WolfeNotes.com

Rule Must Be Vetoed By Legislature

Vague New “Public Interest” State Standard Can Not Block FERC Pipelines

No Linkage to Clean Water Act’s Surface Water Quality Standards

DEP’s revised proposal does not include enforceable links to NJ water quality standards (Source: Princeton Hydro)

I want to focus today on the DEP’s “concurrent proposal” (CP) of changes to the Flood Hazard rule that is pending Legislative Veto.

The concurrent proposal (CP) is allegedly designed to “fix” the flaws in the original proposal and respond to overwhelming public criticism that led to the Legislature’s veto initiative.

Earlier in the meeting, the tone was much more conciliatory with Smith, the only one outside the department who has read the revised rule, saying there is no question there has been some progress in improving the regulation. (NJ Spotlight – 5/17/16)

No question? None?

Just as curiously, the CP was quietly posted to the DEP website late last week and – unlike any proposal I’ve ever seen – it does not include a NJ Register publication date or a formal public notice. Thus, it has no legal standing at this point and in fact is NOT yet a formal proposal. It has no more legal status and should be afforded no more credibility than a DEP press release.

I will focus today only on the DEP’s alleged “Improvements to riparian zone protections (N.J.A.C. 7:13)” –  more specifically, the Additional protections for the inner 150 feet of a 300-foot riparian zone (7:13-11.2(d)) (discussion starts on p.14)

There is specific stuff in the concurrent proposal that almost surely came from Jon Miller of Princeton Hydro, consultants to PennEast pipeline opponents and the Rethink NJ Energy crowd.

DEP very likely included these “improvements” as a concession and carrot to some conservation community critics to create the false appearance that they will use it to deny pipeline stream encroachment permits.

I strongly suspect that these “improvements” are the political deal that bought off a large segment of the conservation community opposition and that will provide political cover for the Legislature’s abandonment of the veto, so it is important that I expose that lie.

The CP actually undermines DEP’ ability to enforce the critical Clean Water Act Section 401 Water Quality Certification requirements, as recently used by the NY DEC to kill the proposed Constitution pipeline.

[* This results from repeal of the C1 SWRPA, which was the link to the Clean Water Act and NJ State Water Quality Standards.]

I) Context: Climate change, headwater streams and longstanding SWRPA C1 buffer disturbance prohibition was ignored

At the outset, it must be noted that the CP fails to include necessary new restrictions to address climate change risks from sea level rise, storm surge, and inland river flooding, and to close gaping loopholes that result in a lack of protection of headwater streams with no defined bed and bank or that drain less than 50 acres.

These omissions are fatal flaws.

The more specific stream buffer context readers should consider these alleged “improvements” within is DEP’s extraordinary statement in the rule adoption response to comments document regarding the “Special Water Resource Protection Area” (SWRPA) Category One 300 foot buffers that the “riparian zone” would replace.

Much of the controversy over these rules focused on the repeal of the 300 foot wide Category One buffers (known as a “SWRPA”) and replacement by a less protected “riparian zone” and how the proposal would allow more disturbance and development of C1 stream buffers, particularly inside the 150 feet  and closer to the stream.

Specifically, the SWRPA C1 buffers had a bright line prohibition on buffer disturbance inside 150 feet to the stream. DEP just admitted that this bright line prohibition was never enforced.

As DEP notes, citing the rule text at N.J.A.C. 7:13-5.5(h)1ii, the current rules strictly prohibit disturbance and development inside 150 feet:

In no case shall the remaining SWRPA be reduced to less than 150 feet

“In no case” – NO means no. None. Sorry, can’t do that. If a landowner objected, they could exhaust administrative remedies and then file a “takings” challenge and see if the courts agree. Good luck with that (look at takings waiver in Highlands rules, NJAC 7:38-6.8).

But, shockingly, DEP – for the first time – now says that NO means YES.

DEP now claims that they flat out violated that regulation for 12 years and routinely reduced the buffer to less than 150 feet and approved development inside the 150 feet!

If DEP lacked the backbone to enforce a bright line numeric regulatory standard against developers and landowners to alter the footprint of minor developments, how is it possible to be so naive to think that DEP will rely on some new vague “public interest” standard to block multi-billion dollar gas pipelines?

