On March 10, 2023, the Federal Energy Regulatory Commission (“FERC” or “Commission”) staff issued a Notice of Intent to Update the Upland Erosion Control, Revegetation and Maintenance Plan and the Wetland and Waterbody Construction and Mitigation Procedures and Request for Comments. Commonly referred to as the “Plan and Procedures,” together, these documents are an important baseline tool to properly avoid, minimize, or mitigate the impacts of FERC-regulated natural gas transmission projects on the environment. Among other things, the Plan and Procedures outline best management practices that are used during the development and maintenance of natural gas transmission projects - including the siting, permitting, construction, and restoration phases – and apply to pipelines, compressor stations, liquified natural gas (LNG) facilities, and other associated transmission facilities.
Background on the Plan and Procedures
Q. What is the Upland Erosion Control, Revegetation and Maintenance Plan and to what does it apply?
A. FERC’s Upland Erosion Control, Revegetation and Maintenance Plan (“The Plan”) provides baseline performance mitigation measures for minimizing erosion and enhancing revegetation during construction, restoration and operation of natural gas projects under FERC’s jurisdiction. The Plan describes FERC’s requirements for a project proponent’s environmental inspection program and the responsibilities of the project proponent’s environmental inspectors. The Plan also describes the pre-construction activities that project proponents must undertake, including:
- Identifying all construction work areas and ensuring that appropriate cultural and biological surveys are conducted;
- Developing procedures for constructing through agricultural areas and maintaining or repairing irrigation and drainage systems;
- Coordinating with appropriate local, state, and federal agencies to obtain recommendations on permanent erosion control and revegetation specifications, invasive species management, wildlife protection, and blasting procedures; and
- Establishing plans for all properties with residences within 50 feet of construction work areas, which include avoiding the removal of mature trees and landscaping, fencing the edge of the construction work area, and restoring all lawn areas and landscaping immediately following clean-up operations.
Q. What are the Wetland and Waterbody Construction and Mitigation Procedures and to what do they apply?
A. FERC’s Wetland and Waterbody Construction and Mitigation Procedures (“Procedures”) provide baseline performance mitigation measures for minimizing the extent and duration of project-related disturbances on wetlands and waterbodies. The Procedures specify the information related to wetland and waterbody crossings that need to be filed by a project proponent/certificate holder prior to construction, as well as other pre-construction planning activities. Examples include:
- Restriction requirements for the placement of work areas near wetlands and waterbodies;
- Crossing methods for different types of waterbodies and the timeframe in which the crossings need to be completed;
- Development of project-specific Spill Prevention and Response Procedures that meet applicable requirements of state and federal agencies; and
- Returning all waterbody banks to preconstruction contours or to a stable angle of repose.
Q. Why are the Plan and Procedures Important?
A. The Plan and Procedures are the minimum baseline standards that FERC believes are necessary to construct interstate natural gas facilities and LNG projects regulated by the Commission, from Maine to California and Alaska to Florida. The best management practices set forth in the Plan and Procedures are applied to hundreds of projects a year, affecting thousands of landowners and acres of land. The Plan and Procedures are the baseline and primary tools used to avoid, minimize, and mitigate impacts on the natural and human environment from the construction and operation of natural gas transmission and LNG projects.
Q. Are project proponents/certificate holders required to comply with the FERC’s Plan and Procedures?
A. Project proponents must specify in their application whether the project would be constructed using the Plan and Procedures. If the project proponent seeks to use any alternative standards, approaches or measures to those specified in the FERC Plan and Procedures, such alternatives need to be identified and justified by the proponent in the application. The justification must show that the proposed alternatives:
- Provide equal or better environmental protection than the Plan and Procedures;
- Are necessary because a portion of the Plan or Procedures is infeasible or unworkable based on project-specific conditions; or
- Are specifically required in writing by another federal or state agency or federally- recognized tribe for the portion of the project on its land or under its jurisdiction.
FERC staff will identify any such proposed alternatives to the Plan and Procedures in its environmental analysis under the National Environmental Policy Act, (“NEPA”), and may make recommendations to the Commission to require changes to the alternative proposals. The Commission makes final decisions on any such proposals and staff-recommended modifications in its Order.
FERC’s Current Notice on the Plan and Procedures and Your Opportunity to Comment
Q. Why is the Commission seeking comments on the Plan and Procedures now?
A. As indicated in the Notice of Intent, FERC staff is currently reviewing the Plan and Procedures to determine if updates are needed. The current versions of the Plan and Procedures were last updated in 2013. Recognizing that project conditions and practices evolve over time, FERC staff opened a 60-day comment period seeking public input on these documents that will close on May 9, 2023. Members of the public may have relevant experience and insight on the practical applications of the Plan and Procedures and/or how they have been applied on past projects that could assist the Commission with its review.
Commission staff will consider submitted comments and determine if updates to the Plan and Procedures are warranted. Commission staff anticipates issuing draft changes to the Plan and Procedures in late 2023 and will make them available for public comment. Commission staff will then consider all comments on the drafts before issuing the final updated versions of the Plan and Procedures.
Q. How do I submit my comments?
A. There are two electronic methods for filing comments with FERC in this matter or you can mail them to FERC:
- Comments may be submitted electronically using the eComment feature on the Commission’s website (www.ferc.gov) under the link to FERC Online. This is an easy method for submitting brief, text-only comments on a project;
- You can file your comments electronically by using the eFiling feature on the Commission’s website (www.ferc.gov) under the link to FERC Online. With eFiling, you can provide comments in a variety of formats by attaching them as a file with your submission. New eFiling users must first create an account by clicking on “eRegister.” If you are filing a comment on a particular project, please select “Comment on a Filing” as the filing type; or
- You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number AD23-6-000 on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington,
DC 20426. Submissions sent via any other carrier must be addressed to:
Kimberly D. Bose, Secretary,
Federal Energy Regulatory Commission,
12225 Wilkins Avenue,
Rockville, Maryland 20852.
Contact FERC OPP for Participation Assistance
FERC established the Office of Public Participation (OPP) to empower, promote, and support public voices in Commission proceedings. As part of the ongoing efforts to increase public participation in Commission actions, we feel it is important to keep you and others informed of Commission notifications. If you have questions about the process for updating the Plan and Procedures or if you need assistance filing comments or accessing the Commission’s administrative record, please contact OPP by e-mail at OPP@ferc.gov or by phone at (202)502- 6595. Our office stands ready to assist you with your questions or to help you or others participate in this proceeding.