While PennEast Pipeline Foes Focus on FERC, Pennsylvania DEP Quietly Issues Water Quality Certificate

Posted on June 14, 2016 by Bill Wolfe

Will the Christie DEP waive Section 401 Water Quality Certificate Powers?

What explains the silence in NJ on this issue?

However, sometimes states waive their rights under these federal statutes by failing to act within the required time frame for making a decision (for example, Section 401 of the Clean Water Act requires states to act on an application within one year of the date that it is filed or the need for the approval is deemed waived). ~~~ Knowing and Protecting Your Rights When An Interstate Gas Pipeline Comes To Your Community 

[Update #1, #2 below]

That’s some casual and parenthetic “However, sometimes” and “(for example)” in the box quote above, no?

And it’s buried on page 16 of a FERC dominated treatise by a former FERC lawyer, in a manual more oriented to protecting private property rights than enforcement of environmental laws like the Clean Water Act.

I get better warnings about deadlines to pay my cable bill before they shut off service. But I’m way ahead of myself here.

On May 13, 2016, the Pennsylvania Department of Environmental Protection (PADEP) issued a draft Clean Water Act Section 401 Water Quality Certificate (WQC) to the controversial PennEast pipeline.

The 401 WQC is a key State regulatory approval, as demonstrated by NY State DEC’s recent denial of a 401 WQC that killed the proposed Constitution pipeline.

const1-245x300For over a year, I have been writing about and calling on NJ pipeline activists to pay close attention to the 401 WQC issue and mount a public campaign and protests to pressure NJ DEP to deny 401 WQC for pipelines, particularly PennEast.

That is what won the battle in NY and led to Gov. Cuomo’s DEP’s 401 denial.

I even warned activists that they needed to get out in front of the issue and that if they waited until draft approvals are published for public comment, then it was far too late:

The public portion of the permit process is a total sham.

By the time a draft permit is “public noticed” and distributed for public review and comment, the deal is done.

The public comment period on the PADEP draft WQC closed yesterday, June 13, 2016.

All I could find in terms of public advocacy was a single letter to the editor on Saturday June 11, just 2 days before the comment period closed.

I learned about this at 11 pm last night from Bordentown-Chesterfield activists (after briefing them on and asking about this issue for months).  They apparently just got the documents from Rethink Energy NJ.

Meanwhile, on June 9, 2016, the PennEast foes at Foundation funded Rethink Energy NJ issued another diversionary and self serving press release, remarkably with no mention of the PADEP 401 WQC or the opportunity to submit public comments.

That Rethink Energy NJ press release also was issued on the same day FERC announced it granted the Bordentown – Chesterfield rehearing request, which focused on the 401 WQ Certification issue. On a day that they should have been praising the victory by Bordentown – Chesterfield on FERC rehearing and highlighting the significance of the upcoming DEP 401 WQC, instead it sure looks like Rethink Energy NJ attempted to drive that story out of the news cycle.

That all is fucking pathetic.

Are they keeping the 401 WQC issue a secret? The NJ media sure is. But the activist could drive media and are not even trying. Worse, they are sandbagging those trying to work on 401 WQC and diverting from the issue.

An inside technical game is a loser, particularly in dealing with pro-gas oriented State agencies following orders of pro-gas Governors. A win will take huge public pressure, like in NY.

However, in another case of far too little, far too late, the Delaware Riverkeeper Network (DRN) created a webpage on the PA 401 WQC and submitted detailed technical comments, but it appears – just like the Rethink Energy NJ PennEast foes – that DRN did little or nothing to mount a public campaign (and if they did, it is invisible and ineffective).

We will get to all that in our next post.

Meanwhile, consider that NJ activist may be quietly losing the most effective challenge to kill pipelines, by quietly looking the other way as the Christie DEP just lets the clock run out (or they get blindsided, like what just happened in Pennsylvania).

Federal law provides:

However, sometimes states waive their rights under these federal statutes by failing to act within the required time frame for making a decision (for example, Section 401 of the Clean Water Act requires states to act on an application within one year of the date that it is filed or the need for the approval is deemed waived). ~~~ Knowing and Protecting YOur Righs When An Interstate Gas Pipeline Comes To Your Community

Which leads me to question whether they even really want to win and stop the pipeline, or just re-route it and shake the mitigation money tree.

[Update #1 – 6/15/16 – here’s another example of the dangers of a singular focus on FERC.

1. On April 2, 2015, Riverkeeper filed a request for rehearing to FERC on the Algonquin pipeline  because, among other things, FERC issued approval before the NY State DEC issued a Clean Water Act Section 401 Water Quality Certificate – that FERC rehearing request was very similar to that filed by Chesterfield and Bordentown, see:

http://www.riverkeeper.org/wp-content/uploads/2015/06/RVK-Request-for-Rehearing-AIM-Project.4.2.15.wEx-2.pdf

2. Just weeks later, on May 1, 2015, the NY DEC issued the 401 WQ certificate, thereby effectively mooting the FERC challenge:

This experience suggests the need to back up the FERC legal request with public pressure on the NJ DEP on the Clean Water 401 WQC.

The Bordentown/Chesterfield FERC challenge is based on the fact that DEP has not yet issued the 401 WQC – if DEP issues the WQC the FERC challenge goes away.

[Update #2: 6/15/15 – ANOTHER example of efforts by Rethink Energy NJ crowd to sandbag, divert attention from, and bury the 401 Water Quality Certificate issue. Unbelievable. ~~~ end]

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