This question takes us to part II.

II) The so called “Improvements to riparian zone protections (N.J.A.C. 7:13)”

The DEP’s proposed “improvements” fail for 2 fundamental reasons:

1) the entire stream encroachment permit program allows stream buffer disturbance by right.

2) If those by right disturbance standards are “not feasible”, the DEP merely requires mitigation.

As a result, the concept of a permit denial is not even on the table. The DEP explicitly states that loophole, i.e. “limited situations“:

The inner 150-foot portion of a 300-foot riparian zone is essential for maintaining water quality, ecological health, and fisheries resources associated with Category One waters. However, the Department recognizes that there are limited situations in which conducting regulated activities within the inner 150-foot portion of a 300-foot riparian zone is necessary. The proposed requirements are intended to ensure that only those projects that have no alternative other than being located within the inner portion of the 300-foot riparian zone will be allowed and serve to strengthen the already stringent requirements for regulated activities in a riparian zone.

The CP makes this disturbance “by right” mitigation policy abundantly clear.

Here it is in the summary:

Requiring mitigation for individual permit impacts in a 300-foot riparian zone with limited exceptions is intended to strengthen the protections afforded these areas. This is appropriate since, as discussed earlier in this summary, 300-foot riparian zones adjacent to Category One waters are intended to protect, among other things, the quality of these waters. (p.27)

Here it is in the actual rule text:

Where the regulated activity is located within a 300-foot riparian zone, is an activity identified at (r), (s), or (y) below, or the total amount of clearing, cutting, and/or removal of riparian zone vegetation exceeds the limits in Table 11.2, mitigation is required in accordance with N.J.A.C. 7:13-13.4. (p. 94)

To obfuscate this fundamental flaw – on top of the DEP’s historical failure to enforce a bright line regulatory prohibition of disturbance and development of the inner 150 foot C1 buffer I discuss above –  the DEP CP creates a false impression that the Department has the regulatory authority and the political will to deny stream encroachment permits and to enforce buffer and water quality standards.

First, the DEP summary falsely claims that the stream encroachment permits are linked to compliance with surface water quality standards, “similar to” the wetlands regulations:

These requirements are similar to the requirements at N.J.A.C. 7:7A-7.2(b) for the issuance of a freshwater wetlands or open water fill individual permit, with amendments to reflect that the proposed subsection is only applicable to riparian zones to a Category One water, making some of the considerations applicable in the freshwater wetlands context not applicable under this subsection, and are intended to ensure that activities within 150 feet of a Category One water or regulated tributary to a Category One water are only conducted when there is no alternative to the activity and that the activity will not lead to the violation of State water quality standards and laws or otherwise have significant adverse environmental consequences.

The wetlands regulation (NJAC 7:7A-7.2(b)) that DEP claims the CP is “similar to” explicitly requires that wetlands permits:

5. Will not cause or contribute to a violation of any applicable State water quality standard;

But the actual text of the CP rule does not include this language from the wetlands rules. While other provisions from the wetlands rules were included in the CP, this critical language was not.

The CP does not require compliance with State water quality standards or include this “cause or contribute to” language from the wetlands rules.

The wetlands rules include that specific requirement because it was necessary to receive delegation of the federal Clean Water Act. The implications of that are HUGE:

But that critical provision has been ignored historically by the DEP and freshwater wetlands permits are issued without a required demonstration with State water quality standards. Instead, DEP relies on avoidance, minimization and mitigation via BMP’s.

This is the issue that pipeline activists must engage and force DEP to change their historical permit review practices and begin to enforce this requirement to comply with State water quality standards in the land use permit program.

The DEP is engaging in incredibly dishonest practices by falsely claiming that the stream encroachment rules now include a provision “that the activity will not lead to the violation of State water quality standards”. It is simply not there.

On top of that, the CP fails to cite and mandate compliance with the Surface Water Quality Standards, the anti degradation policy in the SWQS, or the numeric and narrative criteria in the SWQS.

