building within a natural gas

facility (other than LNG facilities), so long as it does not increase

the noise or air emissions from the facility, as a whole (proposed

section 380.4(a)(35)); and (6) conversion of compression to standby use

as long as the compressor is not moved, or abandonment of compression

as long as the compressor station remains in operation (proposed

section 380.4(a)(36)).

Proposed sections 380.4(a)(31) and (32) involve abandonments or

conversions that, at most, involve disturbance in small areas within

existing rights-of-way to connect or disconnect existing pipelines.

Proposed section 380.4(a)(34) has no effect on the natural environment

with the exception of air and noise emissions if compression is

involved. Given the fact that these emissions would occur offshore on

existing platforms which are isolated and already contain similar

activities, we believe there is no significant impact associated with

this type of activity.

In section 380.4(a)(33) we are proposing to require that the

company receive pre-approval from the Minerals Management Service and

the Corps of Engineers that have primary jurisdiction over the

construction, operation, and removal of offshore facilities. These

Federal agencies have their own procedures for complying with NEPA for

the impact potentially involved with these projects. Therefore, we

believe there is no reason for the Commission to conduct its own

environmental analysis, or to verify that the other agencies did such

an analysis.

Proposed section 380.4(a)(35) deals with activities taking place

solely within existing structures. The only potential impacts to the

environment under this type of activity would be air and noise

emissions. Since we propose to require that there be no increase in

either type of emission, the only potential is for a reduction and,

therefore, an improvement in the natural environment. We do not believe

any purpose would be served in conducting an environmental analysis for

this kind of activity.

Proposed section 380.4(a)(36) is similar to proposed section

380.4(a)(35). The conversion of compression to standby can only reduce

the amount of air and noise emissions from the station. The change to

air and noise emissions is a positive effect--the same as it is for the

previous category. Abandonment of some of the compression at a station

which remains in operation may result in ground disturbance within the

compressor station site, but this area was disturbed similarly when the

facility was first installed. Therefore, it requires no further

Commission analysis.

F. Miscellaneous Rearrangement of Facilities

In the comments filed in Docket No. RM98-9-000, several parties

requested that the Commission clarify that miscellaneous rearrangement

of facilities under section 157.202(b)(6) of the Commission's

regulations includes replacement facilities needed as a result of

encroachment on the pipeline because of residential, commercial, or

industrial development. Because of the landowner notification issue,

the Commission deferred addressing that issue to this proceeding.

Since this rulemaking proposes to require the company to notify

landowners of their intent to conduct the rearrangement activity, the

landowners would be given the opportunity to express any concerns. This

satisfies our landowner participation concern. Accordingly, we propose

to add encroachment to section 157.202(b)(6) as an appropriate reason

to use the blanket certificate for miscellaneous rearrangement of

facilities.

G. Other Issues Raised

1. Special Intervention Status

Many landowner groups claim that the Commission's current

intervention process is cost prohibitive and that it deters landowner

participation. They request that the Commission streamline its process

to accommodate landowners. Specifically, they request that the

Commission allow landowners to file one copy of their comment/protest

with the Commission and one copy with the company. Also, one landowner

recommended that town governments should be viewed as intervenors for

citizens and/or that town governments should be viewed automatically as

parties.

Under section 385.2010 of the Commission's regulations an

intervenor in a proceeding before the Commission must serve a copy of

its filing on all parties on the official service list. However, under

section 385.101(e) of the Commission's regulations, the Commission may

waive a rule for good cause. Parties that have difficulty participating

in the proceeding for whatever reason may request a waiver of the

Commission's service rule.

2. Depositories of Filing Information

One landowner also requests that the Commission set up depositories

where materials are readily available to the general public. In Docket

No. RM98-9-000, the Commission intends to allow a limited waiver of the

service rules for the filing of voluminous material or difficult to

reproduce material. Specifically, the Commission determined that these

filings do not need to be served on all parties unless they

specifically request a copy. Instead, the Commission is requiring that

the pipeline put complete copies of those filings in depositories along

the route of the pipeline for public inspection. In addition, new

section 157.10, promulgated in RM98-9-000, requires that pipelines make

complete copies of the application available in each county in the

project area. Finally, all documents filed with the Commission are

available on the Commission's Internet home page. Increasingly, people

have access to the Internet either in their homes or at the local

libraries. Therefore, we believe that the information filed in a

certificate proceeding under the Commission's current regulations (as

amended in Docket No. RM98-9-000) is sufficiently available to the

participating parties.

