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Staff Reversed Prior Finding That Pipeline Violated The CMP

Reversal Allowed Project To Evade Strict Waiver Standards

BPU Pre-emption of Local Land Use Reviews Pending

Last Friday at the regular monthly meeting of the Pinelands Commission, Executive Director Wittenberg, during her routine Report to the Commissioners, casually mentioned that staff had issued a “Certificate of Filing” for the controversial South Jersey Gas (SJG) pipeline.

Pipeline opponents correctly expressed outrage over Wittenberg’s machinations.

But, their outrage was completely misdirected and their alleged surprise by Wittenberg’s “sneak attack” was flat out disingenuous.

If you read the original news reports (see this and this), you would think that the stunning new “sneak attack” – or “Pearl Harbor” – issues are the fact that the Commission will not vote on the pipeline project and that the project has been reconsidered as a “private” development application under Pinelands CMP rules.

That is a load of garbage and it misses the real story. Here’s why.

First of all, Wittenberg did not engage in a sneak attack.

For months, it has been well known and reported by the press that the SJG application was amended and that SJG was seeking to be considered a “private development”.

For months, it has been well known and reported by the press that the Pinelands Commission would have no vote and that there would be no public hearings before the Commission.

For months, I wrote several posts about all that and detailed the SJG strategy, see:

• “New” Pinelands Pipeline Proposal Based on Brazen Lies
• An Open Letter to Pinelands Executive Director Nancy Wittenberg
• Pinelands Commission Asked To Impose A Moratorium on Pipeline Reviews
• Mutiny In The Pinelands
• Pinelands Executive Director Caught On Tape Minimizing Impacts Of Pipeline

For months, while all these critical activities were going on behind the scenes at the Pinelands Commission staff level, Sierra Club and PPA were silent, both in testimony before the Commission and in the media. That reality belies their outrage about a “sneak attack”

So, what has NOT been reported by the press and what is the most significant and egregious action by Wittenberg is the reversal of the prior staff finding that the SJG pipeline was inconsistent with the Forest Area standards of the CMP because the pipeline did not “primarily serve only the Pinelands” as required by the CMP.

Although both SJG and BPU offered up a mishmash of arguments to attempt to claim that there was “new information”, in fact there are no “new” relevant and material facts or information that would justify a reversal of that finding.

Had the Commission staff stood by and re-affirmed the prior finding that the pipeline violated the CMP, the only alternative for SJG would have been to seek a waiver of strict compliance.

They could never have met the standards for a waiver, so, the pipeline would have been killed.

That’s the story folks, and I have no idea why it is not being told by PPA, Sierra and company.

Instead, they’ve muddied the water and let Wittenberg off the hook (she is right, she’s been saying its  a private application with no vote by the Commission for MONTHS and that’s been reported in the press for months too).

The painful irony is that avoidance of a Commission vote lets the Gov. and the Senate off the hook for dumping Commissioners Fagalia and Jackson and installing Barr.

Second, the mis-placed focus obscures the pending issue of BPU preemption of local land use reviews of the pipeline under the Pinelands CMP and how bizarre the process really is.

Here is that absurdity in a nutshell:

1) under the CMP, a private development application is issued a “Certificate of Filing’ and the land use review of the application is essentially delegated by the Pinelands Commission to local governments under their land use powers.

The assumption is that a “private development” is a minor project that is appropriate for a local government review, backstopped by the requirements that their local review must be consistent with the CMP.

2) If a local government review does not comply with the CMP, then the Pinelands Commission staff can “call up”, or conduct their own review of the project to correct the local government error or non-compliance.

3) However, SJG has filed a petition with BPU to pre-empt local land use reviews of the pipeline.

The Pinelands Commission has no authority to “call up” a Certificate of Filing review of a State agency.

4) Therefore, if BPU grants the SJG petition, then BPU – and BPU alone – would conduct the land use review of the pipeline under the CMP.

