The Transco Compressor Station and Gas Pipeline Dewatering Permit Is Not In the Public Interest
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:
And if you think they care about the environment, look at these construction shots: