Bordentown Files Clean Water Act Based Challenge of FERC Transco Pipeline Approval

[Updated below – Chesterfield filed similar challenge]

In a highly significant legal development, Bordentown Township just filed NJ’s first federal Clean Water Act based challenge to the proposed Transco gas pipeline through the Pinelands, known as the “Southern Reliability Link” (SRL).

The federal Clean Water Act is not “preempted” by FERC review, which must comply with CWA requirements.  Under Section 401 of the Clean Water Act, FERC approvals must include a “Water Quality Certificate” – in this case, issued by the NJ DEP.

The Federal Energy Regulatory Commission (FERC) issued final approval of the SRL pipeline on April 7, 2016.

Bordentown seeks to block that approval and require FERC to conduct additional hearings.

The legal filing to FERC cited the same legal provision of the Clean Water Act used last month by the NY DEC to kill the proposed Constitution pipeline.

The Bordentown challenge cites 4 legal flaws and requests a stay and rehearing:

The intervenor seeks rehearing, rescission and a stay of the Commission’s Order because the Commission purports to foreclose State property rights and require a prohibited use of a preserved recreation parcel contrary to the laws of the State of New Jersey. The Intervenor also seeks rehearing because the Order violates the National Environmental Policy Act of 1969 (“NEPA”), 42 USC § 4332, by improperly segmenting the Project from other related projects and thus failing to adequately consider the combined impacts of the Project with the related project. A rehearing is also sought because the Order does not comply with Section 401 of the Clean Water Act, 33 USCA § 1341. Finally, a rehearing is sought because Transco failed to comply with the notice requirements.

This is exactly what I have been urging pipeline opponents to focus on. Bravo Bill Harrison!!!

While I would have drafted a more expansive and technically grounded brief in NJ’s Water Quality Standards, the Bordentown petition may be sufficient, due to the procedural defect alone, to get the Clean Water Act Section 401 issue in play. Here is that section of the petition:

3. The Commission erred by ignoring the requirements of the CWA.

The Commission’s Order makes no mention of having received a Water Quality Certification (“WQC”) from NJDEP or of NJDEP having waived issuance of the WQC. The  WQC is required pursuant to Section 401 of the CWA. The Commission should not have issued the Certificate without having received either the WQC or documentation that NJDEP waived issuing the WQC.

The Project involves the disturbance of about five acres of wetlands. Order at ¶ 106. Transco has applied to NJDEP for the requisite wetlands permit. Id. The Order notes that Transco has purchased 3.3 wetlands mitigation credits and that Transco is responsible for providing a restoration plan for the wetlands that will be temporarily disturbed. Id. However, the Order then improperly goes beyond these factual findings and improperly finds that the Environmental Assessment properly concludes that Transco’s proposed measures will adequately minimize impacts to wetlands. Order at ¶ 86. Condition 12 of the Order does require that a revised plot plan be submitted for all above ground structures proposed to be placed in wetlands to avoid direct wetlands impacts or provide documentation from NJDEP and/or EPA that its permit allows placement in wetlands. Order Appendix at 12.

The Order should not have been issued prior to NJDEP making its determination on the wetlands permit application submitted by Transco. NJDEP has been delegated authority by EPA to issue wetlands permits that would otherwise be issued by the Army Corps of Engineers pursuant to Section 404 of the CWA. The Commission does not have the authority to supersede the authority delegated to NJDEP under the CWA. It was improper for the Commission to determine that Transco’s adherence to measures contained in the Commission’s Upland Erosion Control, Revegetation, and Maintenance Plan and Wetland and Waterbody Construction and Mitigation Procedures along with the mitigation and restoration measures proposed by Transco as part of its wetlands permit application to NJDEP as adequate under the CWA. That is a determination that only NJDEP should make and the Commission should not have prejudged what that decision should be. It was also improper for Condition 12 of the Order to be limited to above ground structures proposed to be placed in wetlands. The Section 404 permitting program is far broader than just above ground structures being placed in wetlands. The Commission should have deferred action until NJDEP acted. After NJDEP acted, any certificate issued by the Commission should then require adherence to any conditions imposed by NJDEP for any development that is permitted by NJDEP to occur in wetlands and by precluding any development in wetlands that was denied by NJDEP.

Transco apparently convinced FERC to rely on a proposed wetlands mitigation scheme to satisfy the Clean Water Act Section 401 WQC requirement – even before NJ DEP even issued the Freshwateer Wetlands Act permits.

The Section 401 WQC issue is made more complex in NJ because NJ DEP has an EPA delegated Clean Water Act program, and under NJ DEP regulations, the State freshwater welands permit satisfies the federal WQC requirements, despite the fact that the two are distinct technically and legally.

More to follow on this and lets hope this gets picked up by the mainstream press because it is huge.

More to come.

[Update: People over Pipelines advises that Chesterfield also filed a similar challenge. The WQC 401 issue is more thoroughly briefed, but it is included in several other broader challenges:(PDF, no link):

D. The Commission Violated the Clean Water Act By Prematurely Issuing the Certificate Before the Section 401 Certification Was Obtained. 

1. The CWA requires a grant or waiver of a Section 401 certification prior to issuance of a federal authorization. 

Section 717(c) of the Natural Gas Act preserves the applicability of the Clean Water Act to projects subject to the Commission’s certification authority. Under the Clean Water Act, the States are responsible for enforcing water quality standards on intrastate waters. 33 U.S.C. § 1319(a). To that end, Section 401 of the CWA provides that “[a]ny applicant for a Federal license or permit to conduct any activity including, but not limited to, construction or operation of facilities, which may result in a discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with the provisions of . . . this Act.” 33 U.S.C. § 1341(a)(1) (emphasis added). Most importantly for purposes of this motion, the CWA  provides that “[n]o license or permit shall be granted until the certification required by this section has been obtained or has been waived. . . .” Id. 

