WolfeNotes.com

No progress on climate change or Ecological limits on water use

Corporate pipeline companies subsidized

Gov. Christie’s Office still blocking reforms

[Update below – 2/10/17 meeting rescheduled!]

The Pinelands Commission’s Personnel and Budget Committee met briefly this morning (see this for agenda and information). Note that the agenda also included a briefing on “application fees update”.

So I thought it was a good opportunity to talk about staff shortfalls, management problems, and lack of adequate budget/resources, particularly as they relate to:

1) a severe staff shortfall (22 vacant, un-budgeted positions); and

2) extensive delays in vitally important work that’s not getting done, like climate change and amendments to the Comprehensive Management Plan to implement the Commission’s Kirkwood-Cohansey study.

The Pinelands Commission has been bogged down in controversial pipeline debates for almost 4 years now. During that time, they have invested considerable staff time in reviewing pipeline applications and responding to public concerns.

During that four year period, crucial work is not getting done, including these priorities I suggested that they focus on last year:

1. Rescind delegation of power to the Executive Director to make unilateral decisions on major issues

2. Impose a moratorium on review of fossil infrastructure until a climate & energy  policy is adopted in the CMP

3. Restrict water use to protect ecosystems – implement the long delayed Kirkwood-Cohansey Study

4. Amend the CMP to adopt a map where motorized vehicles are prohibited

5. Put teeth in the new MOA policy by adopting standards to define equivalent protection – codify in CMP

I want to briefly update folks about what went on this morning with respect to items #3 and #5, including an important new issue that emerged about whether the Commission collects application fees to fully recover their oversight costs.

No action on climate change

Regarding climate change, the Commission pledged, in the Fourth Progress Report on Plan Implementation (September 2014:

The Commission will evaluate what options are available to address climate change through the CMP and in cooperation with other agencies. 

Today, in response to my concerns about a lack of progress on the climate front, Executive Director Wittenberg admitted that nothing was getting done on climate (or energy).

That is particularly unacceptable, given another record warm year and mild winter, which is sure to have ecological impacts on Pinelands forests and aquatic ecosystems. 

That lack of progress is deep troubling, especially given that on November 18, 2015, State Climatologist Robinson briefed the Commission staff and the public on climate change issues as part of the Commission’s science program series. That meeting stimulated positive discussions about exploring how the Commission’s science program and Rutgers’ climate programs could work together to develop climate impact monitoring in the Pinelands, see:

• Exploring NJ Climate Variability and Change

Extensive delays and little progress in setting ecologically based limits on water use

Regarding amendments to the CMP to implement the Kirkwood-Cohansey study. Wittenberg said work was getting done, but very slowly.

My guess is that the delay is a result of Gov. Christie’s anti-regulatory policy and the political power of the builders, more than a lack of staff.

Gas corporations subsidized, despite massive budget shortfalls

I then asked the Commission, given budget shortfalls and 22 unfunded positions, two key questions:

1) what was the Commission’s application review fee policy with respect to recovering 100% of the Commission’s costs of reviewing the South Jersey Gas and NJ Natural Gas pipeline applications?

2) Did the Commission have an estimate of the total costs of those application reviews, actual application fees received from SJG and NJNG, and whether subsidies were being provided to SJG and NJNG?

Wittenberg replied that the Commission does not seek to recover 100% of staff review costs in application fees.

Wittenberg noted that a CMP amendment draft rule proposal was submitted to the Gov. Christie’s Office to increase current application fees to recover just 75% of review costs. The Gov. Office has not approved that draft proposal. (recall that Christie vindictively vetoed the minutes to block an approved staff raise).

I previously wrote about how the Gov.’s Office was blocking Commission CMP amendments, and violating rule-making procedures of the NJ Administrative Procedure Act. The Commission is not legally required to seek the Gov. approval before proposing a CMP amendment – this is another abuse of Christie’s Executive power.

Wittenberg had no data or estimate of total staff review (hours or costs) and related Commission costs of the review of SJG and NJNG pipeline applications, and simply refused to respond to my questions about subsidies.

