Pipelines and their routes also can be controversial locally, regionally, or nationally. Congress has a long-standing interest in pipeline development and the regulation of pipelines because of the critical role of pipelines in the domestic energy markets. This report discusses how the U.S. Army Corps of Engineers (Corps) administers its responsibilities related to certain pipeline segments that require Corps authorizations. The role of the Corps in authorizing oil and natural gas pipelines is limited to (1) the agency's regulatory authorities for authorizing activities affecting regulated water bodies and wetlands and activities that alter or obstruct navigable waters and (2) its civil works authorities, including allowing a pipeline to cross a Corps water resource project and related lands. After an overview of the Corps and the broader federal role in approving private oil and natural gas pipelines, the remainder of the report discusses
how the Corps' regulatory responsibilities apply where pipelines cross water bodies and wetlands (i.e., Corps regulatory program); how the Corps' civil works authorities may apply if a pipeline may alter or affect a Corps water resource project or may cross Corps-managed land (i.e., Corps civil works program); how the Corps complies with various federal statutes as it arrives at pipeline-related decisions, including the environmental documentation requirements of the National Environmental Policy Act (NEPA) and the historic preservation requirements of the National Historic Preservation Act (NHPA); and how the agency's role in pipelines raises or illustrates various policy issues for decisionmakers. Under the agency's regulatory program, the Corps is responsible for authorizing activities that could affect federally regulated waters and wetlands. Under its civil works program, the agency is responsible for approving activities that cross or affect Corps lands and projects. Regulatory Role

A pipeline developer must have authorization from the Corps regulatory program (sometimes referred to as its permit program) for any pipeline segment affecting or crossing Corps jurisdictional water, in accordance with
Section 404 of the Clean Water Act, under which the Corps regulates the discharge of dredged or fill material into waters of the United States, including wetlands; and Section 10 of the Rivers and Harbors Act of 1899, under which the Corps regulates structures and/or work in or affecting the course, condition, or capacity of navigable waters. General permits essentially preauthorize a group of similar activities on a programmatic level. Pipeline activities that require Corps authorization and that are similar in nature with minimal environmental impacts (e.g., minor stream crossings) may qualify for a general permit. Nationwide Permit 12: Utility-Line Activities

One of the nationwide permits—NWP 12—is used to authorize utility-line activities, including the construction, maintenance, or repair of utility lines in waters of the United States. For requests to have pipelines cross below, on, or above Corps land and non-Corps land with a Corps real estate interest, the Corps generally will decide on whether or not to grant both a permission to alter a Corps civil works project and an easement to cross Corps land or a consent to cross non-Corps land with a Corps real estate interest. Policy Issues Raised by Corps' Pipeline Roles and Decisions

Growth in North American crude oil and natural gas production has led to efforts to expand the domestic oil and natural gas pipeline network. The Corps is authorized as part of its regulatory program to regulate certain pipeline activities that may affect certain waters and wetlands; it also is authorized to grant permissions, easements, and consents for pipeline segments that cross Corps water resources projects and associated lands. How does the Corps evaluate cumulative impacts? When a pipeline is largely a nonfederal undertaking and the federal role is limited to discrete segments, to what extent should the federal government shape siting and other aspects of the pipeline? How does the use of general permits (rather than individual permits) for Corps-regulated pipeline segments affect the agency's review of proposed water crossings, the information available to stakeholders and the public, and compliance with the requirements of NHPA? As Congress considers the Corps' current and future roles and the federal role in pipelines more broadly, these questions reflect some of the basic debates about federal actions associated with private infrastructure.
Growth in North American crude oil and natural gas production has led to efforts to expand the domestic oil and natural gas pipeline network. Pipeline developers are required to obtain authorizations from the U.S. Army Corps of Engineers (Corps) before constructing certain pipeline segments. Under the agency's regulatory program, the Corps is responsible for authorizing activities that may affect federally regulated waters and wetlands. Under its civil works program, the agency is responsible for approving activities that cross or may affect Corps-managed lands and Corps water resource projects. The agency's role with respect to pipelines can be controversial and may raise policy issues for Congress. Congress has a long-standing interest in pipeline development and the regulation of pipelines because of the role of pipelines in the domestic energy markets.
Corps Regulation of Water Crossings. The Corps has regulatory responsibilities pursuant to Section 404 of the Clean Water Act (33 U.S.C. §1344), under which the Corps authorizes activities that may discharge dredge or fill material into waters of the United States, including wetlands. The agency also has regulatory responsibilities pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. §403), under which the Corps authorizes structures and work in or affecting the course, condition, or capacity of navigable waters. Because most pipelines cross or potentially affect U.S. waters and wetlands somewhere along their routes, pipeline developers routinely are required to obtain Corps authorization for some pipeline segments. The Corps authorizes most pipeline water crossings using a general permit—Nationwide Permit 12—for utility-line activities in waters of the United States. A nationwide permit essentially preauthorizes a group of activities similar in nature that are likely to have a minor effect on waters and wetlands both individually and cumulatively.
Approvals Related to Corps Land and Corps Projects. A pipeline developer may need permissions from the agency's civil works program if a pipeline segment may affect or cross a Corps water resource project and Corps-managed land. That is, the Corps would need to grant (1) an easement, typically for a right-of-way, to cross federal land managed by the Corps or (2) a consent to cross non-Corps land with a Corps real estate interest (typically a federal flood easement over nonfederal land). Prior to the granting of the easement or consent, the Corps generally must provide permission for the pipeline to alter the associated Corps water resource project. The easement at a Corps project for the Dakota Access Pipeline to cross under the Missouri River in North Dakota was particularly controversial.
Corps Actions Must Comply with Federal Statutes. In carrying out its regulatory and civil works authorities, the Corps complies with applicable federal requirements. For example, the Corps identifies and considers the environmental impacts of the agency's proposed action (e.g., Corps permit of an activity affecting a wetland) pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. §§4321 et seq.) and considers impacts on historic properties pursuant to the National Historical Preservation Act (NHPA; 54 U.S.C. §306108).
Policy Issues. Various questions arise in policy debates on Corps' actions related to pipelines:
How does the Corps determine the direct, indirect, and cumulative impacts of its decisions to authorize activities in regulated waters or Corps-managed lands? When the federal role in a pipeline is limited to approving activities at discrete segments, to what extent should federal agencies influence siting and other aspects of a pipeline? How does the use of Corps general permits affect the agency's review, information available to stakeholders and the public, and compliance with NHPA?
These questions reflect some of the basic debates and challenges that Congress and other policymakers face regarding federal approvals associated with private infrastructure.