Landowner Notification, Expanded Categorical Exclusions, and Other Environmental Filing Requirements

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 153, 157, 380

[Docket No. RM98-17-000; Order No. 609]

Landowner Notification, Expanded Categorical Exclusions, and

Other Environmental Filing Requirements

Issued October 13, 1999.

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is

amending 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 is amending 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 Sec. 380.4 of

the Commission's regulations; and expanding the types of events that

allow pipelines to rearrange facilities under their blanket

construction certificates.

Finally, the Commission also is requiring that pipelines conduct an

abbreviated consultation with the National Marine Fisheries Service

concerning essential fish habitat as

[[Page 57375]]

required by regulations implementing the Magnuson-Stevens Fishery

Conservation and Management Act; and applying the Upland Erosion

Control, Revegetation and Maintenance Plan and the Wetland and

Waterbody Construction and Mitigation Procedures to activities

conducted under the pipelines' blanket construction certificates.

DATES: These regulations become effective November 24, 1999.

ADDRESSES: 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, NE, Washington, DC 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, NE, Room 2A, Washington, DC 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 8.0. 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, NE, Washington, DC 20426.

I. Introduction

The Federal Energy Regulatory Commission (Commission) is amending

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 is amending

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 Sec. 380.4 of the Commission's

regulations; and (2) expanding the types of events that allow pipelines

to rearrange facilities under their blanket construction certificates.

Finally, the Commission also is: (1) Requiring that pipelines

conduct abbreviated consultations with the National Marine Fisheries

Service concerning essential fish habitat as required by regulations

implementing the Magnuson-Stevens Fishery Conservation and Management

Act (Magnuson Act); and (2) applying the Upland Erosion Control,

Revegetation and Maintenance Plan (Plan) and the Wetland and Waterbody

Construction and Mitigation Procedures (Procedures) to activities

conducted under the pipelines' blanket construction certificates.

II. Background

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

continues to seek 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.

Generally, the Commission notifies the potentially affected landowners

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 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

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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.

\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 extending 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 On April 28, 1999, the Commission issued a Notice of

Proposed Rulemaking (NOPR) 4 proposing that, among other

things, applicants that file to construct pipeline facilities notify

affected landowners within three days of filing the application.

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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.

\4\ Landowner Notification, Expanded Categorical Exclusions, and

Other Environmental Filing Requirements, 64 FR 27717 (May 21, 1999),

IV FERC Stats. and Regs. para. 32,540, (Apr. 28, 1999).

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The Final Rule adopts the Commission's landowner notification

proposal with minor modifications. The Final Rule also adopts the

Commission's proposals to: (1) Expand the list of activities

categorically excluded from the need for an EA; (2) expand the

authority to rearrange facilities under the blanket construction

authority; (3) require that pipelines consider essential fish habitat

under the Magnuson Act; and (4) require that the pipelines apply the

Commission's Plan and Procedures to blanket construction activities.

The Final Rule also incorporates a number of changes from the

proposals in the NOPR in response to the comments filed. Some of the

changes in the Final Rule include: (1) Clarifying that the Commission

expects that the pipelines would use a good faith effort to notify all

affected landowners; (2) requiring, in addition to notification of

individual landowners, that the pipelines publish notification of their

applications in a local newspaper; (3) allowing for hand delivery of

the notification; (4) establishing an

[[Page 57376]]

exception to the notification requirement for abandonments by sale or

transfer; (5) providing for notification of landowners with property

that abuts the edge of a proposed right-of-way; (6) requiring that

pipelines notify any landowner with property containing a residence

within one-half a mile of proposed compressors, their enclosures, or

LNG facilities; (7) clarifying that ``property rights'' includes all

rights listed in the tax records, surface and subsurface, within the

certificated boundaries of a storage field; (8) explaining that the

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

What do I need to know?'' will be updated and modified consistent with

this and other recent rulemakings; (9) adding additional requirements

for the notice, including a general map of the applicant's proposal;

(10) deleting the notification requirement for activities performed

under Sec. 2.55 of the Commission's regulations; and (11) creating

several exemptions from landowner notification requirements for

activities performed under the Commission's blanket certificate

authorization.

III. Discussion

A. Pre-Filing Meetings

In the NOPR, the Commission stated that it was in the pipelines'

best interest to attempt to involve the public early on in the

construction process, specifically before an application is filed, by

seeking public input before determining the exact route of a proposed

pipeline. The Commission contended that earlier landowner participation

could result in a more definitively defined route that would help

alleviate some of the significant delays the Commission is presently

experiencing in processing a certificate due to the time needed to

address and resolve landowner concerns. The Commission stated that it

wished to encourage pipelines to hold pre-filing meetings, but it did

not believe it was necessary to mandate those meetings at this time.

However, it solicited further comments concerning this issue.

Comments. Generally, the Interstate Natural Gas Association of

America (INGAA), Algonquin Gas Transmission Company and Texas Eastern

Transmission Corporation (Algonquin), Columbia Gas Transmission

Corporation and Columbia Gulf Transmission Company (Columbia), Great

Lakes Gas Transmission LP (Great Lakes) , El Paso Energy Corporation

Interstate Pipelines (El Paso), Enron Interstate Pipelines (Enron), and

the Process Gas Consumers Group, American Iron and Steel Institute and

Georgia Industrial Group (Industrials) contend that the Commission

should encourage, but not mandate, pre-filing meetings. They assert

that the pipelines should continue to have the flexibility to determine

the substance and scope of notification prior to filing an application

based on the specifics of each individually proposed project.

Additionally, they claim that such pre-filing procedures could

seriously impair the efficiency of the current certificate process.

Conversely, several parties support the need for pre-filing

meetings. The Iowa Utilities Board (Iowa Board) believes pre-filing

information meetings are highly beneficial to landowners and should

seriously be considered. However, it indicates that as long as the

landowners are given sufficient time and opportunity to participate

meaningfully, the proposed route is easily modified in response to

landowner concerns, and landowner's rights are protected, post-filing

notification may be acceptable.

GASP Coalition (GASP) contends that the Commission's proposal to

have landowners notified when a application is filed does not cure what

is wrong with the process and is too late. GASP urges that the

Commission establish a structured pre-filing notification requirement

and also require collaboration with potentially affected landowners

from the inception of a project. GASP asserts that notification at the

time of filing does not create a level playing field. It states that

few landowners have the financial resources, the tenacity, the time, or

the ability to participate. Alice and Peter Supa, property owners along

the proposed Millennium Pipeline route, contend that landowner

notification needs to be changed to require natural gas companies to

communicate in good faith with each landowner, the public,

municipalities, and public officials long before an application is

filed. They argue that the Commission should require pipelines to

purchase legal notices in local newspapers and penny savers and to

conduct several local informational meetings.

Commission Response. We are unconvinced by the argument that

prefiling notification would impair the certificate process to any

significant degree. To the contrary, as stated, we believe that the

more landowners and the local community know of the application before

it is filed, the more expediently the Commission will be able to

process that application. Therefore, although we do not intend to

mandate pre-filing meetings at this time, we believe that there is a

strong incentive for the applicant to conduct such meetings.

We also believe that notifying landowners at the beginning of the

Commission's process, when the application is filed, will give

landowners sufficient time and opportunity to become involved in the

process and to have meaningful participation, as recommended by the

Iowa Board. As part of its NEPA review process, the Commission

studiously reviews all suggestions and recommendations concerning

alternative sites before making a final decision. Many times the

Commission adopts these suggestions and recommendations in approving

the ultimate route for the pipeline.5 It also considers all

other concerns raised by all participants in the proceeding, including,

among other things, safety, air quality, noise, and other issues as

appropriate to each proceeding.

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\5\ See Vector Pipeline LP, 87 FERC para. 61,225, 61,892-94

(1999).

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Further, we believe notification at the time the application is

filed gives landowners fair and adequate access to the Commission's

process. It provides them with notice of a proposed application at the

same time, if not sooner, than other parties that monitor the

Commission's issuances and the Federal Register. Further, it allows

them to participate equally with other parties.

Finally, we note that the Commission is investigating other areas

and is implementing other programs to facilitate the application and

review process. These initiatives will foster more efficient and

effective landowner participation. These initiatives include the ex

parte rule in Docket No. RM98-1-000,6 the complaint rule in

Docket No. RM98-13-000,7 the electronic service rule in

Docket No. RM99-6-000,8 and the collaborative process rule

adopted in Docket No. RM98-16-000.9 In the ex parte rule,

the Commission exempts communications related to developing

environmental documentation from the Commission's

[[Page 57377]]

ex parte rules. In the complaint rule, the Commission encourages and

supports consensual resolution of complaints, and organizes complaint

procedures so that all complaints are handled in a timely and fair

manner. In the electronic service rule, the Commission stated that it

would permit participants to a proceeding to voluntarily serve

documents on one another by electronic means. Finally, in the

collaborative process rule the Commission delineates a program under

which it establishes an optional pre-filing consultation process for

potential applicants to foster constructive dialog between the

applicant and other interested parties to help resolve disputes among

the participants before an application is filed with the Commission.

The Commission believes that these initiatives will facilitate greater

and more efficient and effective landowner participation in certificate

matters.

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\6\ Regulations Governing Off-the-Record Communications, Order

No. 607, 64 FR 51222 (Sept. 22, 1999), III FERC Stats. and Regs.

para. 31,079 (Sept. 15, 1999).

\7\ Complaint Procedures, Order No. 602, 64 FR 17087, (Apr. 8,

1999), FERC Stats. and Regs. para. 31,070 (Mar. 31, 1999), order on

reh'g, Order No. 602-A, 64 FR 43600, (Aug. 11, 1999), III FERC

Stats. and Regs. para. 31,076 (July 28, 1999).

\8\ Electronic Service of Documents, Order No. 604, 64 FR 31493

(June 11, 1999), III FERC Stats. and Regs. para. 31,074 (May 26,

1999).

\9\ Collaborative Procedures for Energy Facility Applications,

Order No. 608, 64 FR 51209 (Sept. 22, 1999), III FERC Stats. and

Regs. para. 61,080, (Sept. 15, 1999).

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At this time, we believe that the landowner notification

requirement adopted here is adequate. However, the Commission

continuously reviews its policies and procedures and updates them

regularly with policy statements and subsequent rulemakings. If the

Commission determines that its landowner notification policy needs

subsequent revisions, it will make such modifications at a later date.

B. Notification Requirement

In the NOPR, the Commission proposed to require that all applicants

proposing NGA section 7 projects 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 the

application with the Commission. The Commission also proposed to

require that the pipeline make a good-faith effort to determine the

correct address for any undeliverable notices and to send notices to

the corrected addresses.