Here are the changes, notably absent is this regulatory standard: “Will not cause or contribute to a violation of any applicable State water quality standard;”

• Proposed N.J.A.C. 7:13-11.2(d)1 requires the applicant to demonstrate that a regulated activity proposed within the inner 150 feet of a 300-foot riparian zone has no practicable alternative that would result in less adverse impact on the regulated water and its riparian zone and which would not cause other significant adverse environmental consequences.

DEP historically has taken the position that there are no practical alternatives for stream crossings for pipeline routes. SAme think for all linear infrastructure and thins like bridges to develop land locked parcels.

• Proposed N.J.A.C. 7:13-11.2(d)2 requires an applicant to demonstrate that the proposed activity will result in minimum [feasible] alteration or impairment of the riparian or aquatic ecosystem. Category One waters may be designated as such due to ecological significance or their significant fisheries resources. The Department therefore will not issue an individual permit for an activity within the inner 150 feet of a 300-foot riparian zone if the activity would significantly alter or impair the riparian and aquatic ecosystem.

Note that DEP’s rule summary omitted the key word “feasible”. Is this economic feasibility? Technological feasibility? Engineering feasibility? By what methodologies will this standard be enforced?

How does this language apply to stream trenching for pipeline crossings, which historically were approved by DEP?

You can be sure this lack of clarity will be exploited to render this rule unenforceable.

If DEP were serious, all these open ended issues would be nailed down and there would be specific methodologies identified with specific enforceable standards, linked to the anti degradation review standard for C1 waters and the numeric and narrative standards in the SWQS.

• Proposed N.J.A.C. 7:13-11.2(d)3 requires the applicant to demonstrate that the proposed regulated activity is in the public interest.

Here is the loophole DEP designed as an escape hatch, or to provide “flexibility”, or what the regulatory wonks refer to as a “feasibility standard” or an “exit ramp”

If the purpose of the activity could feasibly be accomplished in a way that does not involve the clearing, cutting, and/or removal of vegetation within 150 feet of the top of bank of a water with a 300-foot riparian zone, proceeding with the activity in the inner 150 feet of the riparian zone is clearly not in the public interest.

III) The fingerprints of the deal

In closing, this is a very inside baseball and technically nuanced point, but the smoking gun that strongly suggests the political deal is found in two places:

1) I specifically recommended the wetlands provision as the bridge to the CWA 401 WQ certificate issue, i.e. that the activity will not lead to the violation of State water quality standards.

The fact that this is mentioned in the rule summary but not the rule text suggests an intent to mollify this criticism and frustrate actual enforcement of that standard; and

2) At the conclusion of the DEP’s March 15 stakeholder meeting on these rules (see attendees), Jon Miller of Princeton Hydro recommended that DEP not rely on a FERC CPCN as the basis for demonstrating that a project was in the public interest (you can take my word for it or listen to the MP3 audio posted in DEP website to confirm).

Because Jon is very familiar with the Clean Water Section 401 issue and is working with PennEast pipeline opponents, I was quite surprised that he didn’t go further to suggest the need for enforceable regulatory and technical linkages to the Surface Water Quality Standards, which are necessary to enforce the federal CWA 401 WQC in the State stream encroachment permit program, as I have. This would follow the NY DEC approach in the Constitution pipeline denial of the 410 WQC.

The inclusion of a new “public interest” standard in the proposal, which includes an illustration of a public utility pipeline case, is more than a coincidence and is very likely based on Jon Miller’s recommendation.

I’ve therefore tried to explain above why it won’t work and is fatally flawed. I’ve also explained how NY DEC’ denial of the 401 WQC relied on technical and regulatory linkages to enforce State WQS.

I’ve made these same arguments with DEP’s legal representatives (Deputy Attorney General) about lack of enforcement of the SWQS in land use programs for many years while at DEP and lost those arguments. The DAG’s always claimed that to do so would require asserting very broad regulatory control over non-point source pollution – which was perceived as politically infeasible. To confirm this, read the Jan. 6, 2003 NJ Register on adoption of the C1 300 foot buffers (35 NJR 135).

There is one close exception, the Milligan Farms case. Take my word for it, or do some research on Milligan Farms revocation of a previously issued DEP NJPDES permit for discharge to a C1 stream, and see for yourself. But that still involved a point source discharge under a NJPDES permit , not non-point loads to the C1 stream.

