Microsoft Word 2019 04 29 LETTER NJ 401 comments

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1 May 2, 2019 Robert Hudgins Division of Water Supply & Geoscience Mail Code 401-04Q P.O. Box 420 Trenton, New Jersey 08625-0420 ation Application of the Northeast Supply Re: Comments on the Water Quality Certific Enhancement (NESE) Project , NJDEP File No. 0000-01-1001.3 Dear Mr. Hudgins: ertification Thank you for the opportunity to comment on the Water Quality C pany, LLC (“Transco”) for the Application submitted by the Transcontinental Gas Pipe Line Com Northeast Supply Enhancement Project. These comments are submi tted on behalf of the Natural Resources Defense Council (“NR DC”) and its over 76,500 members and activists who live in s to urge the New Jersey Depar tment of Environmental New Jersey. In brief, NRDC write partment”) to deny water quality certification to the NESE Protection (“NJDEP” or the “De iled to demonstrate that it wil l satisfy New Jersey state water pipeline, as the pipeline has fa quality standards as set fort h in N.J.A.C. 7:9B and N.J.A.C. 7: 9C. Northeast Supply Enhanceme As you know, nearly ten miles of the nt pipeline is proposed reville and Old Bridge Township s, Middlesex County, and in to be built in New Jersey—in Say ay, lower New York Bay, and the A tlantic Ocean. These New Jersey waters in Raritan B waterbodies are an important source of recreation for millions of people, and support numerous aquatic animals, including the e ndangered North A tlantic right whale, the endangered fin whale, and the endangered Atlantic sturg l on a path of eco logical recovery eon. These waterbodies are al that could be disrupted by the construction of this pipeline. While construction activities asso ciated with the pipeline coul d violate New Jersey water quality standards in every wat erbody that is crossed, our comme nts focus on just one aspect of the construction process—the 6 m iles of offshore construction t hrough Raritan Bay—and how standards. this construction alone would fa il to meet state water quality

2 Specifically, construction of the pipeline would increase the l evel of total suspended would render the wat solids in Raritan Bay t er unsuitable for designated uses, in o an extent that it violation of 7:9B-1.14(d)(7). C onstruction would also resuspen d toxic substances in the water column such that they would be detr imental to the natural aquat ic biota, rendering the waters unsuitable for the designated us )(12). Resuspended sediment es, in violati on of 7:9B-1.14(d a for several contaminants, including mercury and copper, as could also exceed numerical criteri set forth in 7:9B-1.14(d). In support of these points, our co mments are divided into three parts. Part I describes the ecological area in which it would be built. Part II sets forth proposed pipeline and the important Jersey’s water quality certific ation decision. Finally, Part III the statutory framework for New explains the many ways in whic h the Northeast Supply Enhancemen t Pipeline could violate New Jersey water quality standards. I. Background Natural Resources Defense Council a. Council is an international, nonp rofit environmental The Natural Resources Defense organization with more than three million members and online ac tivists, including over 76,500 members and activists in New Jersey. For five decades, NRDC ha s been committed to the preservation, protection, and defe nse of the environment, publi c health, and natu ral resources. NRDC has a long history of litiga ting and advocating for clean water at both the federal or example, it helped enact level and in New Jersey. In 1972, f the Clean Water Act, America’s bedrock water-protection l aw, and most recently, in 2015, NRDC was a principal advocate for lean Water Rule, whi ch returned guaranteed the issuance of the C protections under the Clean Water Act to hundreds of thousands of miles of streams and tens of millions of acres of wetlands across the country. In the 1990s N RDC brought federal Clean Wa ter Act litigation that led to the establishment of total maximum daily load (TMDL) pollution stan dards in New York’s upstate reservoirs and other state water ey advocate since the 1970s for bodies. NRDC has also been a k full cleanup of toxic PCBs from the Hudson River. b. The Northeast Supply Enhancement Project The Northeast Supply Enhancement Project (“NESE” or the “Projec t”) is an expansion of the Transco Pipeline, a natural gas pipeline which runs from Te xas to New York City. The almost $1 billion project is owned by Williams Partners, L.P. ( “Williams”), one of the largest natural gas pipeline companies in the United States. The propos ed pipeline is divided into three sections—two of which, the Mad ison Loop and the Raritan Bay Loo p, would cross through New r half of which (6 miles) would Jersey for nearly ten miles, ove occur in offshore New Jersey waters. 2

3 The onshore portion of the pipeli ne, the Madison Loop, would ru n for approximately 4 1 miles and cross eight waterbodies, es would be located in the and an additional four waterbodi construction work area of the pipeline. Additionally, the pipe line would cross two major groundwater aquifers—the Potomac- Raritan-Magothy Aquifer system , which includes “some of 2 and the Diabase of New Jersey,” aquifers in the Coastal Plain the most productive and extensive 3 Aquifer . The pipeline would also cross at er, the New Jersey Coastal least one sole source aquif 4 This aquifer supplies approxi Plain Aquifer System. g water for mately 75 percent of the drinkin 5 The pipeline also crosses five Wellhead Protection Areas about 3 million New Jersey residents. (WHPAs), the area around a public drinking water well where con taminants could enter and 6 pollute the well. Once offshore, the Raritan Loop segment of the NESE would cross in and out of New Jersey and New York State water s—through three major waterbodie s: Raritan Bay, Lower New 7 York Bay, and the Atlantic Ocean —totaling 6 miles in New Jerse y State waters and about 17.3 8 miles in New York State waters. When a pipeline is built through a waterbody, the crossing can be undertaken in two ways: either by cutting a four- to sev of the watercourse, a process known en-foot trench along the bottom as “trenching,” or by tunneling the pipeline under the waterbod y, which is known as “Horizontal Directional Drilling” (“HDD”). W hen a pipeline is constructed through a waterbody via trenching, a trench is dug through the wate rbody, either using a clamshell dredge or a jet trencher, and the pipeline is laid into it. With the HDD method, a tunnel would be drilled under the sea floor and the pipe then routed through it. While each method has the potential to degrade water quality, trenching is generally 9 Trenching can result in understood to be more the more harmful method of waterbody cros sing. or the duration of construction. t within the right-of-way f 100 percent loss of sea floor habita g habitats, increas ing turbidity and rt of the sea floor, destroyin This process directly tears up pa 10 . sedimentation (i.e. the depositi ng of soil and silt into water) 1 at 2-24. Id. 2 Id. at 4-24. 3 Id. at 4-23, t. 4.3.1-1. 4 Id. at 4-25. 5 Id. 6 Id. at 4-29. 7 Id . at 4-139. 8 Id. at 2-1. 9 See U.S. Army Corps of Engineers, Sediment and Erosion Control Guidelines for Pipeline Projects 2, available at https://goo.gl/V3T8Uv (last visited Mar. 15, 2019). 10 Lucie Levesque & Monique Dube, Review of the Effects of In-Stream Pipeline Crossing Construction on Aquatic Ecosystem s, 132 Envtl. Monitoring & Assessment 395, 396–98 (2007), available at https://goo.gl/N2soGd 3