So, at a time when the Commission has a bare bones budget, 22 unfilled professional science and technical positions, and is making little or no progress on critical issues due, in part, to a lack of staff and resources, I find it outrageous that deep pocketed corporate polluters like South Jersey Gas and NJ Natural Gas are being subsidized by the Commission’s budget and taxpayer money. 

Finally, I complained about the fact that the Commission has spent over $62,000 on labor lawyers to respond to workplace employee disputes. I noted that this was another sign of management problems that needed to be resolved.

The Commissioners were generally supportive of my concerns, but made no effort to direct Wittenberg to respond to them or otherwise take any action, as a Commission, to address them.

The full Commission next meets on *****Friday, February 10 at 9:30 am at Commission HQ- be there and be sure they do not rubber stamp the SJG pipeline! (*****NOTE: about 3 hours after this was posted, the Pinelands Commission rescheduled, see below:

[*****Update: Notice

The Pinelands Commission’s regular meeting, originally scheduled for Friday, February 10, 2017 at 9:30 a.m., has been canceled and rescheduled for Friday, February 24, 2017 at 9:30 a.m.  The meeting will be held at the Crowne Plaza Philadelphia-Cherry Hill in the Grand Ballroom. The address for the Crowne Plaza is 2349 West Marlton Pike, Cherry Hill, New Jersey.

The Pinelands Commission’s Policy and Implementation Committee meeting, originally scheduled for February 24th, has been canceled and rescheduled for Friday, March 10, 2017 at 9:30 a.m. This meeting will be held at the Commission’s offices at 15 Springfield Road, New Lisbon, New Jersey. In order to accommodate the rescheduled Policy and Implementation Committee meeting, the Commission’s regular meeting scheduled for March 10, 2017 has been canceled.

New Jersey’s Pinelands Commission was once a respected, independent steward of a forest that filters the drinking water for millions in the region. But political manipulation has turned it into an ineffective agency that looks the other way when the preserve’s delicate balance is threatened.  ~~~ Philadelphia Inquirer editorial: “Christie bullied Pinelands panel to get his way (3/9/16)

[Update: 1/14/17 – Philadelphia Inquirer editorial weighs in again:

• Gas pipeline supported by Christie will endanger Pinelands ecology ~~~ end update]

Today we do something different, and offer up an alternative – not a “compromise” – that could provide a credible justification for a “go slow” approach, designed to appeal to those Pinelands Commissioners that may even support the pipelines (or perhaps provide cover to support a “no” vote).

I oppose the proposed South Jersey Gas (SJG) and NJ Natural Gas (NJNG) pipelines through the Pinelands National Reserve.

I’ve strongly urged Pinelands Commissioners to deny pending approvals, based on science and public policy and the fact that they violate the Comprehensive Management Plan (CMP). There also are legitimate historical reasons that reflect the original reasons for enactment of the federal law that established the Pinelands and compelling moral arguments, given the climate crisis, i.e. see Pope Francis’ encyclical “Care for Our Common Home”

There have been multiple egregious political and ethical abuses by Governor Christie, the Legislature, County Freeholders, and the Executive Director and Counsel:

“There was a degree of closeness between the applicant and staff that went beyond the neutrality appropriate to a review process,” said [Pinelands Commission Chairman] Lohbauer, a lawyer. ~~~ Philadelphia Inquirer (1/26/15)

There is no need to summarize the ugly tactics here. But I must note that they provide an additional line of evidence supporting denial of approvals, if only to preserve the independence and integrity of the Pinelands Commission.

However, I can count votes and realize that – based on the prior 7-7 tie vote on the SJG MOA – that several Commissioners support the pipelines or are very likely to do so.

This vote will be an ethical gut check for newly appointed Commissioners Bob Barr, Jane Jannarone and Giuseppe (Joe) Chila – and I would not want to be in replacement Commissioner “Zeke” Avery’s shoes.

Two former Commissioners (Jackson & Ficcaglia) that opposed the SJG MOA were replaced.

One current Commissioner (LLoyd) that opposed was forced to recuse for highly dubious conflicts of interest (see NY Times:  Fighting a Pipeline, but Feeling and Fearing Christie’s Influence (1/8/14)

The former federal appointee opposed, but his replacement, Frank Hayes of the National Park Service, now serves under the Trump administration.