Or, just look at the recent DEP’s proposed “Forest Stewardship Plan” for Sparta Mountain WMA, where the lack of enforceable SWQS in lieu of reliance on BMP’s is obvious on the stream buffer issues.

Climate Change crisis demands zero carbon renewable energy future

Insane fracking, pipeline, and power plant scheme must be killed

DEP Holding Public Hearing Tuesday Night on New Air Pollution Permit

Investor alert: There will be protracted legal battles, growing public opposition, and civil disobedience to block these pipeline and power plant projects.

[Updates below]

The Department of Environmental Protection (DEP) will hold a public hearing on Tuesday (5/17/16) night at 7 pm at the Upper Township Municipal Building located at 2100 Tuckahoe Road Petersburg, NJ 08270 on  a new air pollution control permit for the BL England plant (BLE). There will be a protest at 6:30 before the hearing – bring your friends and a sign.

It is important that people attend the hearing and speak out against this fossil fuel plant. Those who can’t attend to speak can submit written comments until May 23 (see public notice for where to send written comments).

NJ Spotlight wrote a good set up story CLOUD OF CONTROVERSY HANGS OVER AIR PERMIT FOR NEW B.L. ENGLAND POWER PLANT and Jeff Tittel has an Op-Ed which provide some helpful information.

We go a little deeper in the weeds and provide the permit documents and some context and history.

• Here is the DEP’s  Statement of Basis
• Here is the draft air pollution permit

Climate crisis – “Leave it in the ground”

In 2007, the Legislature passed and Governor Corzine signed the Global Warming Response Act (GWRA) P.L.  2007, c. 112;  (N.J.S.A 26:2C-37), at the time, one of the strongest greenhouse gas laws in the country:

The Legislature therefore finds and declares that it is in the public interest to establish a greenhouse gas emissions reduction program to limit the level of Statewide greenhouse gas emissions, and greenhouse gas emissions from electricity generated outside the State but consumed in the State, to the 1990 level or below, of those emissions by the year 2020, and to reduce those emissions to 80% below the 2006 level by the year 2050.

Since then, the science of climate change has become far more dire and demonstrated that we must make far deeper cuts in emissions much earlier than previously thought to avoid irreversible climate change and catastrophic warming.

Simply put, NJ can not meet the aggressive GWRA emission reduction goals with continued investments in and construction of major fossil fuel infrastructure.

The most recent science suggests that we need to leave at least 80% of known fossil fuel reserves (coal, oil, & gas) in the ground if we are to limit warming to 2 degrees Celsius, and even more to avoid the 1.5 degree goal recently embraced in the Paris climate accords.

Methane is a far more potent greenhouse gas than carbon dioxide, especially in the short run. Several credible recent studies document that the lifecycle greenhouse gas emissions from natural gas, i.e. from fracking wells, fugitive pipeline and compressor station emissions, through power plant emissions are at least as bad – or even worse – than coal, thus gas is not a “bridge fuel” to a stable climate future.

Failure to regulate greenhouse gas emissions

Greenhouse gases are defined and regulated as “air contaminants (pollutants) under NJ’s State Air Pollution Control Act. The draft air permit would allow emissions – from the BL plant alone – of 1.6 million tons of greenhouse gases, as CO2 equivalents.

The NJ Air Pollution Control Act mandates that air permits reflect “State of the Art” (SOTA) pollution control requirements. No GHG emissions controls at BLE clearly can’t be SOTA.

The DEP permit fails to require any pollution controls for greenhouse gas emissions and fails to even consider lifecycle greenhouse gas emissions from upstream gas sources that power the project. Failure to conduct lifecycle cumulative impact analysis and compare emissions for compliance with the GWRA reduction goals can not be SOTA.

The Christie DEP has no plan for how to meet the federal EPA’s proposed Clean Power Plan regulations. It is irresponsible and reckless for DEP to issue approvals of major new GHG emission sources in the absence of a State plan that meets federal requirements.

