This month’s Pipeline Technology Podcast episode, sponsored by Pipeline & Gas Journal, features Major General (Ret) Michael Walsh discussing his article titled “What to Do When the Corps of Engineers Turns You Down” which goes into detail about how to properly obtain a permit to go into the waters of the United States. 

In this month’s episode, you will learn about why permits get denied, what challenges the federal regulator may be facing that impact your application submission, and why maintaining a relationship with the regulator is important.

What to Do When the Corps of Engineers Turns You Down with Maj. Gen. Michael Walsh Show Notes, Links, and Insider Terms:

• Major General Michael J. Walsh, USA (Ret) has spent 36 years with the Army Corps of Engineers. Connect with Mike on LinkedIn.
  • The Army Corps of Engineers is always working diligently to strengthen the security of the U.S. by building and maintaining infrastructure and providing military facilities where our servicemembers train, work, and live. They also research and develop technology for our war fighters while protecting America’s interests abroad by using their engineering expertise to promote stability and improve quality of life.
• Pipeline & Gas Journal is the essential resource for technology, industry information, and analytical trends in the midstream oil and gas industry. For more information on how to become a subscriber, visit pgjonline.com/subscribe.
• Read Mike’s article “What to Do When the Corps of Engineers Turns You Down” featured in Pipeline & Gas Journal in July 2022.
• The Clean Water Act (CWA) is the principle law governing pollution control and water quality of the Nation’s waterways. The object of the CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.
  • Section 401 of the Clean Water Act (CWA), a federal agency may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless a Section 401 water quality certification is issued, or certification is waived.
  • Section 404 of the Clean Water Act (CWA) establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands.
• EPA (Environmental Protection Agency) is an independent organization within the federal U.S. government designed to take measures to protect people and the environment.
• NEPA (National Environmental Policy Act) was signed into law on January 1, 1970. NEPA requires federal agencies to assess the environmental effects of their proposed actions prior to making decisions.

What to Do When the Corps of Engineers Turns You Down with Maj. Gen. Michael Walsh Full Episode Transcript:

Announcer:  The “Pipeline Technology Podcast,” brought to you by “Pipeline & Gas Journal,” the decision making resource for pipeline and midstream professionals. Now your host, Russel Treat.

Russel Treat:  Welcome to the Pipeline Technology Podcast, episode 28. On this episode, our guest is Major General Mike Walsh with Dawson & Associates. We’re going to talk to Mike about his Pipeline & Gas Journal article titled “What to Do When the Corps of Engineers Turns You Down.” Mike, welcome to the Pipeliners Podcast.

Michael Walsh:  Thank you, Russel. I’m really excited to be here to talk about this critical, important step in pipelining.

Russel:  Yeah, me too. Before we dive in, why don’t you tell us a little bit about your background and what have you done in the pipelining sphere?

Michael:  Sure. Thanks, Russel. First, let me, before I do that, I just want to thank all the veterans out there that are listening. Your bravery, your sacrifice, and your strength has not gone unnoticed. I’m really proud to be a member of the veteran force with you all.

My background is I’ve spent 36 years with the Army Corps of Engineers. The beginning part was mostly at the tactical level units, platoon leader, company commander, battalion XO, Ranger School, Airborne School, and things of that sort.

In the latter part of my career, I went into the Army Corps of Engineers which looks at providing support to our nation’s navigation systems, ecosystem restoration, and things of that sort. It’s about 33,000 people in the Army Corps, most of them civilians. About 800 of us are military.

That’s where I’ve been crossing over into the pipelining piece, mostly because of the 404 or Section 10 permitting process that pipeliners need to get these permit applications completed before they cross any national aquatic resources.

Russel:  Might be helpful for the listeners to get a little history lesson, if you don’t mind, and talk about the Corps of Engineers and how it got started and what its mission was originally, and how that is continuing even today.

Michael:  I get that question a lot, even from people who are in the military, like, “What is the Corps doing with this navigation mission and this 404 wetland permitting stuff?” Really, it started in history.

