As The Christie DEP Rubber Stamps Pipelines, NY Gov. Cuomo Uses Clean Water Power To Kill Another Fracking Pipeline

Posted on April 12, 2017 by Bill Wolfe

NJ Gov. Christie fast tracks pipeline approvals – abdicates State Clean Water Act power

NJ activists are incompetent – wrong pipeline challenge, wrong legal issues

Media again AWOL and FERC-ing Off

NJ residents and pipeline opponents are not being well served by foundation funded NJ environmental groups that are touted by the media as leading the anti-pipeline efforts in NJ:, i.e. Rethink Energy NJ, NJ Conservation Foundation and the Stonybrook Millstone Watershed Association.

At best, incompetence has led to significant political and legal defeats, while they have ignored their most powerful tactic. At worst, they aren’t even trying to win.

But before we even get to that story, let’s start at the top with a 2006 US Supreme Court decision that upheld and stressed the power of State’s under Section 401 of the Clean Water Act. The Court found Section 401 part of an “essential scheme” to protect State interests:

Source;: US EPA 401 WQC Guidance Document (2010)

Source;: US EPA 401 WQC Guidance Document (2010)

Why have we heard virtually nothing about this foundational US Supreme Court decision? Or the legislative history of the Clean Water Act?

Or the Islander East 2nd Circuit Court of Appeals decision that upheld the State of Connecticut’s denial of a pipeline Clean Water Act Section 401 approval?

Why aren’t NJ activists waving these flags before the NJ legislature, local governments, the media, editorial boards, and at DEP protests? Where are the expert consultant reports applying the water quality science and data to these legal and regulatory frameworks? CRICKETS! (exception this, amazingly written the same day, by NJ Sierra who clearly get it).

In reliance on this Clean Water Act power, New York Gov. Cuomo’s Department of Environmental Conservation (DEC) just denied Clean Water Act approval of another gas pipeline.

On Friday, NY DEC issued this statement:

DEC Statement Regarding Water Quality Certificates for the Proposed Northern Access Pipeline

“After an in-depth review of the proposed Northern Access Pipeline project and following three public hearings and the consideration of over 5,700 comments, DEC has denied the permit due to the project’s failure to avoid adverse impacts to wetlands, streams, and fish and other wildlife habitat. We are confident that this decision supports our state’s strict water quality standards that all New Yorkers depend on.”

Letter to National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (PDF, 750 kb)

Here’s how the NY based Catskill Mountainkeeper celebrated the NY DEC’s decision:

This weekend New York State stood up for our water, health, and communities when it DENIED National Fuel’s plans to build the Northern Access Pipeline–a proposed pipeline to bring fracked gas through Western New York.  This is a huge victory for grassroots activists on the front lines and organizations statewide that worked to make sure New York did the right thing.

Here’s my favorite text:

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The denial is very similar to NY DEC’s prior denial of the WQC for the proposed Constitution pipeline.

The NY DEC denials were made possible by huge public opposition generated and focused on NY Gov. Cuomo and the CWA 401 WQC by many NY environmental groups.

In contrast to the targeted, focused and aggressive public campaigns of New York based activists, NJ activists – as the Christie DEP rubber stamps pipeline permits – have done virtually NOTHING to pressure NJ Gov. Christie or the NJ DEP on the 401 WQC issue.

On top of neglecting to mount a public campaign, they have limited their efforts to flawed legal arguments. And spent hundreds of thousands of dollars and wasted the time of well meaning activists.

Specifically, in an August 2016 decision – a loss you probably didn’t hear very much about – here are the grounds that NJCF and SBMWSA legally challenged a NJ DEP WQC: (source federal 3rd Circuit Court of Appeals decision):

“New Jersey regulations require NJDEP to analyze the environmental impact of the proposed activity, such as the activity’s potential effect on water quality, the aquatic ecosystem, and threatened and endangered animals. The Foundation alleges NJDEP acted in an arbitrary and capricious manner because NJDEP (1) failed to adequately analyze alternatives to the proposed activity that would be less environmentally-adverse or result in the minimum feasible impairment of the aquatic ecosystem, (2) defined the project purpose in such a narrow manner as to exclude potential alternatives to the proposed activity, (3) improperly concluded that the proposed activity in connection with the Skillman Loop will not harm threatened or endangered species or their habitats, and (4) improperly determined that the proposal is in the public interest.

Look at this 4 attacks the Court summarized – they are all well worn and largely ineffective freshwater wetlands permit arguments – and note that the NJCF/SBMSWA challenge IGNORED THE NJ DEP SURFACE WATER QUALITY STANDARDS!

Silence – Despite the fact that the Clean Water Act Section 401 and the DEP freshwater wetlands rules explicitly require compliance with NJ Surface Water Quality Standards!

Compare that misguided NJ attack to the grounds upon which NY DEC denied two pipeline approvals!

This legal argument sounds a lot like the ineffective Hail Mary the same groups recently tried on breeding birds in Chesterfield compressor station.

Worse, the last minute shift in focus to birds undermined local efforts to focus on the Clean Water Act 401 WQC issues!

Houston – we have competence issues.

In case they missed it, we’ve been following NY events from afar and urging a targeted 401 WQC NJ campaign for YEARS: (regulatory arguments in red posts):

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