It is not clear whether the BLE plan and the DEP draft air permit will comply with EPA’s proposed new power plant emission regulations (Clean Power Plan), so this permit should not be issued before those regulations are adopted in final form. BLE emissions would impact the entire State’s power sector, first by impacting the State’s GHG  emissions rates under EPA CPP rules and secondly by undermining investments in renewable energy via subsidized and artificially low energy price that fail to consider the social costs of carbon

Source: US EPA (hit link)

The Long Strange Trip of BLE – Well Past Time to Pull The Plug

Back in December, I flagged the issue and anticipated the need to revise the air permits after significant changes were made to the original BLE re-powering plan, which was part of the South Jersey Gas Pinelands pipeline approval, see

• BL England Re-Powering Plan Quietly Gets Dirtier (and Less Profitable)

This last minute change in the BLE re-powering plan and how it was kept from the public and the Pinelands Commission is just another example of how absurd this whole review process is and how dirty the regulatory process has become.

Over a decade ago, US EPA and NJ DEP found that the BL England plant’s pollution violated the Clean Air Act and took enforcement action. That resulted in a Jan. 4, 2006 Administrative Consent Order (ACO) that required that the plant either be upgraded to meet the standards of the Clean Air Act or shut down.

The costs of upgrading the plant were determined to be an uneconomic investment, so the decision was made by the owner Atlantic City Electric, to shut down the plant.

But later in 2006 ACE sold the plant to financial speculators named “RC Cape May” who decided to repower the plant and convinced the Corzine DEP to extend the compliance deadlines. Ten years later, the plant is still polluting.

Then the pro-gas Christie Administration came along in 2010 – lobbied by the infamous law firm of Wolf & Samson – and green lighted DEP permits, BPU approvals, and extended the original 2006 ACO compliance deadline 3 times. No regulatory uncertainty under Bob Martin’s leadership!

The Christie crew also rammed a dedicated private pipeline through the Pinelands to serve the plant and make ratepayers pick up 60% of the $100 million construction costs of the pipeline, while providing even more public subsidies by exempting the BL England plant from various greenhouse gas emissions fees and charges.

The BLE repowering is part of a $500 million boondoggle – $400 million for the BL repowering and another $100 million for their private SJG Pinelands “dedicated” pipeline.

It will be provided gas from a multi-billion dollar regional fossil energy Ponzi scheme that begins with fracking wells from the Marcellus shale in Pennsylvania, and the $1+ billion new PennEast pipeline, which will also serve the other Pinelands pipeline, known as the “Southern Reliability Link” (SRL) owned by the NJ Natural Gas Co.

Both those Pinlands pipelines are facing litigation – and DEP has not even issued all permits to the SRL, which are sure to have appeals – and the PennEast pipeline is certain to face litigation as well should FERC or DEP issue final approvals.

Investor alert: There will be protracted legal battles, growing public opposition, and civil disobedience to block these pipeline and power plant projects.

It’s time to pull the plug on the entire fossil enterprise and accelerate investments in renewable power.

[Update: 

I’ve previously disclosed the fact – unreported by NJ press – that Wolff & Samson ELEC reports show meetings with the Gov.’s Office to lobby for the BL England plant and the SJG pipeline (see this and this for examples of W&S lobbying of DEP)

Here are some of the benefits of that lobbying, worth hundreds of millions of dollars granted by Christie controlled state agencies:

1.In an April 29, 2013 Order, BPU quietly granted huge tax breaks and subsidies to the Rockland Capital BL England Plant:

2. This BPU Order also provided secrecy to cover up the amount of huge ratepayer subsidies to Rockland Capital.

Current version ignores climate change and NJ DEP’s Clean Water Act powers

Major omissions reveal flawed strategy

On Thursday (5/12/16), the Assembly Regulatory Oversight Committee will hear ACR 53 – for an overview of what that is about, see NJ Spotlight:

• NJ COULD ASK FEDS TO RETHINK POLICIES ON SITING INTERSTATE PIPELINES

Amid a growing outcry against the expansion of natural-gas pipelines, a New Jersey legislator wants to press the federal government to revamp the laws governing approval of interstate energy projects. …

The proposal is being advanced at a time when at least 15 new gas pipeline expansions or projects have been either approved or are under review in New Jersey, a trend that has sparked wide opposition around the state.

With a buildup like that, of course I rushed to read the Resolution.