So today, I’d like to appeal to those Commissioners who either support the pipeline or are undecided and want to make sound decisions based on credible data and objective analysis.

Those Commissioners should not support the pipelines, at a minimum, until the following questions are answered with independent scientific expertise:

1. Obtain independent expertise

The Commission has relied exclusively on data, analysis, and scientific and policy recommendations provided by Executive Director Wittenberg – who was appointed by Gov. Christie – and on regulatory and legal analysis provided by Counselor Roth.

The project review, analysis, findings, and recommendations of the Commission’s scientists that have been provided to the Commission have been shaped, controlled, and filtered by ED Wittenberg. The Commissioners have been provided only what Ms. Wittenberg finds appropriate, which is not necessarily the concerns or dissenting opinions of her scientific staff.

Much of the field data have been collected and analyzed by the applicant, South Jersey Gas. So too, the engineering and alleged energy justification.

There has been no independent verification, or expert analysis and recommendations provided to the Commissioners.

ED Wittenberg’s independence, judgement, and recommendations have been called into question by highly credible sources, including former Governors, major news outlets, the Commission’s own former Chairman Lohbauer, experts, the public, and – most importantly, the Appellate Division.

The Commission can have little confidence in Wittenberg’s recommendations and it is very likely that the Commission has NOT been provided a full and honest assessment by the Commission’s own scientists.

Given this situation – particularly given the history of the debate – the Commission should obtain independent environmental and engineering expertise.

2. Study the impacts of existing pipelines

SJG and NJNG experts argue that the pipelines are necessary and would have very little adverse impacts on the Pinelands resources.

Environmental experts and the public disagree and question the project’s need and magnitude of impacts.

Executive Director Wittenberg advised the Commission, back in July 2013, as follows: (listen to recording @ time 11:26):

I can get up there and tell you that there are places in the Pinelands where we have many, many, many, many, many, many, miles of natural gas pipeline that has been put in – and we can go out and look at what the effects were of those.

The SJG and NJNG pipelines would add to the “many, many, many, many, many, many, miles of natural gas pipeline that has been put in”.

So, if according to SJG and NJNG experts, pipelines have little or no impact, why not conduct a study that inventories and analyzes the impacts of all the “many miles” of existing pipeline and considers the cumulative impacts of the incremental addition of the miles of SJG and NJNG pipelines?

Such as study could assess:

• disturbance, fragmentation, landscape, and effects on forest ecology
• hydrological, water quality, and wetlands impacts
• air quality, public health, climate change, and enery infrastructure impacts
• visual and aesthetic impacts
• leaks and safety (fires, explosions, emergency events)

The Commission should have a solid scientific baseline and independent and objective impact assessment before deciding whether to approve a potentially damaging major regional infrastructure project with a 40+ year design life.

3. Apply the Commission’s ecological science and results of the Kirkwood – Cohansey Study

The unique and irreplaceable water, forest, and ecological resources of the Pinelands deserve protections afforded by the best available science.

The proposed pipelines would disturb existing vegetation and soils, and thereby alter natural drainage and hydrology. Some of the hydrological impacts can be expected to be similar to diverting surface or groundwaters. These changes will impact forests, wetlands, surface and groundwater quality and quantity, and the ecosystems that rely on water.

The Pinelands Commission has conducted extensive scientific research regarding the effects of hydromodification on ecosystems by the diversion of groundwater, i.e The Kirkwood – Cohansey Project:

Scientists from the cooperating agencies and institutions completed a work plan for the Kirkwood Cohansey Project that underwent peer review.  The work plan, which was approved by the Commission in October 2003 following a public hearing, addressed two major research questions.  First, what are the probable hydrologic effects of groundwater diversions from the Kirkwood-Cohansey aquifer on stream flows and wetland water levels?  Second, what are the probable ecological effects of induced stream-flow and groundwater-level changes on aquatic and wetland communities?

Twelve separate studies were completed as part of the Kirkwood-Cohansey Project.   The results of some of the studies can be used to estimate the potential impacts of groundwater withdrawals on aquatic and wetland resources in the Pinelands, which can help provide the foundation for developing improved water-supply policies for the Kirkwood-Cohansey aquifer. Below is a brief summary of each study and links to the published reports and/or journal articles.