1. Good-Faith Effort To Notify

Comments. Columbia requests that the Commission clarify that the

requirement to notify all landowners falls under the good faith effort

concept. Columbia asserts that many of its facilities are in locations

where property has been handed down from one generation to another over

long periods of time resulting in diffused ownership spread over many

heirs. It contends that the rigidity implied by the word ``all'' sets

up an unrealistic and, in some cases, unachievably high standard.

Therefore, it requests that the Commission extend the good faith effort

concept to the landowner notification requirement.

The Industrials contend that the Commission should only require

that the pipeline attempt to notify all affected landowners. They claim

that some of the affected landowners will be difficult to identify, and

in some cases there may not even be agreement as to who the landowners

are (e.g. where there is a dispute among decedents or other land

claimants). They state that the Commission should not create legal

rights that could be used to block or delay pipeline construction.

The Iowa Board proposes several options to deal with landowners who

may not get notification. First, it suggests that the Commission adopt

a substantial compliance provision, which would provide that missed

landowners would not negate the entire notification effort if the

pipeline company can show a good faith effort to identify and notify

all parties. Another option it recommends is that in addition to mailed

notices, that a public notice should be published in newspapers along

the pipeline route. It also recommends that landowners who did not

receive the notice should be given an opportunity to file for late

intervention or submit late-filed comments.

Commission Response. The Commission's intent behind the landowner

notification requirement was that the applicant should make a good

faith effort to serve all affected landowners. However, to clarify this

we will modify Sec. 157.6(d)(1) to specifically state that the

applicant shall make a good faith effort to notify all affected

landowners.

We will also modify Sec. 157.6 by adding a requirement that the

applicant also publish notice of the application in newspapers of

general distribution in the project area within a week of the filing of

the application. We will leave it to the applicant's discretion how

many newspapers may be appropriate. However, a reasonable guideline,

consistent with requirement in Secs. 157.10(b) and (c) of the

Commission's regulations concerning placing copies of the application

in accessible central locations, would be one per county involved in

the project unless a single newspaper fits the general distribution

criterion in more than one county.

This newspaper notification will serve not only to embrace those

individuals who may not have received notification along the proposed

route, but also to give some advance notice to people in the general

project area who might be affected by alternatives. Further, the

Commission may subsequently decide, on a project-specific basis, what

additional notification may be appropriate for other landowners

potentially affected by alternatives.

To the extent some notices may be received by the affected

landowner after the intervention deadline, Sec. 385.101(e) of the

Commission's regulations provides for waiver of the Commission's rules

for good cause. Traditionally, the Commission has granted waivers of

its intervention requirements and allowed late interventions when the

party did not receive notice of a pending application until after the

intervention deadline had passed. Further, Secs. 157.10 and

380.10(a)(1)(i) allow parties to intervene in response to Commission

action in its environmental documentation.10

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\10\ See Southern Natural Gas Company, 79 FERC para. 61,280,

62,202 (1997).

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2. Hand Delivery of Notices

Comments. Williston Basin Interstate Pipeline Company (Williston

Basin) asserts that it continues to believe that the landowner

notification requirement should be performance based and that the

Commission should not impose the notification rules on all pipelines.

It contends that the Commission should only require landowner

notification if it receives valid complaints against a particular

pipeline. Williston Basin believes the current policy, which allows

each pipeline company flexibility in landowner notification and which

takes into account the geographic and demographic characteristics of

the areas in which the proposed construction will take place, is the

most appropriate policy. In the alternative, it suggests that, at a

minimum, the Commission should modify the regulations proposed in

Secs. 153.3, 157.6(d), and 157.103, to allow pipelines the option to

hand-deliver this information to affected landowners. Williston Basin

states that it should be allowed the opportunity to explain to the

landowner that the contents of the notice are being provided in

compliance with Federal regulations and not in anticipation of

condemnation through an eminent domain proceeding.

Commission Response. The Commission does not believe it is

appropriate to require notification only on a performance basis. First,

the large greenfield pipeline project is most likely to be filed by a

new pipeline trying to enter the market and who will have no track

record of appropriate public relations. Given the considerable public

outcry over the lack of notification for several such projects

recently, we do not believe that a wait-and-see policy is justified.

[[Page 57378]]

Second, we believe it is discriminatory to require only some

companies to provide the notification. In the worst case scenario, this

would allow a company to potentially be a bad neighbor until some

threshold was reached in terms of the number of complaints the

Commission received. In the meantime, the landowners who have not been

treated well may have irrevocably lost the opportunity to have early

and complete involvement in the Commission's process.

Finally, we will modify Secs. 153.3, 157.6(d), and 157.103 to allow

the applicant to hand deliver the notification. However, we note that

no matter how delivery is made, the applicant is required to deliver

the notice to the landowner of record, which may not necessarily be the

person occupying the property. Moreover, the contents of the

notification must be the same regardless of the mechanism of delivery.

3. Docket Number

Comments. INGAA requests that the Commission assign the application

a docket number at the time the filing is made. It contends that if the

Commission assigns the application a docket number subsequent to when

the application is filed, it will be difficult for the pipelines to

meet the Commission's notice requirements in a timely matter. It

proposes that the Commission revise Sec. 157.6(d) and related sections

to provide that the pipelines notify all affected landowners within

three business days following the date the Commission assigns a docket

number to the application. The Industrials, Algonquin, and El Paso make

similar requests.

Columbia requests that the Commission clarify the requirement to

notify all affected landowners within three days refers to the mailing

date of the notice and not the date of receipt by the landowner. It

contends that requiring that the notice be received by the landowners

within three days of the filing of the application is unreasonably

burdensome and not justified for the purpose of the new regulation.

Commission Response. While the Commission believes that it is rare

that a filing is not docketed the day it is received, we will modify

Sec. 157.6(d) and require that the notice be sent within three-business

days of the day the application is assigned a docket number. The three

business day requirement applies to the date of mailing or the day the

notice is hand delivered. In other words, the notification must be in

the mail by the end of the third business day after the docket number

is assigned, or, if the company chooses to deliver the notification by

hand, then it must be so delivered within three business days of the

date the filing is assigned a docket number.

4. Abandonments

Comments. National Fuel Gas Supply Corporation (National Fuel)

contends that the Commission should clarify that the landowner

notification requirement applies to activities involving construction

and not to activities such as abandonments by transfer and customer

name changes. It contends that facility transfers do not involve any

disturbance of property. Therefore, it asserts there is no need to

enlarge on whatever rights of notice or consent the landowners may have

under applicable rights-of-way. Also, it requests that the Commission

clarify that advance landowner notice can be waived by the landowner.

National Fuel also claims that there are abandonment situations

when consultations with landowners would not be appropriate. For

example, it cites instances where the abandoned pipeline may be

utilized to cathodically protect another pipeline, or where the

pipeline crosses under a roadway or stream and it is impractical to

remove the pipeline. It requests the Commission clarify that its intent

is to require the applicant to identify landowner consultations, or

provide an explanation as to why particular consultations were not

made.

INGAA contends that the requirement to notify landowners about

abandonments impinges on binding easement agreements. It states that

often the pipeline's easement document will specify whether a pipeline

is permitted to abandon its pipeline in place. It claims that the

Commission's requirement amounts to a unilateral renegotiation of the

easement by allowing the landowner to request that the pipeline be

removed. It also asserts that it may falsely lead landowners to believe

they have rights contrary to their negotiated easement agreements.

Further, it contends that implying that the landowner may request

removal of the pipeline may create unnecessary landowner tension should

environmental and other factors make it impractical to honor the

landowner's request. Great Lakes makes a similar argument.

Algonquin contends that a requirement that the pipeline consult

with landowners prior to abandoning facilities will raise expectations

that facilities will be removed when there is no practical reason to do

so and the cost of removing the facilities is excessive under the

circumstances. In fact, it argues that unless there is a legitimate

reason to remove the facilities, removal in virtually all cases will

result in totally unnecessary environmental disturbances. Also, it

claims that the pipeline's right-of-way agreement may specify whether a

pipeline is to be abandoned in place or not. It asserts that the

Commission has not identified any reason to interfere with such

agreements.

Commission Response. First, we note that we agree that the

notification discussed herein does not need to be done for name changes

or other activities that do not affect the use of the easement.

Therefore, in Sec. 157.6(d)(1) we will exempt abandonments of

facilities by sale or transfer. However, we do not agree that all

abandonments should automatically be exempt from the notification

requirements.

In a NGA section 7(b) abandonment proceeding, the Commission will

review all the relevant factors concerning the abandonment and make a

determination if it is in the public convenience and necessity to grant

the abandonment. While it is possible, as some of the commenters

allege, that easement agreements may specify the pipeline's

responsibility under the agreement upon abandonment of the easement,

that is not always true. Further, the presence of such a stipulation in

the easement does not necessarily override the other considerations

that the Commission must weigh in ruling on the abandonment.

In the case of abandonment by removal, the same individuals who

would have been affected by construction of the facilities also may be

affected by the removal. However, changed circumstances since the

original construction of the facility could warrant that the existing

landowner be notified.

The Commission is aware that in many cases the environmental impact

of removal is unwarranted or that other considerations mentioned by the

commenters, e.g., cost, use of the abandoned pipeline for cathodic

protection, presence of a road or railroad, may make it impractical or

undesirable to remove the pipeline. The pipeline applying for

abandonment may identify the reasons it believes its proposed

disposition of the pipeline is appropriate. Those reasons may be

economic, environmental, related to safety, or stem from the

landowner's choice, but in order to make a reasoned decision on the

effects of its approval of the abandonment, the Commission needs to

have this information. If the Commission decides that it is in the

[[Page 57379]]

public convenience and necessity to have the pipeline disposed of in a

different manner than stipulated in the easement agreements, it will

explain its reasons in the order granting the abandonment.

With respect to National Fuel's request for advance waiver of the

right to notification, we see little advantage to the pipeline or to

the Commission. These pipelines are in the ground for many years.

Further, facts, circumstances, and the law change over time. The

Commission believes it is important to review all the relevant factors

in place at the time the pipeline is proposed to be abandoned.

Therefore, we do not believe that a waiver of the notice requirement in

these situations is appropriate.

5. Tax Records

Comments. Market Hub Partners LP (Market Hub) claims that the

Commission's definition does not specify what county/city tax record

the pipeline must examine in determining what landowner to notify.