3. Inspectors of Construction Sites/Pipeline Safety

a. Comments. Central Maine Power Company (Central Maine) states

that the Commission presently has no oversight of the actual

construction process. It contends that the pipeline construction crews

repeatedly violate OSHA clearances and minimum work space requirements

when working near power lines. It urges the Commission to modify its

regulations so that the safety and electric system reliability concerns

are fully addressed throughout the certificate process, and that

certificate orders explicitly require compliance with safety

requirements with the same degree of specificity as already required

for environmental conditions. It believes that the Commission has an

obligation to devote necessary resources to insure that the pipeline

construction it authorizes does not endanger the public and is not

adverse to the public interest in reliable electric service. It

requests that the Commission allocate resources to expand substantially

the scope of its post-certificate monitoring of the pipeline

construction process. Several of the landowner groups also maintain

that the Commission should have

[[Page 27725]]

inspectors assigned locally to monitor construction sites.

b. Commission Response. The Commission does, in fact, conduct

oversight inspections of the construction process. As part of the

environmental conditions imposed in a certificate proceeding, the

Commission requires that the pipeline company hire environmental

inspectors to make sure that the environmental conditions of the

certificate, including any proposed mitigation, are appropriately

applied. In the event landowners have questions or problems during the

construction phase or after the facilities are built, they can call the

Commission's enforcement staff. We believe these measures allow the

Commission to ensure compliance with our environmental conditions.

Central Maine is concerned about our pipeline siting regulations

and the construction process. These concerns are outside the scope of

this rulemaking, and the safety concerns raised by Central Maine are

generally under the purview of the Occupational Safety and Health

Administration and the Department of Transportation. While we do favor

the use of existing corridors when appropriate, we recognize that

cooperation between the companies involved and careful construction

practices are key to success.

During our environmental review process we attempt to determine the

feasibility of the joint use of rights-of-way and the availability of

adequate spacing for a proposed project. We obtain input from both

companies before requiring joint use. As stated, we conduct inspections

during construction. In the event that trouble arises during the

construction phase, we will take steps to avoid inappropriate risks to

other utilities or to the public.

4. Eminent Domain

Some of the landowner groups state that in a deregulated industry

in which market forces are allowed to determine whether pipelines are

constructed, the use of eminent domain to enable construction and

operation of natural gas facilities on the private property is

inappropriate. They state that landowners become largely uncompensated

business partners who receive only a token payment for an easement.

They argue that market demand is not the same as public need. They

believe that companies in profit making businesses that use other

people's properties should be required to acquire that property in the

marketplace. They urge the Commission to require a pipeline to acquire

a large majority of easements through negotiations before they can

seize the remaining property. They claim that the property owners'

compensation is offset by the court costs.

The landowner groups assert that the pipeline should be required to

negotiate a business deal with landowners instead of relying on the

right of eminent domain. They contend that landowners should have the

option of being paid royalties for use of their land.

Under the NGA, if the Commission finds that a proposed project is

in the public convenience and necessity, the pipeline has the right to

acquire the property for that project by eminent domain. The pipeline's

right to eminent domain is not optional. Further, case law suggests

that the pipeline cannot waive its right to eminent

domain.14 It is a statutory requirement imposed by Congress.

The Commission cannot change or modify statutory requirements.

---------------------------------------------------------------------------

\14\ See Georgia v. City of Chattanooga, 264 U.S. 472 (1924);

Terminal Shares v. Chicago, B & Q.R. Co., 65 F.Supp. 678, 683

(1946)(finding that the power of eminent domain is conferred upon a

railroad ``as one in trust, to be exercised in promoting the public

interest.'' ``[It] is not a power owned by a railroad corporation as

one of its assets, that it may barter about and pass as a

consideration in contracts and agreements.'')

---------------------------------------------------------------------------

5. Review of Easement Documents

The landowner groups request that the Commission assign a person

from the Commission's staff to each area of pipeline construction from

the beginning of easement negotiations to assist landowners in land

acquisition. They contend that the Commission should assure that

pipelines do not try to acquire more than what they are entitled to by

the certificate. Additionally, they request that the Commission review

all easement agreements to determine if they are consistent with the

certificate authorization. They state that the landowner does not want

to relinquish more rights than the Commission intended and that the

company should not be able to acquire more than the Commission

intended. They state that in several recent projects there are

discrepancies between the certificate authorization and easement

documents/court papers and that they do not have the knowledge or

resources to fight the pipeline.