The Commission should require the pipeline applicant to conduct an assessment of impacts and risks, applying the scientific framework and methodology of the Kirkwood – Cohansey Project (KCP).

The KCP provides the scientific benchmark and sets a high standard for scientifically assessing ecological impacts of projects that create hydrological modifications.

Before any vote to approve these pipelines, the Commission should fully understand the impacts and risks, using the best available science. That burden has not been met by the current application, therefore the Commission should not vote to approve it until the scientific burden is met.

4. Conduct Required Antidegradation Review and Water Quality Studies

The Pinelands water resources are provided the highest level of protection under the Clean Water Act via federally enforceable NJ surface water quality standards. This is known as a “non-degradation” policy. NJAC 7: 9B-1.5(d) provides: (bold mine):

Antidegradation policies applicable to a waterbody are as follows:

i. The quality of nondegradation waters shall be maintained in their natural state (set aside for posterity) and shall not be subject to any manmade wastewater discharges. The Department shall not approve any activity which, alone or in combination with any other activities, might cause changes, other than toward natural water quality, in the existing surface water quality characteristics.

ii. For Pinelands waters, the Department shall not approve any activity which alone or in combination with any other activities, might cause changes, other than toward natural water quality, in the existing surface water quality characteristics. This policy shall apply as follows:

(1) This policy is not intended to interfere with water control in the operation of cranberry bogs or blueberry production.

(2) New or expanded discharges are not allowed, unless authorized by the Pinelands Commission in accordance with Pinelands Comprehensive Management Plan, N.J.A.C. 7:50-4.61 through 4.70.

The construction and operation of the SJG pipeline will impact “Pinelands waters”, but SJG has not conducted any “water quality study” to characterize existing natural water quality or “antidegradation review” to determine the magnitude of these impacts or whether they would comply with the strict “non-degradation” policy established under the Clean Water Act.

In order to address these deficiencies, prior to considering whether to vote to approve the proposed pipelines, the Commission should require the applicants SJG and NJNG to conduct the following analysis:

• characterize “existing water quality” and “natural water quality”(via a minimum of 4 quarters of statistically representative physical, chemical and biological data)
• conduct an “antidegradation review” to determine water quality impacts, including cumulative impacts, of pipeline construction and operation
• conduct a risk assessment of potential pipeline construction and operation accidents

A Commissioner owes a duty to make decisions based on the best available science – in its current form, the proposed projects do not meet that standard.

If you are going to vote in favor of these pipelines, please do so based on science, not politics.

Catholic Church Location Raises Separation of Church & State Issues

I just got an email from the Pinelands Commission advising of a change in location for the upcoming January 24, 2017 public hearing on the controversial South Jersey Gas pipeline. The email reads:

The New Jersey Pinelands Commission has rescheduled its next monthly meeting from January 13th to January 24th and will hold the meeting in the Parish Centre at St. Ann’s Catholic Church in Pemberton Township, NJ. The changes in date and location were made in response to public comment asking for additional time and a larger meeting space.

Aside from throwing a monkey-wrench into the efforts of pipeline opponents to publicize and generate turnout for the hearing (e.g. printing fliers, postings and alerts to social media, etc about the prior location that all must now be corrected), the Commission’s change in venue raises at least two major concerns.

First, a Catholic Church is a totally inappropriate place to hold a public hearing.

A Church location is offensive to some – myself included – and it raises legal issues of an unconstitutional State endorsement of religion, in violation of the “establishment clause” of the First Amendment:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I fired off the following note to the Commission:

Dear Pinelands Commission:

I just received your email advising me of a change in location for the scheduled Jan 24. public hearing on the SJG application.

I find it offensive to have to sit in pews and testify in a Catholic Church – as well as an inappropriate and unconstitutional state endorsement of a specific religion.

I demand that the Commission select a civic building with adequate capacity to allow meaningful comment.

Additionally, the change in location would require additional public notice.

Bill Wolfe

Second, the change in location requires a brand new formal public notice. (Update: disregard – apparently the Commission has issued another public notice).