4 As explained in the environmental impact statement, most of the pipeline’s waterbody crossings in New Jersey will be built using a trenching method, disrupting over 3,700 acres of 11 In Raritan Bay in New Jersey, less than 1 mile of the pipelin e would be dug using ocean floor. be installed in a trench created the HDD Method and the remaining 6 miles of the pipeline would 12 by either a clamshell dredge or jet trencher. The width of the construc tion right-of-way for the 13 offshore segment of the Raritan Bay Loop would be 5,000 feet wi de, affecting over 3,843 acres 14 Once a pipe is laid, the entir of land. n be backfilled. This e length of the trench must the process also kicks up large volumes of sediment. c. New York York-New Jersey Harbor Estuary ould cross three major waterbod ies—Raritan Bay, As explained earlier, the NESE w 15 Lower New York Bay, and the Atlantic Ocean. Both Raritan Bay and L ower New York Bay are parts of the New York-New Je rsey Harbor Estuary (“New York Harbor”), which opens onto the New York Bight in the Atla ntic Ocean to the southeast. Col lectively, these bodies of water ervices, host endangered and thre provide important ecological s atened species, and support a 16 wide variety of recr eational activities. [hereinafter “Levesque”]; Sc Effects of Sediment Released During Open-Cut Pipeline ott Reid & Paul Anderson, 24 Can. Water Resources J. 235, 240 (1999), available at https://goo.gl/6NPnFV Water Crossing, [hereinafter “Reid”]. 11 Federal Energy Regulatory Commission, Northeast Supply Enhance ment Project - Final Environmental Impact Statement, Docket No. CP17-101-000, at 2-9, t. 2.2-1 (20 19) [hereinafter “EIS”]. 12 EIS, note 1, at 2-35, t. 2.3.3-1. supra 13 Id. at 2-11. 14 Id. at 2-9. 15 Id . at 4-139. 16 Judith M. O’Neil et al., New York Harbor: Resilience in the face of four centuries of development , https://par.nsf.gov/servlets/purl/10021363 . Regional Studies in Marine Science, passim (2016), 4

5 dson River and several New Jersey Rivers Fig. 1. The complex waterways of New York Harbor include the Hu (Hackensack, Passaic, Rahway and Raritan Rivers), which all emp ty into New York Harbor. There are six bays that are contiguous with New York Harbor: Newark, Raritan, Sandy Hoo k, Lower New York, Upper New York and Jamaica Bays. There are two entrances into New York Harbor; Lon g Island Sound via the Western Narrows and Atlantic Ocean via the Mid-Atlantic Bight a nd the entrance between Rockaway Point and Sandy East River, and the ransects were established to pro vide insights into the natural and man-made features Hook. Four parallel east–west t of New York Harbor. From north to south, these transects were t he following: T1-Georg e Washington Bridge transect, T2-Mid-town Manhattan/ Empire State Building transect, T3-Statue of Liberty tr ansect, and T4-Verrazano Bridge transect. Source: O’Neil, supra note 16, at 275 fig. 1. eenth century, pollution, sewag e, solid waste and, Since the beginning of the ninet eventually, industrial chemical contamination increasingly debi litated the health of New York 17 Harbor. In the past 50 years, however, the health of the Harbor has i mproved tremendously as a result of significant investme nt from municipal governments, local non-profit organizations, 17 Id. at 276. 5

6 18 and citizen involvement. has been k Harbor is the healthiest it Thanks to these efforts, New Yor 19 in over a century. quatic life has declined in the past 400 years due to Although the overall abundance of a historic contamination and comme New York Harbor is still home rcial fishing depletion issues, 20 lings in the estuary Seasonal nutritional upwel to a diverse collection of aquatic species. support a high volume of algae, phytoplankton, and zooplankton, which in turn support a high 21 22 23 variety of aquatic species , including the blue crab, Shortnose Sturgeon, ribbed mussel, 25 24 bottlenose dolphin, and the harbor seal. Within New York Harbor, Rarita n Bay has such a diverse array of habitats that support ine, estuarine, and anadromous species, that the U.S. Fish and regionally rare and important mar of the Bay as the Raritan Bay Wildlife Service designated parts -Sandy Hook Bay Significant 27 26 Habitat Complex. Eight miles of the pipeline w nificant area. ould cross this ecologically sig 28 These species include New York Harbor now supports more than 200 fish species. diadromous (fish that migrate between fresh and s alt water) and marine finfish species of 29 ecological, commercial, and r ecreational importance. The New York Bight also serves as spawning grounds for many economical nursery grounds for their ly important species and as 30 early development stages. 18 Id. at 278, 281, 283. 19 New York City Office of the Mayor, New York Harbor: Healthier Than It’s Been in More Than a Century (Dec. 7, 2017), https://www1.nyc.gov/office-of-the-mayor/news/753-17/new-york-h arbor-healthier-it-s- been-more-century . 20 O’Neil, supra note 16, at 282. 21 abitats and Habitat Complexes of the National Oceanic and Atmospheric Administration, Significant H New York Bight Watershed – Lower Hudson River Estuary 4 (2011) available at https://www.nodc.noaa.gov/archive/arc0034/0071981/1.1/data/1-da ta/disc_contents/document/wp/low_hud.pdf. 22 stuary Comprehensive Restoration New York-New Jersey Harbor & Estuary Program, Hudson-Raritan E available at Plan 37, 82 (2016), http://www.harborestuary.org/watersweshare/pdfs/CRP/FinalReport -0616.pdf. 23 Id. 24 D. F. Squires & J. S. Barclay, N ew York-New Jersey Harbor & Es tuary Program, Near shore Wildlife Habitats and Populations in th e New York/New Jersey Estuary 92 (1990), available at df/NearshoreWildlife1990.pdf. http://www.harborestuary.org/p 25 Id. 26 EIS, supra note 11, at 4-98. 27 Id. 28 tuary Program, The State of the Estuary 2018 3 (2018), available at New York-New Jersey Harbor & Es https://www.hudsonriver.org/NY NJHEPStateoftheEstuary.pdf [hereinafter “ State of the Estuary ”]. 29 EIS, supra note 1, at 4-98 – 99 30 Id. 6