The absurdity rests in the fact that BPU has already issued 3 Orders approving the project and supported the project by acting in behalf of SJG by seeking a MOA with the Pinelands Commission to resolve the violation of the CMP.

Obviously, BPU can not objectively review a pipeline they strongly support.

Not only that, but BPU has no institutional role or staff expertise in land use or Pinelands ecology.

Now, how crazy is all that?

Pipeline Debate Brings Focus To Longstanding Health Threat

Hypocrisy in Hopewell

Source: NJ DEP Private Well Testing Act data – red is 20-40% of wells exceeding standard, dark red more than 40%.

[Important Update Below]

I don’t recall widespread attention given to the serious health risks of high levels of naturally occurring arsenic in private homeowner drinking water wells in upscale Hopewell Township [Full disclosure: I am a former resident whose kids went through Hopewell schools.]

I don’t recall action by the Board of Health or Resolutions by the Township Committee warning residents of those risks and urging that they immediately install treatment systems.

The most I could find was this short & vague advisory buried on the Township website – with no links to actual data or health science on risks.

Similarly, the DEP has posted this Homeowner’s Guide, but not given the issue much public education, media, or regulatory attention (for example, compared to indoor radon risks, another naturally occurring risk.

In fact, the whole issue of private wells tends to be swept under the rug – DEP has not published Private Well Testing Act statewide data in a consolidated Report for over 6 years. Instead, DEP buries the data on a website page in limited county and municipal formats (e.g. see Mercer and Hopewell data).

I don’t recall residents turing out in droves at public meetings demanding that the risks be reduced.

I don’t recall local and national media expressing any interest in the risks of arsenic in drinking water wells there.

I don’t recall residents concerned about the impacts of the arsenic on their children, their pets, their farm animals, and their property values.

I don’t recall Stonybrook Watershed or local professors with expertise issuing sworn testimony and making public statements in support of local Resolutions urging action.

Just the opposite – I recall local officials downplaying the risks of arsenic, opposing the costs of treating drinking water to meet the standard, and even drafting a Resolution opposing a DEP permit condition to reduce arsenic discharge to the Stony Brook, a stream hydrologically connected to Pennington’s water supply well.

So, with that history and context, I was stunned by the sudden emergence of arsenic risks as a major issue in Hopewell, with so many people so focused on arsenic and wells, including national coverage in today’s Huffington Post.

Ironically that HuffPo story confirmed exactly the concerns I raised recently about flaws in the strategy and tactics of anti-pipeline advocacy groups in these two posts:

• NY Environmentalists Call On Gov. Cuomo To Use Clean Water Act Power to Kill Gas Pipeline
• A Land Trust Is No Place for A Hard Hitting Climate & Pipeline Campaign

But aside from pipeline issues – and the fact that the various groups and individuals involved in the PennEast battle have expressed no concern for the drinking water risks of millions of their fellow NJ residents –  here’s the hypocrisy on the long ignored local Hopewell arsenic issue and : (HuffPo  story)

“The proposed pipeline route crosses every aquifer recharge zone that provides drinking water to local communities and every wetland that discharges water into the Delaware Raritan Canal,” said Onstott.

“These fractured rock aquifers,” he added, “are the sole source of water for the wells of hundreds of communities and farms. The aquifers are extremely sensitive to this type of construction because the six feet deep trench exposes the rock formation to air releasing the arsenic into the shallow water table. Even worse during the pipeline’s operation, methane leakage and the current from its cathodic shield will continue to mobilize arsenic for decades to come. There is not that much groundwater here to begin with, and the rainfall in this part of the world is not that great either. Dilution of this arsenic from fresh water recharge will be limited.”

He concluded that, “The Federal Energy Regulatory Commission (FERC) and Pipelines Hazardous Materials Safety Administration (PHMSA) need to be made aware that certain types of hydro-geological conditions make large-scale natural gas pipelines fundamentally incompatible with the safety of the communities living near them and high arsenic fractured bedrock is one of them.”