The Commission does not believe it is necessary to review every

easement document negotiated by the pipeline or submitted to the court

for the condemnation proceeding. However, we expect that the pipelines

will negotiate with the landowners fairly and in good faith. We believe

the landowners have a right to know the specific area the Commission

has authorized the pipeline to take and the specific activities the

Commission has authorized for that property before they begin any

negotiations for the easement. We note that the pipeline should clearly

explain and delineate at the beginning of the negotiations what is

specifically covered by the Commission's certificate.

Further, in the future, where landowner issues are a concern, as a

condition to a certificate to construct facilities, the Commission may

require that the pipeline specifically state in the easement document

the specific area that is covered by easement and the phone number and

a name of a representative of the pipeline the landowners can call if

they have a question concerning the easement agreement.

G. Negotiated Rulemaking

Finally, the Commission stated that it was considering using the

negotiated rulemaking process under the Negotiated Rulemaking Act of

1990 as an alternative to traditional rulemaking to promulgate new

regulations for its landowner notification policy. Generally, the

comments were not in favor of the negotiated rulemaking process. The

Iowa Board stated that it found such a process for these types of

issues combative and partisan. Others stated that the negotiated

rulemaking process was too rigid a structure. However, many supported

the use of working groups to address some of the more controversial

issues.

The Negotiated Rulemaking Act recommends that an agency consider

the feasibility of regulatory negotiations to resolve a specific issue

when: (1) There is a need for a rule; (2) there are a limited number of

identifiable interests; (3) these interests can be adequately

represented by persons willing to negotiate in good faith to reach a

consensus; (4) there is a likelihood that the committee will reach

consensus within a fixed period of time; (5) the negotiated rulemaking

procedure will not unreasonably delay the notice of proposed

rulemaking; (6) the agency has adequate resources and is willing to

commit such resources to the process; and (7) the agency is committed

to use the result of the negotiation in formulating a proposed rule if

at all possible.

Generally, in light of the comments received in this proceeding, it

is evident that the Commission can rule on many of the issues based on

the written record in this proceeding. For example, all parties are in

agreement that earlier notification is necessary. However, the

pipelines want notification to be after

[[Page 27726]]

the application is filed. The landowner groups want to be notified

earlier to participate in the siting process. It is doubtful that any

further negotiations would produce a consensus on this issue and it

will probably create an unnecessary delay. Additionally, there is very

little controversy over how the notice should be delivered and what

should be included in the notice. While other issues, for example, who

should be included in the group notified and whether the Commission

should designate residential areas as sensitive environmental areas,

may merit further public discussion, forming a negotiated rulemaking

committee on the basis of those issues alone would likely delay

implementation of new notification regulations that are clearly needed

now. In the event, after the Commission issues this NOPR, it is

determined that certain issues may benefit from further public

discussion, the Commission may hold additional technical conferences to

discuss those issues.

IV. Information Collection Statement

The proposed rule, if adopted, would establish new reporting

requirements and modify existing reporting requirements under 18 CFR

Parts 2.55, 153, 157, and 380 of the Commission's Regulations. The

information requirements proposed in the subject rulemaking would

affect, and become part of, the data requirements under the

Commission's FERC-537 15 and FERC-577 16 data

collections. Specifically, the subject rule would require notification

of all landowners whose land may be affected by proposed natural gas

pipeline projects.

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\15\ Gas Pipeline Certificates: Construction, Acquisition, and

Abandonment.

\16\ Gas Pipeline Certificates: Environmental Impact Statement.

---------------------------------------------------------------------------

In accordance with Section 3507(d) of the Paperwork Reduction Act

of 1995,17 the proposed data requirements in the subject

rulemaking are being submitted to the Office of Management and Budget

(OMB) for review.

---------------------------------------------------------------------------

\17\ 44 U.S.C. 3507(d).

---------------------------------------------------------------------------

The estimated reporting burden related to the notification

requirements proposed herein is shown in the tables below. The

estimates include an initial one-time start-up burden of 8,800 hours

for the first year plus an on-going annual burden of 7,284 hours under

FERC-577 and a decrease of 12,600 hours under FERC-537. The net change

in total reporting burden under the data collections would be an

estimated net increase of 3,484 hours for the first year. In subsequent

years, there would be a net decrease of 5,316 hours.

To consider the impact on the persons affected by this rulemaking,

comments are solicited on the need for this notice requirement, whether

the information/notice will have practical utility, the accuracy of the

provided burden estimates, ways to enhance the quality, utility, and

clarity of the information requirements, and any suggested methods for

minimizing respondent's burden, including the use of automated

information techniques. The Commission would like specific comments on

the impact of this rule on individual natural gas companies. Both

estimates of current burden and impact should be in work hours and

dollar costs in sufficient detail to demonstrate methodology and

assumptions.

