This week’s Pipeliners Podcast episode features Russel Treat and retired Colonel Tom Magness, founder of Eagle’s Leadership, discussing pipeline permitting from a Corps of Engineers’ perspective.

Listen for how the government decides what projects and permits are in the best interest of the nation and how to balance both environmental protection and sustainable development. Tom also explains the jurisdiction Army Corps of Engineers has and why and how he has arbitrated conversations between stakeholders that were in deeply divisive positions around a particular project or permit. 

As a pipeline professional, gaining insight into how the government works and operates can help you when going through the development process of permits and projects. Download this episode now to help further your industry knowledge.

Pipeline Permitting: Show Notes, Links, and Insider Terms

• Tom Magness is a retired Colonel of U.S. Army Corps of Engineers. Connect with Tom on LinkedIn.
  • • Tom is the founder of Eagle Leadership, a group of successful military officers who have gone on to leadership success post-retirement.
    • Tom also serves as a strategic adviser to Grow America’s Infrastructure Now (GAIN), a diverse coalition of businesses, trade associations, and labor groups that share a vested interest in creating jobs and strengthening our nation’s economy through infrastructure development.
• Clean Water Act: is the primary federal law that protects the health of our nation’s waters, including lakes, rivers, and coastal areas.
• EPA: is an independent agency of the United States federal government for environmental protection.
• Army Corps of Engineers: a U.S. federal agency under the Department of Defense and a major Army command made up of some 37,000 civilian and military personnel, making it one of the world’s largest public engineering, design, and construction management agencies.
• API Pipeline Conference: conference with a wide range of speakers and topics, seeks to provide timely and relevant information on subjects that include Asset Integrity, Risk Management, Construction Management, Workforce Development, and many other topics.
• Secretary of Defense: is the leader and chief executive officer of the United States Department of Defense
  • Donald Rumsfeld served as Secretary of Defense from 1975 to 1977 under Gerald Ford, and again from January 2001 to December 2006 under George W. Bush.

Pipeline Permitting: Full Episode Transcript

Russel Treat:  Welcome to the Pipeliners Podcast, episode 85, sponsored by Gas Certification Institute, providing training and standard operating procedures for custody transfer and measurement professionals. Find out more about GCI at gascertification.com.

[background music]

Announcer:  The Pipeliners Podcast where professionals, Bubba geeks, and industry insiders share their knowledge and experience about technology, projects, and pipeline operations. Now, your host Russel Treat.

Russel:  Thanks for listening to the Pipeliners Podcast. We appreciate you taking the time. To show that appreciation, we’re giving away a customized YETI tumbler to one listener each episode. This week, our winner is Kayla Lapica with EOG.

Congratulations, Kayla. Your YETI is on its way.

To find out how you can win this prize pack, stick around to the end of the episode. This week, we have Colonel Tom Magness, U.S. Army Corps of Engineers retired coming on the podcast to talk to us about pipeline permitting from a Corps of Engineers’ perspective.

Tom, welcome to the Pipeliners Podcast.

Tom Magness:  Thank you, sir. Good to be here.

Russel:  So glad to have you. I’ve been looking for somebody that could talk to us about pipeline permitting. We have found the guy. If you would, Tom, tell the listeners a little bit about your background and how you got into and have experience with permitting.

Tom:  Yes, sir. I am a 26-year Army veteran retired in 2011 as a colonel, West Point graduate. I went from West Point into the engineers. In the engineers, I, among my 26 years of service, had the opportunity to serve in the Army Corps of Engineers.

Three different assignments with the Army Corps of Engineers, two years in Detroit, three years in Los Angeles, a year in Afghanistan. Those five years stateside with the Army Corps of Engineers, among the missions they did was the opportunity to permit some very important infrastructure projects in some important areas of our nation.

Russel:  Why would the Army Corps of Engineers be involved in permitting?

Tom:  It’s a question many might ask, because it doesn’t seem like a logical fit, what’s the muddy boots army doing in a business like permitting development and infrastructure projects?