Section 10 came out of the 1899 law that our nation put together. The states were arguing amongst themselves on where to put bridges or where to put pilings or where they should clean up particular things that were disrupting the navigation system.

They put this law together. They looked around for a federal agency that could enforce the law and give out permits. In this case, it was navigation permits. There really wasn’t a US Federal engineering force that was out there, other than the one that was started in 1802 at West Point.

As they were looking around for where they could get these engineers to look at it, the only engineers in the federal government at that time were Army engineers. So they assigned that mission to the Army Corps. We’ve had it ever since.

Then when the Clean Water Act came about in the ’70s. It was the same thing. It was “Let’s give it to the Corps because they’re already working in the aquatic resource area.” We’ve had this mission for over 100 years.

It’s always interesting as I explain this to Secretaries of Defense or Secretaries of the Army. It’s like, “Why am I getting involved in this political morass of getting a permit?” I go through the history of it. It’s really quite important.

In many cases, they’re looking at “Why don’t we just give the mission away to EPA or other things?” My discussion is, as I mentioned, there are 33,000 Corps guys. The civil work side is not paid with any Department of Defense funding. It’s funded out of a separate pot.

When we went into Iraq and Afghanistan, we needed engineers to go in there and put contracts out and rebuild the infrastructure in both of those nations. The Army Corps had trained all of these civilians under a different dollar system than the DoD.

Then when we were needed, we sent over 100,000 people who had volunteered more than a few times to go into combat operations and do what was required in those particular nations.

In my discussions with the political guys, you’re training these guys off the DoD dime and you’re sending them into combat operations on yours. How can you get a better deal? Most of the time, they recognize that.

Russel:  It’s interesting. If you look back into the early 1800s even, a lot of the explorers and a lot of the Army units that were operating on the edge of what was the United States, a big part of the capacity was mapping. It was surveying, mapping, and understanding where the rivers are, where the obstacles are, and so forth.

That heavy engineering comes out of what the military needed to conduct its operations. It got tagged when there were issues that couldn’t be given to the states that had to be dealt with at a federal level.

Michael:  That’s it.

Russel:  Where those issues involved heavy engineering.

Michael:  That’s exactly right. Of course, you know the history of Lewis and Clark and the president sending them out to the West to map just as you mentioned.

Russel:  It’s interesting because the Army continues on that mission. When somebody’s submitting a permit, what does it mean to get a permit? What is that really all about? Do you understand the question I’m asking? I know it’s open-ended and maybe a little different from what we talked about.

In other conversations about permitting, the mission is to permit, not to not permit. The mission is to permit. Is that a fair assessment?

Michael:  It’s a good question. Really, the Clean Water Act requires EPA and the Corps of Engineers to protect aquatic resources. Congress set up a system that if you are going to work in aquatic resources, then you have to get permission from the federal government to work in that particular area.

When you’re going to get a permit, what you’re looking for is, is the land that I’m going to be going through or over, is it part of the waters of the United States? If the answer is yes, am I going to impact it? If I am going to impact it, then I need to minimize the impact and mitigate those impacts. When pipeliners are getting a permit, they’re getting permission to go into the waters of the United States.

Russel:  It’s all about getting permitted for proper access and proper use, or appropriate access and appropriate use is maybe a better way to say that.

Michael:  That’s exactly right. In a lot of cases, working with pipeliners or other applicants, you can show them, in some cases, a better way or a different path that will keep you away from aquatic resources, so you don’t need a permit at all.

There are other impacts as well. There’s endangered species that you need to keep an eye on. The state and local governments have their own requirements outside of the federal government’s 404 permit process.

Russel:  When someone gets turned down when they make a permit application, why does that occur? What’s operating there that causes people to get turned down?

Michael:  Generally, if you’re getting turned down, it’s not the first time you’ve heard it. You’ve had lots and lots of conversations with the federal guy who’s working on the permit. He’s giving you all sorts of signals on what type of information you need to provide, what you haven’t provided, and things of that sort.

You hear things both verbally and in writing that you’re not providing the information that’s needed and you’re heading towards a permit denial. Nobody, including the federal guy, is interested in giving a permit denial. When it comes to that point where there is a denial, it’s been recognized in many areas.