The burden estimates for complying with this proposed rule are as

follows:

Public Reporting Burden: Estimated Annual Burden: The burden

estimates for complying with this proposed rule are as follows:

----------------------------------------------------------------------------------------------------------------

Number. of Number of Hours per Total annual

Data collection respondents responses response hours

----------------------------------------------------------------------------------------------------------------

FERC-537............................................ 50 -50 252 -12,600

FERC-577............................................ 70 -20 18 +13.9 19 +16,084

-----------------------------------------------------------

Total........................................... 70 -70 20 +2.1 +3,484

----------------------------------------------------------------------------------------------------------------

18 The increase per response based on an estimated 1,160 responses per year. Note: Detail may not add to total

because of rounding.

19 Includes one-time initial start-up burden of 8,800 hours.

20 Represents the increase per response (rounded) based on the net increase in total reporting burden (3,484

hours) divided by the total number of responses expected annually under both FERC-537 and FERC-577 (1,690

responses).

Total Annual Hours for Collections

Annual reporting burden (including one-time start-up burden during

the first year of implementation) plus record keeping (if

appropriate)=3,484 hours.

Based on the Commission's experience with processing applications

for construction and acquisition of pipeline facilities over the last

three fiscal years (FY96-FY98), it is estimated that 1,690 filings/

responses per year (under both data collections) will be made over the

next three years. The average burden per filing would increase 2.1

hours; the average burden per respondent would increase 49.8 hours.

Following the first year of implementation, the reporting burden under

FERC-577 would be reduced by 8,800 hours.

Information Collection costs: The Commission seeks comments on the

costs to comply with these requirements. It has projected the average

annualized cost for all respondents during the first year of

implementation to be:

----------------------------------------------------------------------------------------------------------------

Annualized on-

Annualized going costs Total

Data collection capital/start- (operations annualized

up costs and costs

maintenance)

----------------------------------------------------------------------------------------------------------------

FERC-537........................................................ 0 -$665,674 -$665,674

FERC-577........................................................ $464,915 384,823 849,738

-----------------------------------------------

Total....................................................... 464,915 -280,851 184,064

----------------------------------------------------------------------------------------------------------------

[[Page 27727]]

OMB regulations require its approval of certain information

collection requirements imposed by agency rule.21

Accordingly, pursuant to OMB regulations, the Commission is providing

notice of its proposed information collections to OMB.

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\21\ 5 CFR 1320.11 (1997).

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Title: FERC-537 ``Gas Pipeline Certificate: Construction,

Acquisition, and Abandonment.'' and FERC-577 ``Environmental Impact

Statement.''

Action: Proposed Data Collections.

OMB Control No.: 1902-0060 (FERC-537); 1902-0128 (FERC-577).

Applicants shall not be penalized for failure to respond to these

collections of information unless the collections of information

display a valid OMB control number. The notice requirements proposed in

the subject rule would be mandatory if adopted by the Commission in a

Final Rule.

Respondents: Businesses or other for profit. (Interstate natural

gas pipelines (Not applicable to small business))

Frequency of Responses: On occasion.

Necessity of Information: The proposed rule revises the

Commission's regulations governing the filing of applications for the

construction and operation of pipeline facilities to provide service or

to abandon facilities or service under section 7 of the NGA. Section 7

of the NGA requires the Commission to issue certificates of public

convenience and necessity for all interstate sales and transportation

of natural gas, the construction and operation of natural gas

facilities used for those interstate sales and transportation and prior

Commission approval of abandonment of jurisdictional facilities or

services. The Commission has determined that portions of its

regulations need to be revised to reflect a recent increase in

sensitivity of the public to pipeline construction, and a desire on the

part of the public to receive more timely notification of pipeline

construction proposals. Certain other changes are being made because of

the Commission's experience in the processing of some applications for

which an environmental assessment is unnecessary.

Internal Review: The Commission has assured itself, by means of its

internal review, that there is specific, objective support for the

burden estimates associated with the information requirements. These

requirements conform to the Commission's plan for efficient information

collection, communication, and management within the natural gas

industry.