Finally, the cancellation and rescheduling of the Commission’s regular January 13 meeting reduces the public’s opportunity to comment on the pipeline. The public would have had an opportunity to organize and comment at the Jan 13 meeting – that won’t happen now.

I urge others who share my concerns to contact the Commission and demand a civic location, i.e. public building, with adequate capacity, additional hearings, and a meeting time suitable to those who work (i.e. the 9 am time is also totally inappropriate).

NJ Exports of Power to NY Are A Massive Ripoff

Opponents of PSEG Susquehanna- Roseland Powerline Proven Correct

Very similar energy industry lies being used to justify gas pipelines

[Update below]

Today we have some news from New York, which we use to focus on the NJ side of the story and the larger energy infrastructure and climate policy implications.

David Giambusso, reporter for POLITICO New York, just wrote an important killer story that exposes lies by PSEG used to justify billion dollar investments in unnecessary boondoggle fossil energy infrastructure,  see:

• New York Power Authority sees rising cost from underperforming connection to New Jersey

A regional fight between utilities could end up costing the New York Power Authority dearly if a decision by the Federal Energy Regulatory Commission doesn’t go its way.

At the center of the fight is the Hudson Transmission Partners (HTP) line between New Jersey and New York City — so far an underperforming investment by New York State that now could be saddled with hundreds of millions in additional costs.

The 660-megawatt transmission line has underperformed since it opened in 2013. NYPA is the leaseholder for the line and has to pay for 75 percent of its capacity whether it delivers electricity or not. So far, the line has delivered far less than needed to make it profitable. In June, POLITICO reported that NYPA could shell out $500 million by 2020 for the line.

Use of the word “underperformed” is an understatement – the HTP powerline is virtually useless. In a prior story, Giambusso reported:

Last May, POLITICO New York reported the line did not deliver electricity 73.6 percent of the time between April 2014 and April 2015. For roughly 24 percent of the time, it delivered less than 99 megawatts. (see: Underperforming NJ-NY transmission line becomes money pit for state authority

The HTP boondoggle exposes the big lie about “reliability” that the fossil energy industry repeatedly uses to justify needless fossil infrastructure projects to boost their profits.

The HTP line was a component of the controversial Susquehanna – Roseland Powerline (SRP) through the Delaware Watergap and NJ Highlands.

Stop the Lines was a local group that opposed the SRP project. They explain the link between the Susquehanna Roseland line and the Hudson line: (read the STL BPU motion to dismiss)citations omitted @ page 12)

In the FERC rate recovery tariff for this project and three others , the Susquehanna-Roseland line is committed to serve points east. This purpose and commitment is evidenced by firm transmission withdrawal rights established for Neptune Regional Transmission System (Neptune) at 685MW and East Coast Power (ECP) at 330MW, totaling 1,015MW of firm transmission withdrawal rights. The PJM tariff assigned cost responsibility for the Susquehanna-Roseland to Neptune and ECP, based on these firm transmission withdrawal rights. This 1,015MW is soon to be joined by Hudson Transmission Partners at 670MW. Exhibit STL-12, p. 8 (firm transmission withdrawal rights allocated and Susquehanna-Roseland cost allocation regarding those firm transmission withdrawal rights); Ex. S-96, Hudson Transmission Partners firm transmission withdrawal rights of 670MW presumed in staff base case). The firm withdrawal rights from the Roseland substation already in the tariff at 1,015MW plus that of the Hudson Transmission Partners (HTP), 670MW, which will be added as soon as the interconnection agreement is signed, totals 1,670MW or more committed.

