99-27782. Landowner Notification, Expanded Categorical Exclusions, and Other Environmental Filing Requirements

[Federal Register Volume 64, Number 205 (Monday, October 25, 1999)]
[Rules and Regulations]
[Pages 57374-57392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27782]


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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, 
[phone]

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 [e-mail].
    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 [e-mail].
    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.
---------------------------------------------------------------------------

    \20\ Gas Pipeline Certificates: Construction, Acquisition, and 
Abandonment.
    \21\ Gas Pipeline Certificates: Environmental Impact Statement.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \26\ 5 CFR 1320.11.
---------------------------------------------------------------------------

    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: [phone], fax: [phone], e-
mail: [e-mail]]. 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 
[phone], fax: [phone].

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

    \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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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 
[phone].
    (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