Imagine my extreme disappointment upon reading that the Resolution failed to even mention climate change or include the federal Clean Water Act Section 401 Water Quality Certificate requirements.

That is the legal power that NY DEC just used to kill the proposed Constitution pipeline, so it is a remarkable oversight.

That is the legal power that Chesterfield and Bordentown Townships just relied on to petition FERC for a stay and rehearing on the Southern Reliability Link Pinelands pipeline, as I wrote yesterday.

In addition, the Resolution failed to include the federal Coastal Zone Management Act. That is the legal power the State of Connecticut use to kill the proposed Islander East pipeline.

So, I fired off this letter to the sponsors – if they don’t agree to these requested amendments, I have to question either their competence or their motives.

I am writing this today, because NJ Spotlight’s set up story was spun so favorably – itself a remarkable fact given the egregious flaws in the Resolution –  and the Thursday legislative hearing is likely to get lost in press coverage of the DEP budget. The Senate is hearing the DEP budget at the same time. And I don’t think that is a coincidence:

Dear Assembly-persons Muoio and Gusciora:

I am writing to you as sponsors of ACR 53  which “urges President and Congress to revise laws concerning interstate natural gas pipeline approvals to more fully address adverse impacts.”

The ACR is an expression to the President, Congress, and FERC of NJ State law and policy. As such, it should reflect the most critical provisions of State law related to gas pipeline approvals and the full scope of adverse impacts, based on the best available science.

Accordingly, I suggest the following 3 amendments to improve the ACR:

1) Global Warming Response Act

In 2007, the Legislature passed and Governor Corzine signed the Global Warming Response Act (GWRA) P.L.  2007, c. 112;  (N.J.S.A 26:2C-37), at the time, one of the strongest greenhouse gas laws in the country.

Simply put, NJ can not meet the aggressive GWRA emission reduction goals with continued investments in and construction of major fossil fuel infrastructure.

Perhaps more importantly, the most recent science suggests that we need to leave at least 80% of known fossil fuel reserves (coal, oil, & gas) in the ground if we are to limit warming to 2 degrees Celsius, and even more to avoid the 1.5 degree goal recently embraced in the Paris climate accords.

Finally, methane is a far more potent greenhouse gas than carbon dioxide, especially in the short run. Several credible recent studies document that the lifecycle greenhouse gas emissions from natural gas are at least as bad – or even worse – than coal, thus gas is not a “bridge fuel” to a stable climate future.

The ACR must be amended to reflect the goals of the NJ GWRA and the most recent science.

2) Clean Water Act Section 401 Water Quality Certificate requirements

The federal Clean Water Act is not preempted by the federal Natural Gas Act (NGA) or the Federal Energy Regulatory Commission (FERC).

NJ DEP administers a federally delegated Clean Water Act program.

As you may know, on April 22, 2016, the NY State Department of Environmental Conservation (DEC) denied a required Clean Water Act Section 401 water Quality Certificate (WQC) of the proposed Constitution pipeline.

The NYS DEC decision should be a model for NJ DEP. For that DEC decision, see:

http://www.dec.ny.gov/docs/administration_pdf/constitutionwc42016.pdf

As you may know, on May 9, 2016, Chesterfield and Bordentown Townships filed petitions with FERC seeking a stay for, among other things, failure to comply with the Clean Water Act Section 401 WQC requirement.

Specifically, the Chesterfield brief lays out the legal framework:

“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.”).”

[complete FERC petitions available upon request]

I strongly urge you to amend the Resolution to include mandatory Clean Water Act Section 401 requirements.

3) Coastal Zone Management Act

Similar to the federal Clean Water Act, the exercise of State “consistency determinations” pursuant to State law and the federal Coastal Zone Management Act are not preempted by the NGA or FERC.

The proposed “Islander East” pipeline case in Connecticut provides legal precedent and an example of how the State of Connecticut used CZMA powers to deny approvals for the pipeline.

The State’s denial was upheld by the US District Court, affirmed by the US Court of Appeals, and the US Supreme Court denied certiorari, see:

ISLANDER EAST V. MCCARTHY, 525 F.3d 141 (2nd Cir. 2008)

https://casetext.com/case/islander-east-pipeline-v-mccarthy

I strongly urge you to amend the ACR to include NJ DEP powers under the CZMA and State coastal laws.