“Why?” he asked, “would the PennEast consortium risk the drinking water for thousands of people? They would have had to have been blind not to know this before they proposed their route.”

Yes, why would anyone risk the quality of the drinking water for thousands of people?

How many Hopewell homeowners have installed treatment systems for arsenic?

How many get involved in protecting drinking water as aggressively as their own private property rights and land values?

Ironically, DEP Commissioner Martin, who could KILL the PennEast pipeline by denying a DEP water quality certification, lives in Hopewell. Maybe they can reach out to him and ask about DEP’s powers under Section 401 of the Clean Water Act.

[Update 8/19/15 –  I want to include this exchange from a friend who criticizes this post. I’ve redacted the names of individuals, because they are not relevant to the discussion. I figure publishing this will lose me another friend,…

Just saw your Hopewell hypocrisy thing. Wish you would hold your fire sometimes till you knew more. PennEast will take anything you say and throw it back. Working backwards: I don’t THINK Bob Martin has been in Hopewell for ages he’s divorced with a new wife. I think he’s gone underground. Second the Hopewell professor is not a local professor he happens to live in Hunterdon and doesn’t even live on PennEast route but he is very interested in some the geochemical reactions and cares about the area and his neighbors. He flagged this with FERC last fall. Not many were interested until he started to discuss it.  He has an unusual angle. Heard quite a discussion about it last night up north. It’s not the traditional Hopewell players who are speaking up. If you saw some of the latest submissions you would see that NJCF really laid serious groundwork for water quality certificate. Just the way XXXXXXX did. And quiet XXXXXX. Heavy hitters are working hard and quietly behind the scenes. Don’t want to piss off Martin right now. Many do know the water quality certificate is important or even a dealbreaker. There is such an uphill battle that everything is needed if we have any hopes of stopping this. The blocking of surveys is having some effect. There is real question as to how far PennEast can go with incomplete application. Not being naïve.

My response:

The people and organizations I criticized do virtually nothing to protect drinking water in NJ – the fact that they latched on to the arsenic thing is opportunistic and cynical.

Ditto the Category One stream issue. Hopewell officials did not support DEP’s efforts to designate Hopewell Delaware tribe as C1 back in 2002-2003. COnservation groups have not lifted a finger as the C1 program is being dismantled right now by DEP.

The professor lives in Hunterdon – that is LOCAL. I didn’t claim he was from Hopewell, I said he was local.

I don’t care about Bob Martin’s private life or if he gets pissed off.

There is no strategic value in keeping anything quiet in fear that PennEast will use it against you – that’s a traditional excuse from leaders who like to work behind closed doors, don’t like to criticize public officials publicly, and don’t tolerate democratic dialogue and criticism.

PennEast knows the issues and your tactics thoroughly – they’ve done this everywhere. They have lawyers, lobbyists, PR flacks et al that are far better qualified than the environmental group leaders you rely on for strategic guidance. There are no secrets.

Real “heavy hitters” get their weight from working openly and publicly, and building democratic legitimacy, not by hiding behind the scenes. I have no use for that kind of tactic. Environmental leaders complain about the lack of transparency in government and then they replicate those flaws? That is BS in my book.

FERC will rubber stamp even an “incomplete’ PennEast application and environmental review.

DEP will not deny state permits for lack of technical information in the wake of a FERC approval.

You can bet on that.

Private property rights won’t prevail either.

No movement can be successful if they make alliances with and adopt the tactics of groups with antiethical interests.

Farmers don’t give a crap about water quality.

Private landowners have no use for the kind of regulatory power at DEP required to block this p[ipeline.

Conservation groups are land trusts frost and foremost, and will never alienate landowners, farmers, government regulators, foundations and their Republican and corporate boards who call the shots.

I don’t know too little – I know too much.

Proposed Constitution Pipeline A “Stake in the heart of NY”

Why No Focus on CWA 401 Powers and Christie BY NJ Activists?

