By Michael Kuser

MARLBOROUGH, Mass. — It’s not just “look before you leap.” For those considering crawling through the maze of regulations and property laws that determine whether a pipeline or electric transmission project can win all the permits needed to start construction, it requires looking dozens of steps ahead.

“An iterative process is crucial,” Thomas Burack, former commissioner of the New Hampshire Department of Environmental Services, told participants of the Northeast Energy and Commerce Association Environmental Conference on June 15.

“Underlying the environmental regulations, the state and federal permit processes, are property laws … that have interplay with the environmental laws,” said Burack, now with law firm Sheehan Phinney Bass & Green. “They regulate what we can do on the land, in the surface water and the groundwater… they’re all interconnected from a technical and regulatory standpoint. You really need to have an integrated and coordinated approach if you’re working in this arena.”

Buying Goodwill

Planners should consider property law rights from the very beginning of the design process, which may come into play in even getting access to an area to assess its potential for a project, said Trey Martin of Downs Rachlin Martin, who gave a presentation on stormwater aspects in linear transmission project planning, construction, operation and maintenance.

Each New England state has a program that either implements federal law — in Massachusetts and New Hampshire it’s EPA issuing stormwater permits — or its own stormwater requirements, according to Martin.

“While you have to figure out what steps you can make and when you can start each one to reach your milestones, it’s also important to think about context,” he said. “In Vermont, a context for stormwater to keep in mind is that most of the state is subject to TMDLs [total maximum discharge loads] for impairment to major watersheds.”

As an example, he showed a photo of an algae bloom on Lake Champlain, the result of phosphorous from fertilizer and other pollutants running off farmland and roads.

“The cost to do the cleanup that the state and EPA have set in motion is at least in the tens of millions per year over 20 to 25 years,” Martin said.

The New England Clean Power Link, a transmission line planned by Transmission Developers Inc.-New England (TDI-NE) under Lake Champlain, had special challenges because the lake is a public trust resource under Vermont law. Water and land held subject to the public trust may only be used for purposes approved by the legislature as public uses.

The line was designed to run across the bottom of the lake, make land and carry power out of Vermont to southern New England. “So no off-takers in Vermont,” Martin said. “What’s the public good for Vermonters? In order to really expedite the permitting, this company made ‘public good’ payments into a clean water fund for Lake Champlain restoration. Obviously it was not the only factor in a really good project that got permitted completely, but it was a major factor. It really bought a lot of goodwill both with regulators and with the municipalities struggling with these questions.” (See Energy Department OKs Canadian Hydro Line in New England.)

Avoiding Resource Impacts and Protesters

Jeff Nelson, director of energy and environmental services for VHB, gave a presentation on how to handle wetlands concerns and overcome protests during the permitting process. VHB worked on a 41-mile natural gas pipeline extension for Vermont Gas that was proposed in 2012, fully permitted in 2014 and went into operation in April 2017.

Vermont Gas is licensed to serve the whole state but now serves mainly the northwestern part of Vermont with gas piped from Canada. “The project involved negotiations with some 220 landowners, is regulated by the Vermont Public Service Board as well as the state Agency of Natural Resources, and impacts waters and wetlands regulated by the Army Corps of Engineers,” Nelson said.

A key part of the final design was avoiding resource impacts, most significantly by choosing to use horizontal drilling, he said. The longest section of such drilling was just 3,000 feet under Monkton Swamp. “No surface impact, no change to the vegetation or the hydrology was something that the regulators frankly insisted on,” Nelson said.

After avoiding as much resource impact as they could, the planners minimized impact by co-locating 20 miles of the pipeline along a Vermont Electric Power Co. high-voltage transmission line. “That took advantage of an existing cleared corridor [and] minimized the amount of new forest clearing … minimizing the amount of overt disturbance,” Nelson said. The planners co-located an additional 10 miles of the pipeline along a highway, so three-quarters of the project was sited along existing corridors.

After the routing, the construction phase involved mapping every element and sensitivity, using timber mats to protect the ground, creating sediment traps to keep dirty water from running off, and even separating topsoil from the subsoil and replacing them in the right order for full habitat restoration.

Despite the care taken to avoid impact, many “loud voices” opposed the pipeline, Nelson said. “It was a challenging project from that standpoint because lots of people had varying opinions on how things should happen. I think the newspaper [lead] pretty much sums up the whole thing: ‘41-mile Vermont Gas pipeline extension into Addison County is finished … after three years, $165 million and countless protests.’”

Smorgasbord of Species

Brian Butler, president of Oxbow Associates, who called himself the “bugs and bunny guy,” presented on the “smorgasbord of species that are regulated in the Northeast region under one or another statute. With rare and endangered or threatened species, we have a couple tiers of regulation that are applicable to linear projects.”

The federal Endangered Species Act of 1973 serves as the umbrella. But once away from the whales and the migratory seabirds along the shore, federal law specifically protects only a small number of inland species in New England, according to Butler.

“Those are mostly freshwater mussels,” Butler said. “Those are the things most likely to be encountered in a pipeline or a linear kind of project where you’re crossing high quality streams.” Bats and bog turtles also pop up at moderate frequencies, he said in an email following the conference. “The adoption of the Final 4(d) rule with regard to long-eared bats by USFWS [Fish and Wildlife Service] reduced the survey and avoidance burdens inherent in the precedent, interim ruling,” he said.

In New England states, a pipeline is more likely to encounter the more numerous state-listed species, and the state codes are administered by bodies that deal with fisheries and wildlife. “As the federal money might be withdrawn from some of these agencies [because of President Trump’s proposed budget cuts], both federal and state agencies, you might anticipate a diminution of staff and a demoralization of the remaining staff, and it may confound these processes … the approvals that we’re discussing right now,” Butler said.

In planning for permitting, it’s useful to anticipate the seasonality of certain rare plants, some of which may only be visible or growing for three weeks or a month. “So if you’re sitting on your hands and then decide ‘we need to make a survey for that plant,’ you may conceivably have to wait for 10 months to clearly identify it. You always want to be trying to think ahead. The only invariant that comes in these projects is the variability that comes in the first several months or year of locating the project as well as anticipating the timing.”