Last Minute Bush Rule On Endangered Species Could Speed Gas Projects

A last-minute rule from the Bush administration limits the ability of federal wildlife officials and environmentalists to throw a monkey wrench into an application for construction of new gas transmission lines and LNG facilities.

The rule from the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) in essence reinterprets one section of the Endangered Species Act so that another federal agency such as the Federal Energy Regulatory Commission does not have to consult with either of those two wildlife agencies when considering an application for a project such as construction of a new pipeline or completion of a management plan in a western state which includes natural gas drilling. Consultation is obviated, under the new policy, only if a proposed project doesn’t have a significant wildlife impact, lack of which is defined by some legalistic language in the final rule. The idea is to speed approval of infrastructure projects, be they road building, ports, pipelines or something else, by eliminating unnecessary and delaying federal agency reviews.

A number of environmental groups have filed a lawsuit contesting the new FWS/NMFS consultation policy.

Tamara Young Allen, a FERC spokeswoman, says the agency typically consults with the FWS or NMFS when it prepares a “biological assessment” which the agency prepares for all proposed construction projects. The biological assessment takes into account how the Endangered Species Act intersects with a proposed project, and whether alterations in the project are necessary.

Asked about how the new FWS policy on consultation will affect FERC approval of pipeline and LNG projects, Young Allen answers, “The jury is still out.”

The new consultation policy raises the possibility that FERC could bypass the FWS and a biological assessment for major upcoming projects such as the Ruby and Sunstone pipelines. Neither has submitted a construction application, which is when a biological assessment is normally begun.

FERC is in the process of preparing the biological assessment for the Jordan Cove LNG terminal which would be located in the International Port of Coos Bay in Oregon. It is paired with a 230 mile Pacific Connector pipeline to be built by a partnership headed by Williams.

When FERC published the draft environmental impact statement (EIS) on Jordan Cove this fall, it argued that the project is “not likely to adversely affect” endangered species, a conclusion contested by the Center for Biological Diversity, an environmental group. “We don’t agree with it,” says Andrew Orahoske, staff attorney for the Center. The state of Oregon has raised an issue over the potential significant destruction of eelgrass, an important habitat for salmon, among other fish. Orahoske says FERC’s failure to get input from the FWS and NMFS would probably result in a lawsuit if FERC went ahead and approved the project.

When she appeared before a FERC workshop on pipeline infrastructure last November on behalf of INGAA, Claire Burum, senior vice president of regulatory and government affairs, NiSource Gas Transmission & Storage, said the industry was pleased with how quickly FERC considered applications for new pipeline construction. She added, though, that natural resources permitting by other federal agencies who sometimes have a say in FERC pipeline decisions “can be frustrating at times, and that has to evolve to a different level for us to be successful.”

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