Specifically, it asks if the pipeline must only examine the annual tax

rolls, or must it look at other property records, update its search

quarterly, or obtain the most recent tax roll prior to sending out its

notice. It also contends that the pipeline can ``hide behind'' the tax

roll if it has reason to believe it is incomplete or incorrect. It

requests that the Commission clarify that the applicant is required to

examine the annual records as well as any quarterly updates and that it

must provide notice to any other affected landowners it is aware of

that do not appear on the public record.

Commission Response. The requirement to make a good faith effort

implicitly involves using the most current source at the time of

filing. It would include any independent material the applicant has in

its possession concerning the landowners it must deal with to obtain

property rights. Given the need to obtain those rights and to obtain

permission to survey property for various environmental requirements in

our regulations, we see very little reason or advantage for the

applicant to avoid deriving a good faith list.

6. Route Changes

Comments. The Iowa Board points out that the route may change

during the certificate process and the landowners on the alternative

routes may not be included in the initial notice. It suggests that: (1)

The landowners on any alternative routes also being considered by the

applicant be included in the initial notification process; (2) the

Commission require notice within a corridor wide enough to accommodate

minor route shifts; and (3) landowners affected by a major route shift

proposed during the certificate process should be given notice as soon

as possible and provided the opportunity for late intervention or late-

filed comments.

Commission Response. The Commission will not at this time require

that the pipeline notify any landowners other than those potentially

affected by the proposed route/facilities. The range of potential

relocations of facilities is so broad that it would not be productive

to require such notification. We will also not require that the

pipelines notify all landowners along alternatives it looks at on its

own. This would tend to be a real disincentive for the applicant to

look at any alternatives until later in the process. We intend to rely

on the Commission's staff to determine which additional individuals

should be notified during the environmental analysis.

Nevertheless, we will point out to potential applicants that it is

in their best interest to make sure a wide universe of landowners is

aware of the project as early as possible to ensure input into the

routing/location of facilities. In addition, waiting for the

Commission's staff to determine who should receive notification may

tend to lengthen the Commission's review process.

Also, as discussed, we are adding a requirement to

Sec. 157.6(d)(1), that the applicant publish notice of the application

in local newspapers. We believe this is sufficient notice at this time.

C. Affected Landowner

In the NOPR, the Commission proposed 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 expansions of storage fields and

any applicable buffer zones.

1. Property Directly Affected

Market Hub argues that the term ``directly affected'' introduces

ambiguity into the definition of ``affected landowner''. It contends

that the word ``directly'' does not add or delete any substance from

the definition of ``affected landowner''. It states that it is

uncertain whether the word ``directly'' is intended to impose an

obligation to notify landowners who would not otherwise be notified. It

requests that it be deleted.

Commission Response. The Commission deliberately used the term

``directly'' to indicate that the property would be physically used by,

or for the construction of, a facility. The word was used to

distinguish the properties which would be used in some way for the

project from those properties which would simply be within view or

earshot. However, we will add a parenthetical to Sec. 157.6(d)(2)(i)

clarifying our intent to mean those properties being used or crossed by

construction activities.

2. Abutters

INGAA requests clarification that any pipeline that owns the right-

of-way in fee is not considered a utility company and therefore is not

required to notify affected landowners that abut its right-of-way. It

claims that to impose such a condition could discourage construction

along existing rights-of-way. Similarly, the Industrials question why

notice should be legally required for landowners adjacent to property

that is actually owned by the pipeline. They argue that when the

pipeline owns the right-of-way in fee, it has a legal right to do what

it wants in the right-of-way. Columbia also objects to the inclusion of

abutters to existing rights-of-way in the list of affected landowners.

It contends that abutting landowners will not have facilities on their

property, will not be subject to condemnation and will not have

restrictions on the use of their property.

Market Hub requests that the Commission clarify whose property

abuts a right-of-way or facility site for the purpose of this rule. It

states that a facility site should mean actual facilities that are a

part of the operating facility, i.e., the actual pipeline, or the

actual compressors used for gas injection. In the alternative, it

recommends that the Commission replace its proposed ``abuts'' rules

with one that simply requires pipelines to give notice to all owners of

property rights on or in parcels of property adjacent to the property

and/or property rights that have been or will be acquired by the

pipeline.

INGAA, Enron, and the Industrials generally question the usefulness

of notifying a landowner that abuts a large block of land owned by a

utility where the pipeline only acquires a right-of-way on a small

piece of the property that is distant from the abutting landowner's

property. INGAA and Enron request that the Commission clarify

Sec. 157.6(d)(2)(ii) to provide for notification where the

[[Page 57380]]

pipeline is in an utility right-of-way and construction/disturbance is

proposed within 50 feet of the adjacent property. The Industrials

request that the Commission clarify that this provision, at most,

requires notice only to those landowners whose abutting property is

adjacent to that portion of the existing right-of-way or facility site

that will be used for the proposed pipeline facility construction.

The Supas recommend that landowners within 150 feet of construction

be notified and the Schavers, landowners who participated in the Vector

Pipeline proceeding, recommend that all landowners who will be affected

by pollution, accidents, noise, or visual obstructions be notified.

Commission Response. First, we will clarify that the requirement to

notify abutters (in Sec. 157.6(d)(2)(ii)) refers to any utility right-

of-way owned in fee. We see no reason to distinguish between natural

gas pipelines and other utilities. The important consideration is

whether there is construction-related activity taking place in the

area, not whether this utility or that owns the land. It is the

abutting landowner's right to comment on the project work area that is

of concern.

Further, we do not believe that this requirement will discourage

the use of existing rights-of-way since there are many advantages of

using them, not the least of which is the ability to potentially deal

with only a single landowner (the utility) for the use of extensive

lengths of right-of-way. The issue here is simply whether people get

notified and comment on the project. The Commission's long-standing

preference for such co-location will still encourage pipelines to

propose using existing rights-of-way. A decision to do otherwise, will

still need to be justified in the application.

We believe that requiring notice to the abutters of existing ``in

fee owned'' right-of-way is appropriate. It is our experience, as borne

out by comments from other governmental agencies and private citizens,

that the more notification that is provided, the more useful relevant

information that can be obtained from the local individuals who are

likely to be most knowledgeable about the project area. Notification to

just the landowner (the utility company) would not allow any

significant public notice and would not stimulate much public input to

the process. We think this consideration alone warrants the proposed

notification to abutters. In addition, we are simply codifying our

current practice.

In the case of a new natural gas pipeline across land not owned in

fee or not previously encumbered by a right-of-way, we believe that

notification of all abutters is equally appropriate to treat them in

the same way as abutters to ``in fee owned'' right-of-way. In general,

this requirement will not significantly increase the number of

landowners who need to be notified since easements more commonly cross

property than share property boundaries. In addition, these additional

properties will be easy to identify along with those properties

crossed. Therefore, we will modify Sec. 157.6(d) and require that the

pipeline provide notice to all landowners whose property abuts the

right-of-way.

Finally, we believe that property owners with residences within

sight or hearing of a compressor station or LNG facilities also deserve

notification. The impact of such facilities extends beyond the

localized potential for effect from a pipeline. For instance, the

Schavers' suggestion that people who would be affected by noise or

visual effects of projects be notified applies to these kinds of

facilities, since they have the potential for long-term effects of this

kind. Choosing an appropriate distance is difficult; however, our

experience with the potential noise impact of compressors indicates

that a reasonable distance is one-half mile. Within this range it is

not uncommon for the noise restrictions we usually place on compressors

to come into play. We also submit that within this range the existence

of a new compressor station or LNG facility may also be apparent to the

unaided eye.

3. Storage Areas

Market Hub contends that the Commission's landowner notification

rules should take into account the various estates that exist in a

single parcel of property, including separate rights to surface,

subsurface, minerals, oil and gas extraction, and oil and gas storage

estates. It requests that the Commission require pipelines to notify

the owners of all estates and rights-of-way in the parcel of property

at issue as they are identifiable based on public land records.

Similarly, Mr. Edward Deming, a landowner with property on a CNG

Transmission Corporation storage field, states that the Commission

should require notification of all affected property owners in areas of

storage facilities including owners of surface and subsurface rights.

On the other hand, Enron requests that the Commission clarify that the

phrase ``owners'' means surface owners only.

Columbia recommends that notification of owners of property rights

within new storage fields be limited to the owners of properties on

which facilities (above and below ground) will be constructed. It

asserts that the focus should be on those surface landowners who will

be directly affected by the construction proposals in contrast to

others within the boundaries of new storage fields whose property will

not be disturbed.

Market Hub states that the phrase ``within the area of new storage

fields or expansions of storage fields and any applicable buffer zone''

is vague. It explains that storage operations sometimes involve

drilling wells that reach several thousand feet below the surface, and

involve the storage of gas in formations that cover large areas. It

contends that various owners and various property interests may be

affected by a proposal to build or modify a storage facility.

Therefore, it asserts that the storage operator's notification

obligation should apply to all owners of property rights within the

existing certificated boundaries of the relevant storage field.

New York State Department of Environmental Conservation (NYSDEC)

states that it is unclear that the rules as currently proposed will

provide owners of property within the boundaries of proposed storage

projects adequate information to meet the Commission's goal of ensuring

affected landowners sufficient and timely opportunity to actively

participate. It also asserts that the Commission's pamphlet ``An

interstate natural gas pipeline on my land? What do I need to know?''

does not address property rights or environmental concerns as they

relate to storage fields. For example, it points out that the pamphlet

states that the right-of-way may be 75-100 feet wide, whereas a storage

field may be hundreds of acres or several square miles in size. It

states that property rights issues such as in-place resources of native

gas or salt are unique to storage safety issues. Also, it contends that

the pamphlet does not inform landowners that certain storage field

expansions may be categorically excluded from the Commission's

environmental review. It recommends that the contents of the notice for

storage projects be expanded to include additional issues of concern

that are unique to storage fields.

Commission Response. The Commission's intent in Sec. 157.6(d)(2)(v)

is to include all recorded property interests in the area within the

entire certificated boundaries of the storage field. We believe this is

appropriate because once a storage field is certificated, there may be

future construction within the boundaries of the field for which no

additional

[[Page 57381]]

Commission authorization will be required. For example, auxiliary

facilities of many kinds may be installed subsequent to the

Commission's initial authorization without any further Commission

involvement. In addition, pipelines within a storage field may be

relocated under blanket authority without any further Commission

action. There may be landowners affected by this future construction

that would not have been affected when the original proposal was

approved. Therefore, we believe it is appropriate to notify all

property interest owners that potentially could be affected within the

storage field even if the facilities proposed in the current

application would not directly affect them.

