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The Section 401 Water Quality Certificate Ice Is Broken

Pipeline Debate Finally Shifts to DEP & Clean Water Act Power


Please Steal This Work

Finally, the pipeline debate is directly focused on where it should have been for a long time, and ironically it was FERC – not NJ activists – who finally broke the ice and brought that focus, see David Levinsky’s story in the Burlington County Times:

Feds deny utility’s request to begin work at Burlington County compressor site

“Once Transco obtains a Clean Water Act Section 401 Water Quality Certificate and Section 404 Permit from the New Jersey Department of Environmental Protection for the proposed electrical substation, valve site, and associated piping at Compressor Station 203 and the Chesterfield Meter Station sites, we will reconsider a construction authorization for these facilities,” Alisa Lykens, a chief with the commission’s Division of Gas-Environmental and Engineering, said in the letter.

Pipeline activists, the media, and NJ policymakers can no longer avoid the issue they long have.

The FERC letter to Transco makes it absolutely clear that the Christie DEP will decide the fate of the pipeline.

So, I again urge activists out there across the state to mount a focused campaign on the DEP Water Quality Certificate power that Connecticut (Islander East) and New York (Constitution) used to kill proposed pipelines.

Here is the EPA Section 401 Water Quality Certificate Guidance document that provides the legal and scientific framework.

Here is the NJ DEP regulatory framework: Connecting the Dots Between Pipelines and Clean Water.

And below is a draft Resolution I wrote that you can urge local governments and State legislators to pass to put some pressure on the Christie DEP. It can readily be reformatted into a press release or activist talking points and action items too!

Go for it! It’s only the bottom of the 9th, 2 out, no one on base, and the count is 0-2. You’re down 6-0. The crowd is in the parking lot on the way home and your 2nd baseman with a .240 average and 2 career homers is batting. 

You’ve spent the first 8 innings bunting to get to first base with FERC. You’ve been playing Small Ball, but now its time to swing for the fences!

Just think, if all that time and money and thousands of activist hours you wasted FERC-ing off had been focused on calling out Governor Christie and DEP on 401, you might have gotten the results the NY activists have.

(but despite this abysmal failed strategy, the high paid head coach and his manipulative megaphone minions won’t get fired by the GM and Board. Why is that?)

So PLEASE steal this work and run to the press and your Foundation and Legislator friends with it!

Just change a few words around, issue a press release, hold a State House event, and say you were keeping your powder dry and just waiting for the right time to deploy it!

WHEREAS, “Section 717(c) of the Natural Gas Act preserves the applicability of the Clean Water Act to projects subject to the Federal Enegy Regulatory Commission’s (FERC) certification authority and does not preempt State authority;

WHEREAS, pursuant to the Clean Water Act, States are responsible for enforcing water quality standards on intrastate waters. 33 U.S.C. § 1319(a);

WHEREAS,  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)

WHEREAS,  Section 401 of 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. . . .”

WHEREAS, the US District Court of Appeals upheld the State of Connecticut’s denial of a water quality certificate to the Islander East pipeline, see: United States Court of Appeals, Second Circuit.·525 F.3d 141 (2d Cir. 2008)


WHEREAS, on April 22, 2016, the NY State Department of Environmental Conservation denied a Water Quality Certificate to the proposed COnstittuion pipeline, see


WHEREAS, pursuant to the Clean Water Act, the NJ Department of Environmental Protection (DEP) has been delegated authority by US Environmental Protection Agency (EPA) to administer and enforce the Clean Water Act in New Jersey, including EPA approved NJ surface water quality standards (SWQS) NJAC 7:9B-1 et seq. and issue a Section 401 water quality certificate (WQC);

WHEREAS, pursuant to NJ DEP regulations, compliance with NJ SWQS is made explicit in the NJ DEP Freshwater Wetlands permit rules:(NJAC 7:7A-2.1(d))

(d) A permit issued under this chapter shall constitute the water quality certificate required under the Federal Act at 33 U.S.C. §1341 for any activity covered by this chapter. If a discharge of dredged or fill material into waters of the United States, as defined at N.J.A.C. 7:7A-1.4, does not require a permit under this chapter but does require a water quality certificate, the Department shall use the standards and procedures in this chapter to determine whether to issue the water quality certificate, except in the New Jersey Coastal zone, as described at N.J.A.C.7:7E-1.2(b).

WHEREAS,  NJ DEP’s Freshwater Wetlands Act permit regulations apply to FERC regulated pipelines and require compliance with the NJ SWQS and prohibit DEP from issuing any permit that might violate them: (NJAC 7:7A-7.2):

(b) The Department shall issue an individual freshwater wetlands or open water fill permit only if the regulated activity:

[1. – 4.

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

WHEREAS, on (INSERT DATE) (INSERT COMPANY NAME) applied for a water quality certificate and freshwater wetlands act permits from the NJ DEP

WHEREAS, (NAME TOWNSHIP), based on review of (INSERT STUDY OR REPORT or PERMIT APPLICATION OR FERC EIS), believes that the proposed (NAME PROJECT) would adversely impact surface waters (describe names of streams crossed and wetlands impacted) and violate applicable NJ Surface Water Quality Standards;

THEREFORE be it RESOLVED, that the (TOWNSHIP) calls upon Governor Christie and NJ DEP Commissioner Martin to deny issuance of a Clean Water Act water quality certificate approval of (NAME PROJECT).

And don’t forget to praise Governor Christie and DEP – they’re your friends you know!

THIS is what hypocrisy looks like!

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