It is something legislatively the Clean Water Act has made it a requirement that this mission be accomplished. The EPA typically does environmental projects. In this case, the EPA has agreed that the Army Corps of Engineers is best positioned to be an arbiter of what are often some very difficult issues.

When you think about it, who better perhaps than the Army to look at the nation’s interest? That’s really what we do in our permitting purview, is to try to look at what is in the best interest of the public and in our nation as we permit projects that balance both environmental protection and sustainable development.

Russel:  I think you just said a mouthful there, Tom. There’s a lot there to balance. You said nation’s best interest. How does that actually play out in practice? Maybe a better way to ask that question is maybe you could give us an overview of what is the permitting process, and how does it work?

Tom:  First, with regard to the nation’s best interest, when you put an Army officer in this decision making role, it is not going to be something that could be swayed by a political interest, or by the interest of one stakeholder group or a community or a state. It is what is in the nation’s best interest.

I think having an Army officer make that kind of decision is appropriate. When an application comes forward with a project, the first thing we do in the Army Corps of Engineers is determine whether or not we have jurisdiction.

In other words, is this project something that falls under the permitting authority of the Army Corps or does it not? If it has any impacts on water, usually it is going to be in Army Corps of Engineers’ overview. If not, then our first determination would be this doesn’t require a permit from the Army Corps of Engineers. It may require it from someone else, but not from us.

Step one is to do that jurisdictional determination, and then step two would be to determine what is the appropriate way to move forward with that project?

These regulators in the Army Corps of Engineers are truly professional, and they’ve been doing this their whole lifetime. They really embrace this balance.

They know they have a stewardship responsibility with regard to the nation’s aquatic resources, but they also know that we have to allow reasonable development. They’re the ones that are going to make that fair and balanced decision and find a way to permit activities to happen.

When you look at, what are their options, they have several. If it is a unique sort of project, it may have to go through a very detailed analysis to get that permit completed. There is a methodology to go through, but that very detailed analysis looks at all the environmental impacts, and could take years and years.

There’s other ways to permit activities. We have some national permits already in place that if a developer or an outfit can fit their project underneath those guidelines, they can get to yes very easily. When you’re working with a regulator, that regulator’s going to do all they can to help you find a way to get this project through.

Russel:  You mentioned jurisdictions, so maybe you could elaborate on that a little bit. Where does the Army Corps of Engineers’ jurisdiction begin and end?

Tom:  That is actually a question that has gone several times all the way to the Supreme Court. When I was in Los Angeles, I found myself standing in the middle of a dry riverbed where water had not been for months, maybe even years, trying to understand how that really falls under the purview of the Army Corps of Engineers.

Traditionally, our responsibilities are with regard to navigable bodyways. When you look at a dry riverbed, that certainly doesn’t look navigable, but “waters of the United States” has a pretty broad definition, and that has gone all the way to the Supreme Court recently, to make that determination.

If it has some connection to a navigable body of water, it is likely to fall under the jurisdiction of the Army Corps. Some connection to a navigable body of water.

Russel:  Interesting. I’m just listening to this, and I’m thinking, “Why wouldn’t the Navy be taking care or the Coast Guard taking care of such things?”

Tom:  [laughs] Don’t get me started on that. This is some…

[laughter]

Tom:  When I was a young officer, a lieutenant colonel, I think Rumsfeld was the Secretary of Defense. There was a lot of discussion at the Pentagon about what the heck the Army — or the military at all — was doing in this business.

The Secretary of Defense does not like to receive the kinds of phone calls that he inevitably is getting about permit issues, but here he is, I’m sure, getting all these kinds of questions and poking about permits. That’s the last thing you’d think the Army would be in.

Again, as a nation, I think we have to take a step back and ask ourselves, who better than our military? The Navy’s about the water. This is beyond the water. This extends to wetlands and areas around those navigable bodyways, and so I think it’s appropriate for the Army to be in this business.

