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Transco files 4th of July request to Commence Construction without DEP permits

In search of a Left Handed Monkey Wrench at “This Old House”

Prologue

We all have been victimized by some version of the cruel joke of the Left Handed Monkey Wrench.

You know the drill: the friendly uncle working under the hood of the car asks the helpful and enthusiastic awed young boy watching him work to do him a big favor and fetch a left handed monkey wrench from the toolbox.

After a frantic search, the flummoxed boy returns red-faced and ashamed to say he can’t find it.

The cruel uncle persists: Go ask you dad for his left handed monkey wretch.

Hahahahaa! You moron, there’s no such thing as a Left Handed Monkey wrench!!!

The boy is crushed and humiliated – by those he loves and trusts. Real funny, eh?

The public television show “This Old House” runs a kinder version of this same joke at the end of the show, where the experts bring out some bizarre and bewildering contraption and make up funny and implausible stories about what the tool is used for.

The phrase “On a Wild Goose Chase” connotes a similar phenomenon of cluelessness and futile searching for a non-existent solution to a problem.

Well, at best, the NJ environmental community purportedly “leading” the anti-pipeline citizen activists across the state are on a wild goose chase in search of a left handed monkey wrench at the end of a segment of This Old House.

I say at best, because, at worst, they are knowingly playing a losing game because that’s the only game they know how to play and that benefits their organization more that achieving a real victory.

The activists camp, groups like Food and Water Watch, hold protest events that target the wrong policymaker or the wrong issue or at the wrong time and/or are devoid of technical credibility and therefore easily dismissed and ineffective.

The organizing oriented issue focused groups, like Clean Water Action and Environment NJ, like to deploy a field canvass that knocks on doors. But they are more interested in campaigns that raise money than those that are effective.

The political and media oriented groups, like Sierra Club, focus their efforts on getting in the press or criticizing political foes or providing cover for friends. The soundbite reigns supreme, in superficial media coverage (or alternatively, too little too late lawsuits, filed after decisions are made, lacking sufficient public support, get routinely rejected by courts. The days of the controversial solo legal victory, lacking democratic consensus, have been over for decades now – unless, of course, they benefit corporations or the wealthy or the police.).

The conservation and watershed groups elevate the interests of their boards and members and funders above the aggressive tactics needed to win, and design advocacy efforts that reflect the corporate, economic, political or land ownership interests of their conservative elite members and funders.

The climate groups are generally AWOL or climate is not made a part of the debate or is not front and center in the debate. Still!

All these groups compete for a shrinking media, declining membership, and strings attached foundation funding. They rarely work effectively with each other and even more rarely build broader coalitions with labor, grassroots, social and economic justice, or religious communities.

A significant exception to this pattern of misdirection and floundering leadership was the first round Pinelands pipeline victory, where an informed and effective coalition kicked ass!

Even the burning down of This Old House – the earth literally on fire from global warming – they continue to search for and can’t seem to find that left handed monkey wrench.

Transco seeks FERC approval to commence construction

Now to the substance of the topic of this post.

At 4:49 pm, just 11 minutes before the close of business on Friday July 1 – before the 4th of July weekend – Transco requested approval to commence construction of portions of the pipeline project in Chesterfield by Friday July 8.

That request would give FERC just 3 days to review and approve the request – and even less to pipeline opponents to craft a response, like filing an injunction to stop the commencement of construction.

The Transco request comes despite the recent Bordentown-Chesterfield rehearing request FERC just delayed responding to (tolled) which highlighted the legal flaws of FERC issuing an approval before the NJ DEP issued a Section 401 Water Quality Certificate, in violation of the Clean Water Act.

But, aside from all these procedural outrages by FERC, Transco put the real substantive issue – the one that I have been urging the Left Handed Monkey Wrench crowd to focus on for almost 2 years now – right out there in the open for all who read their letter to see:
Got that?

While pipeline activists engage in all sorts of stunts, generate tons of misdirected media, organize field campaigns and fundraise, and focus aggressively on FERC, the NJ DEP is about to grant the only regulatory approval that could kill the pipeline that has been totally ignored.

