Deep Jurisdiction of the Corps of Engineers

Permitting Pipelines on the OCS

The Issue

“What?  I don’t need a Corps of Engineers permit.  The pipeline won’t be located in a shipping safety fairway or an anchorage”.  

The disbelief of the project engineer was sincere, and the accompanying disruption to the project schedule because of Corps of Engineers permitting was clearly not welcome news.  After some additional consultation, reality set in for the project engineer that a Corps of Engineers permit was required even though the pipeline was not located in a shipping fairway or anchorage.

Corps of Engineers OCS Permitting Background

The Corps of Engineers created the Nationwide Permit Program in 1977.  Nationwide permits are designed for administering compliance with the Rivers and Harbors Act and the Clean Water Act as applied to commonplace, non-controversial projects that have minimal environmental impact.  Nationwide permits are re-issued every five years, with modifications to existing permits or new additional permits proposed that the Corps feels it needs to administer the permits program.

Traditionally, pipelines outside of shipping safety fairways and anchorages received automatic permit approval under Nationwide Permit No. 8 Oil and Gas Structures on the Outer Continental Shelf.  Then in 2007, without a single comment received during the Nationwide permits re-issuance public notice, the Corps of Engineers modified Nationwide Permit No. 8 to require pre-construction notification to the Corps before commencing a project (http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/nwp_2007_final.pdf).

Pre-construction notification requires permit applicants to assemble information on a host of review factors and supply this information to the Corps in writing.  The Corps then verifies that the applicant’s project meets the conditions of Nationwide Permit No. 8, while also complying with other laws, such as the Endangered Species Act, which the Corps must consider during its review.  An applicant cannot commence construction until the Corps supplies its written verification.  The Nationwide permits were again re-issued in 2012 and the pre-construction notification requirement for Nationwide Permit No. 8 was maintained.  The 2012 Nationwide permits are the version currently in effect (http://www.gpo.gov/fdsys/pkg/FR-2012-02-21/pdf/2012-3687.pdf).

The Scope of Corps of Engineers Jurisdiction

The Corps of Engineers has long had jurisdiction over installation of oil and gas structures, including pipelines, on the Outer Continental Shelf [33 U.S.C. 403 and 33 CFR 322.3(b)].  The scope of the Corps’ jurisdiction is large, extending from the shoreline out 200 nautical miles.  In the Gulf of Mexico the area where a Corps permit is needed before a pipeline can be constructed is shown in the following graphic.

PCS’ Regulatory Permitting & Environmental Services group recently represented a pipeline project in OCS waters which fell under the jurisdiction of the Mobile District of the Corps of Engineers.  When PCS informed the project sponsor that a Corps permit was required prior to constructing the pipeline, we were asked to confirm that requirement with the Mobile District.  The confirmation letter received from the Mobile district is provided here and it underscores the Corps’ wide jurisdiction and need for pre-construction permitting.

The Takeaway

In 2007 the Corps of Engineers changed the automatic approval for constructing pipelines on the Outer Continental Shelf located outside of shipping safety fairways and anchorages to a prior approval requirement.  This change has not been highly visible.  The Corps of Engineers lacks coordination interface with the Bureau of Safety and Environmental Enforcement when BSEE is reviewing pipeline right-of-way permits where pipelines are located outside of a shipping safety fairway or anchorage.  Therefore it is the responsibility of the entity wishing to construct the pipeline to separately engage the Corps to secure the pre-construction approval needed to comply with the Rivers and Harbors Act.