Home > Uncategorized > DEP Letter to FERC on Environmental Review of PennEast Pipeline Has Huge Gaps

DEP Letter to FERC on Environmental Review of PennEast Pipeline Has Huge Gaps

Ignores Climate Change, Water Quality, and C1 Stream Protections

Nishisawick Creek

Nishisakawick Creek (C1) Frenchtown, NJ

[Updates below]

Tom Johnson at NJ Spotlight has an interesting story today on a DEP July 2, 2015 letter to FERC regarding DEP review and permitting for the Penn East pipeline – read the whole thing.

I just read the DEP letter and think the favorable reception it is getting is exaggerated. The DEP concerns raised were boilerplate regulatory requirements and none could support a denial of permits for the project.

Aside from the issue of private property owners denying access for surveys (ironically, those same private property rights arguments are used to defeat environmental and land use protections –  a tactic that won’t work, see this primer), the DEP regulatory review had some serious flaws, which I will just briefly note here for project opponents to follow up on. (and why are they not aggressively targeting Christie and demanding DEP permit denials? Read on).

Amazingly, the DEP omitted the one regulatory tool it has to sustain a denial of permits for the pipeline from FERC preemption – compliance with Clean Water Act requirements.

1) Category One Streams Ignored

The Freshwater fisheries and storm water groups at DEP – whose review comments were included in the DEP FERC letter – are both directly involved in implementing Category One stream protections, so it was very curious that both failed to mention that the pipeline would cross Category One streams that currently have 300 foot buffers.

Those streams were designated under Clean Water Act mandated State surface water quality standards as C1 based on “exceptional ecological significance” due to the presence of aquatic dependent species (which are legally “existing uses” of the streams).

Category One streams are designated under the EPA approved NJ Surface Water Quality Standards required by the federal Clean Water Act. The C1 300 foot buffers are designed as water quality “Best Management Practices” under the storm water management rules. Those C1 stream buffers and BMP’s were used by DEP to demonstrate compliance with federally mandated “anti degradation implementation procedures” for the State’s anti degradation policy, which also is required under the Clean Water Act. Finally, local ordinances to implement the stormater buffers are a required part of the EPA mandated MS4 municipal storm water permit program, so there are multiple federal hooks associated with C1 buffers.

In addition to a 300 foot buffer and protection for all “existing uses”, C1 streams are protected from  any measurable change in exiting water quality. That is known as a State anti degradation policy required under the Clean Water Act.

A pipeline disturbance of a C1 buffer would have to demonstrate that existing water quality would be maintained and that all existing uses (including aquatic dependent species and their habitat) are protected.

I don’t think omission of C1 streams was accidental – that is obviously intentional because DEP just proposed to REPEAL C1 buffers. It would be awkward telling FERC and activists about that, eh?
2) The Clean Water Act tool that could form valid basis for DEP to deny permits was ignored 
There was no water quality standards or water quality impact or water quality certification requirements mentioned –
The Clean Water Act requires a water quality certificate by DEP that the pipeline meets State water quality standards, including protection of wetlands and compliance with anti degradation policy (c1 “no reduction in existing water quality” (measurable or projected)..
That tool was used by Connecticut to stop a proposed pipeline from Connecticut to NY under LI Sound – upheld by federal Court of Appeals.
It is the State’s strongest tool to defeat FERC pre-emption (the only other State legal tool is the Coastal Zone Management consistency determination)
The C1 streams that would be crossed have a strong Clean Water Act based water quality standard and anti degradation policy- no reduction in existing water quality.
Those requirements could kill the pipeline and it was left out by DEP! 
 [Update: for those reluctant to take my word for this, see this helpful overview of State permit requirements  and FERC from our friends in Connecticut:
Federal law requires that an applicant for a federal license or permit to conduct an activity that may result in a discharge into navigable waters obtain a state certificate (a “401 permit”) that the discharge will comply with the federal Clean Water Act and state water quality standards.


An applicant for a federal license or permit whose activity may result in the discharge of dredged or fill material into navigable waters, including wetlands, must obtain a state Water Quality Certificate under § 401 of the federal Clean Water Act (33 USC 1314). (Navigable waters are generally considered those subject to the flow of the tide, and used in interstate transport or foreign commerce).

Certification is generally made in conjunction with issuance of a state permit under the structures, dredging and fill laws. Conditions contained in a water qualify certificate become conditions of the federal permit or license.

In reviewing an application for a 401 permit, DEP must consider the effects of proposed discharges on ground and surface water quality and on the existing and designated water use. Such discharges could include the discharge of dredged and fill material or storm water during construction, in the incidental discharge of sediments during dredging operations, and any excavation, land clearing and grading in, or affecting, navigable waters.

3) Climate change impacts Fugitive and Lifecycle Greenhouse gas emissions ignored
The air quality review failed to consider fugitive pipeline emissions of methane, a powerful greenhouse gas that is regulated under NJ DEP regulations as an air pollutant.
The air quality review did not consider lifecycle and cumulative GHG emissions, from fracking through gas combustion – again, this is a MAJOR issue.
If DEP were serious about killing this pipeline, they would have began to build the administrative record to do so, based on Clean Water Act requirements.
They are not serious. They’re ducking and hoping private landowners can erect enough barriers and delays so they PennEast withdraws and they won’t have to make a decision.


Given that DEP has the power to deny Clean Water Act based permits and sustain a legal challenge from FERC preemption, why are pipeline opponents not focused and demanding that Governor Christie kill this project?

(HELLO! Just like he exercised his veto power to kill the first off shore LNG project.)

Why instead are opponents focused exclusively on local tactics and land use issues that can not kill but can only delay the project?

Update: 7/23/15 –  We really don’t enjoy saying “I told you so”, but for those duped by the DEP letter to FERC and under the delusion that the Christie DEP would aggressively oversee and enforce environmental laws, PLEASE read today’s NJ Spotlight story:

Larry Hajna, a spokesman for the DEP, said PennEast did obtain a permit for the operation in order to go deeper than 50 feet.

The driller contacted the well-permitting program before proceeding and got the necessary permit,” Hajna said. “The driller has the permission of the property owner for the current activities.”

Hajna said the company obtained potable water from a local fire department ahead of time, casting doubt on DRN’s claims that the company was drawing water from the pond.

It’s hard to tell what really went on without visiting the site and doing a file review, but it sounds like Riverkeeper or reporter Jon Hurdle missed the permit that PennEast failed to get: a NJPDES discharge permit for the water discharged to the pond.

But that just shows major flaws in the permit process and DEP oversight, because apparently PennEast got well drilling permit, but no one seemed to know about that and it lacked adequate conditions regarding the source of water and the discharge of wastewater.

Bottom line: the Christie DEP is NOT going to aggressively enforce environmental laws against pipeline companies.

Furthermore, environmental regulations are flawed – they have gaps and loopholes.

Regardless of the eutrophic state of that pond, a man made discharge to it requires a permit under NJ’s Water Pollution Control Act.

PennEast did not secure such a permit and DEP failed to enforce those requirements.

Note also how the well drilling permit was issued by DEP without adequate public review or onsite compliance inspection during drilling activities. The manpower requirements of environmental regulations are another major flaw, as DEP is downsized and lacks an effective field compliance and enforcement presence.

Note how PennEast benefitted from technical uncertainty about the source of discharge to the pond – whether it was groundwater seep or a man mane discharge. This is another typical game polluters play to violate regulatory requirements and evade enforcement action.

Don’t be fooled by DEP or the so called ability to effectively regulate a pipeline.  ~~~ end update]

Wicheoki Creek

Wickecheoke Creek (C1) Delaware Township, NJ

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