December 2008 Vol. 235 No. 12


Pipeline Permitting Process Eased By Early State, Local Involvement

James D. Bloemker, Kira Presler, Christopher A. Bergman and Doug McLearen

The inventory, evaluation and treatment of cultural resources represent a significant challenge for those charged with siting and permitting natural gas pipelines. Recent pipeline projects in the U.S. have involved environmental study corridors that are extensive, resulting in the identification of large numbers of cultural resources. Fortunately, the Federal Energy Regulatory Commission (FERC) has attempted to reduce the number of steps required to achieve licensing for projects under its oversight. Specifically, the FERC has introduced a program called the Pre-filing Process. This process has been utilized by the industry since 2002, when Williams’ Kern River (now a subsidiary of MidAmerican Energy Holdings Co.) and Dominion’s Greenbrier Expansion projects first used it.

The Pre-filing Process provides a forum, prior to the formal filing of a 7C application, which allows for the early identification and resolution of environmental and landowner concerns. The process also allows for the proactive involvement of the public and government agencies in the identification and examination of potential alternatives to minimize impacts to a variety of resources. The ultimate purpose of the Pre-filing Process is to reduce the amount of time required to issue an Environmental Impact Statement (EIS) or Environmental Assessment (EA) once the certificate application is filed.

In this article, the authors encourage early involvement of State Historic Preservation Office (SHPO) personnel for large pipeline projects involved in the Pre-filing Process. We believe that by developing a routine schedule of consultation, decisions can be made in manageable increments. The approach should reduce the time required for agency review once a survey is completed, while removing uncertainty as to the outcome of project recommendations, a beneficial result for both the project sponsor and the agency.

Cultural Resources Regulatory Environment

The National Historic Preservation Act (NHPA) is concerned with the socio-cultural environment which includes “historic properties” or those cultural resources eligible to be listed in the National Register of Historic Places (NRHP). Section 106 of the NHPA, formally issued in 1966, along with the Advisory Council on Historic Preservation’s implementing regulations of 1979 with subsequent amendments, requires federal agencies like the FERC to:

“…take into account the effect of the undertaking (an action that may affect historic properties) on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register,” and “afford the Advisory Council on Historic Preservation … reasonable opportunity to comment with regard to such undertaking.”

Section 106 is most easily conceptualized as a series of steps involving data collection, consultation between the project sponsor and agencies, and, finally, decision making (Figure 1). The FERC Office of Energy Projects (OEP) “Guidelines for Reporting on Cultural Resources Investigations for Pipeline Projects (2002)” indicate that:

“…project sponsors (companies) proposing to construct projects under the Commission’s jurisdiction assist the Commission in meeting its obligations under the NHPA.”

As outlined in the OEP Guidelines, the process begins with contacting consulting parties, such as a SHPO or Tribal Historic Preservation Officer, to ascertain the type and extent of any cultural resources investigations. Based on this consultation, the project sponsor prepares an Overview Report and/or Survey Report which identifies the presence of cultural resources in the Area of Potential Effect through desktop research or actual field survey. If a Survey, referred to as a Phase I or Site Detection investigation in some parts of the U.S., indicates that potentially eligible National Register of Historic Places cultural resources are present and that further work is recommended to assess their actual eligibility, the project sponsor implements a plan for Eligibility Evaluation (also known as Phase II Testing).

It is worth noting that the OEP Guidelines clearly indicate a preference for avoidance of historic properties, wherever possible, underscoring the overall need for project impact minimization. If the undertaking is determined to adversely affect historic properties eligible for listing in the National Register of Historic Places, the sponsor then prepares a Treatment Plan (also known as Phase III Data Recovery) to mitigate effects.

Determination Of National Register of Historic Places Eligibility

A Phase I Survey, using prescribed sampling methods, is designed to identify cultural resources, such as archaeological sites, historic structures or cultural landscapes that are potentially eligible or eligible to be listed in the National Register of Historic Places. If a National Register of Historic Places-eligible resource cannot be avoided and consequently is adversely impacted, the project sponsor must prepare a Treatment Plan. This situation not only has major implications for project scheduling, but the authors have been involved in Data Recovery archaeological investigations that involved costs in excess of $1 million at a single site. The cost factor alone provides an incentive for exploring other options, such as avoidance, but these require time to develop and implement.