Sometimes when I’ve worked with the applicant, he will not accept that he’s been told a few dozen times that he needs to add more information. That adds to a challenging relationship that needs to be mended.

Russel:  The thing that comes up for me when I’m having this conversation and having some experience on both sides of this, is the definition of what is adequate information. If you’re the permitter, it’s never enough, and if you’re the applicant, it’s always too much.

Michael:  Exactly. I think most of the time, the federal guy who’s working the permit, this isn’t his first rodeo. He’s probably got a dozen on his desk at any one time, and he’s been there for a number of years. He knows what information is needed to get through the challenge from others who don’t want the project to move forward. He generally knows what he needs.

You’re right, in a lot of cases, the applicant is going, “I just want to give you the bare minimum to get me through.” Of course, the Corps guy has got to protect the federal government from a lawsuit. He’s got to have enough that it can go through to litigation piece.

Russel:  That’s actually a mouthful, what you just said there. When you start talking about, how much information do I need to support a decision that’s been made by the government against those that might want to file lawsuits, that’s a whole different level of documentation needed versus just what I need to properly plan and execute a project.

Michael:  Definitely. In a lot of cases, the pipeliners are only going to…You may be putting out 100 miles of pipeline and you’re only crossing this little creek, it’s like, why am I putting all of this information into this permit? It’s only a 10-foot-wide creek. The answer is, “Well, if you want the pipeline to go through and withstand all of the legal challenges to it, then you need to put the effort into it.”

Russel:  I think that’s certainly our current reality. If you’re counseling pipeline operators that are trying to get permits, what would you be telling them that they need to be doing? What are some of the best practices?

Michael:  Best practices – part of your whole pipeline strategy – is to establish a positive cooperative relationship with the federal permit guy. In a lot of cases I’ve seen where they come reluctantly to the table, you got to get into the idea of a strategy of positive cooperative relationship. If you start off with, I’m questioning what this guy is going to do, it’s usually not a good way to move forward.

The second thing I would say is to do your homework. You know if your area is in an endangered species area, you need to start working on what you’re going to do and how to minimize that impact or avoid it totally, or how to minimize it. A lot of that comes up, and I tell almost everybody who’s going to get a permit, is the pre-application stage.

Sit down with the federal guy. Tell them what you want to do, and how you want to do it. He’ll talk to you about avoiding, minimizing, mitigating, and what other challenges are out there in your particular area. That pre-application process I think is the most critical and the key first meeting that you should be having before you go into the end of the permit process.

Sitting down with the guy or girl and saying, “What is it that I actually need?” In many cases, he’ll also tell you if you’re not familiar with it, what state requirements are out there, what local requirements are out there. If you look at it as trying to start a positive relationship, I think that’s the best place to start.

Russel:  That’s great feedback. What I’m wondering about as we’re having this conversation is, of the numerous permits that you have to get to construct a pipeline of any scale, how robust is the clean water part versus the other parts of the permits that you have to get?

What’s bringing this up for me, Mike, is you mentioned that oftentimes the person working with the Corps is going to have knowledge of the other state and local permits that might be required. I’m wondering, in your experience, I guess I’m trying to get a sense of how different the permitting requirement and the documentation requirement for those other organizations are, or is it similar? Is it more? Or is it less?

Michael:  It really depends on the state. Some states are more stringent than the federal government 404 piece and others are not. I’m thinking of some of the work we did in the State of Washington, there were more requirements on their 401 process than we had on the 404 and Section 10 processes.

In other places, states have less of a requirement. They’ll just go ahead off of “Well, if the Corps gives you a 404 permit, then we’ll give you the 401 permit,” type of piece. It really depends on which state you’re working in.

Russel:  The point being to build a relationship, have a conversation, come up with a strategy, and start there.

Michael:  Absolutely, first thing is, how do I develop a good relationship with the federal guy?

Russel:  What are the things you should be careful about in terms of these things I need to be very careful I don’t do?