NY DEC Building protest, Albany NY (8/11/15)

In stark contrast to NJ’s gas pipeline opponents, on Tuesday 8/11/15, NY groups held a protest at the NY DEC building in Albany NY to demand that Gov. Cuomo use the Clean Water Act’s Section 401 Water Quality Certification power to kill the controversial proposed “Constitution pipeline”:

The approximately 124-mile Constitution Pipeline has been designed with a capacity to transport 650,000 dekatherms of natural gas per day (enough natural gas to serve approximately 3 million homes). Buried underground, the 30-inch pipeline will extend from Susquehanna County, Pa., to the Iroquois Gas Transmission and Tennessee Gas Pipeline systems in Schoharie County, N.Y. The pipeline route stretches from Susquehanna County, Pa., into Broome County, N.Y., Chenango County, N.Y., Delaware County, N.Y., and terminates in Schoharie County, N.Y.

The Constitution Pipeline has been designed to transport [fracked] natural gas that has already been produced in Pennsylvania. 

“DEC NO 401 Water Quality Permit”

Here is how the Catskill Mountainkeeper sees the pipeline: note how right up front they focus on Gov. Cuomo and the CWA 401 power:

Big Oil and Gas wants to construct the proposed Constitution pipeline through our state to carry fracked gas from Pennsylvania to the highest paying markets. If built this pipeline will destroy over a 1,000 acres of forests and fertile farms, clear cut over 700,000 trees, and cross over 277 waterways in upstate New York. Tell Governor Cuomo and the DEC to do its job and deny the 401 Water Quality Certificate and Stop the Pipeline!

These are the tactics and strategy that led to victory in Cuomo’s fracking moratorium.

In contrast, NJ anti-pipeline activists are focused on a myriad of issues and tactics – from local Resolutions, to submitting FERC comments, to relying on property owners to deny access for surveys – so note how Mountainkeeper framed the Albany Action Alert, illustrating a perfect and concise message, political target, and killer regulatory strategy:

The Federal Energy Regulatory Commission (FERC) has jurisdiction over this inter-state pipeline and has conditionally approved it. But New York State has the power to stop it! Under section 401 of the federal Clean Water Act, the pipeline cannot be built unless our Department of Environmental Conservation (DEC) certifies that the state’s strict water quality standards will not be violated.

There is no possible way to tear through the sensitive hills, forests, wetlands, and streams where this pipeline is proposed without threatening water quality and degrading aquatic habitat. To do its job the DEC must deny the 401 Water Quality Certificate.

Please CLICK HERE to send your message to Governor Cuomo and the Acting Commissioner of the DEC asking them to deny the water permits and Stop the Constitution Pipeline!

Why are NJ groups not protesting in Trenton? Why are they not targeting Gov. Christie?

Why are they not focused on the Clean Water Act Section 401 power?

I urged them to do so in a post last month, and the only thing I heard back was thin skinned ego’s – criticism for criticizing them!

So, for those interested in working on the only state and local regulatory tool (including private land owner property rights) that is not pre-empted by FERC and can actually block a pipeline, here is additional useful information from the EPA’s Water Quality Standards Handbook: (read the whole thing, it is the Bible of the Clean Water Act):

5.3 Clean Water Act Section 401 Water Quality Certification

Section 401 of the CWA provides that a federal agency cannot issue a permit or license that may result in a discharge to waters of the United States unless the state or authorized tribe where the discharge would originate certifies that the discharge is consistent with certain CWA provisions as well as other appropriate provisions of state or tribal law. When making a water quality certification decision, a state or tribe may grant certification, grant certification with conditions, deny certification, or waive certification. Where the state or tribe has conditioned its Section 401 certification, each condition becomes a term of the federal permit or license (if it is issued).