As the field survey identifies sites, structures and other resource types, they are recorded and evaluated against four eligibility criteria for the National Register of Historic Places. The first three criteria apply to (A) significant historical events, (B) historical personages, or (C) historic buildings, structures or other aspects of the built environment. Criterion D references the ability to provide information related to prehistory and history. Each is weighted equally during an evaluation and a site may meet one or more of the criteria for listing in the National Register of Historic Places.
The process of National Register of Historic Places Determination of Eligibility (DOE) involves SHPO review and, frequently, a committee within the SHPO that decides on the eligibility merits of cultural resources based on Criteria A-D. Given the size of many recent pipeline projects, a phased approach to addressing National Register of Historic Places eligibility is an effective option, especially considering the fact that literally hundreds of resources may be documented and require evaluation and treatment. Such was the case with Williams’ proposed Rockies Connector Expansion Project, a 250-mile, 30-inch pipeline that would parallel Spectra’s Texas Eastern pipeline system, the original War Emergency Pipeline, in Ohio, West Virginia, and Pennsylvania.

The authors’ experience on the Rockies Connector Expansion Project resulted in an effective method for coordinating Determination of Eligibility concurrently with on-going fieldwork. A request was made to the Pennsylvania Historical and Museum Commission (PHMC) to attend Determination of Eligibility meetings on a routine basis to provide project updates. Most Determination of Eligibility committee meetings at the PHMC involve at least three participants, each with expertise in a variety of cultural resources types such as historic archaeology, prehistoric archaeology and historic architecture. Agency reviewers typically consider data in reports and evaluate consultant recommendations for cultural resources identified during the survey phase of the Section 106 process.

For smaller projects with limited numbers of cultural resources, the amount of time and effort involved in Determination of Eligibility review is not significant. For larger pipeline projects, such as the 250-mile Rockies Connector Expansion or the 1,679-mile Kinder Morgan Rockies Express Pipeline, review can take weeks or months and the Determination of Eligibility process may also be protracted.

The Rockies Connector Expansion results reviewed by the Determination of Eligibility committee consisted of the location of all identified archaeological sites, their characteristics, contexts and settings, as well as ability for each site to meet one or more of the National Register of Historic Places eligibility criteria. While all of the PHMC participants in the meeting had considerable experience with Pennsylvania prehistory and history, they did not have direct experience with the resources identified by the field surveys. However, URS Corporation (URS) and its staff had a comprehensive understanding of the specific resources identified, because they conducted the surveys.

URS’ attendance at the Determination of Eligibility meetings provided an opportunity for PHMC staff, with its extensive regulatory experience and knowledge of Pennsylvania’s cultural contexts, to meet with the Principal Investigator responsible for identifying and analyzing the project results. Thus, the often difficult task of evaluating a site simply by reading a report was alleviated by the presence of an individual who participated directly in the discovery, description and recommendations for that locality.

Each month, results of the Rockies Connector Expansion field survey and the National Register of Historic Places eligibility recommendations for the sites identified were presented in 10-mile increments, sometimes up to as much as 40 miles of survey. Each site was evaluated and determined to be either not eligible or potentially eligible to the National Register of Historic Places. Those sites that were determined to be not eligible required no further field evaluation and the project could proceed across the areas encompassed by their boundaries.

The potentially eligible sites, on the other hand, were assigned an open determination pending additional assessment (National Register of Historic Places Eligibility Evaluation) and subsequent development of National Register of Historic Places eligibility recommendations. These sites required further field investigation or avoidance. If avoidance was elected, Determination of Eligibility remained an open question, but of course, there would be no further impact to the resource and the project could proceed.

The early involvement of the SHPO office in the cultural resources compliance process is recommended by the OEP in its 2002 guidelines. This directive carries an additional advantage when Determination of Eligibility for cultural resources uses the methods we propose. For the Rockies Connector Expansion, we did not develop a Memorandum of Agreement for the Determination of Eligibility process. However, such a document should be prepared at the outset of a project.

The Memorandum formalizes concurrence between the project sponsor and agency and sets forth the process by which cultural resources compliance, including Determination of Eligibility, is accomplished. It should be noted that the method outlined here does not change the Section 106 process in regards to the responsibility of the federal agency, but rather streamlines it at the level of state agency review.

The authors’ approach to coordinating Determination of Eligibility created a number of benefits for the project sponsor, the PHMC and the cultural resources themselves. First, it provided the sponsor with a known outcome to the National Register of Historic Places status of the identified archaeological resources prior to report submittal, as well as the ability to develop avoidance measures within tightly constrained permitting and construction schedules.

Additionally, the PHMC could consider the study results in measured increments, reducing time spent in review of a voluminous report and completing Determination of Eligibility evaluations and forms. Finally, the cultural resources benefited from careful consideration by a group of professionals familiar not only with the state’s prehistoric and historic context, but also the specific details of each location under evaluation.


James D. Bloemker is with Williams, Kira Presler is with the Pennsylvania Historical and Museum Commission, Christopher A. Bergman is with URS Corporation, and Doug McLearen is with the Pennsylvania Historical and Museum Commission.

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