Let’s repeat the core of that Transco casual “Oh, by the way” (emphases mine):

Transco must also obtain a Clean Water Act (CWA) Section 401 Water Quality Certificate and Section 404 Permit for construction of those facilities. The NJDEP is responsible for issuing the CWA Section 401 certificate and Section 404 Permit as part of its FWWIP [freshwater wetlands individual permit] under the permitting scheme in the New Jersey Freshwater Wetlands Protection Act and implementing regulations. Transco submitted its FWWIP application in July 2015 and continues to work with NJDEP to resolve outstanding issues.

For those who want to get into the weeds on the implications of that, see:

• Connecting the Dots Between Pipelines and Clean Water

As I’ve repeatedly warned, the CWA Section 401 approval comes with a 1 year clock, as the attorney who is currently representing Chesterfield wrote years ago:

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 :

Keep in mind, we repeat, with a finer point:

Transco submitted its FWWIP application in July 2015 and continues to work with NJDEP to resolve outstanding issues.

Yet even this 401 elephant in the room (pun intended) was somehow ignored by the left handed monkey wrench crowd, who persist in a focus on FERC, property rights, and stunts.

Of course, they get FERC’d again.

Happy Independence Day. I’m done. That thing about straws and camels’ backs.

[End note: While it is possible, I am not necessarily suggesting that the DEP and anti-pipeline activists have let the 401 WQC expire.

Actually, it looks like DEP is working with Transco to issue that 401 WQC approval, and with zero pushback from activists or press coverage:

Transco submitted its FWWIP application in July 2015 and continues to work with NJDEP to resolve outstanding issues.

Just in case some anti-pipeline people out there still believe that DEP is their friend, a few facts:

1. Governor Christie’s Energy Master Plan supports significant expansion of gas infrastructure – pipelines and power plants. DEP answers to the Governor.

2. The BPU approved the SRL pipeline (and all others that I am aware of). Although by law an independent regulatory commission, the BPU effectively reports to the Governor.

3. DEP would never contradict the Governor and a sister State Agency.

4. DEP Commissioner Bob Martin is a former corporate energy consultant who is very pro energy industry and pro-gas.

5. DEP Commissioner Martin takes the position – incorrectly – that FERC preempts DEP environmental permitting. In recent testimony to the Legislature, Martin said:

They (FERC) are the overall controlling entity on it at the end of the day. They could over-ride anything we could even do from the State of New Jersey. […]

We can not fight that .. If we did reject a pipeline it would end up in court very quickly.

6. Martin’s incorrect view on preemption is echoed by Democratic lawmakers, including Assemblwoman Liz Muoio, who works closely with the PennEast activists.

At a recent legislative hearing, Muoio whined about NJ’s powerlessness:

… there is little we can do as a State to stop them [FERC].

How could Muoio, who works closely withPennEast opponents, possible have that false legal view?

Who is whispering those lies in her ears?

Who has failed to educate her – and fellow activists, the press, and the public – on the law of Section 401 of the Clean Water Act?

7. Lastly, DEP has been a rubber stamp and cheerleader for pipelines.

If you doubt that, just recall their performance before the Pinelands Commission in support, see:

• DEP Does a Cameo at Pinelands Pipeline Farce

The only way DEP does the right thing is in response to huge political pressure mounted by pipeline opponents.

That has not happened –

And please don’t be so deluded to don’t think a hail mary lawsuit – with no public support – will win the day.

Taking a pause from the Trenton scene and the veto of DEP flood hazard rules (I’ve done about all I can do on that issue), I went down to Senate President Sweeney’s West Deptford district office today to join with about 40 south jersey pipeline, climate and renewable energy activists. It was great to see lots of folks I haven’t seen in awhile:

NEW BRUNSWICK, NJ – Activists and organizations supporting a transition to clean renewable energy and opposing the pipelines through New Jersey will have a July 4th potluck picnic at the office of Senate President Stephen Sweeney to oppose his support for the oil and gas industry, and invite him to sign a declaration of energy independence. They will deliver 1,000 petitions calling on him to take action to stop pipelines through the Pinelands.