Russel:  Being former military and being an engineer in the Air Force, I’m quite familiar with the Corps of Engineers. I think what maybe a lot of listeners might not know is that for the U.S. military, much of the heavy infrastructure capability that exists is in the Army.

There’s only limited capability in the other branches of the services, so all that kind of heavy infrastructure development and maintenance, and all that kind of stuff exists in the Corps of Engineers. If the Army’s got to go someplace and set up a camp, then it’s the Corps of Engineers doing the heavy engineering to do that.

Tom:  Right. The Navy has their own engineers but the Army Corps does the bulk of the engineering work for the Army and the Air Force.

Russel:  Yeah, well and even in the situation with the Navy, there’s been cases where, you know, the Navy has substantially more capabilities than the Air Force. Anyways, I’m getting way off in the weeds here. Let me reel it back in.

I just find this conversation kind of fascinating. One of the reasons I asked you on is I know you have some personal experience with some rather challenging, permitting situations and particularly around pipelining.

Maybe you could talk a little bit about some things that you’re involved with, maybe just from a standpoint of letting the listeners know what that looked like, what you learned, what should a pipeliner maybe know about the process?

Tom:  Well, some people, they might in that position of being the district engineer or the district commander, and that’s a role for a colonel. To take a step back, an Army Corps of Engineer District is the basic unit across the United States. There’s some 40 plus districts, geographical districts around the United States, and those are led by either lieutenant colonels or colonels in the Army.

The larger districts and more complicated districts are generally led by colonels. They follow watershed boundaries. For the most part is how those district boundaries were created, based on the various watersheds in our nation. As a lieutenant colonel, my initial introduction to the Corps of Engineers was in Detroit, Michigan. Man, what a difficult issue anything having to do with water in that part of our nation.

They love their lakes. Don’t you dare touch them. I had come from the muddy boots Army, a combat engineer, and this was my first taste of this kind of stuff. I’d never served in the Army Corps of Engineers before this assignment.

To get that introduction into some of the complicated regulatory issues, we had to deal with one, for example, it was not a pipeline project per se, but when the lake levels went down on the Great Lakes of our nation, levels are up, levels are down.

They’re probably up now, but at the time I was there, the levels were down, and when the water level went down, it exposed what used to be people’s backyards as they backed up to the lake. As those water levels went down, these wetlands that were once under water, now were above ground. To any of us, when we see a wetland, we might say, “Those are weeds.”

The average good old American sees weeds and wants to do what, get rid of them. These are wetlands. Here’s a young lieutenant colonel myself being thrown into this position, when an American who has purchased this lot and whose deed says that they own all this property all the way to the water’s edge.

Here comes the United States government saying, “You can’t remove those weeds. That’s a wetland and to do so, you’re going to have to go through a permitting process.” Oh, my gosh it was…

Russel:  [laughs]

Tom:  You know, I mean you can imagine the passions that are there, and all the issues that you might think about, taking people’s property which is nothing we were doing. We weren’t taking anything. We were permitting activity, but to do it in a logical way that preserves the wetlands of our United States, just incredibly emotional sort of issues.

I would go to permit public hearings and have my driver park backwards in the spot, so that if I had to come running, [laughs] he’d have the engine going, and we could get out of there fast because there were definitely some emotions there. In California, certainly, we had any number of pipeline issues. All you have to do is drive the coast of California and you see the various offshore rigs.

Those are all permitted activities. The rigs themselves are permitted, the pipelines to transport products to the shore and then from the shore to wherever they might go, all of those are Army Corps permitted projects.

Russel:  What would you say in getting that experience, and you use the crusty or the muddy boot combat veteran coming into one of these charge situations. What would you say you learned from that? What did you learn about actually working with people, and getting to conclusion on some of these issues?

Tom:  Well, nothing’s easy, and you’re trying to find balance. When you’re trying to find balance between issues that sometimes have the appearance of being in complete opposite of one another, that can be a real challenge. What is important is we’ve got to find common ground for better or for worse.

