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Interior Department policy on bird treaty begins, adding flexibility to tree-cutting windows

A new Interior Department policy easing migratory bird regulations is beginning to filter down to interstate natural gas pipeline projects, whose schedules can be affected by seasonal tree-clearing restrictions.

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The US Fish and Wildlife Service has told DTE Midstream Appalachia that it is on board with allowing vegetative clearing for parts of the Birdsboro Pipeline project in Berks County, Pennsylvania, to run into April, rather than the current deadline of March 31. The 24-mile, 12-inch-diameter pipeline will deliver up to 79,000 Dt/d of gas to the 485-MW power plant being built in southeastern Pennsylvania from a receipt-point interconnect with Texas Eastern Transmission.

In lending its support, FWS cited a late-December Interior Department memo finding that Migratory Bird Treaty Act prohibitions apply only to "affirmative actions" meant to take or kill birds, their nest or eggs -- not to "incidental take," or actions that don't have the purpose of harming the birds, but may affect them nonetheless.

The policy shift at Interior, depending on how it is applied, could have broad implications for pipeline developers who often warn their schedules would face delays if they do not meet early spring deadlines for cutting trees before nesting seasons begin.

Dominion Energy is also seeking a two-month extension of tree clearing windows in some areas for its 600-mile, 1.5 Bcf/d Atlantic Coast Pipeline project, citing the new Interior Department policy and potential impact on its schedule of a looming March 15 deadline. In return, developers proposed to increase site-specific surveillance, which they said will afford an equal or greater protection than the original tree-felling plan.


Environmental groups objected to the ACP request Monday, saying it must be denied to maintain protections (CP15-554). The Southern Environmental Law Center and Appalachian Mountain Advocates said that in all three states that the pipeline traverses, Virginia, West Virginia and North Carolina, the extension would result in feeling of trees "well into the periods when tree felling has been restricted in order to protect migratory birds and threatened or endangered bats."

In the case of Birdsboro (CP17-409), DTE Midstream Appalachia wrote to the US Federal Energy Regulatory Commission Friday, a day after it won certificate authorization, seeking approval to conduct vegetative clearing activities until April 14 for one portion of the project and until April 30 for two other areas. It told FERC there is a "a very short window" to complete the clearing before the current March 31 deadline.

When the FWS backed the revised schedule for Birdsboro, it made clear the treaty prohibitions do not apply to incidental take and thanked the developer for "voluntary conservation of migratory birds in your project planning." It agreed that the company's proposed plan and conservation measures furthered that goal.

Construction of the Birdsboro power plant began in late 2017, according to local news reports from the area, and the power plant is expected to enter service in 2019. A project overview that DTE Midstream published in November said construction of the pipeline is expected to begin in March and the pipeline is slated to enter service in the third quarter of this year.

The 485-MW power plant is a small capacity addition relative to other major generation projects in the works, such as the 1.5-GW Lackawanna Energy Center being built about 50 miles to the north. But the Birdsboro project could drive up to 60 MMcf/d of incremental gas demand in the Texas Eastern M3 market area once it is in service, Platts Analytics data showed.

--Maya Weber,

--Eric Brooks,

--Edited by Valarie Jackson,