“Senator Sweeney’s support for the oil and gas industry is a direct threat to the Pinelands, and to a sustainable future for New Jersey,” said Food & Water Watch organizer Lena Smith. “He is vocally supportive of the dirty fracked gas pipelines through the Pinelands and is twisting the arms of New Jersey’s elected officials to clear the way for these pipelines to be built.

Sweeney was invited to attend the gathering, which was organized by Food & Water Watch, the Pinelands Pipeline Action Network, the Coalition for Peace and Justice, Unplug Salem, 350 South Jersey, Ramapough Lenape Nation, Don’t Gas the Pinelands Coalition, New Jersey State Industrial Union Council, People Over Pipelines, Citizens United for Renewable Energy and Progressive Democrats of America.

Sweeney needs to be told flat out that his chances to be the next Governor are significantly diminished by his continuing support for the fossil energy industry.

With respect to the South Jersey Gas Pinelands pipeline he supports, 4 prior Governors have opposed that, so he is completely out of touch with even main stream NJ bi-partisan politics.

So, let’s rehash the day’s events.

There was a road detour, and I took a wrong turn on “Kings Highway” – a troubling address for a Legislator with Gubernatorial ambitions, no? – on the way there and ironically ended up at massive pipeline and fossil infrastructure:

Arriving at Sweeney’s offices, the view didn’t get much better – he is in the belly of the fossil beast:

As the group assembled on a grassy knoll in front of Sweeney’s office (ironically a pipeline ROW), the police showed up. Alleging the need to protect us from some non-existent threat of attack from the rear flank and to keep us off private property, the cop wanted the group to move away from the grassy knoll to an island on a nearby roadway. The island location the cop pushed us onto was dangerous, because cars drove by on both sides.

I took exception to the lack of respect for and interference with constitutionally protected activity, especially  in the absence of any no trespassing signs or complaint by the private property owner. I suspect the ROW was public land anyway.

I explained this to the cop with no success – he immediately admonished me for having an “attitude” based on my tone of voice –  so went to Sweeney’s office to ask them to support us, because they didn’t want the political controversy of activists arrested outside Sweeney’s office. They agreed. I told the cop this. He backed off and went in to talk. But came out of Sweeney’s office and said Sweeney’s District Office manager said they merely rented the property and were not authorized to allow us to use the grassy knoll. What two faced wimps.

Here are photos of the event (still learning new camera – a used Sony mirrorless I picked up at a bargain price when I sold my lenses).

 

Current Rationale for Logging Contradicts Prior Basis For Forest Preservation

The more cuts that one gets, the more fragmentation in this forest mosaic, the more it gets degraded. ~~~ Eric Stiles, NJ Audubon “The Highlands Rediscovered” (NJN TV, 2004)

Sportscaster Warner Wolf was famous for his line “Let’s go to the video tape!” – so, let’s do just that for a moment to shed some light (pun intended) on the current debate about logging in Highlands forests.

I’ve written thousands of words and posted numerous photos about that – particularly on how the current rationale for logging Highlands forests contradicts the science relied upon to preserve the Highlands. I’ve even used the published work of NJ Audubon CEO Eric Stiles to make the point:

Forest wildlife diversity depends on large contiguous forest patches, connections to other habitats, structurally complex vegetation, intact seasonal wetlands, and the presence of native vegetation. Disruption of any of these components can dramatically reduce wildlife diversity. ~~~ Eric Stiles, NJ Audubon (“State of the Forest” Symposium (2002)

But NJN’s documentary video does that far better, and brings in other expert voices to confirm my point (including Mr. Stiles himself!).

The 2004 NJN TV documentary “The Highlands Rediscovered” – funded by the Dodge Foundation – provides spectacular visual imagery supported by science to make a powerful argument for preserving the Highlands region, particularly the remaining forests.

Let’s go to the video tape to make our point – watch starting at time 22:00 minutes, where the impacts of development and fragmentation of forests are discussed. Pay special attention to the effects of disturbance of the forest (transcript below, emphases mine):

Richard Lathrop, PhD (Rutgers) – We are at a critical juncture, in that the Highlands still are predominantly forested. But, we are starting to see the balance shift towards greater development and less forest cover.