Additionally, the Commission's intent is for the applicant to

notify all property interests noted in the tax records, surface and

subsurface. As stated, the Commission believes that all owners of

property interests that may be affected by the applicant's proposal

have a right to know what the pipeline intends to do. Finally, we

believe that surface landowners have a right to know that natural gas

is proposed to be stored beneath their property and have the

opportunity to have their views on the proposal heard even if the

surface area of their property will not be disturbed as a result of the

applicant's proposal.

While the current edition of the landowner pamphlet does not

contain any information specific to the issues of interest for storage

field projects, the Commission intends to update the information in the

pamphlet consistent with the changes made in this and other recently

issued rulemakings. It also will make appropriate modifications in the

future as the need arises. Additionally, we note that the applicant may

add any additional information that it deems necessary to its notice

that would clarify or explain how the pamphlet pertains to its

particular project.

4. Buffer Zones

Comments. Market Hub objects to the term ``buffer zone'' because it

proposes to bestow upon pipelines rights to an amorphous zone for which

the pipeline has not acquired some or all of the surface or sub-surface

property rights. It argues that the Commission has failed to explain

the basis for its legal authority under NGA section 7 to reach zones

that are outside the certificated 7(c) boundary. If the Commission has

authority over the buffer zone, it should explain the rights conveyed

on an applicant that receives approval of a buffer zone. Additionally,

it states that the owners of property within a buffer zone should be

accorded all the same rights and notifications of those in the active

zone of a proposed project. Finally, it asserts that the Commission

should make clear what jurisdictional activities are permissible inside

the buffer zone.

Commission Response. Since the delineation of the gas storage

reservoir confinement cannot be precisely established for most fields,

the Commission certificates a buffer zone or protective area beyond the

estimated reservoir boundaries to assure continued reservoir integrity

of the gas storage field. This practice is consistent with some state

requirements. The buffer zone, which will vary in size based on the

geologic and engineering data available to define the lateral

boundaries of the storage field, identifies the area under which the

company has the right to store natural gas in the specified formation

as determined in the certificate authorization. It is the storage

operator's responsibility to verify and define the storage boundary

through the life of the storage operation as additional operational

experience is obtained. If there is any migration from the certificated

boundaries of the field, including the buffer zone, the operator is

obligated to notify the Commission and apply for a new boundary to the

field.

Section 157.6(d)(2)(v) expressly requires that all recorded owners

of property interests in the applicable buffer zone should receive

notification of the applicant's proposal for that area. We note that

the Commission's certificate authority only gives the applicant the

authority to construct, operate, and maintain the storage facilities

within the certificated boundary. It does not bestow upon the applicant

any specific property rights outside of that area. The company may only

conduct jurisdictional activities expressly approved by the Commission

in the certificate authorization.

D. Contents of Notice

In the NOPR, the Commission proposed 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. The NOPR also proposed that the notice include a copy of the

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

What do I need to know?''.

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

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

pipelines are required to make complete copies of the application

available in central locations in each county in the project area.

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

Comments. National Fuel states that the requirement to include the

Commission's pamphlet should only be required for landowners affected

by pipeline construction. It contends that the pamphlet does not

address other types of activities, such as compressor station

construction or modification, storage field development or expansion,

or pipeline abandonment and should not be required in those situations.

GASP claims that the Commission's pamphlet is not appropriate. It

asserts that the pamphlet takes for granted the pipeline's right to

take the landowner's property, and discourages landowner intervention

in the process.

The Iowa Board suggests the following additions to the Commission's

proposal: (1) The rule should specifically require the inclusion of a

map showing the proposed route of the pipeline, it recommends two maps

for larger projects, one showing the total project and another the

local area (i.e. the county or township); (2) the notice should include

a general, up-front statement that easements will be sought, and

explaining the nature of the rights the pipeline will seek on those

easements; and, (3) the Commission should require that the notice

provide information concerning the legal rights of the landowners. It

suggests that since easement acquisition, and usually condemnation, is

a function of the laws of the individual state, the Attorney General of

the affected state should be requested by the Commission to prepare and

provide the summary of legal rights. Additionally, the Iowa Board

states that the Commission may want to review the proposed notice

before it is mailed.

Commission Response. The pamphlet was created specifically for

pipeline facilities and has been adopted for this larger purpose at the

suggestion of previous commenters including INGAA and other industry

and Congressional representatives. As stated, the Commission intends to

revise the

[[Page 57382]]

current version of the pamphlet consistent with the action taken in

this and other recent rulemakings. We expect to revise the pamphlet as

needed to allow it to cover as many of the facility types as is

reasonably feasible.12 Further, as stated, the applicant is

free to provide any additional information it deems necessary in its

notice to further clarify or explain the Commission's process as it

applies to the applicant's proposed project.

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

\12\ We note that the current version of the pamphlet is

available for downloading off the Commission's Internet Home Page.

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

As for GASP's claim that the pamphlet is inappropriate, we note

that the purpose of the pamphlet is to explain the Commission's process

and how the landowner may participate in that process. The pamphlet

simply states the factual situation which is that once a certificate

has been issued, the pipeline has the right to take property if it

cannot negotiate an easement agreement with the landowner.

The Iowa Board makes some good suggestions for the contents of the

notice. Accordingly, we find that requiring a map would not burden the

applicant since maps are part of the application, including a map of

the overall project. We also believe that the applicant can also easily

include a generic description of what the applicant will need from the

landowner if the project is approved and a brief description of the

eminent domain rules in the relevant state. Finally, we do not believe

it is necessary to impose upon the state attorneys general to provide a

summary of their state's laws. We will modify Sec. 157.6(d)(3)

accordingly.

E. Landowner Notification Under Secs. 2.55 and 157.202

In the NOPR, the Commission proposed to add a landowner

notification requirement to Secs. 2.55 and 157.202 that requires that

pipelines notify the affected landowner 30 days prior to commencing

construction under these sections. The notification would 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 Sec. 1b.21 of

the Commission's regulations and the Enforcement Hotline phone number.

Comments. Generally, many of commentors contend that the existing

easement agreements should determine what type of landowner

notification should be required for projects constructed under

Secs. 2.55 and 157.202 and that the proposed 30-day notice requirement

is unnecessary. They contend that there is no substantial evidence of

significant landowner concerns in the case of Sec. 2.55 or 157.202

activities that would warrant any change in existing procedures.

1. Section 2.55

INGAA contends that formal notification under Sec. 2.55 is not

consistent with the type of work performed. Specifically, it states

that Sec. 2.55(b) involves existing lines with previously negotiated

easements and established pipeline/landowner relationships.

Additionally, it asserts that the work often requires completion in

less than 30 days from the time it is identified or it involves a

problem that must be corrected immediately, including situations that

could not properly be characterized as emergencies, but nevertheless

demand some action in a short period of time. INGAA contends that under

these circumstances, the pipeline/landowner easement agreements should

control how and when the pipelines provide landowner notification.

Further, it notes that the 30-day waiting period may be in conflict

with the requirements of the easement agreements as well as safety and

environmental regulations. Algonquin, Columbia, El Paso, and Williston

Basin raise similar arguments.

Commission Response. Upon reconsideration, we agree that there is

no need for this Commission to require advance notification to

landowners for replacement conducted under Sec. 2.55. As the commentors

point out, all of the activity involved with such a replacement is

within existing right-of-way and subject to an existing easement

agreement which dictates the pipeline's right to obtain access to

maintain the facilities. However, we believe that prudence would

dictate that the pipeline should give the landowner as much advance

warning as is possible to avoid misunderstandings and ill-will.

2. Blanket Certificates

INGAA believes that the pipeline/landowner easement agreement

should also control for routine construction for activities performed

under the pipeline's automatic blanket certificate. It argues that to

perform new construction under its blanket certificate, the pipeline

must already have or have obtained the necessary right-of-way and, in

the normal course of business, notify the resident prior to entering

the property. Therefore, it contends that the Commission's notification

requirement is unnecessary. Additionally, it claims that the

Commission's requirement to notify all affected landowners of real

property is too restrictive. It recommends that the Commission adopt

the ``good faith'' language of the Commission's section 7(c)

notification requirement.

Similarly, El Paso agues that the Commission's advance notification

requirement for construction performed under the automatic

authorization essentially nullifies those provisions. Further, it

contends that the notification requirement is not necessary. For new

construction in an area covered by an existing easement, El Paso

asserts that advance notification is not necessary because the

landowner previously granted the pipeline the property rights necessary

to perform the construction. It states that the Commission should not

interfere with the existing relationship between the pipeline and the

landowner. As for construction in new rights-of-way, El Paso contends

that it must obtain additional easement rights with the landowner

before beginning construction and that this serves as adequate notice

of the impending construction. It claims that an additional 30-day

notification requirement would only unnecessarily delay construction.

For prior notice activities, INGAA asserts that the pipeline/

landowner easement agreement should govern the type and timing of

notice provided to landowners for activities performed under the prior

notice provisions. It claims that as a condition precedent, a pipeline

performing new construction under its blanket certificate would have

had to negotiate with the landowners for right-of-way easements.

Therefore, it states that the Commission's notification requirement

duplicates what the pipeline already negotiated or provided with the

landowner. Further, INGAA states that it is concerned that the

requirement that the pipeline inform the landowner of its right to

protest almost invites protests and may mislead landowners into

believing that a protest is necessary to be a participant in the

process. At a minimum, INGAA suggests that whether verbal or written,

the notice describe the right to intervene or protest and also alert

the landowner that the Director of the Office of Pipeline Regulation

(OPR) has the authority to dismiss unsubstantiated protests.

The Industrials object to a notification requirement where the

pipeline's filing indicates it has secured all rights-of-way and

easements for the project in advance of the filing. They contend that

[[Page 57383]]

there is little to be gained from imposing new filing notice burdens on

this class of projects. They also state that if the Commission proceeds

with imposition of the new landowner notice provision , it should at

least amend the language to require that the pipeline only attempt to

notify all directly affected landowners.

Columbia and Williston Basin believe that the Commission should

build sufficient flexibility into this process and allow for a waiver

of the waiting period when necessary for the pipeline to properly

operate and maintain its system. National Fuel recommends that the

Commission have an exception for replacement work necessitated by an

immediate threat to public safety. Further, it claims that the

Commission should clarify that the advance landowner notification

requirement can be waived by the landowner. El Paso asserts that the

proposed regulation would unduly delay prompt replacements of unsafe,

deteriorated facilities. It contends that a 30-day delay under these

circumstances would be untenable.