For information on the requirements, submitting comments concerning

the collection of information and the associated burden estimates,

including suggestions for reducing this burden, please send your

comments to the Federal Energy Regulatory Commission, 888 First Street,

NE., Washington, DC 20426 [Attention: Michael Miller, Office of the

Chief Information Officer, Phone: (202) 208-1415, fax: (202) 273-0873,

e-mail: [email protected]]. In addition, comments on reducing the

burden and/or improving the collections of information should also be

submitted to the Office of Management and Budget, Office of Information

and Regulatory Affairs, Attention: Desk Officer for the Federal Energy

Regulatory Commission, 725 17th Street, NW, Washington, D.C. 20503,

phone (202) 395-3087, fax: (202) 395-7285.

V. Regulatory Flexibility Act Certification

The Regulatory Flexibility Act (RFA) requires agencies to prepare

certain statements, descriptions and analyses of proposed rules that

will have a significant economic impact on a substantial number of

small entities.22 The Commission is not required to make

such analyses if a rule would not have such an effect.23

---------------------------------------------------------------------------

\22\ 5 U.S.C. 601-612 (1988).

\23\ 5 U.S.C. 605(b)(1988).

---------------------------------------------------------------------------

The Commission does not believe that this rule would have such an

impact on small entities. The regulations adopted here impose

requirements only on interstate pipelines, which are not small

businesses. Accordingly, pursuant to section 605(b) of the RFA, the

Commission hereby certifies that the regulations proposed herein will

not have a significant adverse impact on a substantial number of small

entities.

VI. Environmental Statement

The Commission is required to prepare an Environmental Assessment

or an Environmental Impact Statement for any action that may have a

significant adverse effect on the human environment.24 The

Commission has categorically excluded certain actions from these

requirements as not having a significant effect on the human

environment.25 Generally, the actions proposed to be taken

here fall within categorical exclusions in the Commission's regulations

for rules that are clarifying, corrective, or procedural, for

information gathering, analysis, and dissemination, and for sales,

exchange, and transportation of natural gas that requires no

construction of facilities.26 While the additions of the

categorical exclusion in proposed sections 380.4(a)(31) through (36)

include construction-type activities, the above section that discusses

those sections explains why they do not have a significant effect on

the environment. Accordingly, we do not believe that any further

analysis is needed. Therefore, an environmental assessment is

unnecessary and has not been prepared in this rulemaking.

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\24\ Regulations Implementing the National Environmental Policy

Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs.

Preambles 1986-1990 para. 30,783 (1987).

\25\ 18 CFR 380.4.

\26\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27).

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VII. Public Comment Procedures

The Commission invites interested persons to submit written

comments on the matters and issues proposed in this notice to be

adopted, including any related matters or alternative proposals that

commenters may wish to discuss.

The original and 14 copies of such comments must be received by the

Commission before 5:00 p.m., June 21, 1999. Comments should be

submitted to the Office of the Secretary, Federal Energy Regulatory

Commission, 888 First Street, NE, Washington DC 20426 and should refer

to Docket No. RM98-17-000.

In addition to filing paper copies, the Commission encourages the

filing of comments either on computer diskette or via Internet E-Mail.

Comments may be filed in the following formats: WordPerfect 6.1 or

lower version, MS Word Office 97 or lower version, or ASCII format.

For diskette filing, include the following information on the

diskette label: Docket No. RM98-17-000; the name of the filing entity;

the software and version used to create the file; and the name and

telephone number of a contact person.

For Internet E-Mail submittal, comments should be submitted to

``[email protected]'' in the following format. On the subject

line, specify Docket No. RM98-17-000. In the body of the E-Mail

message, include the name of the filing entity; the software and

version used to create the file, and the name and telephone number of

the contact person. Attach the comment to the E-Mail in one of the

formats specified above. The Commission will send an automatic

acknowledgment to the sender's E-Mail address upon receipt. Questions

on electronic filing should be directed to Brooks Carter at 202-501-

8145, E-Mail address [email protected].

[[Page 27728]]

Commenters should take note that, until the Commission amends its

rules and regulations, the paper copy of the filing remains the

official copy of the document submitted. Therefore, any discrepancies

between the paper filing and the electronic filing or the diskette will

be resolved by reference to the paper filing.

All written comments will be placed in the Commission's public

files and will be available for inspection in the Commission's Public

Reference room at 888 First Street, NE, Washington DC 20426, during

regular business hours. Additionally, comments may be viewed and

printed remotely via the Internet through FERC's Homepage using the

RIMS link or the Energy Information Online icon. User assistance is

available at 202-208-2222, or by E-Mail to [email protected].

List of Subjects

18 CFR Part 2

Administrative practice and procedure, Electric power, Natural gas,

Pipelines, Reporting and recordkeeping requirements.

18 CFR Part 153

Exports, Imports, Natural gas, Reporting and recordkeeping

requirements.

