MassDEP approved the permit to Kinder Morgan for their Connecticut Expansion pipeline which will run through Otis State Park in Mass. The project still needs a Clean Water Act permit from Connecticut authorities.
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SANDISFIELD — A controversial natural gas pipeline which would cross a state forest in Berkshire County to serve customers in Connecticut gained traction this week when the project gained a federal Clean Water Act certificate in Massachusetts.
The state's Department of Environmental Protection issued the 401 Water Quality Certification — with 47 conditions — to Kinder Morgan subsidiary Tennessee Gas Pipeline Co. for its Connecticut Expansion project on Wednesday. The line would cross water bodies within the Otis State Forest, including the Clam River and Worthington Brook.
While Kinder Morgan still needs a Clean Water Act permit from Connecticut, the company is one step closer to cutting trees along the pipeline route in Massachusetts. All state, federal, and local permits, permissions, and easements must be lined up first, according to the June 29 certification, including authorization from the U.S. Fish and Wildlife Service.
The Connecticut Expansion would send a 3.8-mile pipeline loop through Berkshire County.
But Kinder Morgan will have to wait until July 29 to start work in the state forest because of a court ruling. A Berkshire Superior Court judge this spring ordered the company to delay tree cutting until the state legislature wraps up its session for the year.
The Connecticut Expansion gained a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission on March 11.
The battle over the Otis State Forest has been long and protracted.
Last year former Department of Conservation and Recreation commissioner Carol Sanchez signed a negotiated compensation deal for a pipeline easement through the forest which requires "no net loss of conservation land" and $300,000 to be deposited into a land acquisition fund.
But when state officials failed to convey the negotiated easement, Tennessee filed a lawsuit.
Oral arguments were heard before a packed courtroom in April, pitting Assistant Attorney General Matthew Ireland against James Messenger, a lawyer for Tennessee Gas.
Ireland argued that Article 97, a provision of the Massachusetts Constitution which requires legislative approval for the loss of conservation land, preempts the U.S. Natural Gas Act. That law gives pipeline companies with federally-approved projects the right of eminent domain.
Agostini ruled in May that Article 97 does not preempt the US Natural Gas Act, clearing the way for Tennessee to advance its project.
In a related matter, MassDEP officials in April accused Kinder Morgan of misleading the Federal Energy Regulatory Commission in its bid to start tree-cutting for the Connecticut Expansion, saying the company falsely assured the pipeline regulators that Massachusetts would not require a 401 certificate for the project.
"A Water Quality Certification is required prior to tree felling as now proposed, and TGP's reference in its April 11 filing to statements made by MassDEP staff in January 2016 is misleading," wrote DEP analyst Brian D. Harrington in a sworn affidavit.
U.S. Senator Elizabeth Warren got involved, and asked the U.S. Fish and Wildlife Service to deny tree-cutting after March 31 to protect migratory birds and a vulnerable bat. FERC had told Tennessee it needed clearance from Fish & Wildlife to proceed with tree felling after that date, even though Fish & Wildlife's own rules regarding the species don't state a specific cutoff date for logging.
U.S. Fish & Wildlife public affairs specialist Catherine Hibbard told The Republican there are no time-of-year restrictions for activities that may harm migratory birds, although the agency recommends that bush and tree clearing occur outside the birds' breeding season. For the northern long-eared bat, there are no restrictions for timber harvest if the project is more than a quarter mile from a hibernation area or more than 150 feet from a roost tree.
Regardless of how things go with Fish & Wildlife, Tennessee will now be able to present its 401 certificate from Massachusetts to FERC.
The 13.42-mile pipeline plan shows loops in New York, Connecticut, and Massachusetts. The Berkshire County section would be about four miles long. The infrastructure is designed to let Tennessee transport 72,100 dekatherms of daily service from a pipeline gate in Wright, New York to three natural gas utilities in Connecticut.
Project opponents have included Sen. Ben Downing (D-Pittsfield) and Rep. William "Smitty" Pignatelli (D-Lenox), who represent the Berkshires, as well as environmental and landowner groups such as Mass Audubon and Sandisfield Taxpayers Opposed to the Pipeline (STOP).
Mass Audubon played a major role in the preservation of the Otis State Forest a decade ago.
The project calls for the withdrawal of one million gallons of water from the state-owned Spectacle Pond to test the pipeline. Construction is expected to impact approximately 29 acres of the forest. Construction would widen an existing gas pipeline right-of-way.
Kinder Morgan withdrew its federal application for a much larger pipeline project earlier this year, citing inadequate customer commitments for its 420-mile Northeast Energy Direct.