I always like to start my public hearings, and many permits, as part of the process, there’s a public hearing component to it. Usually the district commander or the colonel is required to oversee that public hearing.

You get people, and they’re going to say whatever they want to say. As a professional, I’ve got to listen to them, but I would always try to start those public hearings with the Pledge of Allegiance.

Let’s get on the same page here. We’re all trying to do the right thing for our nation, and now let’s move forward. These were some difficult issues, and the first thing that I would tell you is we should all feel very good about the professionals that we have doing this business.

They’ve committed their life in the Army Corps of Engineers. These are civilian regulators that have put themselves, oftentimes, in harm’s way to be the face, the public face of the Army Corps of Engineers is our regulatory program. These folks are true professionals, and they understand the need for balance.

They’re going to make decisions based on science and based on the facts, and their judgment, I think, is solid, and they do the best they can. They’re the ones that present the decision to the colonel, and the colonel is the one that says yes or no. We should feel real good about the people that we have doing that job.

Russel:  That’s certainly consistently been my experience, that the people who are called into that as a career path, where they kind of stand in that scene between the various stakeholders and a decision. They have to be there. They have to have some purpose behind what they do. It’s too hard a job not to.

Tom:  It is. I loved going to battle with those people. It was one of the great joys of my time in that role, was to be able to stand side by side with those folks and make some important decisions. One of the guys that I worked with early on put it this way.

I had come to him talking about permits, with the emphasis on the first part of that word, permit. He said, “I want you to think of it this way. “Permit. Our job is to permit, to allow for reasonable development, and we need to work with these folks and find a way, and do that in a way that preserves the public interest.”

I think when you understand the meaning of that word, we’re not there to say no. These regulatory folks, they get it. They want to be good government, to a man and woman. They want to say yes if they can find a way to have it make sense and to find that balance.

Russel:  The other thing I’d like you to talk a little bit, Tom, is how you arbitrated the conversations between stakeholders that were in maybe deeply divisive positions around a particular project or permit. How did you arbitrate those kinds of conversations?

Tom:  Sometimes you have to see beyond the emotion, and the emotion of some is not no, but heck no, that there’s no possible way that we would ever allow…

Let’s take a pipeline project. There are some who are opposed to the project just because of what it is, and the fact that it’s moving carbon products, and that there is no alignment, there is no location, there is no construction technique that would ever satisfy them if that is their position. No.

I’ve found it important to, “Let’s put this on the table. We’ve got to find a way. Can we all agree that there is a way? We may not know what it is right now, but that there is a way that we could get to yes that would balance our requirements for environmental stewardship and sustainable development. Can we all agree we’re going to find that way?”

We’ve got to get all the parties to agree to that, otherwise, you’re never going to move forward. There are some who start and end with, “It’s a no,” and that is not helpful.

Russel:  Yeah, I think that’s right. The interesting thing is when I went to the API Pipeline Conference earlier this year, I went to, one of the presentations was a panel of pipeline operators, consultants, and leaders of first nations. It was really interesting.

I think the primary thing I took away from that is when you find these emotional adversaries — they’re standing against doing projects — that it’s very important to listen and try to understand what’s behind the emotion.

Tom:  That’s right.

Russel:  What’s the reason? What’s the intellectual understanding that is driving the emotion? It’s in that that you find the opportunity to find the way to work together to do what’s in everyone’s best interest.

Tom:  Yeah, and for me, that meant we need to have a relationship. I remember my two years in Detroit that I spent a lot of time working with people on the other side of some of these issues, just to build a relationship.

What I don’t want to happen is we get to the end of a process, and then somebody jumps in with an objection that is going to cause us to go back to the beginning again. We’ve got to get all these people at the table from the beginning. We’ve got to establish some trust. There has to be a relationship.

