DEP Dirty U-Turn
NJ Natural Gas Withdraws Stream Permit, qualifies for deregulated DEP approval
In a remarkably corrupt, cynical and significant regulatory move, the Christie DEP just determined that a pipeline crossing a stream will “not disturb the stream in any way“, thereby virtually deregulating pipeline stream crossings.
Just as pipeline activists finally began to focus on the achilles heel of pipeline regulatory vulnerability – the DEP Clean Water Act water quality certificate requirements – the Christie DEP and lawyers for NJ Natural Gas’ Southern Reliability Link (SRL) pipeline have made an end run around that vulnerability.
The regulatory U-Turn stunt recalls the equally brazen move to skirt Pinelands Commission approval and public hearing requirements.
DEP just very quietly determined that “horizontal directional drilling” (HDD) – i.e jacking a pipeline under a stream – does not create any impact on the stream, i.e. does “not disturb the stream in any way”
The proposed NJNG SRL pipeline will cross 43 streams.
Under the Clean Water Act and NJ State Water Quality Standards, NJNG was highly vulnerable to legal challenges of DEP approvals of those crossings, based on adverse impacts to water quality (i.e. existing physical, chemical, and biological characteristics).
DEP made this determination on the NJ NG SRL pipeline through the Pinelands.
But this DEP determination will set precedent for all pipelines. And it will impact not only Flood Hazard Area permits, but other DEP regulatory approvals under the Clean Water Act and NJ State water quality standards.
First, here’s what happened (correspondence provided upon request, h/t Teressa Lettman of PPA) – then we’ll tell you what it means.
1) On August 29, 2016, NJNGas withdrew their Flood Hazard “Individual Permit” (IP) Application for the pipeline route. That permit application had been under review by DEP for over 1 year and public hearings were scheduled.
2) On September 12, 2016 NJNGas submitted a new application for a Flood Hazard Applicability Determination for a “Permit By Rule” (PBR).
3) On September 16, 2016 the NJ DEP issued a PBR eligibility determination– DEP found that no formal IP authorization for the proposed project was required and that the pipeline qualified instead for PBR’s under Flood Hazard rules.
A “permit by rule” is essentially deregulation – there is no permit application that is reviewed by DEP. Instead, NJNG privately certifies compliance with vague regulatory requirements. There is no public hearing and no opportunity for the public to comment on a PBR, and no obligation that the DEP respond to public comment. It is not even clear if and how a PBR can be legally challenged administratively and in the courts.
Basically, briefly, the argument is this:
1) Under DEP Flood Hazard Act regulations (NJAC 7:13-7.36), in order to quality for a permit by rule (PBR), the pipeline jacking and/or crossing the stream must “not disturb the stream in any way“.
In making the PBR “applicability determination”, DEP thereby agreed that the pipeline crossing would “not disturb the stream in any way“, via the determination that the project was eligible for the PBR.
This is a highly substantive determination (legally and scientifically/factually) because it determines regulatory requirements and outcomes, including for related DEP permits and approvals.
2) By making this finding, DEP just eliminated any possible water quality standards or Clean Water Act Section 401 Water Quality Certificate challenges we could make.
If a stream crossing does not “disturb the stream in any way” there is no way DEP can deny a water quality certificate or find a violation of State DEP Water Quality Standards.
This DEP determination that a PBR applies must be challenged legally as “final agency action” made without any public process (lack of due process) and that lacks any scientific basis (arbitrary and capricious).
Also keep in mind that DEP Assistant Commissioner Ginger Kopkash testified to the Senate Environment Committee during consideration of legislative veto resolution SCR 66 on the DEP’s Flood Hazard rules that DEP would never issue a “permit by rule” or “general permit” to a pipeline – she said an individual permit would be required.
The DEP’s new FHA rules that survived that veto made it easier to approve pipelines across streams.
The Christie DEP weakened regulatory standards and made it easier by: 1) eliminating a prohibition on disturbance of Category One stream buffers; 2) increasing the allowing disturbance of soils and vegetation in the “riparian zone”; 3) eliminating a cap on riparian disturbance and allowing mitigation; and 4) relaxing a restriction on eligibility for the “permit by rule” to exempt impacts from certain pipeline related construction activities that disturb vegetation and soils and negatively impact water quality.
We warned legislators and readers about this during the SCR 66 debate.
This is the PBR DEP just found that SRL qualifies for under the weakened FHA standards.
So, on top of the horribly corrupt policy and DEP approval process, we have more DEP lies.
There is an audio tape of the Senate hearing that some intrepid reporter might want to listen to and ask Ms Kopkash and her collaborators at the DEP press office about in light of the SRL PBR determination.
[End Note: Here is what DEP said about the very limited nature of Permit By Rule in the Flood Hazard rule proposal – obviously a lie in light of the SRL PBR decision:
Activities authorized under the existing permits-by-rule are also generally limited to activities that do not constitute a “major development,” which is defined under the SWM rules at N.J.A.C. 7:8-1.2 to be a project that disturbs an acre of land and/or results in the creation of one-quarter an acre of impervious surface. Therefore, under many permits-by-rule, a person can undertake an activity that results in the loss of up to one-quarter an acre of riparian zone vegetation where “previous development or disturbance has occurred.” However, a person intending to undertake a project for which all requirements of a given permit-by-rule are not met must instead apply for and receive an authorization under a general permit or an individual permit under this chapter. In the majority of cases, an individual permit must be obtained, which subjects the activity to the requirements of existing Table C. Since the limits of Table C are in many cases much more stringent than that which could be allowed under a permit-by-rule for similar activities, this has led to an inconsistent approach toward riparian zone protection and has caused confusion among the regulated community. In order to harmonize the types of activities allowed under the different permits within this chapter, proposed N.J.A.C. 7:13-11.2(f)1 provides that the net loss of up to one-quarter acre of riparian zone vegetation within an actively disturbed area is not subject to proposed Table 11.2.