In accordance with the plain terms of Section 401, the United States Supreme Court has held that the CWA “requires States to provide a water quality certification before a federal license or permit can be issued for activities that may result in any discharge into intrastate navigable waters.” PUD No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700, 707 (1994) (emphasis added). Numerous other courts concur. See City of Tacoma v. FERC, 460 F.3d 53, 67-68 (D.C. Cir. 2006); Keating v. FERC, 927 F.2d 616, 619 (D.C. Cir. 1991) (“Without such state certification, neither the FERC license nor the Corps permit may be issued.”); Fredericksburg v. FERC, 876 F.2d 1109, 1111 (4th Cir. 1989) (“Virginia’s denial of such certification precludes issuance of the license.”).

The holding in City of Tacoma is particularly instructive:

FERC’s role is limited to awaiting, and then deferring to, the final decision of the state. Otherwise, the state’s power to block the project would be meaningless. . . . FERC, in other words, may not act based on any certification the state might submit; rather, it has an obligation to determine that the specific certification ‘required by [section 401] has been obtained,’ and without that certification, FERC lacks authority to issue a license. 

City of Tacoma, 460 F.3d at 67-68 (italics emphasis in original; bold emphasis added).

2. The CWA allows no exceptions for conditional certificates. 

Transco does not dispute that Section 401 applies to the Garden State Expansion Project. To this end, Transco has applied for a certificate from the New Jersey DEP.21 As of the time that the Commission issued its Order, however, New Jersey had not issued Section 401 water quality certifications. Despite the absence of all required Section 401 certifications, the Commission nevertheless approved the certificate.

In an effort to circumvent the prohibition on issuance of a certificate under the Natural Gas Act prior to a grant of a Section 401 certification, the Commission – as it has routinely done in the past22 – conditioned commencement of construction on Transco’s receipt of required federal permits. Certificate Order, Appendix – Condition N8. This condition, however, does not cure FERC’s violation of the CWA. The CWA unequivocally prohibits the issuance of any license or permit prior to issuance of the Section 401 certification. The CWA simply does not include an exception for a conditional license or permit.

The impropriety of the Commission’s premature issuance of the Certificate Order is further evidenced by the design and intent of the CWA which gives the States paramount regulatory authority under the statute. Section 401 of the CWA specifically provides that “[a]ny certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with . . . any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.” 33 U.S.C. § 1341(d) (emphasis added). In order for the States to play their paramount roles, the Section 401 certifications must be issued before the Order.

3. The Commission order improperly limits the states’ authority under the CWA. 

The Commission’s Order also violates the CWA by providing that “[a]ny state or local permits issued with respect to the jurisdictional facilities authorized herein must be consistent with the conditions of this certificate.” Order at P. 148. Nothing in the Natural Gas Act, however, allows FERC to so limit the States’ powers under the CWA. See 15 U.S.C. § 717(d)(3); see also Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 243 (D.C. Cir. 2013) (holding that with respect to the construction of a facility  contained in any Section 401 certifications trump any related conditions in the FERC Order.

That a State’s Section 401 water quality certification trumps anything that FERC might require in that regard – rather than the other way around – is expressly set forth in Section 510 of the CWA where Congress specifically provided that “nothing in this Act shall . . . be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters . . . of such States.” 33 U.S.C. § 1370. The courts have confirmed the ultimate authority of the States: “[t]he states remain the ‘prime bulwark in the effort to abate water pollution’. . . . Congress expressly empowered them to enforce water quality standards that are more stringent than those required by federal law.” Keating, supra, 927 F.2d at 622 (quoting United States v. Puerto Rico, 721 F.2d 832, 838 (1st Cir. 1983)); see also City of Tacoma, 460 F.3d at 67 (“The Clean Water Act gives a primary role to states to block . . . local water projects. FERC’s role is limited to awaiting, and then deferring to, the final decision of the state. Otherwise, the state’s power to block the project would be meaningless.”)

The Commission’s Order flies in the face of the CWA. The Order exceeds the Commission’s statutory authority and impermissibly intrudes on the States’ rights to grant, condition, or deny a Section 401 certification. This would include placing more stringent conditions or deny a Section 401 certification. This would include placing more stringent conditions in any 401 certification than are contained in the Order to insure  that the Project will not pose an unacceptable risk to the States’ water quality. In the event that any Section 401 certifications are issued, their terms must be incorporated in the Commission’s Order. For now, however, the Commission should rescind or vacate the certificate as prematurely issued.

(footnotes):

21 The NJDEP Wetlands regulations contain a provision stating that a permit issued under the regulations constitutes a water quality cert required under Section 401. See N.J.A.C. 7:7A-2.1(d). NJDEP administers the 404 program. Transco applied for an Individual Permit under the NJDEP Wetlands regulations but the permit has not yet been issued.

22 See, e.g., Gunpowder Riverkeeper v. FERC, 807 F.3d 267 (D.C. Cir. 2015)(challenging premature issuance of FERC certificate as violating Section 401, but dismissed for lack of standing grounds); Tennessee Gas Pipeline Co., 154 FERC ¶61,194, P.99 (2016)(granting certificate to Connecticut Expansion Project and conditioning commencement of construction on receipt of Section 401); Constitution Pipeline, Order Issuing Certificate, 149 FERC ¶61,199 (2014), reh’g denied, 154 FERC ¶61,046, _P.62-69 (2016)(explaining practice of issuing conditioned certificates where Section 401 certification has not yet been granted).