The ET Rover Pipeline Processes and Pitfalls of Pipeline Development

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1 The ET Rover Pipeline Processes and Pitfalls of Pipeline Development Presented by: James J. Lanham J. Benjamin Fraifogl Critchfield, Critchfield& Johnston, Ltd. 225 N. Market Street Wooster, Ohio Ashland / Medina / Millersburg / Mount Vernon / Wooster

2 The ET Rover Pipeline Processes and Pitfalls of Pipeline Development Disclaimer: This presentation is not intended as legal advice and should not be relied upon as such. If you need legal advice, seek independent legal counsel from a firm such as ours. We are providing a general guide for landowners to protect their property during the planning, approval, construction and operation of an interstate pipeline. Any examples below are fact specific and subject to each landowner s circumstances.

3 The Steps of the Process 1. Pre-Filing Application 2. FERC Pre-Filing Review 3. Official Filing for Section 7(c) Certificate 4. FERC NGA Section 7(c) Review 5. Issuance of FERC Order 6. Post Order Remedies 7. Final Easement Acquisitions 8. Pipeline Construction

4 Pre-Filing: What is It Allows a Project Sponsor to More Quickly Satisfy Legal Requirements under the National Environmental Policy Act (NEPA) When Filing an Application Open Season Stakeholder input Helps to Identify Issues Involved in and Expedite: Categorical Exclusion (CE) Environmental Impact Assessment (EA or EIA) Environmental Impact Statement (EIS) Finding of No Significant Impact (FONSI)

5 Pre-Filing Process Project Sponsor Files Request for NEPA Pre-filing Review FERC formally approves Pre-Filing Process Docket Number: PF14-14 Sponsor Conducts Open Season FERC Conducts Preliminary NEPA Review Including: Open Houses Environmental Assessments and Studies Scoping Meetings Review of Stakeholder Comments Call-in Meetings Evaluations of Alternate Routes

6 Open Season Definition: One to two month period of time in which pipeline sponsor is able to market and enter into non-binding agreements with potential customers to use a portion of the proposed pipeline capacity June 27, 2014 July 25, 2014 Likely a Success During July 22, 2014 call-in, ET Rover indicated that they would like to put in two 42 pipelines

7 Public Input Opportunity During Pre-Filing Open Houses Public Comments Effective Drafting Individual or Group Bruce Township Scoping Meetings

8 Review of Application Public Notice of Application Issued in Federal Register Opportunity for Parties to Intervene Review Application and Issue Data Requests if Needed Determine Need Based on Non-Environmental Factors Drafts, Reviews and Issues Environmental Impact Study or Environmental Assessment Issues Order Approving or Denying Project

9 Intervention Opportunity After FERC receives the formal application from the Applicant, they issue a public notice in the Federal Register. Interested parties can then file a motion to intervene. Intervention is not guaranteed. Failure to follow proper procedures will result in a denial of a motion to intervene depending on the circumstances.

10 Intervention Steps 1. File a motion to intervene in the applicable time period satisfying the requirements of federal law and FERC regulations. 2. File a motion to intervene after the applicable time period satisfying the requirements of federal law and FERC regulations and also explaining why you should be allowed to intervene late. 3. Wait for other participants to files answers objecting to your motion. 4. If a motion to intervene is timely filed, the motion will be automatically granted if no other participant objects within 15 days. 5. If an answer is filed or the motion to intervene is filed outside of the specific time period. FERC must expressly grant the motion and determine the conditions under which a party is allowed to intervene.

11 Effect of Participating Correspondence or Documents Right to Participate in Hearings Right to Rehearing Right to Appeal Burdens

12 Penalties for Late Motions Motion May Not Be Granted Good Cause for Filing Late Disruption of the Proceeding Interest is Otherwise Represented Prejudice or Burden to Existing Parties Conformity to Other Requirements Limitation of Certain Rights Limitations on Participation of Late Participant Acceptance of Record Prior to Late Intervention Prior Correspondence or Documentation

13 Issuance of EIS or EA Draft Reports Environmental Assessment versus Environmental Impact Statement Preparation of Preliminary Report Issuance of Draft Comments by Other Agencies Public Comment

14 Public Input Opportunity During Filing FERC issues the draft of an EIS: 1. FERC opens comment period to the public. 2. FERC holds meeting(s) in the project area to hear public comments on the draft of the EIS. FERC issues a draft of an EA: 1. FERC opens comment period to the public.

15 FERC s Response After public comment periods and meetings on EIS: 1. FERC responds to comments and revises the draft of the EIS; and 2. Issues final EIS and project is up for final approval. After public comment period on the EA: 1. FERC responds to the comments received on the EA in a Commission Order and project is up for final approval.

16 FERC s Approval of Project Once FERC Issues an Order on Approval: 1. Participants May Request a Rehearing 2. Participants May Appeal the Order 3. Applicant can construct and operate the project after obtaining permits from: Clean Water Act, Coastal Zone Management Act, and Clean Air Act.

17 Pipeline s Proposed Timeline: File NGA Section 7(c) Application January 2015 FERC already indicated that this date is probably too optimistic Issuance of FERC Order November 2015 File Initial Implementation Plan December 2015 Commence Construction December 2016 Midwest Hub to the Union Gas Dawn Hub In- Service 2017 Date Based on One Pipeline

18 Pipeline s Proposed Timeline: pro se: Latin on one s own behalf. A party who represents herself in legal matters.

19 Pitfalls in Pipeline Negotiation: WHY ET ROVER MIGHT SUPPORT PRO SE PIPELINE NEGOTIATIONS

20 Pitfalls in Pipeline Negotiation: SO YOU CAN SETTLE FUTURE DISPUTES IN TEXAS

21 Pitfalls in Pipeline Negotiation: SO YOU CAN STORE THE PIPELINE COMPANY S EQUIPMENT

22 Pitfalls in Pipeline Negotiation: SO YOU CAN HAVE THREE PIPELINES CROSS YOUR PROPERTY FOR THE PRICE OF ONE

23 Pitfalls in Pipeline Negotiation: SO WORKERS CAN DRIVE EQUIPMENT ACROSS YOUR FRONT LAWN

24 Pipeline s Proposed Timeline: SO YOU CAN REPLACE ALL OF YOUR DRAIN TILES

25 Pitfalls in Pipeline Negotiation: SO THE PIPELINE COMPANY CAN WORK ON YOUR PROPERTY 24 HOURS A DAY

26 James J. Lanham J. Benjamin Fraifogl Critchfield, Critchfield& Johnston, Ltd. Ashland / Medina / Millersburg / Mount Vernon / Wooster Lanham@ccj.com Fraifogl@ccj.com Phone: (330)