I am available to provide additional information to support the above amendments or work with OLS or your staff.

I appreciate your favorable consideration and will testify on the ACR on Thursday before the Assembly Regulatory Oversight Committee.

Sincerely,

cc: Assemblywoman Spencer and Senators Smith, Bateman, Greenstein, and Gordon

Hillary Clinton’s Pro-Gas Policy Is Just Like Gov. Christie’s

Sanders Should Be Asked To Oppose PennEast & Pinelands Pipelines & BL England Plant

Bernie Sanders is holding rallies on Sunday at Rutgers and on Monday in Atlantic City in advance on NJ’s June 7 Democratic primary.

These campaign events provide an excellent opportunity for NJ’s climate, anti-fracking, and anti-pipeline activists to get controversial NJ fossil infrastructure projects being developed under Governor Christie’s climate denying pro-gas Energy Master Plan in the national debate.

Sanders can speak to Superstorm Sandy as an example of the implications of climate change.

Sanders can link Clinton’s climate and energy policies as very similar to those of the deeply unpopular Gov. Christie.

The Sunday Rutgers event is close to ground zero of the highly controversial PennEast and Pilgrim pipeline battles.

The Monday Atlantic City event is in the backyard of activists fighting the Southern Reliability Link Pinelands pipeline and the South Jersey Gas Pinelands pipeline to the BL England power plant.

Bernie Sander’s “People Before Polluters” climate policy is in sharp contrast to Hillary Clinton’s.

The controversial proposed NJ pipelines and natural gas plants perfectly illustrate that contrast.

Sanders supports a ban on fracking, while Clinton cravenly used her State Department power to promote fracking around the world to benefit her corporate energy backers.

Clinton’s promotion of fracking as a strategic weapon against the Russian economy reveals how her Cold War dominated hawkish worldview always trumps rational policy and US domestic interests.

Sanders often speaks of how the system is rigged and how corporate interests have corrupted and bought government to advance their profits and not the interests of the people.

Governor Christie’s appointments of former corporate energy lobbyists and consultants to head the BPU and the DEP that rubber stamp approvals of pipelines and fossil power plants are right in Sanders’ wheelhouse.

I hope NJ’s climate, anti-fracking and anti-pipeline activists already have reached out to and briefed the Sanders people on all this so he is prepared to comment to the media and make this an issue in his speeches.

And let’s hope folks get out and attend these events in numbers, with lots of signs that name all the fracking pipelines for the national media and Sanders people to see.

DEP Must Deny Permit for Failure to Comply with Regulatory Requirements

It is not in the public interest to continue reliance on a fossil fuel infrastructure that will cook the planet

No justice – no equity

The public raised many valid concerns and criticisms of the proposed Transco gas pipeline compressor station – across a wide range of issues – at Tuesday night’s public hearing at Chesterfield Elementary School.

But today I want to focus briefly and narrowly on the specific regulatory requirements for the “temporary dewatering” permit that was the subject of the public hearing.

Under applicable DEP regulations (See: NJAC 7:19-2.3), it is the applicant’s (Transco) burden to demonstrate the following:

(d) The applicant shall discuss the geology, hydrogeology, and the expected impacts of the proposed diversion both on the resource and other users of the water resource.

[(e) – (f)]

(g) The applicant shall provide all information which establishes:

1. That the proposed diversion is in the public interest;

2. That the plans for the proposed diversion are just and equitable to the other water users affected thereby, and that the withdrawal does not adversely affect other existing withdrawals, either ground or surface; and

3. That the proposed diversion will not reduce the dry season flow of any river or stream so as to adversely affect the river or stream.

Based on those demonstrations by the applicant, DEP must make specific findings that the applicant satisfied his burden and complied with the regulations.

Taking those items very briefly in order:

1. There were many omissions, errors, inconsistencies and technical deficiencies noted in Transco’s various purported analyses of the “expected impacts of the proposed diversion both on the resource and other users of the water resource.”

I use the word “purported” because at the public hearing, Transco’s power point presentation merely asserted that various hydrological and technical analyses had been conducted, but those alleged analyses were not cited with specificity, i.e. by title, author, and date. They also are not cited in the Transco  permit application (the initial version or the amended version), so it’s unclear exactly what they are referring to or what DEP reviewed and approved.