7 Of these over 200 fish species, e is designated for 33 species ssential fish habitat (“EFH”) rtnose sturgeon, cusk, oceanic pecies (Atlantic sturgeon, sho in the Project area. Four fish s 31 and eight species endangered, state-listed as whitetip shark), are federally or threatened or smelt, warsaw grouper, cusk (alewife, blueback herring, rainbow , Atlantic bluefin tuna, dusky by the National Marine Fisheries shark, and sand tiger shark) are listed as “species of concern” na, dusky shark, and sand tiger Service. Three of these species of concern (Atlantic bluefin tu 32 vicinity of the Project Area. fish habitat within or in the shark) have designated essential ls, consisting of 13 species of cetaceans (i.e., whales, Sixteen species of marine mamma dolphins, and porpoises), and 3 speci ls) may also use the Project area es of pinnipeds (i.e., sea during the year. Of these species, six (blue whale, sei whale, sperm whale, North Atlantic right 33 34 d as threatened or endangered. whale, fin whale) are federally or state-liste potential to turtles have the occur within Project area, all In addition, five species of sea green, Kemp’s ridley, protected under the Endangered Spe cies Act. These include the 35 nd hawksbill sea turtles. leatherback, loggerhead, a o supports benthic species such as clams, oysters, and The New York Harbor Estuary als r filtration, thr ee-dimensional mollusks that provide important ecosystem services such as wate 36 habitats for other species like fish and anemones, shoreline st abilization, and wave absorption. ncreased diversity of marine li fe, and enhanced access to Improvements in water quality, i uted to a revitalization of recre the shoreline have all contrib ational activities in the New York 37 Harbor. Between 2009 and 2014, over 500 acres of opened to the public the waterfront were 38 in the form of parks or public spaces, and by 2016, approximately 37 percent of the Harbor 39 spaces, totaling 41,078 acres. As shoreline was estimated to serve as parks or public waterfront , along the portion of New Jersey shoreline that abuts Raritan demonstrated by Figure 2 below 40 National Park sites in New York Bay, a majority of shoreline is designated public space. 31 Id. at 4-162. 32 Id. at 4-103. 33 Id. at 4-162. 34 Id. at 4-104. 35 at 4-106. Id. 36 , , note 28 State of the Estuary at 31. supra 37 New York-New Jersey Harbor & Estuary Program, Connecting with Our Waterways: Public Access and its Stewardship in the New York-N ew Jersey Harbor Estuary ii (2 016), available at https://www.nrs.fs.fed.us/pubs/50713 Connecting with Our Waterways ”] [hereinafter “ 38 Id. 39 O’Neil, supra note 16, at 10. 40 supra Connecting with Our Waterways , note 37, at ii. 7

8 New Jersey, received Harbor alone, including the Gateway National Recreation Area in 41 16,090,450 visitors who spent $559,169,600 in communities near the parks. Source: Connecting with Our Waterways, supra note 37, at 4. 41 National Park Service, Nationa l Parks of New York Harbor, Tourism to National Parks of New York Harbor creates $714,149200 in Economic Benefits , April 29, 2016, https://www.nps.gov/npnh/learn/news/vis_spending_2015.htm. 8

9 The Harbor itself also serves as a recreation area for public a nd private boating activities, 42 such as rowing, kayaking, canoeing, and sailing. Recreational and sport fishing is also a 43 The watching and scuba diving. popular recreational activity in th e Project Area, as is whale tment of Environmental pipeline’s workspace would cross through three New Jersey Depar Protection-designated sport oc ean fishing grounds: the Gong Gro unds, Tin Can Grounds, and 44 Ambrose Channel Grounds. In 2015, nearly 4.3 million saltwat ps took er recreational angler tri 45 place off the shores of New Jersey. Statutory Framework II. a. Clean Water Act, Section 401 Section 401 of the Clean Water Act empowers states and authoriz ed tribes to block a natural gas pipeline, such as the Northeast Supply Enhancement Project, if the pipeline cannot te water quality standards. Ind demonstrate compliance with sta eed, the courts have referred to whereby a single state agenc y effectively vetoes Section 401 as “a statutory scheme an energy 46 pipeline that has secured approval from a host of other federal and state agencies .” Specifically, Section 401 authori w any project applying for a zes states and tribes to revie 47 y result in a discharge into t he state or tribe’s navigable waters. federal license or permit that ma Under this provision, an applican t for a federal license or per mit for activity that “may result in any discharge into the navigable waters”—such as an applicant f or a section 404 dredge-and-fill permit or for a certificate of under the Natural Gas Act—must public convenience and necessity receive a water quality certifi cate: state certification that “ any such discharge will comply with 48 EPA ns of sections [301–303 and 306–307 of t the applicable provisio he Clean Water Act].” r quality certificate must inclu regulations specify that a wate de “[a] statement that there is a reasonable assurance that the a ctivity [for which a water quali ty certification application has olate applicable been submitted] will be conducted in a manner which will not vi water quality 49 standards.” the Clean Water Act provides for sta te certification of water While section 401(a)(1) of , section 401(d) provides additiona lly that states shall attach quality standards compliance 42 O’Neil, supra note 16, at 10. 43 EIS, note 11, at 4-265. supra 44 Id. at 4-100, 4-265 – 4-266. 45 Id. at 4-265. 46 Constitution Pipeline Co., LLC v. New York State Dep’t of Envtl. Conservation , 868 F.3d 87, 101 (2d Cir. 2017), 138 S. Ct. 1697, 200 L. Ed. 2d 953 (2018) cert. denied, 47 33 U.S.C. § 1341. 48 33 U.S.C. § 1341(a)(1). These sections of the Clean Water Act include provisions relating to standards, limitations, and prohibitions for point source discharges, and also relating to state-promulgated water quality standards. 33 U.S.C. §§ 1311–13, 1316–17. 49 40 C.F.R. § 121.2(a)(3). 9