Similarly, Great Lakes contends that the pipelines may not be able

to identify replacement projects conducted under Sec. 157.203(d)(1) a

full 30 days prior to the date on which the work should or will be

done. It argues that the 30-day notice provision for replacement

projects is unnecessary and burdensome. As an example, it explains that

a pipeline may discover a defective mainline pipe section while working

on installing a new loopline. It argues that under the Commission's

proposal, the pipeline would have to wait 30 days to do this work. It

contends that the delay would raise the cost of the project by

requiring the trench to be re-opened and the necessary equipment

returned to the site, and may increase the risk to the pipeline and the

public during the waiting period.

Enron states that the 30-day landowner notification requirement

will create conflicts with a pipeline's efforts to comply with the

Department of Transportation (DOT) and environmental regulations. The

Industrials request that the Commission, at a minimum, exempt from the

proposed notice requirements automatically authorized construction of

eligible facilities required to address unplanned or emergency repair

or maintenance situations or other circumstances in which there are

valid business reasons for proceeding without prior written notice.

National Fuel contends that the 30-day prior notice requirement

should be shortened to 10 days. It asserts that a shorter notice period

is appropriate because these projects promote public safety and only

impact owners of properties already affected by pipeline construction

and maintenance. Similarly, the Industrials request that if the

Commission does impose a pre-construction notice requirement, it should

be less than 30 days.

If the Commission declines to eliminate the 30-day notice

requirement, INGAA suggests: (1) The notice period be eliminated for

unplanned maintenance and replacements (e.g. line hits, equipment

failures); (2) the notice time frame for planned work should be reduced

from 30 days to three days or a time period provided for in the

easement agreement or such period as agreed upon in writing by the

landowner, i.e., a waiver of notification rights; (3) the notice be

limited to the immediate landowners affected by the construction

activity (as compared to the broader definition of affected landowners

for section 7(c) applications); and (4) that verbal notice be permitted

as long as the pipeline maintains records of who was notified and

provides the landowner with a company contact person and telephone

number.

El Paso suggests that the Commission should, at a minimum,

eliminate the requirement for projects which clearly have a de minims

impact on landowners. For example, it refers to: (1) Construction which

occurs within a fenced area, e.g. a compressor or meter station yard);

(2) construction of above-ground facilities where no ground disturbance

is involved; and (3) replacements performed for safety reasons.

Finally, Columbia is concerned that the Commission's notification

requirement for blanket construction activities creates an open-ended

process for which there appears to be no closure from a timing

standpoint. It contends that the Commission's proposal is silent on the

internal process that will be adopted in connection with administering

the increased contacts that may result from the notification

requirement

Commission Response. Unlike activities performed under Sec. 2.55,

the Commission believes that many of the activities performed under the

pipeline's blanket construction certificate authorization require that

the pipeline notify the affected landowners regardless of the terms of

the easement agreements. While the Commission may not have seen

specific expressions of concern regarding blanket projects, this could

easily be a result of the fact that most people outside the natural gas

industry are not familiar with the Commission or its programs.

Nevertheless, we are trying to make sure that our regulations provide

for similar protections for similar activities. Therefore, we find a

need for advance notification of landowners for blanket certificate

activities.

Additionally, we believe that the landowners deserve the

opportunity to air their views and concerns regarding the activity

proposed for their property. The Commission also wants the opportunity

to act on those concerns if necessary. Whenever the pipeline conducts

an activity subject to the Commission's jurisdiction, the Commission

has the authority to impose conditions on that activity. However, in

light of the comments received, we will make certain modifications to

the notification requirements for blanket certificate activities as

proposed in the NOPR.

First, we note that removing the notice requirement for activities

performed under Sec. 2.55 largely eliminates the concern raised by the

commentors for replacements done for safety, DOT compliance, and

unplanned maintenance reasons. However, there may still be certain

situations that will require that these activities be performed under

the pipeline's blanket certificate. Therefore, in Sec. 157.203(d)(3)(i)

we will exempt replacements that are being done for safety, DOT

compliance, or unplanned maintenance reasons which the pipeline has not

foreseen and which require immediate attention.

Additionally, we realize that there will be blanket-authorized

projects that would have been done under Sec. 2.55 except that they

involve a change in the capacity of the facilities. To the extent that

these activities involve only the existing right-of-way construction

work area, we also find that advance landowner notification is not

necessary. Therefore, we will also exempt these types of activities in

Sec. 157.203(d)(3)(i).

Finally, in Sec. 157.203(d)(3)(ii), we will clarify that the

notification requirement applies only to activities which involve the

abandonment of facilities if the pipeline is intends to relinquish the

right-of-way, and the facilities are not intended for continued use by

the landowner or the future holder of the easement.

For all other activities under the blanket authorization, we will

continue to require that the pipeline notify the landowner at least 30

days prior to commencing construction as proposed in the NOPR. However,

we will clarify that the pipeline may deliver the notification by hand

or by mail. Further,

[[Page 57384]]

if the pipeline is negotiating for a new easement, it must deliver the

notice either before or at the time it initiates easement negotiations.

The 30-day notice period and the easement negotiations could run

concurrently.

We do not believe it is appropriate to allow the pipeline to

deliver the notice orally. First, several of the components of the

required notice cannot be conveyed orally. Second, it is not fair to

expect landowners, who may have no premonition that they are about to

be approached with respect to the use of their land, to assimilate the

details of the required notice without any written materials to study.

For activities under the prior notice procedure, we will allow

pipelines to give the landowner notice before or after the application

is filed. If the pipeline gets landowner approval for the proposed

activity before it files the application, it should provide evidence of

that approval with the application and no further notification will be

required. If the pipeline needs to commence construction prior to the

end of the 30 days, it should request a waiver of the requirement from

the Director of OPR. We believe that for most of the activities not

covered by the exceptions discussed above, the pipeline knows in

advance of the thirty days that it intends to construct facilities.

3. Enforcement Hotline

Comments. National Fuel also opposes the inclusion of information

about the Enforcement Hotline. It contends that it may be misleading to

suggest that the Enforcement Hotline is the appropriate dispute

resolution mechanism. It requests that if the Commission includes this

requirement it should clearly describe the range of issues appropriate

for bringing to the attention of the Enforcement Hotline.

INGAA asks that the Commission eliminate the reference in

Secs. 2.55(b)(1)(iv)(3) and 157.203(d)(1)(iii) to the Enforcement

Hotline. It contends that it implies that the pipeline is acting

unlawfully in some way and that some form of regulatory oversight is

necessary for an activity which is generally handled through a self-

implementing authorization. Further, it claims that the reference to

the Enforcement Hotline encourages an escalation of landowner's

concerns on what are likely to be routine maintenance activities. It

states that calling the company representative identified on the notice

would put the responsibility to address the landowner's concern where

it belongs, on the company.

Columbia asserts that the pipelines need to be assured that

adequate resources are available to resolve any Enforcement Hotline

matters that may arise. It claims that a significant number of

landowners will avail themselves of the opportunity to use the

Enforcement Hotline regardless of whether they have a legitimate

substantive problem, because they would prefer that the facility not be

on their property. It also asserts that the Commission should not

entertain issues of landowner allegations over the lease agreements. It

states that the pipelines must have certainty that the issues will be

resolved within the 30-day period and that they will be able to begin

construction at the expiration of the 30-day period. It argues that to

suggest that the work cannot begin until the Enforcement Hotline

process is exhausted is impractical, burdensome, and provides

landowners with a method to effectively undercut property rights they

or their predecessors have already granted to the pipeline.

Algonquin asserts that the Commission's proposal invites protests

or Enforcement Hotline calls regardless of the merit and could well

convert what is now an expedited construction process into a

traditional section 7 process and impair the pipeline's ability to

construct minor facilities in a short time period.

Commission Response. We agree that the Commission 's Enforcement

Hotline may not necessarily be the appropriate mechanism of first

resort. We cannot force the landowner to take this approach, and we

will not forego providing the landowner with information on how to

contact the Commission.

Further, we do not believe that including a reference to the

Enforcement Hotline implies the company is doing something unlawful. It

would, of course, be possible to present this information in such a way

that this was the implication. However, we have not specified how the

company is to present the Enforcement Hotline number and we expect the

companies will be able to present it as merely being a means to contact

the Commission, which is in fact what it is.

Columbia states that the Commission must resolve protests quickly

and limit the protests to issues properly before the Commission. It

recommends that the form of notification include not only references to

the landowner's right to protest but also to the Director of OPR's

power to reject non-substantive protests. As stated, the pipeline is

not foreclosed from further explaining the Commission's regulations in

its notice. Further, the Commission does not envision that providing

the landowners with information concerning the Commission and its

processes would necessarily delay any of the pipeline's activities

under its blanket certificate. The Commission will address any

situations that may arise on a case-by-case basis.

E. Observation Wells

In the NOPR, the Commission stated that it was beyond the intent of

the blanket certificate for pipelines to construct new injection and

withdrawal wells. However, it proposed to allow pipelines to drill

observation wells under their blanket certificate authorization.

Comments. NGAA contends that observation wells are drilled under

Sec. 2.55. Therefore, it states that they do not need to be codified

under the blanket certificate regulations and should not be subject to

the new advance landowner notification requirements. Williston Basin

and Enron request that the Commission clarify that deteriorated wells

can be replaced under Sec. 2.55.

Market Hub contends that the Commission's proposal to allow

drilling of observation wells will be used to circumvent the

Commission's authority and to avoid obtaining advance site-specific

approval for new storage/injection wells. It requests that the

Commission require site-specific approval before a pipeline may drill

or construct any and all wells. Specifically, it states that a pipeline

might avoid obtaining approval for the drilling and construction of

storage injection/withdrawal wells by calling all wells observation

wells at the time they are drilled. Then, after drilling and completing

a well a pipeline will seek approval to convert the observation well

for use as an injection/withdrawal well. This, it argues, will diminish

the Commission's ability to conduct a site-specific review of the new

well and will eliminate the ability of affected landowners or other

intervener to review and object to the drilling of such wells. Mr.

Deming also asserts that the Commission should not allow storage

companies to drill any wells without getting specific approval.

Market Hub also contends that the Commission's proposed rule favors

storage facilities that have occasion to drill observation wells (e.g.

depleted reservoir facilities) over storage facilities that generally

do not (e.g. salt cavern storage facilities). Thereby, creating an

unfair and discriminatory advantage by

[[Page 57385]]

``handing additional loopholes to depleted reservoir

facilities''.13

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

\13\ Market Hub's comments, at 17.

