Keystone XL Starts Over With Two Permits

Aug 19, 2020

Credit U.S. Army Corps of Engineers

The Keystone XL pipeline hit a snag earlier this year when its water-crossing permit from the U.S. Army Corps of Engineers was vacated by a Montana federal judge.

The Corps asked the U.S. Supreme Court for an emergency lifting of that order, but the high court left it in place.

The fast-track permit was a problem because it did not require extensive environmental review. Now TC Energy has applied to the Corps, as well as to the U.S. Fish & Wildlife Service, for permits that will undergo public scrutiny.

TransCanada, or TC Energy, has applied for permits for the Keystone XL pipeline under the Clean Water Act. TC is requesting those permits from the U.S. Army Corps of Engineers and from state regulatory agencies in South Dakota, Montana, and Nebraska.

American burying beetle
Credit U.S. Fish & Wildlife Service

TC has also applied to the U.S. Fish & Wildlife Service for what's called an Incidental Take Permit under the Endangered Species Act. That allows the pipeline to harm or destroy endangered or threatened species if the destruction is incidental to the construction, operation, and maintenance of the Keystone XL pipeline.

The species at issue is the American burying beetle in Tripp County in South Dakota and four counties in Nebraska. TC estimates the "taking" of 551 American burying beetles over the life of the 50-year permit and offers to mitigate the damage by establishing more than a thousand acres of beetle habitat in Brown and Cherry counties in Nebraska.

Fish & Wildlife notes that TC's application triggers the need for compliance with the National Environmental Protection Act, or NEPA.

The other application, to the Corps of Engineers, allows the pipeline to cross more than 700 locations that would affect wetlands and water bodies. In its public announcement, the Corps says it will balance the benefit of the pipeline against reasonably foreseeable harm.

The application to the Corps covers Clean Water Act requirements under section 404. Another section, 401, is regulated by states. Montana is holding its own hearings, but South Dakota's and Nebraska's are incorporated with the federal process.

Deadline for public comment to Fish & Wildlife is Sept. 16, and deadline to the Corps is Sept. 13. The Corps says after receiving comments, it will conduct public hearings, by phone because of the COVID-19 pandemic, and issue its findings later.

To read the public notice for the application U.S. Fish & Wildlife, click on this link:

https://www.federalregister.gov/documents/2020/08/17/2020-17887/habitat-conservation-plan-and-draft-environmental-assessment-keystone-xl-pipeline-incidental-take

For the public notice for the application to the U.S. Corps of Engineers, click here:

https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll7/id/15088