10 conditions to water quality certi ficates in the form of “efflue nt limitations and other limitations, and monitoring requirements” necessary to assure compliance wit h the applicable requirements lean Water Act, “and wi of sections 301–303 and 306–307 of the C th any other appropriate 50 icate].” th in [the water quality certif requirement of State law set for The Second Circuit has since stated in dicta that section 401(d) should be understood as limiting water quality certificate 51 nother.” conditions “to those affecting w ater quality in one manner or a gently than as required by ate water quality more strin Notably, states may generally regul 52 quired to adhere to the water q uality the Clean Water Act. Furthermore, a state is not re 53 ry Commission (FERC). s the Federal Energy Regulato findings of another agency, such a New Jersey Water Quality Standards b. or evaluating the environmental The Department is responsible f impacts of a 54 te’s water quality standards. proposed pipeline on New Jersey wat erbodies in light of the Sta is predicated on the demonstration of Water quality certificate approva l in New Jersey , including New Jersey Coastal ersey water quality regulations compliance with applicable New J 55 56 Zone Management Rules, New Jersey Freshwater Wetla and New nds Protection Act Rules, 57 58 While all three sets of rule s apply to this pipeline, . Jersey Surface Water Quality Standards with the New Jersey Surface Water this letter will focus on the pipeline’s anticipated compliance Quality Standards. Under the New Jersey Surface Water Quality Standards, all water bodies in New Jersey are assigned classifications that are in turn associated with “ designated uses”—the many ways in 50 33 U.S.C. § 1341(d). Although this provision does not mention section 303, the Supreme Court has held 1 incorporates section 303 by r eference, making water quality that the reference to section 30 standards a permissible No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, ons under section 401(d). PUD consideration on setting conditi 511 U.S. 700, 712–13 (1994). 51 Am. Rivers, Inc. v. FERC , 129 F.3d 99, 107 (2d Cir. 1997). Accord Arnold Irr. Dist. v. Dep’t of Envtl. , 717 P.2d 1274, 1279 (Or. Ct. App. 1986) (stating in dicta tha t “only if a [water quality Quality certificate condition] has absolutely no relationship an ‘other appropriate requi rement of State law.’”). to water quality would it not be 52 33 U.S.C. § 1370. EPA regulations note that this non-preempti on clause is applicable to water quality (“As recognized by section 510 of the Clean Water Act, States may develop water standards. 40 C.F.R. § 131.4(a) quality standards more stringent than required by [the EPA wate r quality standards] regulation.”). 53 , 868 F.3d 87, 101 (2d See Constitution Pipeline Co., LLC v. New York State Dep’t of Envtl. Conservation cert. denied , 138 S. Ct. 1697 (2018). Cir. 2017), 54 See, e.g., id. at 103, citing Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 164 (2d Cir. 2008); accord Keating v. FERC , 927 F.2d 616, 622 (D.C. Cir. 1991) (“Through [the § 401 certi fication] requirement, Congress intended that the states would retain the power to block, for environmental reasons, local water projects that might otherwise win federal approval .” (emphasis added)). 55 N.J. Admin. Code § 7:7. 56 Id. at § 7:7A. 57 Id. at § 7:9B. 58 at §§ 7:7-1.1(a), 7:7-1.2(a), 7:7-1.1(a), 7:7-1.2(e), 7:7A-2.1( Id. d). 10

11 which the public is expected to u se that waterbody. Designated uses include drinking water, 59 on, among other uses. ike swimming, and fish propagati “primary contact recreation,” l lassifications—the more expansive ria apply to different waterbody c Different water quality crite the list of uses, the more string ent the water quality criteria . The Department designates all wa terbodies that will be crossed by the offshore segment wer New York Bay, and the of the NESE (including those i n Raritan Bay, Sandy Hook Bay, Lo 60 and SC (coastal sali Atlantic Ocean) as SE- 1 (saline estuarine) ne waters). In all SE-1 and SC shellfish harvesting; maintena waters, the designated uses are: nce, migration and propagation of 61 the natural and established biot a; primary contact recreation; and “any other reasonable uses.” ication has corresponding New Jersey surf Each waterbody classif ace water criteria that ria contain both numeric and vary based on the classificati on of the waterbody. These crite , the criteria for specific to xic substances is numeric. Water narrative standards. For example quality criteria for copper i n Raritan Bay, for example, is 5.6 μg/L for chronic toxicity, and the 62 nd SC waters is 0.051 μg/L for hu man health. criteria for mercury in SE-1 a s in SE1 and SC waterbodies, on The criteria for suspended solid the other hand, is narrative (meaning descriptive) , prohibiting any activity that “would render the water unsuitable 63 The criteria for settleable solids is als o narrative, prohibi ting for the designated uses.” hat would be noticeable in the wa ter and on aquatic substrata in settleable solids in amounts t quantities detrimental to the natural biota and rendering the w aters unsuitable for the designated .C. 7:9B-1.14(d)(3). uses, in violation of N.J.A gned an antidegradati on category. Each Each waterbody classif ication is also assi ions regarding changes to ex category provides different protect isting water quality outside of the water quality criteria. SE-1 and S C waters are categorized as Category 2 waters, meaning that l to or better than necessary t o sustain the waterbodies’ even where water quality is equa y must still be maintained to designated uses, the water qualit ng and designated support the existi 64 New Jersey water quality standa tenance, rds also note that “[t]he main uses of that waterbody. migration, and propagation of threat ened or endangered species is considered an existing use that 65 must be maintained.” In addition, regardless of classi lity standards state that fication, New Jersey water qua the State shall not be at leve “[t]oxic substances in waters of ls that are toxic to humans or the 59 N.J. Admin. Code subchapter 7:9B. 60 EIS, supra note 11, at 4-50. 61 N.J. Admin. Code § 7:9B-1.12(d), (g). 62 N.J. Admin. Code § 7:9B-1.14(g). 63 Id. at § 7:9B-1.14(d)(7). 64 Matter of Issuance of a Permit by Dep't of Envtl. Prot. to Ciba-Geigy Corp., 576 A.2d 784, 791 (1990); see also N.J. Admin. Code § 7:9B-1.12(d). 65 Id. at § 7:9B-1.5(d)(1)(i). 11

12 aquatic biota, or that bioaccumu late in the aquatic biota so as to render them unfit for human 66 consumption” Regulatory Background c. application for the On March 27, 2017, Transco, a subsidiary of Williams, filed an Project with the Federal Ener gy Regulatory Commission (FERC) re questing a Certificate of ate) under Section 7( c) of the Natural Gas Act Public Convenience a nd Necessity (Certific issued the Final (NGA) (FERC Docket Number CP17-101). On January 25, 2019, FERC Environmental Impact Statement f or the project. This applicati on is still pending. Transco also filed an applic ation to NJDEP on June 27, 2017 for a water quality federal Clean Water Act. certification under Section 401 of the On June 14, 2018, Transco withdrew its application, This is the application upon and resubmitted it on June 20, 2018. which NRDC now comments. III. New Jersey Should Deny Water Quality Certification to NESE As demonstrated by Transco’s water quality certification applic ation, construction of the rsey water quality standards. In particular, construction of NESE pipeline could violate New Je the pipeline would increase the concentration of total suspende t that the water d solids to an exten gnated uses, in violation of N. would be unsuitable for its desi J.A.C. 7:9B-1.14(d)(7). Relatedly, construction would cause the sus pension and eventual deposition of settleable so lids in amounts that would be noticeable in the water and on aquatic substrata in quantities detrimental to the natural biota and rendering the w aters unsuitable for the desig nated uses, in violation of N.J.A.C. ediment in the water column, 7:9B-1.14(d)(3). By resuspending s construction of the pipeline would also exceed numerical criteri a for several contaminants, including mercury and copper, set forth in N.J.A.C. 7:9B-1.14(f)(7), (g). Finally, construction w ould pollute the water so that their rvesting and the maintenance existing uses, such as shellfish ha , migration, and propagation of natural and establis mpaired, in violation of N.J.A.C. 7:9B-1.12(d). hed biota, would be i a. Total Suspended Solids Altogether, pipeline construc tion activities would lead to the suspension of solids across hundreds of acres in Raritan Bay and the lower New York Harbor. The dredging and filling required to construct an offshore pipeline can temporarily susp end sediments in the water 67 and less hospitable to here, making the water cloudy or opaque, column, increasing turbidity t aquatic life that is accustomed t o surviving in clearer water. This impact can be quantified by measuring the concentration of tot al suspended solids, the mass of solids present in the water in a given volume. Total suspended solid factor in observing water clarity. s (“TSS”) are a significant The more solids present in the w ater, the less clear the water will be. Under New Jersey water 66 Id. at § 7:9B-1.5(a)(4). 67 40 C.F.R. § 230.21(a). 12