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

In the alternative, Market Hub requests that the Commission adopt

regulations that articulate standards distinguishing between legitimate

observation wells and ``convert'' storage injection/withdrawal wells.

For example, it recommends that the Commission: (1) Impose restrictions

upon the diameter of the well bore because the well bore for

observation wells is typically smaller than the well bore used for

injection/withdrawal wells; (2) limit the area where the well can be

drilled because observation wells normally are drilled either near the

edges of an active storage field, or outside the confines of the

storage field; (3) review the type of equipment and facilities used in

or on the well.

On the other hand, INGAA also requests that the Commission revise

Sec. 157.202 to allow for replacement wells to be drilled under the

pipeline's blanket certificate authority. Similarly, Williston Basin

believes that the Commission should revise Sec. 157.202 to allow

storage related replacement wells under blanket certificates in order

to provide pipelines with additional flexibility regarding such

facilities. As far as landowner issues are concerned, it contends that

most storage rights-of-way or easement agreements are in place for the

entire storage field. It asserts that these agreements generally define

the rights of storage field operators to construct replacement storage

wells and detail the compensation due the property owners. If there is

no agreement, it contends, then a new agreement will be entered into

before any storage well replacement takes place. Therefore, Williston

Basin concludes that the agreements will control what notice is

required if the operator needs to install replacement facilities.

NYSDES requests that the Commission clarify that its proposal to

allow observation wells to be drilled under a blanket certificate does

not supersede applicable state well permitting requirements.

Commission Response. In Natural Gas Pipeline of

America,14 the Commission stated that ``[o]bservation wells

are not facilities within section 7(c) of the Natural Gas Act, and

therefore do not require [a] certificate.'' As such, as the commentors

point out, they can be constructed under Sec. 2.55(a) of the

Commission's regulations. Consequently, we will withdraw our proposal

to include such wells within the ambit of the blanket certificate

program.

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

\14\ 32 FERC 61,287 n.1 (1985)

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

We will also clarify that we fully intended Sec. 2.55(b) to be

available for the replacement of wells which fit the requirements of

that section. Therefore, injection/withdrawal wells which meet the

specifications of Sec. 2.55(b)(1)(i and ii) may be replaced using this

section of our regulations.

We reject the comment that just because the physical

characteristics of the typical storage field using depleted oil or

natural gas reservoirs, or aquifers make observation wells necessary

whereas observation wells are unnecessary in conjunction with the salt

cavern storage of natural gas, allowing companies that need such

facilities to drill them is in any way discriminatory. The fact that

some pipelines may not benefit from a particular Commission's

regulations does not make that regulation discriminatory.

Further, we do not believe that site-specific approval is necessary

before a pipeline can drill or construct any and all wells. As stated,

the Commission currently allows pipelines to do minor construction on

existing wells under Sec. 2.55 of its regulations. The types of

activities performed under this section are relatively minor ones that

do not significantly disrupt the environment and do not warrant further

Commission review. The Commission does not believe it is necessary to

further restrict or add further standards to these activities at this

time.

However, we do not believe that the Commission's blanket

certificate authorization provides adequate oversight for the

construction of new injection/withdrawal wells. As stated in the NOPR,

and the rehearing order in Order No. 603-A, we do not intend for the

change in this section to allow pipelines to drill additional

injection/withdrawal wells under the blanket certificate because such

wells may inherently alter the deliverability, capacity, or boundary of

a reservoir. Drilling new injection/withdrawal wells in existing

storage pools requires separate section 7(c) authorization.

Finally, in general, inclusion of facilities under the blanket

certificate does not exempt them from obtaining any applicable permits

required by any other jurisdiction. However, as the courts have ruled,

no non-Federal jurisdiction may use its permitting authority under

state or local statute to delay or counteract the execution of a

Commission certificate.

F. Plan and Procedures

In the NOPR, the Commission proposed to apply the same erosion

control procedures (the Plan) and stream and wetland crossing

mitigation measures (the Procedures) to activities conducted under

blanket certificate authorization as are routinely used in the regular

certificate process.

Comments. Generally, INGAA, Williston Basin, Algonquin, and Enron

request that the Commission clarify that the Plan and Procedures are

guidelines which may or may not apply to a particular project and have

not been adopted in this proceeding as requirements. INGAA asserts that

if the Plan and Procedures continue as guidelines, its member pipelines

would reflect in their annual report whether they have employed the

guidelines or equivalent procedures. INGAA also requests that the

Commission permit pipelines, independent of any specific project, to

file and obtain approval for company procedures that they may intend to

employ in lieu of the Plan and Procedures. INGAA and El Paso also state

that pipelines should be allowed to obtain blanket waivers of the Plan

and Procedures for construction in certain regions of the country where

they do not fit local conditions. Enron and El Paso state that they

should be permitted to establish their own Plans and Procedures adapted

to fit different geographic regions.

National Fuel states that if the Commission intends to make the

Plan and Procedures applicable to all blanket certificate projects, it

should consider the specific comments National Fuel raised about the

Plan and Procedures in RM98-9-000. Additionally, National Fuel requests

that the Commission clarify that it intends to allow state permitting

agencies and local land management agencies to grant variances to the

Plan and Procedures. It contends that the clarification would avoid

most of the conflicts between the requirements of permitting agencies

and the Plan and Procedures. Finally, it asserts that the Commission

should have clear procedures in place for efficiently processing

requests for variances by the time the final rule in this proceeding

takes effect.

The Iowa Board states that by making the Plan and Procedures

mandatory, it is unclear whether the Commission intends to preempt the

state standards or state agreements. It urges the Commission to

continue, explicitly, to allow states to enforce state and local

standards and agreements more stringent than the federal requirements,

as long as the state and local standards and agreements are consistent

with the federal requirements.

Commission Response. As part of its responsibility under NEPA, the

[[Page 57386]]

Commission needs to ensure that pipelines employ proper erosion control

and stream and wetland crossing mitigation measures for activities

performed under their blanket certificate authorizations. In the NOPR,

the Commission proposed to use the Plan and Procedures in the context

of blanket certificate projects in a manner similar to the way they are

employed in a traditional NGA section 7(c) filing.

In case-specific section 7 filings, the applicant has two choices

regarding these mitigation measures: (1) Either use the Plan and

Procedures as specified by the Commission; or (2) specify what

alternative procedures it intends to use. In the latter case the

Commission determines if the alternative methodology is acceptable. The

requirements proposed here continue to give the certificate holder the

same alternatives. However, since the Commission does not generally

review blanket certificate construction activities in advance, we will

allow pipelines to substitute the recommendations of the local state

and Federal agencies in place of the Commission's Plan and Procedures.

If the certificate holder can obtain agreement from the appropriate

agency(ies) to use a different set of procedures, then it may do so

under the blanket certificate program. However, the agency must make a

conscious decision to choose the alternative method and, therefore,

must be provided with a copy of the Commission's Plan and/or

Procedures, to use in its review process.

We will not allow certificate holders to come in with generic

alternative plans for each section of the country for the Commission to

review, as suggested by some commentors. We believe it would be a

better use of Commission time and resources to review such requests on

a case-by-case basis, as necessary, given the regional nature of this

issue and the relatively minor nature of the projects constructed under

the blanket certificate program.

Finally, as noted in the Final Rule in Docket No. RM98-9-000, we

intend to revise the Plan and Procedures in light of the suggestions

raised by National Fuel and as other needs arise. The Commission will

issue notices when changes are made to alert pipelines of the specific

modifications.

G. Magnuson Act

In the NOPR, the Commission stated that the pipelines should be

contacting the National Marine Fisheries Service (NMFS) to determine

what level of consultation is necessary for their projects for the

appropriate consideration of ``essential fish habitat'' (EFH). It

proposed regulations that would require that the pipelines consult with

NMFS.

Comments. The Department of Commerce (Commerce) contends that the

Commission's proposed rule may unnecessarily increase filing

requirements for pipeline companies and makes the following

recommendations. First, it recommends that the Commission provide a

separate subsection dealing with compliance with the Magnuson Act

similar to Sec. 380.13 of the regulations for the Endangered Species

Act (ESA). Second, it states that under the EFH regulations, a non-

Federal representative can conduct an abbreviated consultation with the

NMFS when an action does not have the potential to cause substantial

adverse effects on EFH. However, it points out that an expanded

consultation is required if the proposed action would result in

substantial adverse effects on EFH, or if additional analysis is needed

to accurately assess the effects of the proposed action. It states that

the EFH regulations do not allow expanded consultations to be conducted

by non-Federal representatives. It asserts that the Commission should

clarify its proposed rule to state that pipeline companies could only

be designated to conduct abbreviated consultations and EFH assessments.

Third, it contends that while the designated non-Federal

representative may conduct certain activities, the EFH regulations

require that the agency provided written notice of such designation to

NMFS. It states that the Commission should modify its proposed rule to

conform with the NMFS regulations regarding notice of designation of

non-Federal representatives. Fourth, it states that under section

305(b)(4)(B) of the Magnuson Act, the Federal agency is required to

provide certain information to the NMFS. It asserts that the Commission

should revise its proposed rule to reflect the Commission's

responsibility to respond to the EFH recommendations. Fifth, its states

that the Commission should revise Resource Report 3 to prevent

confusion with ESA consultations by removing references to EFH and

adding the following: ``Provide information on all EFH, as identified

by the pertinent Federal fishery management plans, that may be

adversely affected by the project and the results of consultation with

NMFS.

Finally, it recommends that the Commission consult with the NMFS to

determine if certain categories of activities can be treated on a

programmatic basis or in combination with other existing consultation

processes.

INGAA and El Paso assert that the NMFS does not consult with

individual companies or respond to the pipelines' consultation

requests. Therefore, they contend that it may be difficult, if not

impossible for pipelines to comply with the revised regulations. They

suggest that the Commission consult with the NMFS regarding compliance

with the Magnuson Act.

Commission Response. The Commission is presently working with

Commerce on how to best address the requirements of the Magnuson Act in

its regulations. However, in the interim, the purpose of the

Commission's proposal in the NOPR was to preliminarily put pipelines on

notice that they need to comply with the requirements of the Magnuson

Act and to provide guidance on what the Commission expects.

Accordingly, we will modify Resource Report 3 to reflect that the

Commission will require that the applicant identify all federally

listed EFH and to provide the results of any abbreviated consultations

the applicant may have had with NMFS. If necessary, we will address

Commerce's specific comments in a subsequent rulemaking to codify the

more specific requirements of the Magnuson Act.

