Army Corps Sets Hearings For Keystone XL

Sep 23, 2020

Credit U.S. Army Corps of Engineers

Public hearings begin next week for Keystone XL pipeline water crossing permits. The U.S. Army Corps of Engineers is considering permits for pipeline construction through South Dakota, Montana, and Nebraska.

The Corps is holding hearings by phone because of the COVID-19 pandemic. Montana comments are scheduled for Monday, Sept. 28. South Dakota's are set for Sept. 29, and Nebraska's are on Oct. 1.

Earlier this year a Montana judge found Corps of Engineers water permits for the Keystone XL pipeline to be in violation of the National Environmental Protection Act (NEPA). TransCanada and the Corps asked the U.S. Supreme Court for an emergency overruling, but the high court declined. That left TransCanada with no options for a fast permit.

The company and the Corps have an appeal before the Ninth Circuit, but that won't play out before the November presidential election, and there's a chance the appeals court might uphold the Montana decision.

And so TransCanada applied to the Corps of Engineers for a more thoroughly vetted permit while it waits for the Ninth Circuit ruling. Part of the permitting process under NEPA includes public input. That's the purpose behind the upcoming hearings.

The public notice put out by the Corps indicates its jurisdiction is limited to effects on water and wetlands.

State officials from the South Dakota Department of Environment and Natural Resources and Nebraska Department of Environment and Energy will also listen in to the federal hearings. They'll include the testimony in their review of previously issued state certification under Section 401 of the Clean Water Act, which controls water quality. The Montana Department of Environmental Quality is holding its own 401 hearings on Nov. 16.

The Corps's public notice lists only construction activities such as trenching and roadwork as potential hazards to wetlands and water. But two federal judges, Brian Morris in Montana and James Boasberg in the District of Columbia, have ruled that the Corps has not adequately reviewed the potential pollution from oil spills when permitting pipelines.

If this most recent environmental study satisfies NEPA, and if Joe Biden is not in a position to kill the project as he vowed to do if he's elected president, then pipeline construction is positioned for completion over the next two years, unless another court order stops it.

According to TransCanada's application, the pipeline running the length of three states consists of approximately 1,209 miles of new 36-inch diameter pipe within a temporary construction right-of-way 110 feet wide, with 50 feet of permanent right-of-way.

There are 729 places along the route where wetlands and water bodies would be affected by pipeline, access roads, and worker camps. TransCanada's application focuses on the effects of the construction phase: digging and trenching, fill material, cast-aside soil and rock, and culverts and flumes for crossings.

People calling in to comment are limited to three minutes of testimony. The record will remain open for 10 days after each hearing for written comment.

To read the U.S. Army Corps of Engineers public notice giving more details and information on participating in the public hearings, click on this link:

https://denr.sd.gov/des/sw/publicnotices/TransCanadaKeystonePublicHearing.pdf

Details for Montana's public hearing on Nov. 16 can be found here after Friday, Sept. 25:

http://deq.mt.gov/Public/publiccomment