13 quality standards, a project ca nnot add to the suspended solids in the water column to an extent 68 for the designated uses.” d “render the water unsuitable that total suspended solids woul ion, the majority of er quality certification applicat According to the Project’s wat 69 sediment-disturbance activitie The environmental impact s will occur during construction. the suspension and redeposition statement acknowledges that pip eline construction would lead to Central Park, about 945 acres of of solids in the surrounding wat ers—Indeed, an area larger than 70 seafloor, would be affected. Several activities required to c onstruct the pipeline would lea d to increased TSS concentrations. Specifically, a ctivities required to dig the p ipeline trench, like clamshell hing, and use of a hand jet and s ubmersible pump, would create dredging activities, jet trenc environmental impact stateme sediment plumes. According to the nt, clamshell dredging centrations of total suspended activities would generate sedimen t plumes exceeding ambient con 71 solids by 100 parts per million (ppm) up to 3,150 feet from the source of the activity. Jet trenching would generate sediment plumes with TSS concentration s exceeding the ambient d extend between 262 feet to 1,3 45 feet from the source, and conditions by 100 ppm that woul e pump would generate sedimen t plumes with TSS use of the hand jet and submersibl concentrations exceeding the ambient conditions by 100 ppm that would extend between 197 72 feet to 1,378 feet from the source. While the environmental impact statement for the Project (“EIS”) states that TSS concen trations would return to ambient conditions up to 7.9 hours after 73 t construction itself could las t for several it is important to consider tha sediment disturbance, a day, 7 days a week, and excavat weeks and take place 24 hours ion along any particular section 74 could last as long as a few weeks. Activities required to bury the pipeline, such as backfill plac ement activities, would also nded solids in the water column . Backfill placement activities increase concentrations of suspe would generate sediment plumes with TSS concentrations exceedin g the ambient conditions by 75 and 5,151 feet from the source . 100 ppm would extend between 591 While the EIS states that TSS concentrations would retur n to ambient c onditions up to 3.5 hours after sediment 68 at § 7:9B-1.5(d)(7). Id. 69 Id. 70 EIS, supra note 11, at ES-11. 71 Id. at 4-109. 72 Id. 73 Id. at 5-11. 74 Id. 75 Id. 13

14 76 disturbance, t construction itself could las t for several weeks and it is important to consider tha 77 take place 24 hours a day, 7 days a week. Accidental release of drilling f also lead to turbidity and luid during HDD drilling could id becomes entrained in the wat sedimentation after drilling flu er column and transported to other 78 locations. ater unsuitable for Increased concentrations of suspended solids would render the w 79 s shellfish harvesting designated uses such a on and propagation of the and maintenance, migrati 80 Higher concentrations of sus pended solids leads to higher natural and esta blished biota. 81 turbidity. While turbidity naturally occurs in the Project Area, artific ially high levels of of photosynthesis and the primary turbidity can impair uses of the water—they can lower the rate 82 stem. , damaging the surrounding ecosy productivity of an aquatic area Increased turbidity can harder for sight-dependent also harm aquatic animals: it can be species to find food limiting 83 Increased total suspended solids can also make growth and lowering res istance to disease. 84 respiration difficult by clogging fish gills. Increased turbidity ca n also make water too cloudy 85 for mobile aquatic species to migrate. her aquatic species have The destructive impacts of pi peline construction on fish and ot construction can have ve demonstrated that pipeline been well-documented. Studies ha significant and long-term effects on construction area. A study of entire species within the impacts of a natural gas pipe line crossing on the Little Miami River in Ohio, downstream catches , the silver shiner, dropped by 95 percent immediately after of the dominant fish species 86 construction. Shortly after the installati on of a natural gas pipeline acro ss a creek in British Columbia, turbidity lev els in the creek increased dramatically, and benthic invertebrate 76 at 5-11. Id. 77 Id. 78 Id. at 4-96. 79 ate waters crossed by the propos While all of the New Jersey st ed Raritan Bay Loop are currently classified as prohibited for shellfish harvest, NJDEP issues pe rmits such that shellfish may be harvested from epuration, and i ssues permits t hat allow the harvest of surf clam for bait purposes in restricted areas for relay and d supra note 1, at 4-101. the waters crossed to the north of Sandy Hook. EIS, 80 N.J. Admin. Code § 7:9B-1.14(d)(7). 81 Fondriest Environmental, Inc., Turbidity, Total Suspended Solids and Water Clarity , F UNDAMENTALS OF E NVIRONMENTAL EASUREMENTS (Jun. 13, 2014), https://www.fondriest.com/environmental- M -solids-water-clarity measurements/parameters/water-quality/turbidity-total-suspended . 82 40 C.F.R. § 230.21(b). 83 Id. 84 at § 230.32(b); EIS, supra note 11, at 4-107 Id. 85 Minnesota Pollution Control Agency, Turbidity: Description, Im pact on Water Quality, Sources, Measures - A General Overview (2008), https://www.pca.state.mn.us/sites/default/files/wq-iw3-21.pdf . 86 supra Reid, note 10, at 245. 14