The specific “expected impacts” were not defined, nor was the “resource”.

The impacts on the “resource” did not include consideration of hydro-modification impacts on wetlands systems or sensitive aquatic ecosystems, like vernal ponds or aquatic and aquatic dependent species.

The omission of impact on wetlands and consideration of the ecological impacts of diversion of up to 70 million gallons of water is in sharp contrast to the studies and impact assessments required for diversions under NJ DEP’s “Technical Memorandum 12-2 – Hydrogeologic Testing and Reporting Procedures in Support of New Jersey Water Allocation Permit Applications.

There were factual errors in the number of “other users of the water” (i.e. the number and location of residential wells) and there was no analysis of impacts on agricultural users and agricultural productivity.

The applicant and DEP failed to consider acid soils and groundwater and how adverse impacts would be avoided.

With all these deficiencies, it is hard to understand how DEP could write a draft permit and staff report that essentially approved the applicant’s flawed and incomplete technical work.

Maybe the uncertainty and risk of the applicant’s shoddy work is why DEP included this  remarkable permit condition, which appears to be intended to protect homeowners who rely on wells:

That permit condition suggests that there are real problems and it is not enforceable anyway, e.g. how could DEP prove causality? How can DEP create a quasi-judicial dispute resolution process in a permit condition? Transco has good lawyers.

If there is any risk of a well going dry, DEP should deny the permit.

2. The applicant did not even attempt to provide required information which “establishes … (t)hat the proposed diversion is in the public interest”.

The application is completely silent on that point. The applicant does not even make a factually unsubstantiated assertion. It’s not even there.

Compounding the applicant’s failure to “establish that the proposed diversion is in the public interest“,  the DEP failed to make a finding at all.

DEP simply imposed a prospective permit condition that dodged the issue entirely, based on circular logic:

It does not matter what the DEP did “historically” to signify establishment of the “public interest”.

My lawyer friends tell me that failure for a permit applicant to include required information or to conduct required analyses and for DEP to make regulatory findings are all fatal legal flaws.

They also tell me that DEP must have clearly expressed fact based regulatory criteria and standards upon which to base regulatory decisions. DEP permit decisions that fail to be based on promulgated regulations supported by criteria and standards are vulnerable to legal challenge as arbitrary and capricious or an abuse of discretion, or of being so vague that they violate due process rights.

I’ll note that the DEP dewatering permit regulations and the permit application forms do not provide anything at all about how to define and “establish” the public interest or how DEP evaluates a demonstration and concludes that an application is in the public interest.

Houston, we have a problem.

But beyond legal flaws, there are major policy flaws.

The dewatering permit supports a massive regional fossil energy infrastructure project that is not in the public interest because climate scientists are warning that we must keep at least 80% of known fossil reserves in the ground in order to avoid climate catastrophe and exceedence of the 2 degree C warming goal (which was actually adjusted downward to 1.5 degrees in the Paris climate accords).

The greenhouse gas emissions – on a cumulative and lifecycle basis – and climate impacts from this regional infrastructure project are not even considered by DEP in the various regulatory reviews of the compressor station or the NJNG SRL pipeline.

Recent science suggests that methane emissions are a significant and growing source and that methane has as bad or worse climate warming potential than coal as a fuel source.

The DEP simply ignored all this science and the deep greenhouse gas emission reduction goals of NJ’s Global Warming Response Act. We will not attain that goal of we keep building fossil infrastructure.

It is not in the public interest to continue reliance on a fossil fuel infrastructure that will cook the planet.

3. I heard nothing from the applicant on Tuesday night 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.

Finally, Transco is basically saying “trust us, we’re experts”.

The next time the gas and pipeline industry geologists assure you there are no problems, look at this north jersey pipeline construction SNAFU – sinkhole:

• Tennessee Gas Pipeline Drilling Causes Sinkhole Road Collapse

And if you think they care about the environment, look at these construction shots:

• This is What Pipeline Construction Looks Like (Part 1)
• This Is What Pipeline Construction Looks Like (Part 2)