18 CFR Part 157

Administrative practice and procedure, Natural gas, Reporting and

recordkeeping requirements.

18 CFR Part 380

Environmental impact statements, Reporting and recordkeeping

requirements.

By direction of the Commission.

David P. Boergers,

Secretary.

In consideration of the foregoing, the Commission proposes to amend

Parts 2, 153, 157, and 380 Chapter I, Title 18, Code of Federal

Regulations, as set forth below.

PART 2--GENERAL POLICY AND INTERPRETATIONS

1. The authority citation for Part 2 continues to read as follows:

Authority: 5 U.S.C. 601; 15 U.S.C. 717-717w, 3301-3432; 16

U.S.C. 792-825y, 2601-2645; 42 U.S.C. 4321-4361, 7101-7352.

Sec. 2.55 [Amended]

2. In Sec. 2.55, paragraph (b)(1)(ii) is revised and new paragraphs

(b)(1)(iii) and (iv) are added to read as follows:

* * * * *

(b) * * *

(1) * * *

(ii) The replacement facilities will have a substantially

equivalent designed delivery capacity, will be located in the same

right-of-way or on the same site as the facilities being replaced, and

will be constructed using the temporary work space used to construct

the original facility as determined by the guidelines in Appendix A of

this Part;

(iii) Except as described in paragraph (b)(2) of this section, the

company will file notification of such activity with the Commission at

least 30 days prior to commencing construction; and

(iv) The company will notify the affected landowner 30 days prior

to commencing construction. The notification shall include:

(A) A brief description of the facilities to be replaced and the

effect the construction activity will have on the landowner's property;

(B) The name and phone number of a company representative that is

knowledgeable about the project; and

(C) An explanation of the Commission's Enforcement Hotline

procedures, as codified in section 1b.21 of this chapter, and the

Enforcement Hotline phone number.

* * * * *

PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE, OR

MODIFY FACILITIES USED FOR THE EXPORT OR OF IMPORT NATURAL GAS

3. The authority citation for Part 153 continues to read as

follows:

Authority: 15 U.S.C. 717b, 717o; E.O. 10485, 3 CFR, 1949-1953

Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p.136.

4. New section 153.3 is added to read as follows:

Sec. 153.3 Notice requirements.

All applications filed under this part are subject to the landowner

notification requirements in Sec. 157.6 of this chapter.

PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND

NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER

SECTION 7 OF THE NATURAL GAS ACT

5. The authority citation for Part 157 continues to read as

follows:

Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.

Subpart A--Applications for Certificates of Public Convenience and

Necessity and for Orders Permitting and Approving Abandonment Under

Section 7 of the Natural Gas Act, as Amended, Concerning Any

Operation, Sales, Service, Construction, Extension, Acquisition or

Abandonment

6. In Sec. 157.6, a new paragraph (d) is added to read as follows:

Sec. 157.6 Applications; general requirements.

* * * * *

(d) Landowner notification. (1) For all applications filed under

this subpart, the applicant shall notify all affected landowners by

certified or first class mail, within 3 business days following the

date that it files an application of its intent to construct or abandon

facilities.

(2) All affected landowners includes owners of real property, as

noted in the most recent county/city tax records as receiving the tax

notice, whose property:

(i) Is directly affected by the proposed activity, including all

facility sites, rights-of-way, and temporary workspace;

(ii) Abuts an existing right-of-way or facility site owned in fee

by any utility company, in which the facilities would be constructed;

(iii) Abuts the facility site for compressor or LNG facilities; or

(iv) Is within the area of new storage fields or expansions of

storage fields and any applicable buffer zone.

(3) The notice shall include:

(i) The docket number of the filing;

(ii) The most recent edition of the Commission's pamphlet that

explains the Commission's certificate process and addresses the basic

concerns of landowners.

(iii) A description of the applicant and the proposed project, its

location, its purpose, and the timing of the project;

(iv) A description of how the landowner may contact the applicant,

including a local or toll-free phone number and a name of a specific

person to contact who is knowledgeable about the project; and

(v) Information on how the landowner can get a copy of the

application from the company or the location(s) where a copy of the

application may be found as specified in Sec. 157.10.

(4) If the notice is returned as undeliverable, the applicant will

make a reasonable attempt to find the correct address and notify the

landowner.

(5) Within 30 days of the date the application was filed, applicant

shall

[[Page 27729]]

file an updated list of affected landowners, including information

concerning notices that were returned undeliverable.