15 87 abundance decreased by 74 percent. Such effects have been obs erved to last up to four years 88 after construction. cts on hard clams, a species hat turbidity has adverse effe At least one study has observed t 89 that dwells throughout the Project Area. In this study, hard clam adults experienced reduced growth after 2 days of exposure to suspended sediment concentra tions of 100 ppm. Hard clam re to suspended sediment larvae experienced 10 percent mo rtality after 10 days of exposu 90 concentrations of 750 ppm. According to the environmental impact statement, pelagic spec ies r the bottom or the shore) are even column, as opposed to dwelling nea (fish that inhabit the water 92 91 more sensitive to turbidity, as are fish eggs and larvae. construction on mobile specie s (i.e., fish, sea turtles, and In predicting effects of pipeline pacts by moving to other marine mammals), the assumption is often that they can avoid im 93 ion of the activities of concern available habitat for the durat . This habitat avoidance is in question. In our view, this is generally considered to have no negative impact on the species an unsupported assumption. A greater t to which animals vacate areas understanding of the exten of high turbidity is needed befo re assuming that the action wil l not result in harm. b. Settleable Solids Just as the Department regulates o regulates the amount of total suspended solids, it als hose solids that, on ce suspended, eventuall settleable solids, t y settle to the sea floor. New Jersey water quality standards prohibit activity tha t contributes to t he concentration settleable solids in quantities that are “ noticeable in the water” or deposited “in quantities detrimental to the natural 94 eventual subsidence of biota.” Construction of the pipeline woul d cause the resuspension and settleable solids th at, according to Transco’s own sediment tra nsport modeling, would injure d waters unsuitable for designa ted uses, including shellfish natural biota and render affecte tural and established biota in harvesting and maintenance, m igration and propagation of the na 95 violation of New Jersey surface water criteria. 87 Id . at 244. 88 Levesque, supra note 10, at 399. 89 EIS, supra note 11, at 4-116. 90 Id . 91 Id. 92 Kjelland, M.E. et al., A Review of the Potential Effects of Suspended Sediment on Fishes: Potential Dredging-Related Physiological, Behavioral, and Transgenerational Implications , 35 E NVNTL . S YS . D ECISIONS 334 (2015), https://doi.org/10.1007/s10669-015-9557-2 . 93 EIS, supra note 11, at 4-116. 94 N.J. Admin. Code § 7:9B-1.14(d). 95 N.J. Admin. Code § 7:9B-1.12(d), (g). 15

16 In total, over 1 million cubic yards of sediment would be excav ated or otherwise 96 disturbed during the offshor e pipeline installation. According to Transco, sedimentation in excess of 1.2 inches is expected t hroughout the pipeline’s path as a result of excavation and 97 backfilling. pact statement, sedimentatio n from clamshell According to the environmental im dredging during excavation exceeding 1.2 inches of deposition w ould cover up to 21.7 acres of 98 sea floor. ble pump/suction dredge, anot Use of the hand jet and submersi her method of digging a trench for the pipelin e, would lead to sedimentation of more than 1.2 inches over up to 99 Backfilling the trench after the pipeline is l aid would also cause 3.7 acres of sea floor. 100 over 183.2 acres of seafloor. sedimentation of over 1.2 inches Thinner deposits of sediments 101 would extend even further from areas of seafloor disturbance. tural biota and render affect This sedimentation would injure na ed waters unsuitable for designated uses, including shellf ish harvesting and maintenance , migration and propagation of 102 the natural and established biota. The redistribution of sedimen ts that fall out of suspension could bury benthic and demersal (bottom-dwelling) species, leav ing benthic organisms, fish 103 eggs, and larvae could at risk of smothering or other injury. Recovery from such sedimentation could take 3 year s, or even longer if the physica l characteristics of the habitat are 104 altered (e.g., sediment type, hydr ology), resulting in recoloni zation of different species. In particular, shellfish may be e tion as a consequence of specially exposed to sedimenta the Project. According to the envi it is “possible” that ronmental impact statement, the increased s would result in the mortality of some clams uction activitie sediment load from Project constr 105 Indeed, over 134 acres of NJD EP 2014 hard clam beds would and other benthic organisms. receive some level of additional sedimentation, with 76 acres r eceiving more than 1.2 inches of 106 sedimentation. 96 EIS, supra note 11, at 4-106. 97 supra note 11, at 4-113. EIS, 98 Id. 99 Id. 100 Id. 101 Id. 102 N.J. Admin. Code § 7:9B-1.12(d), (g). 103 supra note 1 , at 4-107, 4-126. EIS, 104 Id. at 4-117. 105 Id. at 4-116. 106 at 4-113, t. 4.5.2-6. Id. 16

17 While benthic invertebrates a r the excavation area nd demersal fish species in or nea arine mammals could also be lagic fish, sea turtles, and m would be most directly harmed, pe 107 affected. P sport ocean fishing ould cause over 134 acres of NJDE Construction of the pipeline w 108 on. Across the Project Area, grounds to be subjected to some level of additional sedimentati e level of additional up to 573.3 acres of shallow bay wat ers would be subject to som g period of some fish, fish eggs tation occurs during the spawnin sedimentation. If this sedimen 109 could be smothered and die. For example, winter flounder is known to spawn within the nstrated that winter flounde r eggs are less likely to hatch Project Area, and studies have demo iment. Another study has found when the eggs are buried by as li ttle as 0.05 centimeter of sed s from deposition of more than that “almost complete mortality” of winter flounder eggs result 110 0.25 centimeter.” While the environmental impact statement concludes that mobil e species 111 ce, for the reasons explained in would likely temporarily vacate the area to avoid the disturban Part III.a, we do not believe those assumptions are supported. Resuspension of toxic sediment c. s and other contaminants e would also cause resuspension of toxic contaminants Construction of the NESE pipelin urface water quality criteria. As explained in Part II, New at levels exceeding New Jersey s 112 nclude numeric criteria for cer tain toxic contaminants. Jersey water quality standards i For ckel, and zinc all have numer ical water quality standards that example, copper, lead, mercury, ni 113 The environmental impact statement reveals that apply to waters classified as SE-1 and SC. w Jersey standards for at least resuspension of contaminants in the water column will exceed Ne 114 And there is reason to believe that other toxic two contaminants—mercury and copper. y water quality standards. contaminants may be resuspended at levels that exceed New Jerse hat mercury and copper nt confirms that it is likely t The environmental impact stateme could be resuspended into the water column at concentrations in excess of New Jersey water quality standards. In the major ity of modeled scenarios, the m aximum total mercury 115 a for mercury of 0.051 μg/L. concentrations were predicted exceed the relevant water criteri ey water quality standards—in Copper concentrations would also be expected to exceed New Jers 107 Id. at 4-107. 108 Id. at 4-113, t. 4.5.2-6. 109 Id. at 4-147. 110 at 4-147. Id. 111 Id. at 4-107. 112 See also N.J. Admin. Code § 7:9B-1.14(f), (g). 113 Id. at § 7:9B-1.14(f), (g). Copper has a site-specific criterion for Raritan bay. See id. at 7:9B-1.14(g). 114 Compare EIS, supra note 11, at 4-122 with N.J. Admin. Code § 7:9B-1.14(f)(7). 115 with Compare EIS, supra note 11, at 4-122 NJAC 7:9B-1.14(f)(7). 17

