Western Mass pipeline fighters win legal battle over Clean Water Act

Otis State Forest Entrance
State agencies have the right to hear Clean Water Act challenges related to natural gas pipelines, the First Circuit ruled on March 15, 2017. (Mary Serreze photo)
by Mary Serreze, Special to The Springfield Republican
March 20, 2017

BOSTON — Western Massachusetts residents fighting the Connecticut Expansion pipeline won a legal battle last week when a federal appeals court agreed that Clean Water Act challenges under the U.S. Natural Gas Act should be heard by the states, and not by a federal court.

The First Circuit Court of Appeals ruled on March 15 that it has no jurisdiction to hear a Section 401 Water Quality Certification appeal related to the 14-mile, three-state project proposed by Tennessee Gas Pipeline Co., a Kinder Morgan subsidiary.

The judgment affirms the Massachusetts Department of Environmental Protection’s right to conduct its own permitting process — from beginning to end — when it comes to applications from gas pipeline firms to alter streams, ponds, and other water resources under its jurisdiction.

The ruling came as the result of a legal action by members of the Berkshire Environmental Action Team, or BEAT.

“Although we are disappointed with the Court’s decision, we are confident that we will successfully complete the permit processes, and look forward to executing on this project to increase deliveries of clean, domestic natural gas for New England consumers,” said a Kinder Morgan spokesman.

Tennessee had argued that such challenges should be heard by the First Circuit, and asserted that letting the state handle the appeals process could lead to a lengthy delay.

Tennessee gained a Federal Energy Regulatory Commission certificate for the project in March and had hoped to have the pipeline up and running by November 2016.

Tennessee first filed for a required water quality certification on June 30, 2015. MassDEP issued a conditional certificate one year later, and pipeline opponents quickly filed an appeal. That appeal is pending, and MassDEP says it will issue a ruling by April 3.

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