I want people to pick up the phone and call me if there is an issue. I worked hard to build one on one relationships with the leaders of all those agencies so that we could have enough trust to move the process forward. We’ve got to trust the process.

Russel:  Sure. I’m sure. What are you up to now? You’re out of the Army, so what are you up to these days?

Tom:  I do a number of things. One is I am a consultant. I do work with a firm. We do public relations stuff with regard to the pipeline industry.

I want to be an advocate for the Army Corps of Engineers and the process. I want to help educate people on the way the process goes. We want everyone to have confidence that the final decision is going to be one we can all accept because we trust the people who made that decision. As part of my consultant role, I help educate people on the process.

I also do leader development programs. My company is Eagle Leadership, and we do leadership development programs for public and private sector organizations around the world.

Essentially, I’ve taken what I learned in my 26 years in the military and 4 more years at West Point, and tried to take those lessons and make them something that a person in any position could use to their advantage as a leader.

Russel:  How did being a district engineer with the Corps equip you for doing this type of stuff?

Tom:  It’s a unique part of our Army. The Corps of Engineers is all civilian. Each district is its own business unit. You kind of have to, within legal parameters, develop a budget and develop your own projects. You’ve got to work with stakeholders. You’ve got to do all of the kinds of things that I found once I left the Army was what everyone else was already doing.

[laughter]

Tom:  You don’t have the ability to bark out commands and people jump down for push ups just because you say so. I learned through two years in Detroit, three years in Los Angeles that there is a way that we can use what I’ve learned in the military, but to make it work for people that aren’t necessarily in uniform. That has served me pretty well.

Russel:  That’s fascinating. As a former district engineer, if you were going to impart some wisdom to people working in the pipeline business, what advice would you pass on to them?

Tom:  If it’s a new project, you want to get on the phone right away and find your local Corps of Engineers regulator and explain your project. That regulator is going to help find a way through the process.

It’s not something you want to try to navigate on your own, and it’s not something you want to be on the opposite side of the table. You want to have a colleague that will work with you. That should be your first phone call.

Two, you should trust those people. They’re going to help get to yes, and you’ve got to believe that they’re going to do it in a way that is truly in the nation’s best interest. They’re great Americans, and we should be proud of them.

Three, I think this administration has worked hard to simplify things like permitting. We don’t need the kind of government that frustrates every single American. When you can’t navigate through the hurdles, you don’t understand what they’re doing. It makes no sense. It makes your head want to explode. We don’t need that kind of government.

We need the kind of government that’s going to help people, and I think this administration has made that a priority, and I think that the Army Corps of Engineers has embraced that and has found ways to simplify the process.

I think that when it comes time to getting these important infrastructure projects done that they are getting them done. They’re working through the process, but we’ve got a process that can find that balance and do it in a pretty quick way.

Russel:  One of my takeaways from this and several other conversations that I’ve had recently is that it’s really interesting, there are some very good people that work in this business both with the operators and in government and in the other stakeholder communities.

I think that that’s one thing that we may all differ greatly about what it looks like, but we all share in that we want to see this nation grow, be healthy, and we all want to do what’s in the best interest.

Tom:  That’s right.

Russel:  It’s just a matter of if you can get there, that everyone is coming from that place, then it opens up some possibility.

Tom:  No doubt. Nobody loves the environment, nobody loves our nation’s aquatic resources more than the people that you’ll find in the Army Corps of Engineers.

Russel:  Yeah, there’s a reason they’re there, right?

Tom:  That’s right. They have signed up for this role because they want to preserve and protect, and to do all things right by our environment. Yet, they all know that we’ve got to allow for reasonable development, and they are doing all they can to find that balance.

Russel:  Tom, thanks so much for coming on the podcast. I sure appreciate your time, and thank you for your service.

Tom:  Yes, sir. Thank you very much. I really enjoyed it.

Russel:  I hope you enjoyed this week’s episode of the Pipeliners Podcast, and our conversation with Tom Magness.

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Transcription by CastingWords