The SRP opponents  “Stop The Lines” warned that the project was not needed, that PSEG “reliability” claims were lies, and that the real motivations were driven by private profit and expanding markets for coal based power:

Q. Please describe the purpose of your testimony.

A. I have been asked by the Municipal Interveners to challenge the New Jersey segment of the Susquehanna to Roseland 500 kV line (the “Project”). The purpose of my testimony is threefold. First, I believe that the Public Service Electric & Gas Company’s (PSEG) justification for the Project is unsound, and that the Project is not needed due to reductions in electricity demand and diminished economic growth. Second, I will demonstrate that, even if there is a proposed need for electricity, energy efficiency and demand side management, along with the deployment of distributed generation, offer much better alternatives than the Susquehanna-Roseland project. Third, I will describe how the Project appears to violate reasonable standards for electricity reliability, and that it conflicts with New Jersey’s stated energy policy due to the substantial environmental and social costs of the project. (read the energy expert testimony to BPU)

The link to expansion of coal power was made clear in a petition to BPU:

The “PJM Eastern Interface along the Delaware River, separating Pennsylvania and New Jersey” has been described as a “constraint,” and an “impediment to west/east trade,” one of three “certain physical constraints on the transmission system that have limited further flows of coal based generation to markets in the east.”

The Susquehanna-Roseland transmission project, at the northeasterly part of Project Mountaineer Line 1, would traverse that constraint, the “PJM Eastern Interface along the Delaware River, separating Pennsylvania and New Jersey” and address that impediment of coalbased generation to markets in the east. (read the STL BPU motion to dismiss)

Can you even imagine the kind of warped power engineering mentality that views the lovely Wild & Scenic Delaware River as a “constraint” to expansion of coal based markets? That allows those views to dominate energy policy?

In another major “I told you so!”, Stop the Lines even criticized and predicted the current battle over cost allocation:

… cost allocation schemes shifting costs away from economic benefactors so egregious that the court has rejected the cost allocation scheme for the Susquehanna-Roseland project. Foisting this project on landowners and ratepayers of New Jersey would be against the public interest and against the charge of the Board of Public Utilities. (@page 10)

The HTP fiasco should inform the current debates over the need for gas pipeline capacity, which are based on similar lies. (think “resilience“)

[End note: In a 2008 post about legislative hearings on proposed PSEG NJ exports to NY, we questioned how new energy infrastructure for NJ was needed when NJ exported large amounts of power to NY City.

We highlighted contradictions and concluded:

During the recent RGGI debate, energy lobbyists suggested that NJ power demand far outstripped instate energy supply, causing imports of dirty mid-west coal power. How can they now claim that EXPORT of NJ generated power to New York City will have no impact on system reliability or air quality? …

According to PJM, the following NJ power exports are planned or underway:

1,200 MW (Bergen, proposed)
300 MW (Linden under construction)
200 MW (Linden, proposed)
660 MW (Neptune to Long Island, existing)

The testimony of PJM representatives should be required reading – a primer on the economic and regulatory policy barriers to reducing coal based global warming emissions and market entry/access restrictions to renewable power technologies. The PJM primary goal is system reliability – with reliability viewed very narrowly as limited to increases in power production and distribution. As a result, economic regulatory policies provide incentives for more traditional power production that undermine energy conservation and renewable power.For example, no one mentioned the concept of a “carbon adder” to make dirty coal power prices reflect their true staggering environmental costs. The Committee took no testimony from environmental experts or those concerned about global warming.

[Update: My friend Scott Olson, one of the leaders of the SR line opposition, just sent me bunch of new articles that show that I vastly understated the lies. OMG, the entire public justification for the project was a massive and systematic set of lies, see:

• Federal Agency OK’s Power Transfer from New Jersey to New York
• Deal Is Reached for Line Under Hudson Giving the City a New Source of Electricity
• Without Notice, State Vote Is Expected on Plan for Power Cable
• State Agency Puts Off Vote on Cable for Power
• Plan for Electric Cable to Grid Nears Deadline
• The need for new powerline is still in dispute

Documents Show DEP Repeatedly Lied About Stream Buffer Rollbacks

“Response to public comments” opens door to abuse

The skids have been greased – the DEP permit process is rigged

Given how the Pinelands Commission responded to the Court’s remand and the fast track BPU amendment of the Orders in response, we can only assume that DEP will jump on the bandwagon and issue the DEP permits BEFORE THE PINELANDS COMMISSION’S PUBLIC HEARING ON THE *SJG PIPELINE ON JANUARY 24.

A lot of complex moving parts here, so pay attention!