7. In Sec. 157.103, a new paragraph (k) is added to read as

follows:

Sec. 157.103 Terms and conditions; other requirements.

* * * * *

(k) Applications filed under this section are subject to the

landowner notification requirements described in Sec. 157.6(d).

8. In Sec. 157.202, a sentence is added to the end of paragraph

(b)(2)(i), paragraph (b)(6)(ii) is revised, and paragraph (b)(11)(i) is

revised to read as follows:

Sec. 157.202 Definitions.

* * * * *

(b) * * *

(2)(i) * * * Eligible facility includes observation wells.

* * * * *

(6) * * *

(ii) When required by highway construction, dam construction,

encroachment of residential, commercial, or industrial areas, erosion,

or the expansion or change of course of rivers, streams or creeks, or

* * * * *

(11) Sensitive environmental area means:

(i) The habitats of species which have been identified as

endangered or threatened under the Endangered Species Act (Pub. L. 93-

205, as amended) and essential fish habitat as identified under the

Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.

1801, et seq.);

* * * * *

9. In Sec. 157.203, new paragraph (d) is added to read as follows:

Sec. 157.203 Blanket certification.

* * * * *

(d) Landowner notification. (1) No activity described in

Sec. 157.203(b) is authorized unless the company notifies all affected

landowners, as defined in Sec. 157.6(d)(2), at least 30 days prior to

commencing construction. The notification shall include:

(i) A brief description of the facilities to be constructed or

replaced and the effect the construction activity will have on the

landowner's property;

(ii) The name and phone number of a company representative who is

knowledgeable about the project; and

(iii) An explanation of the Commission's Enforcement Hotline

procedures, as codified in section 1b.21 of this chapter, and the

Enforcement Hotline telephone number.

(2) For activities described in Sec. 157.203(c) the company shall

notify all affected landowners, as defined in Sec. 157.6(d)(2), within

three business days of filing its application. The notice should

include:

(i) A brief description of the facilities to be constructed or

replaced and the effect the construction activity will have on the

landowner's property;

(ii) The name and phone number of a company representative that is

knowledgeable about the project;

(iii) The docket number assigned to the company's application; and

(iv) The following paragraph: This project is being proposed under

the prior notice requirements of the blanket certificate program

administered by the Federal Energy Regulatory Commission. Under the

Commission's regulations, you have the right to protest this project

within 45 days of the date the Commission issues a notice of the

pipeline's filing. If you file a protest, you should include the docket

number listed in this letter and provide the specific reasons for your

protest. The protest should be mailed to the Secretary of the Federal

Energy Regulatory Commission, 888 First St., NE, Room 1A, Washington,

DC 20426. A copy of the protest should be mailed to the pipeline at

[pipeline address]. If you have any questions concerning these

procedures you can call the Commission's Office of External Affairs at

(202) 208-1088.

10. In Sec. 157.206, new paragraphs (b)(2)(xii), (b)(3)(iv) and

(b)(8) are added to read as follows:

Sec. 157.206 Standard conditions.

* * * * *

(b) Environmental compliance. * * *

(2) * * *

(xii) Magnuson-Stevens Fishery Conservation and Management Act (16

U.S.C. 1801, et seq.)

(3) * * *

(iv) Paragraphs (b)(2)(i) and (viii) of this section only if it

adheres to Commission staff's current ``Upland Erosion Control,

Revegetation and Maintenance Plan'' and ``Wetland and Waterbody

Construction and Mitigation Procedures'' which are available on the

Commission Internet home page or from the Commission staff, or gets

written approval from the staff or the appropriate Federal or state

agency for the use of project-specific alternatives to clearly

identified portions of those documents.

* * * * *

(8) The certificate holder shall notify the affected landowners of

the project at least 30 days prior to the beginning of construction for

automatically authorized activities, or within 3 business days of

filing the prior notice, as specified in Secs. 157.203(d).

* * * * *

PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL

POLICY ACT

11. The authority citation for Part 380 continues to read as

follows:

Authority: National Environmental Policy Act of 1969, 42 U.S.C.

4321-4370a; Department of Energy Organization Act, 42 U.S.C. 7101-

7352; E.O. 12009, 3 CFR 1978 Comp., p. 142.