Narrator – a forest’s only defense is its magnitude. Even modest cuts – known as forest fragmentation – threaten its future. 

Lathrop – Forest fragmentation has a whole cascading series of impacts. So, ecologists and land use planners have really started to appreciate the importance of conserving the integrity of large unbroken tracts of forest.

As we begin to open up the forest, as we put in roads, we change the microclimate.

Ted Stiles (PhD) (Rutgers) – Plant species that normally can’t live under shade in the forest are able to to be successful, so that you have different species of plants that penetrate the forest, which changes the habitat. (In Memoriam)

Lathrop–  Some of those species can get in, take over, and out-compete the native species, and that’s what we’re seeing all across our forests. …

Heather Gracie – Consulting forester – We’re breaking down the infrastructure of the forest. We’re segmenting things off to a point where it lessens the value that these forest lands provide.

Eric Stiles, NJ Audubon – The more cuts that one gets, the more fragmentation in this forest mosaic, the more it gets degraded. If one is looking at a fragmented portion of the Highlands, you would see a simplified or dumbed down forest. You don’t have the rich structural stratification in the forest. You will see light gaps in the canopy that are not being replaced. There is no duff, there is no leaf litter. Just bare dirt.

Yes Mr. Stiles – One destroys the forest with those cuts –

Kind of like one sees here, after NJ Audubon cuts at Sparta Mountain:

Accountability at Christie DEP flows like water off a duck’s back

No consequences for failure – no reforms after disasters

“If we had any inkling that we had high lead levels in our water,” [Superintendent] Gundersen said, “we would have initiated this testing a long time ago.”   ~~~ “Scope of lead risk a serious lesson for North Jersey school districts” [Bergen Record, 5/30/16]

Was I the only one to hear Christie DEP Assistant Commissioner Dan Kennedy casually note in passing during Legislative testimony that DEP had known about lead in drinking water problems for “a generation or so”?

It sure seems that way, because Kennedy’s bombshell passed without notice by members of the Senate Environment Committee, the intrepid NJ press corps, and a packed room of environmental lobbyists.

DEP Assistant Commissioner Kennedy was testifying to the Committee on Monday about a package of bills to finance water infrastructure.

Kennedy casually dropped that hand grenade in response to a question about lead from Chairman Smith, who asked Kennedy if NJ Environmental Infrastructure Trust (EIT) funds could be used for lead abatement projects.

In the course of his response, Kennedy casually noted that DEP had known about the lead problem for “a generation or so” and – without missing a beat – droned on in his longwinded and evasive response to Smith’s question.

I was stunned, and thought the revelation would prompt shock and outrage by Committee members and denunciations by the press corps.

Silly me – and I wrote about that months ago – I even boldfaced it for emphasis

DEP scientists and regulators have known for many years that there are loopholes in testing and treatment requirements under the Safe Drinking Water Act and that as a result thousands of children were being exposed to unsafe levels of lead and many other chemicals.

They did NOTHING with that knowledge. REPEAT: NOTHING to warn the public or close gaping regulatory loopholes. …

Where is the media on all this?

It is a far bigger scandal than Bridgegate.

When that post was ignored, I doubled down two weeks later with another post, assuming that if State policymakers and the media didn’t give a damn about black kids in NJ cities, maybe they might care about white people in suburban homes.

Again I shouted in boldface – and again got no response:

• NJ DEP Has Know For YEARS that Up to 18% of NJ Homes Have High Lead Levels

With all the focus on lead growing out of the Flint Michigan and Newark Schools tragedies – including criminal charges filed against State regulators –  I thought the DEP data hidden in plain sight would be mined by intrepid reporters and NJ’s “environmental justice” advocates.

I was terribly wrong on both counts.

So here is the lead data, from DEP’s Private Well Testing Act Report (2008):

“Lead samples in homes – A total of 5,523 (11%) of the homes had lead levels above the previous Ground Water Quality Standard of 10 μg/l. This number increased to 9,368 (18%) of homes that had lead levels above the new Ground Water Quality Standard of 5 μg/l. This indicates that many homes still have lead in their plumbing systems, since it is unlikely that it originated from the raw ground water supply.” (page 18)

I even Tweeted Kennedy’s remark.