H. Categorical Exclusions

In the NOPR, the Commission proposed to add several new categories

to the list of categorical exclusions, including, among others,

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.

Comments. INGAA, Columbia, and Enron request that the Commission

replace the phrase ``within an existing building'' with ``within the

previously disturbed station yard'' because not all compression is

housed within a building.

Commission Response. The Commission specifically limited this

categorical exclusion to ``within an existing building'' because such a

change, combined with the other requirements, would not be detectable

outside the property. In addition, it would have no potential to affect

threatened or endangered species or cultural resources. Changes

``within the previously disturbed station yard'' would normally be

detectable outside the property and, while there may be low potential

for an effect on threatened

[[Page 57387]]

or endangered species, cultural resources potentially could be

affected. Accordingly, we will not extend the exclusion to include

facilities outside of the existing building.

I. Intervention Status

Several landowner groups requested that the Commission change its

intervention process to accommodate the small filer. In response, the

Commission explained that its regulations allow for the waiver of a

rule for good cause and stated that if parties were having difficulty

participating in a proceeding, they should request a waiver of the

Commission's service rule.

Comments. Market Hub agrees that landowners who arguably cannot

afford to participate in a certificate proceeding may request

appropriate waivers, but should not be given special status which would

allow them to take advantage of reduced filing or service requirements

as a matter of course. It contends that there is no reason for the

Commission to adopt a new system to relieve administrative burdens on

landowners on a global basis, because it could unfairly burden

jurisdictional pipelines and prejudice other participants in the

regulatory process.

Conversely, GASP contends that landowners should be able to

participate in the process without having to spend thousands of dollars

on copying and postage to protect their property rights. It recommends

that the landowner be permitted to file pleadings and serve them on the

applicant and any party that would be directly or adversely affected by

what the landowner is proposing. It argues that the Commission should

routinely grant landowners waivers of the Commission's rule requiring

service of pleadings on all parties.

Commission Response. The Commission will consider the need for

special filing or service requirements on a case-by-case basis. We do

not believe it is necessary to create a special class of filers who

automatically do not need to serve copies of their filings on everyone.

This would not be fair to the rest of the universe of filers.

Additionally, as stated, the Commission now permits participants to a

proceeding to voluntarily serve documents on one another by electronic

means.15 This should help reduce some of the costs of

participating in a Commission proceeding.

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

\15\ See Electronic Service of Documents, Order No. 604, 64 FR

31493 (June 11, 1999), III FERC Stats. and Regs. para. 31,074 (May

26, 1999).

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

J. Construction Inspectors

In the NOPR, in response to comments, the Commission explained that

as part of the environmental conditions imposed in a certificate

proceeding, it requires that the pipelines hire environmental

inspectors to make sure that the environmental conditions of the

certificate are appropriately applied.

Comments. The Shavers ask why environmental inspectors are not

assigned by the Commission. They contend that the pipelines should pay

their salary but they should not be allowed to hire their own

inspectors.

Commission Response. The Commission's staff and its contractors

routinely inspect projects. In addition, there have been cases where

the Commission has had the company pay for inspectors who are directly

under the control of the Commission. We will continue to use these

various methods of ensuring compliance as necessary, on a project-

specific basis.

Further, we do not find any reason that would warrant a ban on

pipelines hiring independent contract inspectors. The pipelines

recognize it is in their best interest to meet the certificate

conditions, so they are protecting themselves by hiring inspectors. In

addition, these inspectors are usually professionals who have a vested

interest in their credibility. They move from one project to another

and their work becomes known within the industry and at the Commission.

The independent contract inspectors are not only hired by the

pipelines, they are occasionally hired by the Commission. It would be

detrimental to their future employment interests if the Commission were

to find that they are not being impartial in their inspections.

K. Need/Eminent Domain/Compensation

GASP questions the Commission's current policy concerning the

demonstration of public need for proposed facilities. It contends that

the Commission is granting certificates based on private convenience

and ``corporate greed'', and not public need. It claims that the

Commission has strayed from its statutory mandate by substituting

desires of the marketplace for demonstrated public need.

The Shavers argue that market demand cannot be twisted to mean the

same thing as public need. They state that courts condemn the land for

market value with no consideration for loss of use to the landowner.

They argue that the courts assume the certificate means a critical

shortage will exist for gas at the end of the pipeline. They question

why the landowner should pay a higher price than the recipients of the

gas, while the pipeline company profits. They also claim that public

convenience and necessity can only be argued if new customers (who did

not previously have gas service) or additional volumes of gas for

existing customers is being provided. They argue that the Commission's

policy of using contracts to determine need leaves more half-empty

pipelines and is only convenient to pipelines, utilities, and

shareholders.

Ms. Laurie Smith, a landowner that had participated in a Southern

Natural Gas pipeline proceeding, contends that the Commission is

misinterpreting and misusing the power of eminent domain granted in NGA

section 7. She argues that this misuse has led to the violation of

landowners' Fifth Amendment property rights. Ms. Smith states that

proper notification and explanation does not justify violating

landowners' constitutional rights. She states that the rights of

eminent domain, as spelled out in the NGA, are not applicable in a

deregulated, competitive natural gas industry and that ``[i]t is time

that the Commission recognizes what the real issues are and that their

current stance on them only pits the landowner against the pipeline

rather than forming a mutual beneficial business relationship.''

16

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

\16\ Ms. Smith's letter filed June 21, 1999.

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

The Shavers question the Commission's statement that the pipeline's

right to eminent domain is not optional. They contend that the

Commission makes it optional when it allows pipelines to construct

facilities under the optional certificate regulations. They argue that

risk and actual necessity are two different things. Ms. Supa contends

that the pipelines should pay a royalty to the landowner yearly for the

use of their land.

The Iowa Board recommends that the Commission consider whether the

record shows the pipeline company has made a good faith effort to

obtain voluntary easements before granting a certificate that conveys

the right of eminent domain.

Commission Response. First, we note that how the Commission

determines the need for a pipeline and the right to eminent domain are

not issues in this proceeding. The goal of this rulemaking is to

implement landowner notification requirements, make minor changes to

the Commission's regulations to help expedite the certificate process,

and to implement additional environmental requirements.

[[Page 57388]]

The Commission generally determines the need for a proposed

pipeline on a case-by-case basis, based on the facts and circumstances

in each proceeding. In addition, the Commission recently issued a

policy statement to provide guidance as to how it will evaluate

proposals for new construction. In the policy statement, we stated that

our goal is to appropriately consider the enhancement of competitive

transportation alternatives, the possibility of overbuilding, the

avoidance of unnecessary disruptions of the environment, and the

unneeded exercise of eminent domain in evaluating new pipeline

construction.17 The Commission intends to apply this

criteria on a case-by-case basis.

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

\17\ Certification of New Interstate Natural Gas Pipeline

Facilities, 88 FERC para. 61,227 (1999).

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

As stated in the NOPR, a pipeline's right to use eminent domain is

a statutory right imposed by Congress. NGA section 7(h), confers the

right to obtain property through the power of eminent domain if the

certificate holder cannot otherwise reach an agreement with the

property owner. The courts have uniformly held that the Commission has

no authority to deny unilaterally that power to the certificate

holder.18 Further, a pipeline's right to use eminent domain

to acquire the necessary property does not violate the landowner's

constitutional rights. Issues of an unconstitutional taking arise only

when the government acts in a way to deprive a citizen of its property

without compensation. The Fifth Amendment does not proscribe the taking

of property; it proscribes taking without compensation.19

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

\18\ See FPC v. Tuscarora Indian Nation, 362 U.S. 99, 123-24

(1960); Columbia Gas Transmission Corp. v. Exclusive Natural Gas

Storage Easement, 776 F.2d 125, 129 n.1 (6th Cir. 1985)(holding that

issuance of a certificate authorizing a pipeline to operate any

facility gives the pipeline the right to condemn the necessary

easements).

\19\ See Williamson County Reg'l Planning Comm'n v. Hamilton

Bank, 473 U.S. 172, 194 (1985).

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

Finally, compensation for rights-of-ways is determined by the laws

of the state in which the condemnation proceeding takes place. The

Commission has no jurisdiction over those issues.

L. Easement Documents

In the NOPR, in response to landowners' requests, the Commission

stated it did not believe it was necessary to review every easement

document negotiated by a pipeline or submitted for condemnation

proceedings. However, we stated that we expected that pipelines would

negotiate with landowners for easement rights fairly and in good faith,

and that certain information would be provided to the landowner.

Comments. INGAA explains that a pipeline may enter into easement

agreements prior to the time it files its certificate application or

before the certificate has been granted. Therefore, it asserts that the

pipeline would not have the exact right-of-way location at that time.

It states that the pipeline will generally explain to the landowner the

proposed route. It also contends that if the pipeline negotiates in

good faith, it should not be prohibited from acquiring more land than

is covered by the ultimate certificate.

Similarly, Questar Pipeline Company (Questar) asserts that the

Commission's proposal to inform landowners of the proposed uses of

their land ignores the practicalities of undertaking pipeline

construction. It contends that many pipelines negotiate and secure

right-of-way agreements prior to filing a certificate application. It

states that the Commission's proposal would discourage any pre-filing

efforts and thereby delay construction of the facilities. Questar

claims that the Commission's proposal would allow property owners to

object to the project or previously negotiated easement once the

application is filed thus avoiding their side of the easement

agreement. Further, it argues that the Commission has no authority to

examine or require the alteration of easement agreements entered into

prior to the Commission's granting the certificate.

Great Lakes requests that the Commission reconsider its intent to

place easement conditions on certificates, and to clarify that such

conditions will not affect existing pipeline easements, including those

negotiated with landowners prior to receipt of a certificate.

Additionally, Great Lakes is concerned that the Commission will require

the pipeline to re-negotiate every easement agreement it holds with the

landowners if the Commission conditions the certificate. It claims that

this would create an enormous delay and aggravation for both the

pipelines and landowners.

Columbia presents similar arguments and states that pipelines must

be able to acquire property rights necessary for a project on

timetables consistent with their present and long range project plans.

It claims that there has been no showing of any need to regulate freely

negotiated property rights transactions.

In contrast, GASP questions the Commission's statement that the

pipeline will negotiate with landowners fairly and in good faith. It

alleges that in that case the ``landowners are being lied to,

threatened, intimidated, and badgered to give up more than the

certificate requires.''