The most common types of federal permits and licenses subject to Section 401 include the following:

• NPDES permits for point source discharges issued by the EPA under Section 402.
• Permits for the discharge of dredged or fill material issued by the Army Corps of Engineers under Section 404.
• Permits for activities in navigable waters that may affect navigation issued by the Army Corps of Engineers under Sections 9 and 10 of the Rivers and Harbors Act.
• Licenses required for hydroelectric projects issued by the Federal Energy Regulatory Commission under the Federal Power Act.

Congress intended for states and tribes to use the Section 401 certification process to ensure that no federal license or permits would be issued that would violate water quality objectives. Specifically, when evaluating whether to grant, condition, or deny a Section 401 certification, states and tribes consider whether the discharge, if authorized, would be consistent with effluent limitations for conventional and nonconventional pollutants, WQS, new source performance standards, and toxic pollutants (under Sections 301, 302, 303, 306, and 307). Section 401 also allows states and tribes to consider requirements of state or tribal law that may be more protective than the CWA when making a certification decision.

Protection of state and tribal WQS is the main goal of the Section 401 certification process. If a state or tribe grants water quality certification to an applicant for a federal license or permit, it is saying, in effect, that the proposed activity will comply with state or tribal WQS (and the other appropriate CWA and state or tribal law provisions). If a state or tribe denies certification, the federal permitting or licensing agency is prohibited from issuing a permit or license.

For additional information on Section 401 water quality certification, see the EPA’s Water Quality and 401 Certification webpage and Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool For States and Tribes(2010).

EPA also has a very useful Section 401 Handbook.

Here is how the State of Oregon implements Section 401 Certification:

A complete application for §401 certification typically includes the completed application for a federal license or permit, including detailed descriptions of the proposed project and anticipated aquatic resource impacts.84 At times, the list of components of a complete application can be lengthy. For example, Oregon has identified a complete §401 certification application for a §404 permit as including: the legal name and address of activity owner or operator; legal name and address of the authorized representative; name and addresses of contiguous property owners; complete written description of activity, including maps, diagrams, and other information; names of affected waters, including wetlands and tributary streams; land use compatibility statement; identified steps that will be undertaken to prevent violation of water quality standards; copies of environmental information submitted to the federal licensing or permitting agency; confirm status of waters impacted by the project, including if they are on 303(d) lists or subject to a Total Maximum Daily Load (TMDL) calculation; evaluation of potential water quality standard violations or contribution to violation; and identification of mitigation measures.85 Oregon also identifies additional information that may be required for projects in wetlands and streams and for hydropower projects.

The advantage of a clear description of components of a complete §401certification application is that applicants know what they must be prepared to provide, and applicant and agencies alike understand when the review timeframe has begun.

How does NJ implement Section 401?

Citizens should file OPRA requests to DEP (you can do it on line, it’s free!) and ask for their 401 certification regulations and guidance and policy and procedures. Otr ask any questions that arise from reading the 401 Handbook! (See also EPA FERC 401 review Guidance:

What federal FERC regulated pipeline companies have filed 401 certification requests to DEP? When were they filed?

Timing is critical, because a State has 1 year from filing to decide to approve or deny – after 1 year, the application is deemed approved.

The 401 certification process has been interpreted to apply broadly to other State approvals:

Water quality certifications under §401 reflect not only that the licensed or permitted activity and discharge will be consistent with the specific CWA provisions identified in sections 401(a) and (d), but also with “any other appropriate requirements of State [and Tribal] law.”111 Some State regulations explicitly identify considerations relevant for §401 certification, while others do not. For example, Ohio’s regulations state that certification may be denied if the activity will “result in adverse long or short term impact on water quality.”112 Similarly, river designation under the Wild and Scenic Rivers Act might be a relevant consideration independent of a state or tribe’s water quality standards.113 For example, Georgia considers a suite of other state regulations under its review including compliance with the state Erosion and Sedimentation Act for buffer integrity, construction and post-construction stormwater management, and the adequacy of mitigation. In addition, the Georgia water quality certification authority also coordinates with the Coastal Resources Division to insure project compliance with coastal protection regulations. Another relevant consideration when determining if granting 401 certification would be appropriate is the existence of state or tribal laws protecting threatened and endangered species, particularly where the species plays a role in maintaining water quality or if their presence is an aspect of a designated use. Also relevant may be other state and tribal wildlife laws addressing habitat characteristics necessary for species identified in a waterbody’s designated use.