Crickets all around.

Despite the fact the DEP is the lead agency for protecting and regulating public water supply and implementing the federal Safe Drinking Water Act and NJ State Safe Drinking Water laws, they have been invisible in this whole issue.

The regulatory system is completely broken and so is the legislative oversight mechanism and media accountability.

Over and out.

Key Freshwater Wetlands Permits and Water Quality Certificate Pending

The public comment period on the DEP’s proposed draft “dewatering” permit for the Transco compressor station in Chesterfield closes today. The compressor station would serve the proposed NJ Natural Gas “Southern Reliability Link” Pinelands pipeline. That pipeline is part of the regional interstate PennEast pipeline project.

The draft permit, DEP staff report, public hearing transcript, and public comment information can be found here (upper right “What’s New”).

I understand that the Pinelands Preservation Alliance has challenged the stream encroachment permit issued for the project.

[Update – Rich Bizub of PPA testified in opposition to the draft permit at the public hearing and submitted detailed technical comments I will discuss in a future post.]

More importantly, the freshwater wetlands permits and the Clean Water Act Section 401 “water quality certificate” for the project have not been issued by DEP. Applications for those DEP approvals were submitted last July and August.

Here are my comments on the dewatering permit – I was simply laying a foundation to challenge the final permit if and when it is issued by DEP.

Dear DEP:

I hereby incorporate the full public hearing transcript:

http://www.nj.gov/dep/watersupply/pdf/1322d-hearing-transcript.pdf

In addition to my comments at the April 26, 2016 public hearing, I would like to add the following:

1. The applicant has not demonstrated that the project is in the public interest. There is no demonstration at all. The applicant has not met his regulatory burden under applicable laws and DEP rules.

2. The basis for the Department’s determination that the project is in the public interest is not based on stated facts that are in the administrative record or based on promulgated regulatory criteria. The Department’s determination is arbitrary and capricious and an abuse of discretion.

3. The applicant has failed to show – and the Department has failed to consider and conclude – whether the project would comply with groundwater quality standards and surface water quality standards, including hydro-modifcation of streams and wetlands and associated ecological and aquatic life impacts on existing uses of the ground and surface waters.

4. It is premature to issue this permit before the State freshwater wetlands permit is issued.

5. It is premature to issue this permit before the State and federal Clean Water Act “Water Quality Certificate” is issued.

6. The Department is improperly segmenting the permitting and environmental review of a massive regional gas infrastructure project. The full scope of the project involves impacts from fracking wells that supply the gas, the pipeline and compressor station infrastructure, and the end uses of the gas. Such segmentation frustrates the public’s ability to adequately review and comment on this draft permit.

7. The Department has failed to consider the cumulative and lifecycle impacts of the compressor station and the complete gas infrastructure project that the compressor station serves. Such a narrow “silo” scope of permit review frustrates the public’s ability to adequately review and comment on this draft permit.

8. Improper segmentation and scope of review constitute inappropriate review practices that violate sound science, competent regulatory practice, and the public interest.

*9.  I heard nothing from the applicant during their presentation at the public hearing or in the permit application (the initial version or the amended version) or the DEP’s draft permit and staff report that provided facts and standards upon which to establish the “just and equitable” requirement with respect to other users.

A “just and equitable” analysis would have to be based upon and explicitly consider the public ownership of the State’s water resources and the DEP’s Trustee obligations established under the Water Supply Management Act to protect that resource for the people of the State, not an out of State corporation.

Risks, impacts, benefits and costs and their distribution would need to be considered explicitly and heavily weighted in favor of the people of the state and the public interest.

This demonstration has the same technical flaws noted about impacts on residential wells and similar  legal flaws as the “public interest” demonstration.

For these reasons, the draft permit should be denied by DEP and not issued as a final permit until all of the above flaws and deficiencies are remedied.

These permit review practices violate Department’s Public Trust Obligations under the NJ Water Supply Management Act pursuant to which the draft permit is authorized.

Bill Wolfe

* updated, revised and extended point