Michael:  When things get challenging, a lot of times the applicant will say, “Well, if you don’t do it this way, we’re going to sue you.” Hopefully, most of the time that’s not a well-thought-out strategy, and somebody is just capping off.

That’s probably the most challenging thing to do, is once you decide to sue the Corps because you didn’t get a permit or you didn’t get the answer that you want, that automatically takes it away from the permit, the regulator, and runs it through the legal department. That really slows things down.

In your discussions, you may have developed a good relationship with the regulator, but once you say, “I’m going to sue you,” he can’t engage you anymore, except through his lawyer. In a lot of cases, people think, well, I’ll make this go faster by suing them, and many times, it doesn’t go fast at all. That’s the first thing I suggest to folks.

There may be times when you have to litigate, but that should not be the first, second, or third tool in your toolbox that you pull out. The other thing I would suggest if you’re unhappy with your regulator is to go talk to the regulator’s boss or the district commander.

Rarely is it useful to go out publicly and talk about a particular regulator or the Corps of Engineers not giving you a permit, going out and making negative public comments. That generally doesn’t help as well. It may make you feel better, but it’s not going to move the process along.

The two things that I would suggest not doing is publicly talking poorly about the regulator in the Corps, and also the lawsuits. One of the things that you should do is figure out exactly what you need from that pre-application, and then go out and get that information as rapidly as you can and keep the relationship with the regulator open.

Just call him monthly even if you don’t have it, just to keep him up to speed on where you’re at and continue working that relationship.

Russel:  Where I would want to go in this conversation to help pipeliners understand this process a bit more. I’m just going to try to play back to you a little bit of what you’ve been telling me. Build a relationship, sit down, have a conversation, and come up with a strategy for your permitting.

Once you’re engaged in moving, keep the conversation occurring and realize that any kind of trying to force the process is probably going to slow the process down.

Michael:  Yeah. That’s exactly it. In a lot of cases, people will try and go political on it or other ways of putting pressure on it. I have to say at least from the military side, and a lot of civilians as I mentioned, we’ve all been in Iraq and Afghanistan.

It’s going to take more than the threat of a lawsuit to make us quiver in our boots, considering we’ve been working through IEDs, other machine gun fights, and things of that sort. Continue working together. A good relationship is the best way to move forward.

Russel:  The other thing is what things should pipeliners know about the challenges that the regulator, the permitter is up against? What are their challenges? What are they struggling with? What are the things that they’re having to deal with that we as pipeliners probably have no sensitivity, or understanding, or experience with?

Michael:  It is trying to work that balance, is how do I protect aquatic resources while also allowing some construction to go on into the wetlands. That balance is always tough. A lot of discussion is, will I avoid wetlands totally?

The first thing you’re looking at from a regulator’s point of view is, how do I get this guy not to go through the water? If you can go 10 miles to the east and miss a creek, that’s a heck of a lot better. From a pipeliner’s perspective, 10 miles to the east costs me another $1 million. It’s like, “OK, so I’m working the avoid piece.”

Then the discussion of, OK, if you can avoid it, then how can you minimize it? Your initial draft on how you’re going to put your pipeline in may have a larger impact on aquatic resources. The regulator is going to try and help you minimize the impacts on the aquatic piece.

Finally is how to mitigate any of the impacts that you have. That’s always a challenge. Is it high-value wetlands, or low-value wetlands? How should you mitigate it is always a discussion that goes on between the pipeliner and the regulators, and what’s an adequate amount for mitigation?

The other thing that’s a challenge to the regulator is things change. You’re putting this information out on public notice. Everybody’s commenting on your particular impacts to aquatic resources. It may be something new that you hadn’t seen or maybe there are new endangered species that you didn’t know.

You have to go back to the applicant and say, “Hey, here are some changes that weren’t in place when I had the pre-application survey with you. Here are the changes, and you need to respond to them.” In a lot of cases, that’s a tough conversation to have, is “I’ve given you everything you want,” and it’s like, “Yeah, but things have changed.”

That impacts costs, as well as schedule, and certainly, pipeliners don’t like that.