While the Section 401 Certification process applies only to federal projects (e.g. FERC interstate pipelines), the Water Quality Standard can be very useful tools in stopping intrastate pipelines – particularly with respect to Category One streams – as well as stop all sorts of bad projects that lower water quality – physical, chemical and biological. (ask the folks in Clinton what killed the Windy Acres development: i.,e. failure to protect existing biological uses reliant on high water quality aquatic habitat).

I hope this information is helpful.

[End note: FERC doesn’t give a damn about local concerns or democracy or protest. Congress is in the pocket of the energy industry and changes in federal law are remote. Only lawsuits and civil disobedience will stop them. I’m not naive to think Gov. Christie ares either or that his DEP would ever deny a 401 Certification. But the 401 tactic lays the foundation for a lawsuit and it focuses the accountability where it belongs. The next Gov. will have to defend his own policy on pipelines and his own energy and climate policy. So activists need to lay these legal and political foundations, which they are not doing right now].

A Different View

A View of the Mountain Pass Called the Notch of the White Mountains (Crawford Notch) (Thomas Cole -1839)

Crawford Notch – still awesome, but tamed by auto (8/13/15)

Here’s a shot from walking along the Notch Train, across the face of the mountain – I didn’t go more than 1/2 a mile, because, as you can see, the ROW is narrow and if a train came, …..

Serious Climate Change, Coastal Issues, & Christie Political Accountability Ignored

I posted this photo on August 12, 2012, just weeks before Sandy hit. Note the vulnerable houses – sunrise in Mantoloking, ground zero for Sandy.

The annual summer joint meeting of the Legislature’s Senate and Assembly Environmental Committee’s meets today in Lavallette at 10 am  in the First Aid Building – here is the agenda:

The Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee will meet to hear testimony on the cleanup of the Forsythe National Wildlife Refuge after Superstorm Sandy.  The committees will also hear testimony on the need for soil restoration standards.

Yesterday, I wrote a post about why – with Christie bragging about dismantling NJ environmental programs on a national stage – that hearing amounts to political malpractice.

So today, I thought I’d highlight a few issues that are being ignored – obviously the most impotent (haha! is that a Freudian typo? I meant “important”!) being climate change, especially given that tomorrow is the first public hearing on Christie’s Energy Master Plan.

It’s not hard to build many linkages between climate change and coastal issues.

But the traditional focus of the special joint hearing has been coastal issues, so I thought I’d rehash an excerpt, with good links, to a post I did in August 12, 2012, just weeks before Sandy struck.

Here’s my set up for the context at the time of the August 2012 Hearing – note especially the last paragraph:,

The context for this year’s hearings is framed by another year of stinging jellyfish and growing threats of ecological collapse and harmful algae blooms in Barnegat Bay –

But far more serious problems lay buried beneath the radar.

Every now and then, a crisis provides a glimpse of the scope of those problems, which quickly fade in the 24 hour news cycle.

That is a radical departure from how things worked back in the day – like when rivers caught fire, politicians responded to public demands and passed the Clean Water Act.

For example, the recent Monmouth County water pipeline break was a perfect illustration of NJ’s multiple vulnerabilities to global warming – extreme weather, storm surge, sea level rise, coastal hazards, infrastructure, and climate change adaptation.

Unfortunately, things have not changed much, but actually gotten worse across the board, since then (see this and this and this).

The Legislature is abdicating it’s oversight and legislative roles to set policy that better protects the coast and respond to climate change – an existential threat ignored by Gov. Christie.

The foreground – and the house it was shot from – were wiped out by Sandy. How’s that for a caption?