According to *documents* obtained by the Pinelands Preservation Alliance under NJ’s Open Public Records Act (OPRA), it appears that the Christie DEP is ready to issue environmental permits for the controversial Transco compressor station (“Garden State Expansion” (GSE)) to serve the NJ Natural Gas’ (NJNG) proposed “Southern Reliability Link” (SRL) and the South Jersey Gas pipelines (SJG). Both pipelines go through the Pinelands National Reserve and were blocked by lawsuits filed by environmental groups. The compressor station is planned to be located in forested wetlands and farm fields in Chesterfield, outside but on the northern edge of the Pinelands.

These DEP permit documents also provide a smoking gun: they prove that DEP lied repeatedly to legislators, the media, EPA and the public about whether DEP’s massive 1,000+ page “overhaul” and “re-alliagnment” (DEP’s words) of the flood hazard act (stream encroachment) regulations would weaken protections and make it easier for pipelines to secure DEP permits.

DEP repeatedly claimed the the proposal would merely “streamline” the permit process and maintain current standards and protections. DEP claimed that environmental critics simply were wrong and did not understand the rule.

Those DEP lies derailed a pending Legislative Veto of the rules, and provided political cover for a dirty deal between Senate President Sweeney and Gov. Christie.

But buried on the final page of a complex 14 page December 2, 2016 letter from Williams (Transco, GSE) to DEP, we find this smoking gun admission that DEP’s rules weakened stream buffer protections:

Got that? Let me repeat: Transco noted that  “change in the Flood Hazard Act Control Act Rules (sic) eliminat[ed] the 150 feet riparian zone” and that now there is a “50 foot riparian zone now present on site”.

DEP lied about how that was done too – i.e. under revised and weaker standards to obtain a “Permit by rule” (PBR). On day one, we told you so:

• proposes 19 new permits-by-rule (PBR). There is no DEP or public review of a PBR.

Recent background

The overall project involves BPU, Pinelands Commission, and DEP approvals.

On December 9, 2016, the Pinelands Commission announced plans to fast track approval of two controversial natural gas pipelines: NJNG SRL and the SJG pipeline. The Commission schduled a public comment period and public hearing on the SJG pipeline for Jan 24, 2017 and passed a Resolution seeking to consolidate the NJNG and SJG litigation.

The Commission was forced to respond to a November 7, 2016 decision by the Appellate Division that found the prior unilateral approval by Executive Director Wittenberg violated the Pinelands Act. The Court directed the Commission to hold public hearings and determine whether the SJG pipeline was consistent with the Comprehensive Management Plan (CMP).

Wasting no time, the following Monday (12/12/16), the Christie Board of Public Utilities (BPU) quickly followed suit and responded to the Court by rubber stamping and revising prior approval Orders, as the Court directed.

Like the Pinelands Commission, BPU also ignored the Court’s mandate to revise the Pinelands CMP to address “coordinating permitting by state agencies“. After a detailed discussion of how Wittenberg violated the Pinelands Act and applied the CMP regulations to, among other things, the “coordinating permitting by state agencies”, the court directed (see the Court’s opinion @ page 20 – 24):

Both the Commission and the BPU failed to consider and comply the Court’s mandate with respect to “coordinating permitting by state agencies” before they reconsidered prior approvals overruled by the Court.

DEP Environmental Permits

During the same timeframe that the BPU and Pinelands Commission were engaged in behind the scenes moves, the Christie DEP also has been quietly working behind the scenes to facilitate approval of pending freshwater wetlands, dewatering, and coastal zone permits for the compressor station and NJNG SRL pipeline, including a critical Clean Water Act Section 401 Water Quality Certification.

The dewatering permit for the compressor station has been held up since May. One of the key issues raised by opponents was whether construction would harm nearby wetlands and residential drinking water and agricultural irrigation wells. As the photo above shows, DEP required that Transco install groundwater monitoring wells. I suspect that this will be the cover for DEP approval of this permit: “don’t worry, we’re monitoring the situation”.

Opponents should demand that DEP require at least 4 quarters of groundwater elevation and water quality data before issuing the dewatering permit.

Similarly, for the same reason DEP required groundwater monitor wells, the project applicants should be required to collect at least 4 quarters of surface water monitoring data to document “existing water quality”, including existing biological uses.