Russel:  That reminds me of some conversations I had when I was working as a civil engineer in the Air Force. There are things that come down from on high that are directives and you don’t have any leverage at all around those directives if you’re in that position. You just don’t.

Michael:  Right. If there’s a new endangered species that’s come up in a particular area, as a federal guy, you’ve got to protect those endangered species. Having the applicant go back and look at that is always a challenge.

Russel:  I’ll bet. I can only imagine. In your personal experience, what have been some of the better experiences you have had around these projects and efforts?

Michael:  The better ones are just as I mentioned. The applicant comes in and does a good pre-application review, goes away and gets that information timely, and then submits it to you so that you can do a public notice review and then work through the mitigation process. There are some projects that are like that. Many are more of a challenge.

The Corps has a number of different permits. There’s a nationwide permit that is a pretty quick process for a nationwide permit. We have general permits that if you meet the criteria that’s in this general permit, you can just go ahead and start working, consider yourself, you have a permit.

Then there’s the individual permit, which is pretty much what we’ve been talking about, which is more complex work in aquatic resources. That needs an individual permit.

Russel:  This is one of those conversations where the more I have the conversation, the more I realize how little I know.

Michael:  It is certainly a challenge. Certainly, as I’ve worked with pipeliners over many years, in a lot of cases, they have to go through multiple districts and divisions or offices.

As they go from, I don’t know, San Francisco to Sacramento to LA, three different districts, you got three different ways of being managed, the regulator wants the information in a different way, and things of that sort.

Over time, working with linear infrastructures, like highways and pipelines, the Corps has come up with, “Well, let’s put one guy in one district in charge and he’ll be the coordinating process so that the pipeliner or the Department of Transportation doesn’t have to go through three, four, or five different districts, or two or three divisions,” so trying to make it simpler.

Russel:  That’s one of the things that pipeliners are looking at, is rather than trying to do these massive hundreds and hundreds, if not thousands, of mile projects, it’s often better to do it incrementally.

There’s complexities with this, particularly if you’re trying to create a whole new capacity in terms of a whole new direction or route for the product you’re trying to move. It’s easier to get a smaller permit than a bigger permit, I guess, is what I’m trying to say.

Michael:  It is, but that’s also a challenge as well. If it’s going to be an incremental project, the Corps cannot give incremental permits.

If you know you’re going 500 miles and you get a 10-mile permit, people are going to start scratching their heads, saying, “Hey, he’s going to cross 12 more water areas, and he’s only putting in 5 now.” You really can’t give a permit for one, if he’s going 500, you’ve got to look at all the impacts throughout that piece.

Some miners are looking for a permit. They say, “Well, we’re only going to build a small mine publicly,” and then privately, there’s documents that show that they’re really going to grow the mine fourfold. As soon as the Corps finds that out, it needs to stop the permit process and you either go for the full one or you’re not being truthful.

Russel:  I’m a novice with all of this. Why would that be?

Michael:  From an environmentalist’s point of view, he’s saying he’s going to have these impacts over 500 miles. Yes, he’s only going to do the 10-mile impact here, but you really need to look at the full impact to the aquatic resource. If you’re looking at it just incrementally, you’re not looking at the full impact.

Russel:  I acknowledge that, 10 versus 500. If I’m talking about I have a project I want to do, and I think this is going to take me 10 or 15 years to do the entire project, but the first phase of the project is viable standalone, and the first phase is a three-year part of the project, is that a meaningful conversation to have.

Michael:  You’re getting into some legal areas and exactly what does that mean? Can you set a full phase part separately or is that an incremental piece of a larger one? The law is pretty specific on that, you’ve got to look at the full project.

You could look at it from a phase perspective, but what you’re really looking at is if you’re going to put 500 miles in, you really hadn’t got to the avoid piece. If I know you’re going from here to there and it’s 500 miles, maybe I can help you in a different direction to avoid aquatic resources.

If you give it to me incrementally, then I really can’t give you the advice that you need.