18 two of the modeled scenarios, the predicted maximum concentrati ons for copper exceeded the 116 y standard of 3.1 μg/L. chronic toxicit xceeded. The And water quality criteria for ot her contaminants may also be e bor and the surrounding waterbodie s by heavy metals, PCBs, contamination of New York Har 117 Sediment from New York minants is well-established dioxins, pesticides, and other conta . percent) from New York/New Harbor is so contaminated that most of the dredged material (66 118 Jersey Harbor was found to be unacceptable for ocean disposal. nants in the Project Transco acknowledges that there a re dangerous levels of contami s widespread throughout the pipe line route—According to the Area. Sediment contamination i environmental impact statement, most of the sites that Transco sampled had at least one New York Class C and/or New contaminant that exceeded upper level effects thresholds, i.e., 119 Jersey Effects Range – Medium s ediment screening thresholds. In offshore sediment sampling, Tra nsco detected levels of many contaminants in 120 Specifically, Transco de tected exceedances of sediment that exceeded New Jersey thresholds. at least fourteen metals (incl obalt, Copper, Lead, uding Arsenic, Barium, Cadmium, C 121 Manganese, Nickel, Selenium, Silver, Vanadium, Zinc, Mercury), polychlorinated biphenyls 122 123 four semi-volatile organic compounds (SVOCs), fifteen polycyclic aromatic (PCBs), 124 125 hydrocarbons (PAHs), and dioxins and furans. 116 N.J. Admin. Code § 7:9B-1.14(g). 117 Kirk Johnson, The Problem Is Deep, and Its Name Is Mud; Before New York Harbor Is Dredged, Toxic Sediments Must Be Mapped , N.Y. T , Jun. 3, 2002, https://www.nytimes.com/2002/06/03/nyregion/problem- IMES s-must-be.html deep-its-name-mud-before-new-york-harbor-dredged-toxic-sediment . 118 ent and Reduction Project: NY/NJ New York State Dept. of Env. Conservation, Contaminant Assessm http://www.hudsonr Harbor Sediment Report 1998-2001 (2003), iver.org/CARP/Appendicies/A- 1/NYNJ%20Harbor%20Sediment%20Report%20(NYSDEC).pdf . 119 supra EIS, note 11, at 4-121. 120 Ecological screening criteria fo r saline surface water in New Jersey is presented in terms of Effects Range Low (ER-L) and Effects Range Median (ER-M) levels. ER-L reflects the sediment concentration of a contaminant where 10 p ercent of the studies found adverse biolo gical effects. ER-M reflects the sediment concentration of a contaminant where 50 percent of the studies found adverse biological effects. NJDEP, See available at Ecological Screening Criteria (2009), . https://www.nj.gov/dep/srp/guidance/ecoscreening/esc_table.pdf 121 Transcontinental Gas Pipe Lin e Company, Fall/Winter 2016 Offsh ore Environmental Sampling Report for the Northeast Supply Enhancem ent Project: New Jersey, New Y ork, t. B-5 (2018). 122 Id. at 2-7. 123 Id. at 2-8. 124 Id. at t. B-6. 125 Id. Total toxicity equivalency factor for dioxins and furans excee ded the ER-M threshold two locations. at 2-9. 18

19 The resuspension of these contaminants could significantly harm aquatic ecosystems, unsuitable for their designate d uses, in violation of New Jersey potentially rendering the waters 126 According to EPA, toxic metals, t oxic organics, pathogens, an d water quality standards. through this process, become ine-grained particulates, and viruses can absorb or adsorb to f 127 biologically available to or ganisms living in the water. Furthermore, certain suspended material may react with the di ssolved oxygen in the water, whic h can result in oxygen 128 depletion, which, in turn, can cause losse s in biodiversity, ecosystem fu nction, and services such as fisheries and aquaculture. The environmental impact stateme nt acknowledges that seafloor-d isturbing construction activities such as the ones undert spend contaminants into the aken for the NESE could re-su water, potentially expos ants via ingestion with food, membrane-facilitated ing biota to contamin 129 aking organisms sick and even transport, or passive diffusion, m killing them. And once contaminants enter an organism, they could move up the food cha in, potentially harming and 130 nant in the environment. killing organisms that were not directly exposed to the contami d. Maintenance and Protection of Existing Uses Finally, construction of the pipe line would violate New Jersey water quality standards as it would impair the existing uses of the waterbodies. Under Ne w Jersey surface water quality 131 SE-1 and SC a waterbody] shall be maintaine d and protected.” standards, “[e]xisting uses [of gory 2 waters, meaning that even where water quality is equal to waters are categorized as Cate uses, the water quality must be or better than necessary to susta in the waterbodies’ designated 132 maintained to support the existi waterbody. Additionally, the ng and designated uses of that gation of threatened or endan gered species is considered an “maintenance, migration, and propa 133 existing use that must be maintained.” spension of sediments, and sedime ntation on existing uses The effects of turbidity, resu has already been discussed in P nal activity associated with pipeline arts III.a – c; however, additio construction could also impair th e existing uses of the waterbo dies. Construction would directly harm or kill all aquatic organisms caught in the 87.8-acre path of the pipeline and in the 947.4 134 This would impair designated uses of the acres just outside of t he path of the pipeline. 126 N.J. Admin. Code § 7:9B-1.14(d)(12). 127 supra note 11, at 4-121. EIS, 128 40 C.F.R. § 230.21(b). 129 EIS, supra note 11, at 4-121. 130 Id . 131 N.J. Admin. Code § 7:9B-1.12(d). 132 Matter of Issuance of a Permit by Dep't of Envtl. Prot. to Ciba-Geigy Corp. , 576 A.2d 784, 791 (1990). 133 N.J. Admin. Code § 7:9B-1.12(d). 134 EIS, supra note 1, at 4-107. 19