Further, INGAA states that easement agreements are long-term

documents and that identifying company representatives and phone

numbers in the document should not be required. Great Lakes questions

the usefulness of such a requirement since the landowners know with

whom they negotiated with and the description of the affected property

will be set forth in the easement documents and the easements are

subject to applicable state statutes on recording and legal

descriptions that would render the Commission's requirements

duplicative. It also asserts that requiring to put pipeline contacts

and phone numbers in the easement documents is unlikely to provide up-

to-date contact information to the landowner. Questar states that the

Commission should not use its certificate authority to tinker with the

form and substance of easement agreements. Specifically, it points out

that as a practical matter, adding phone numbers and names to easement

agreements does not make sense since the numbers and names will change

long before the easements do. Enron makes similar arguments.

Commission Response. The Commission has received numerous

complaints from landowners alleging that pipelines are not negotiating

with landowners for easement rights. In essence, filings in recent

proceedings allege that the pipelines are threatening landowners with a

take-it or be-subject-to-condemnation deal in which the landowner is

not allowed any meaningful negotiations. Additionally, they allege that

the pipelines are representing to the landowners that the property they

may need for their long range plans will be included in any

condemnation proceeding. Landowners also claim that the pipelines are

wrongly representing that the Commission's certificate will give them

the authority to use the property for whatever use they deem necessary,

including the placement of fiber optic cable. They also contend that

the pipelines are representing that if landowners do not sign the

agreement voluntarily, the pipeline will have the right to acquire the

same rights in a condemnation proceeding.

The Commission understands that the pipelines would like to be able

to acquire the property rights necessary for their present and long

range plans. However, the pipelines should specifically explain to the

landowner during negotiations what exactly they would have the right to

in a condemnation proceeding, and what

[[Page 57389]]

extras they are seeking in the negotiations for an easement agreement.

Landowners should be compensated for such extras. We do not believe it

is appropriate for the pipelines to take advantage of the landowners'

lack of knowledge by negotiating an agreement using misrepresentation

or the incomplete disclosure of all the relevant facts to the

landowners.

The Commission does not intend to change or challenge existing

negotiated easement agreements. However, we note that to the extent the

pipelines are acquiring rights through questionable tactics, the

validity those agreements would be determined by applicable state law.

Finally, the Commission only intends to consider the imposition of

conditions on a pipeline's easement agreements on a case-by-case basis

in individual proceedings where the Commission deems such action to be

necessary. Any objections to the specific details of such conditions

may be raised in the individual proceedings.

IV. Information Collection Statement

The Office of Management of Budget's (OMB) regulations in 5 CFR

1320.11 require that it approve certain reporting and record keeping

requirements (collection of information) imposed by an agency. Upon

approval of collection of information, OMB will assign an OMB control

number and an expiration date. Respondents subject to the filing

requirements of this Final Rule shall not be penalized for failing to

respond to these collections of information unless the collections of

information display valid OMB control numbers.

The collection information related to the subject of the Final Rule

falls under the Commission's FERC-537 20 and FERC-577

21 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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\20\ Gas Pipeline Certificates: Construction, Acquisition, and

Abandonment.

\21\ Gas Pipeline Certificates: Environmental Impact Statement.

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

of 1995,22 the proposed data requirements in the subject

rulemaking have been submitted to the Office of Management and Budget

(OMB) for review.

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

\22\ 44 U.S.C. 3507(d).

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

The estimated reporting burden related to the notification

requirements in the Final Rule 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 10,744 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 6,944 hours for the first year. In subsequent

years, there would be a net decrease of 1,856 hours.

The burden estimates for complying with the Final 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 23 13.9 24 +19,544

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

Total.............................. 70 -70 25 4.1 +6,944

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

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

because of rounding.

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

25 Represents the increase per response (rounded) based on the net increase in total reporting burden (6,944

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) = 6,944 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 4.1

hours. Following the first year of implementation, the reporting burden

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

Information Collection costs: The average annualized cost for all

respondents during the first year of implementation to be:

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

Annualized on-

Annualized capital/ going costs Total annualized

Data collection start-up costs (operations and costs

maintenance)

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

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

FERC-577............................................ $464,915 567,619 1,032,534

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

Total........................................... 464,915 -98,055 366,860

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

OMB regulations require its approval of certain information

collection requirements imposed by agency rule.26

Accordingly, pursuant to OMB regulations, the Commission has provided

notice of its proposed information collections to OMB.

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\26\ 5 CFR 1320.11.

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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.

[[Page 57390]]

Respondents: Businesses or other for profit. (Interstate natural

gas pipelines (Not applicable to small business))

Frequency of Responses: On occasion.

Necessity of Information: The Final 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, DC 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. 27 The Commission is not required to make

such analyses if a rule would not have such an effect.28

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\27\ 5 U.S.C. 601-612.

\28\ 5 U.S.C. 605(b).

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

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.29 The

Commission has categorically excluded certain actions from these

requirements as not having a significant effect on the human

environment.30 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.31 While the additions of the

categorical exclusions in Secs. 380.4(a)(31) through (36) include

construction-type activities, the NOPR discussion of 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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\29\ Regulations Implementing the National Environmental Policy

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

Regulations Preambles 1986-1990, para.30,783 (Dec. 10, 1987).

\30\ 18 CFR 380.4.

\31\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27).

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VII. Effective Date

These regulations become effective November 24, 1999. The

Commission has concluded, with the concurrence of the Administrator of

the Office of Information and Regulatory Affairs of OMB, that this rule

is not a ``major rule'' as defined in section 251 of the Small Business

Regulatory Enforcement Fairness Act of 1996.

List of Subjects

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 the Commission.

David P. Boergers,

Secretary.

In consideration of the foregoing, the Commission amends Parts 153,

157, and 380 Chapter I, Title 18, Code of Federal Regulations, as

follows.

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

MODIFY FACILITIES USED FOR THE EXPORT OR OF IMPORT NATURAL GAS

1. 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.

DOE Delegation Order No. 0204-112. 49 FR 6684 (February 22, 1984).

2. New Sec. 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(d) 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

3. 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.

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

Sec. 157.6 Applications; general requirements.

* * * * *

[[Page 57391]]

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

this subpart which include construction of facilities or abandonment of

facilities (except for abandonment by sale or transfer where the

easement will continue to be used for transportation of natural gas),

the applicant shall make a good faith effort to notify all affected

landowners:

(i) By certified or first class mail, sent within 3 business days

following the date that a docket number is assigned to its application;

or

(ii) By hand, within the same time period; and

(iii) By including notice of the project in a newspaper(s) of

general circulation in the project area within a week of such filing.

(2) All affected landowners includes owners of property interests,

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

tax notice, whose property:

(i) Is directly affected (i.e., crossed or used) by the proposed

activity, including all facility sites, rights-of-way, access roads,

pipe and contractor yards, and temporary workspace;

(ii) Abuts either side of an existing right-of-way or facility site

owned in fee by any utility company, or abuts the edge of a proposed

right-of-way which runs along a property line in the area in which the

facilities would be constructed;

(iii) Contains a residence within one-half mile of proposed

compressors or their enclosures or LNG facilities; or

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

storage fields, including 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. Except: pipelines are not required to include

the pamphlet in notifications of abandonments or in the published

newspaper notice;

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

location (including a general location map), its purpose, and the

timing of the project;

(iv) A general description of what the applicant will need from the

landowner if the project is approved, and 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;

(v) A brief summary of what rights the landowner has at FERC and in

proceedings under the eminent domain rules of the relevant state; and

(vi) 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 file an updated list of affected landowners, including

information concerning notices that were returned as undeliverable.

5. 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).

6. In Sec. 157.202, paragraphs (b)(6)(ii) and (b)(11)(i) are

revised to read as follows:

Sec. 157.202 Definitions.

* * * * *

(b) * * *

(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.);

* * * * *

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

Sec. 157.203 Blanket certification.

* * * * *

(d) Landowner notification.

(1) Except as identified in paragraph (d)(3) of this section, no

activity described in paragraph (b) of this section is authorized

unless the company makes a good faith effort to notify all affected

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

commencing construction or at the time it initiates easement

negotiations, whichever is earlier. The notification shall include at

least:

(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 Sec. 1b.21 of this chapter, and the

Enforcement Hotline telephone number.

(2) For activities described in paragraph (c) of this section, the

company shall make a good faith effort to notify all affected

landowners, as defined in Sec. 157.6(d)(2), within at least three

business days of filing its application or at the time it initiates

easement negotiations, whichever is earlier. The notice should include

at least:

(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 (if assigned) for 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.

(3) Exceptions.

(i) No landowner notice is required for replacements which would

have been done under Sec. 2.55 of this chapter but for the fact that

the replacement facilities are not of the same capacity and as long as

they meet the location requirements of Sec. 2.55(b)(1)(ii) of this

chapter; or any replacement done for safety, DOT compliance,

environmental, or unplanned maintenance reasons that are not foreseen

and that require immediate attention by the certificate holder.

[[Page 57392]]

(ii) No landowner notice is required for abandonments which involve

only the sale or transfer of the facilities, and the easement will

continue to be used for transportation of natural gas.

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

* * * * *

PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL

POLICY ACT

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

follows:

Authority: 42 U.S.C. 4321-4370-a; 7101-7352; E.O. 12009, 3 CFR

1978 Comp., p. 142.

10. In Sec. 380.4, new paragraphs (a)(31) through (a)(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 NGPA 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.

* * * * *

11. In Sec. 380.12, paragraphs (c)(5) and (c)(10) are revised;

paragraphs (e)(6) and (e)(7) are redesignated (e)(7) and (e)(8); and

new paragraph (e)(6) is added 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 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) * * *

(6) Identify all federally listed essential fish habitat (EFH) that

potentially occurs in the vicinity of the project. Provide information

on all EFH, as identified by the pertinent Federal fishery management

plans, that may be adversely affected by the project and the results of

abbreviated consultations with NMFS, and any resulting EFH assessments.

* * * * *

12. In Appendix A to Part 380, paragraph 8 in Resource Report 1 and

paragraphs 7 and 8 of Resource Report 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

* * * * *

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). (Secs. 380.12(a)(4) and (c)(10))

* * * * *

Resource Report 3--Vegetation and Wildlife

* * * * *

7. Identify all federally listed essential fish habitat (EFH) that

potentially occurs in the vicinity of the project and the results of

abbreviated consultations with NMFS, and any resulting EFH assessments.

(Sec. 380.12(e)(6))

8. Describe any significant biological resources that would be

affected. Describe impact and any mitigation proposed to avoid or

minimize that impact. (Secs. 380.12(e)(4 & 7))

* * * * *

[FR Doc. 99-27782 Filed 10-22-99; 8:45 am]

BILLING CODE 6717-01-P