12. In Sec. 380.4(a), new paragraphs (31) through (36) are added to

read as follows:

Sec. 380.4 Projects or actions categorically excluded

(a) * * *

* * * * *

(31) Abandonment of facilities by sale that involves only minor or

no ground disturbance to disconnect the facilities from the system;

(32) Conversion of facilities from use under the NAPA to use under

the NGA;

(33) Construction or abandonment of facilities constructed entirely

in Federal offshore waters that has been approved by the Minerals

Management Service and the Corps of Engineers, as necessary;

(34) Abandonment or construction of facilities on an existing

offshore platform;

(35) Abandonment, construction or replacement of a facility (other

than compression) solely within an existing building within a natural

gas facility (other than LNG facilities), if it does not increase the

noise or air emissions from the facility, as a whole; and

(36) Conversion of compression to standby use if the compressor is

not moved, or abandonment of compression if the compressor station

remains in operation.

13. In Sec. 380.12, paragraph (c)(5) is revised; paragraph (c)(10)

is revised; and the first two sentences of (e)(5) are revised to read

as follows:

Sec. 380.12 Environmental reports for Natural Gas Act applications.

* * * * *

(c) * * *

(5)(i) Identify facilities to be abandoned, and state how they

would be abandoned, how the site would be restored, who would own the

site or right-of-way after abandonment, and who would be responsible

for any facilities abandoned in place.

(ii) When the right-of-way or the easement would be abandoned,

identify whether landowners were given the

[[Page 27730]]

opportunity to request that the facilities on their property, including

foundations and below ground components, be removed. Identify any

landowners whose preferences the company does not intend to honor, and

the reasons therefore.

* * * * *

(10) Provide the names and mailing addresses of all affected

landowners specified in Sec. 157.6(d) and certify that all affected

landowners will be notified as required in Sec. 157.6(d).

* * * * *

(e) * * *

(5) Identify all federally listed or proposed threatened or

endangered species and critical habitat and federally listed essential

fish habitat that potentially occur in the vicinity of the project.

Discuss the results of the consultation requirements listed in

Sec. 380.13(b) at least through Sec. 380.13(b)(5)(i) for endangered or

threatened species and with the National Marine Fisheries Service for

essential fish habitat, and include any written correspondence that

resulted from the consultation. * * *

* * * * *

14. In Appendix A to Part 380, the descriptions of Resource Reports

1 and 3 are revised to read as follows:

Appendix A to Part 380-Minimum Filing Requirements for

Environmental Reports Under the Natural Gas Act

Resource Report 1--General Project Description

1. Provide a detailed description and location map of the

project facilities. (Sec. 380.12(c)(1))

2. Describe any nonjurisdictional facilities that would be built

in association with the project. (Sec. 380.12(c)(2))

3. Provide current original U.S. Geological Survey (USGS) 7.5-

minute-series topographic maps with mileposts showing the project

facilities; (Sec. 380.12(c)(3))

4. Provide aerial images or photographs or alignment sheets

based on these sources with mileposts showing the project

facilities; (Sec. 380.12(c)(3))

5. Provide plot/site plans of compressor stations showing the

location of the nearest noise-sensitive areas (NSAs) within 1 mile.

(Sec. 380.12(c)(3,4))

6. Describe construction and restoration methods.

(Sec. 380.12(c)(6))

7. Identify the permits required for construction across surface

waters. (Sec. 380.12(c)(9))

8. Provide the names and address of all affected landowners and

certify that all affected landowners will be notified as required in

Sec. 157.6(d). (Sec. 380.12(a)(4) and (c)(10))

* * * * *

Resource Report 3--Vegetation and Wildlife

1. Classify the fishery type of each surface waterbody that

would be crossed, including fisheries of special concern.

(Sec. 380.12(e)(1))

2. Describe terrestrial and wetland wildlife and habitats that

would be affected by the project. (Sec. 380.12(e)(2))

3. Describe the major vegetative cover types that would be

crossed and provide the acreage of each vegetative cover type that

would be affected by construction. (Sec. 380.12(e)(3))

4. Describe the effects of construction and operation procedures

on the fishery resources and proposed mitigation measures.

(Sec. 380.12(e)(4))

5. Evaluate the potential for short-term, long-term, and

permanent impact on the wildlife resources and state-listed

endangered or threatened species caused by construction and

operation of the project and proposed mitigation measures.

(Sec. 380.12(e)(4))

6. Identify all federally listed or proposed endangered or

threatened species and federally listed essential fish habitat that

potentially occur in the vicinity of the project and discussion

results of consultations with other agencies. (Sec. 380.12(e)(5))

7. Describe any significant biological resources that would be

affected. Describe impact and any mitigation proposed to avoid or

minimize that impact. (Sec. 380.12(e)(4 & 6))

* * * * *

[FR Doc. 99-11215 Filed 5-20-99; 8:45 am]

BILLING CODE 6717-01-P