The compressor station and NJNG SRL pipeline also must obtain freshwater wetlands and CAFRA permits. Under an EPA delegation agreement, the DEP State wetlands permit satisfies the federal Clean Water Act 401 Water Quality Certification.

After huge public turnout force cancellation of hearings back in August on wetlands and CAFRA permits, DEP held a series of public hearings on those permits, the final one was held on October 19.

Since then, DEP has been working with Transco GSE (compressor station) and NJNG SRL pipeline. It looks like DEP has sent two letter to Transco and Transco sent 2 replies. I don’t now if these are all the documents. I don’t have the DEP letters.

The most recent documents obtained by PPA involve the response to public comments on the compressor station and NJNG SRL pipeline wetlands permits.

The documents discuss a range of about a 15 technical issues – curiously they are silent on the 401 WQ Certification – but Transco and DEP seem to be focused on the alternatives analysis for the compressor station required under the wetlands rules. Here’s how Transco sees things (12/2/16 letter):

I need to review Attachment A, but there obviously are alternatives “which would have a less adverse impact on the aquatic ecosystem”, so DEP may have a strong basis to deny this permit. We won’t hold our breath for that!

Transco says they’re just responding to public comment. But obviously they are providing legal and technical defenses and are provided with another shot at persuading DEP – an opportunity the public does not have!

Here’s how Transco summarizes the conversation, at the close of a November 10, 2016 letter to DEP:

Transco merely seeks “to assist the Department with the task of responding to all comments” in “preparation of the approved permit.”

Right.

The DEP permit process is rigged

The permit process is heavily biased in favor of the permit applicant not the public.

The bias is present at the beginning and the end of the process.

At the beginning, months before the project was announced publicly, Transco, NJNG, and SJG were given multiple opportunities to meet with DEP staffers and managers.

Those meetings are known as “pre-application conferences”. They are secret and not subject to OPRA. (Listen to how the Pinelands Commission got caught on tape responding to my criticism of “pre-application conferences” with SJG pipeline.)

Those meetings provide access to DEP technical staff and upper management. They allow permittees to understand how DEP interprets the regulations and how to comply with them. They basically iron out all problems in advance and receive conceptual approval of a project before the public is even aware of the existence of a project.

After many months of technical coordination, the public then gets to comment on draft permits at the end of the process.

In this case, DEP held public hearings on the permit applications, not draft permits.

This process allowed the permit applicants to get another bite at the apple and fix any deficiencies the public identified during comments!

But Transco wants even more! They want DEP to provide any additional “new comments” to them as a courtesy so that they can “review and respond” to them –

In contrast, the public must file OPRA requests to obtain this kind of information and has no opportunity to respond to it (a repeat of getting shut out of the secret pre-application conference process).

The DEP permit process is rigged.

Given how the Pinelands Commission responded to the Court’s remand and the fast track BPU amendment of the Orders in response, we can only assume that DEP will jump on the bandwagon and issue the DEP permits BEFORE THE PINELANDS COMMISSION”S PUBLIC HEARING ON THE SJG PIPELINE ON JANUARY 24.

[* Documents provided as PDF’s upon request – sorry I don’t have them as links.]

[*Correction – I stand corrected (h/t to Theresa Lettman of PPA). I incorrectly combined the Pinelands Commission’s public hearing for the SJG and NJNG pipelines. The Jan 24 hearing is only for the SJG pipeline.

But that is merely a procedural technicality on the scheduling of the public comment and hearings.

Under the Appellate Court decision, the SJG case set the precedent for the NJNG pipeline.

Recognizing that legal reality, the Pinelands Commission passed two Resolutions on 12/9  –  Res. # 4-16-43 sought to consolidate SJG and NJNG cases:

https://connect.xfinity.com/appsuite/#!!&app=io.ox/mail/compose

So, in addition to the Court’s legal precedent, it is only a matter of time before the Commission public notices the NJNG pipeline based on the SJG process.

As we noted, the Commission signaled a rubber stamp on the SJG pipeline.

So, as a matter of law and policy, NJNG approval will closlely follow the SJG approval.