Russel:  Yeah. To me, that’s an interesting conversation because the flip side of the conversation could be, “Yeah, I got a 1,500-mile project and I can only justify today the first 500. I don’t want to put the 500 in jeopardy talking about an idea that’s a concept that’s 1,500.”

I gather that’s one of those things where the expertise and the experience in being able to have that kind of conversation makes a big difference.

Michael:  It does. I would expect the regulator to go talk to the lawyers about finding exactly what that definition of phase one versus incremental is.

Russel:  My mind’s blowing up a little bit because I think I have just a little bit of a clue about just how complex that could become.

Michael:  It is tremendously complex and to the point of even the Supreme Court has scratched their heads as a number of these lawsuits go up to the Supreme Court. In the last decision, there was four on one side, four on another side, and one in the middle.

The one in the middle got to write the opinion, and then you give this information to GS11s, GS12s, guys who spent seven, eight, nine years and they’re trying to figure out where the extent of waters of the US is. They’re out there trying to do their level best but it’s really, as you just mentioned, really complex.

Russel:  I could also see where if you take the extreme viewpoints, just for purposes of discussion, the environmentalist would be, “I want to know everything you’re planning to do for the next 50 years.” The operator is not only concerned about what I can get into my budget for the next year to three, right?

You have these fairly significant differences, viewpoints, and perspectives around the issues.

Michael:  Definitely. Generally, the regulator is trying to find the middle space between the two and work through that piece. Then again, a lawsuit starts and ends up in the Supreme Court. Unfortunately, that’s many years later. Whatever your schedule was and costs were is out the window.

Russel:  That’s a long haul right there, for sure.

Michael:  Definitely.

Russel:  As we’re starting to wrap this conversation up, Mike, what would you want pipeliners to take away from this conversation we’re having?

Michael:  Today, largely due to the regulatory program uncertainty certainly that I just mentioned things going to the Supreme Court, there’s another case that went to the Supreme Court recently on the Sackett case and defining what’s waters of the US.

There’s a lot of uncertainty. There’s the post-pandemic impact. Stakeholders more than ever need to appreciate what goes into the permit application, and what the process is, and they need to figure out how best to get the information that the Corps asks for in a timely manner.

That’s the key piece, recognizing there’s lots of changing parts, and the regulator has got dozens of these on his desk. You’re not the only one. Get the information to him that he asks for fully as quickly as you can.

Russel:  You’ve used the word ‘timely’ a bunch of times. That’s one of those words that kind of raises question marks in my mind because everybody has a little bit different definition of what timely means. What does timely mean in this context?

Michael:  It’s exactly that. It’s slippery. If you’re looking to do a full NEPA document, an endangered species type of thing, it could be a year or two by the time you get the information that you need.

If there’s an endangered species that’s involved and you need to be counting how many eggs the red-cockaded woodpecker and they only give eggs out in the spring, and it’s now the summer, you gotta wait till the next spring before you can get the information that you need.

Timely is a changing piece. What I would suggest is don’t go from the pre-application meeting, go invisible for two years, and then come back and dump the documents onto the regulator. He’s going to have to review it. It’s probably going to be some changes to it. I’d continue that relationship with the regulator.

Russel:  Yeah, that also is a great answer for what timely is. Timely is situational and needs to be negotiated.

Michael:  Yes, indeed.

Russel:  Look, this has been a great conversation. I’ve certainly learned a lot and I appreciate you taking the time to talk to us.

Michael:  Russel, it’s great talking to you. It’s an important issue that continues to be unfortunately resolved at the Supreme Court as we continue to decide what is waters of the US.

Russel:  We’ll end it just there.

Michael:  Great.

Russel:  I hope you enjoyed this month’s episode of the Pipeline Technology Podcast and our conversation with Mike. If you’d like to support this podcast, please leave us a review on Apple Podcast, Google Play, or wherever you happen to listen.

You can find instructions at PipelinePodcastNetwork.com. If there’s a pipeline and guest journal article where you’d like to hear from the author, please let me know either on the Contact Us page at PipelinePodcastNetwork.com, or reach out to me on LinkedIn. Thanks for listening. I’ll talk to you next month.

Transcription by CastingWords