20 waterbodies, including shellfis h harvesting and the maintenance , migration and propagation of 135 the natural and established biota. nce, migration, and Notably, construction of the pipeline would impede the maintena 136 rgeon, a federally listed endang ered species. propagation of the Atlantic stu As the “maintenance, migration, and propa gation” of an endangered spec ies is listed as an existing use violate New Jersey water quality that must be maintained, injur y to the Atlantic sturgeon would 137 standards. g and migration of Construction of the pipeline woul d interfere with the spawnin cies’ proliferat s that are essential to the spe the Atlantic sturgeon, activitie ion. In particular, Transco is anticipating that from June 1 – 30, clamshell dredgi ng would overlap with spawning eon, from June 15 – 30 or October 1 – November 10, hand migration of Atlantic sturg t would disturb sediment during jet/submersible pump activities near the Rockaway Transfer Poin ber 1 – November 30, spool the Atlantic sturgeon’s spri ng or fall migration, and from Octo ng near the Rockaway Transfe r Point would interfere with installation, hydrotesting and dryi 138 on fall migration. Atlantic Sturge ch construction is expected Because of the many ways in whi to injure the Atlantic sturg eon population, the environmental i mpact statement concludes that, may affect, and is likely to adversely affect even with mitigation measures, “the NESE Project 139 the Atlantic sturgeon.” The surf clam is another exampl e of how pipeline construction c an have long-lasting ecies. The decline of the surf clam population after the effects on the survival of a sp livery Lateral Project, the pipe construction of the Rockaway De line to which the NESE will tie- into offshore of Queens at the Rockaway Transfer Point, may be instructive. Before completion of the Rockaway Delivery Later al, Transco found that the Atlant ic surf clam was one of the most way Transfer Point, and a surve prevalent species near the Rocka y by the New York State ense patch of surf clam in New Department of State confirmed the persistence of a relatively d 140 Notably and unfortunately, after York waters seaward of the Rockaway Peninsula. construction of the Rockaway De livery Lateral Project, post-con struction surveys found that the 141 tion. s area declined after construc A similar effect could concentration of surf clam in thi ons in the pipeline’s path—Indee d, populations of surf clam were befall other surf clam populati 142 lepost 25 of the pipeline, found at nearly every sampling sta and a tion east of approximately mi 135 N.J. Admin. Code § 7:9B-1.12(d),(g). 136 The Atlantic sturgeon is a fed erally listed species with five listed as threatened, DPSs, one of which is e New York Bight DPS are closest to the Project and four of which are listed as endangered. Aggregations of th area, with spawning populations found in the Hudson and Delawar e Rivers, but the ranges of the other four DPS Id. at 4-184. also overlap this area. 137 N.J. Admin. Code § 7:9B-1.12(d). 138 Id. at 4-120, 4-184 – 4-192. 139 supra note 11, at 4-191 (emphasis in original). EIS, 140 EIS, supra note 11, at 4-101. 141 Id. 142 Id. 20

21 portion of the pipeline would cross a Special Permit Area where the Department issues permits 143 for the harvest of surf clam. Other clams, such as the har d clam, could be similarly affected . NJDEP has identified populations of hard clam at near ly every sampling station westw ard of milepost 25, and were 144 Soft clam and blue ys y of Raritan and Sandy Hook Ba found in abundance in the majorit 145 mussel were also observed in the Project Area. Project Area, are also vulne rable. Horseshoe crabs are Horseshoe crabs, also found in the mportant species—They are har an ecologically and economically i vested for use as bait in commercial American eel and conch fisheries, and for their bloo d, which is used in the biomedical industry. Additionally, horseshoe crab eggs and lar vae are an important food source for migratory birds, other cra b species, and several gastropods , and serve as common prey for the sea turtles and finfish, incl merican eel, killifish, silver perch, uding striped bass, white perch, A 146 weakfish, Atlantic silverside, s ummer flounder, and winter flou nder. seshoe crabs, once abundant in Raritan Bay and the Unfortunately, the population of hor t decades—the population New York-New Jersey Harbor, has declined substantially in recen remains at about 25 percent of its carrying capacity and there is no sign of sustained recovery for 147 the population. Construction of the pipeline ma y further injure the already w eakened population. Juvenile, adult, and seshoe crab may be present in the larval life stages of the hor 148 According to the environmental impact statement, horseshoe cra construction areas. bs in the Project area may be injure d or killed by excavation through the temporary loss of foraging 149 habitat. This decline has demonstrabl y affected animals who rely on the crab as a food source. the horseshoe crab’s dwindling population, the population of For example, as a consequence of the East Coast red knot, a migratory shorebird, has plummeted, from more than 100,000 in the 150 Wildlife biologists in New J ersey have expressed concern 1980s to only about 30,000 today. st Cost Red knot could go that without stronger protections to the horseshoe crab, the Ea 143 Id. 144 Id. 145 Id. 146 Id. at 4-103. 147 Id. 148 Id. at 4-118. 149 Id. 150 Lisa W. Foderaro, A Bird, a Crab and a Shared Fight to Survive , N.Y. T IMES , Jun. 5, 2012, https://www.nytimes.com/2012/06/06/ nots-horseshoe -crabs-and-fight-to-survive-in-delaware- nyregion/red-k bay.html ; see also U.S. Fish and Wildlife Service , Modeling a Future for Horseshoe Crabs and Red Knots , Nov. 30, 2016, https://www.fws.gov/news/blog/in dex.cfm/2016/11/30/Modeling-a-F uture-for-Horseshoe-Crabs-and-Red- . Knots 21

22 151 extinct. tionships between the health of prey and predator Similar cause-and-effect rela ey Harbor Estuary ecosystem. populations are likely present t hroughout the New York-New Jers he horseshoe crab population, T ransco has not proposed Despite the expected injury to t 152 species-specific mitigation measures for horseshoe crabs. In fact, to protect the existing on activities take place horseshoe crab population, NJDEP r ecommended that no constructi 153 nearshore or offshore between April 15 and September 15. Despite this recommendation, Transco has requested that cons truction activit ies be allowed n ear the Morgan shore during the 154 recommended horseshoe crab time of year restriction. While the environmental impact impacts would be reduced by Tra nsco’s effort to “minimize statement claims that potential t practicable,” the implementa seafloor disturbance to the exten tion of “best management .g., use of an environmental b ucket during all clamshell practices during construction” (e ,” these mitigation measures dredging), and “backfilling with c lean material where necessary would still not prevent turbid from injuring these animals. ity blooms or suspended sediment Harm to specific populations is not limited to the illustrative sample described here. Notably, s of year for the following species: construction of the pipeline will interfere with important time  River herring: From June 1 – 30, against the reco mmendation of the NMFS, clams o hell dredging 155 would overlap with spawning migration of river herring.  Winter flounder: o ssing and From December 15 – January 30, reinstatement of the channel cro the spawning of winter flound backfilling would interfered with er, a species that 156 NMFS has identified as a sensitive resource. cation applicati on acknowledges that this detrimental effect Transco’s water quality certifi ould potentially impact recrea tional and commercial fishing in on aquatic species populations “c the Project area and, by exten sion, the seafood industry by eit her reducing the abundance of commercial fish communities or i nterfering with fishers’ access to commercial fishing 157 s, and commercial impairing the use of the affecte d area for recreational, sport grounds,” fishing. 151 Id. 152 EIS, supra note 11, at 4-118. 153 Id. 154 Id. 155 EIS, supra note 11, at 4-120, t. 4.5.2-7. 156 Id. at 4-120, t. 4.5.2-7. 157 Transco, Joint Application to the New York State Department of Environmental Conservation Northeast Supply Enhancement Project 4-34 (2018). 22

23 Conclusion Transco has failed to make a compelling case for how, despite t he acknowledged increase in suspended solids and toxic co ntaminants and the loss of aqua tic life, the project would still be in compliance with state water quality standards. For this rea son, we ask that New Jersey takes a tion and denies the water quality hard look at Transco’s applica certification application for the Northeast Supply Enhancement pipeline. Sincerely, K imberly Ong y Senior Attorne 23

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