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Litigation: DRN & Delaware Riverkeeper v. PA DEP & Tennessee Gas Pipeline Co.


In a December 18, 2012 legal filing, the Pennsylvania Department of Environmental Protection’s Environmental Hearing Board was asked to issue an Order of Supersedeas that would prevent the Tennessee Gas Pipeline Company from proceeding with mobilization and tree clearing, the first steps in construction of its proposed NorthEast Upgrade Project (TGP’s NEUP). The Delaware Riverkeeper Network and Responsible Drilling Alliance filed the petition, essentially a request for a stay of construction activity, together with their notices of appeal of three DEP permits issued for the project, in order to allow the groups enough time to pursue their legal challenge while maintaining the status quo. 

The Petition for Supersedeas requests the EHB to supersede the Pennsylvania Department of Environmental Protection’s (DEP) decisions to approve an Erosion & Sedimentation Control General Permit and to approve Water Obstruction & Encroachment permits for Wayne and Pike Counties for the TGP NEUP project. 

The Petition

The Petition, filed by attorneys on behalf of the Delaware Riverkeeper Network, the Responsible Drilling Alliance, and the Delaware Riverkeeper, Maya van Rossum, asserts that DEP’s decisions to approve TGP’s applications for these various permits violated the law in at least three ways. 

  • First, TGP has a record of recent and on-oing environmental violations on pipeline upgrade projects on the same pipeline that clearly shows TGP cannot be trusted to comply with environmental laws. 
  • Second, DEP approved the permits even though the permit applications failed to meet the substantive requirements of the regulations. 
  • Third, DEP issued the Erosion and Sediment Control permit despite unrebutted expert analysis from the Pike County Conservation District finding that TGP’s plans contained serious technical deficiencies. 

 The petition goes on to say: “Because DEP’s improper approval of TGP’s activities will result in the irreversible discharge of sediment into the tributaries of the Delaware River; the improper destruction of mature trees that prevent sediment from flowing into these tributaries and provide shading to regulate temperatures in streams and wetlands; long-lasting damage and even permanent destruction of Exceptional Value wetlands; and the disruption of macroinvertebrate populations during the time that DRN’s appeal is pending, DRN will suffer irreparable harm unless the Board supersedes DEP’s decisions and suspends the permits and permit authorization.” 

Tennessee Gas Pipeline Company’s Northeast Upgrade Project

Tennessee Gas Pipeline Company’s Northeast Upgrade Project is an interstate transmission line upgrade project.. The NEUP is the final pipeline upgrade project in TGP’s multi-stage 300 Line upgrade project, although TGP has misrepresented that reality in order to avoid critical environmental regulation and oversight. Three of the loops that are part of this project are located within the Delaware River Basin (Loops 321, 323, and 325), which span Wayne and Pike counties in Pennsylvania, and Sussex county in New Jersey. The project includes pipeline drilling activities under the Delaware River, significant new grading and clearing of previously undisturbed forested land and steep slopes, 90 stream crossings, 136 wetland crossings, and 450 acres of land development within our watershed alone. Highpoint State Park and Delaware State Forest are among the public lands to be damaged by this project. 

Currently, the western leg of the 300 Line runs from compressor station 219 in Mercer County, Pennsylvania to compressor station 313 in Potter County and consists of a 24-inch-diameter pipeline with a completed 30-inch-diameter loop along its entire length. Within the last 24 months Tennessee has applied to FERC for approval of four projects that together will compose the Eastern Leg of the 300 Line, starting at compressor station 313 in Potter County, Pennsylvania and stretching east to a delivery point in Mahwah, New Jersey.


Litigation: Delaware Riverkeeper Network, et. al. v. Federal Energy Regulatory Commission, Tennessee Gas Pipeline Company

Federal Court Rules FERC Violated Federal Law When Issued Approvals for NEUP Pipeline Project 

Update:  FERC has failed to comply with the court’s ruling and revisit its NEPA review of this project – DRN is pressing the issue with the court.

In a decision issued June 6, 2014, the United States Court of Appeals for the District of Columbia, ruled that the Delaware Riverkeeper Network, the NJ Sierra Club and New Jersey Highlands Coalition were correct in their legal challenge to the Tennessee Gas Pipeline Company’s Northeast Upgrade Project and ordered additional analysis and review.  Delaware Riverkeeper Network’s on staff attorneys were the lead in this legal action.

The Court stated: 

“On the record before us, we hold that in conducting its environmental review of the Northeast Project without considering the other connected, closely related, and interdependent projects on the Eastern Leg, FERC impermissibly segmented the environmental review in violation of NEPA. We also find that FERC’s EA is deficient in its failure to include any meaningful analysis of the cumulative impacts of the upgrade projects. We therefore grant the petition for review and remand the case to the Commission for further consideration of segmentation and cumulative impacts.” 

“On the record before us, we find that FERC acted arbitrarily in deciding to evaluate the environment effects of the Northeast Project independent of the other connected action on the Eastern Leg.” 

In May 2012 the Federal Energy Regulatory Commission (FERC) issued a certificate of public convenience and necessity to Tennessee Gas Pipeline Company authorizing construction and operation of its Northeast Upgrade Project. Delaware Riverkeeper Network, the NJ Sierra Club and New Jersey Highlands Coalition argued that the approval was inappropriate because FERC had illegally segmented its environmental review of the Northeast Project by failing to consider three other connected and interdependent projects – the 300 Line Project, the Northeast Supply Diversification Project, the MPP Project – and by failing to provide a meaningful analysis of the cumulative impacts of the projects. 

DRN on the Decision

Maya van Rossum, the Delaware Riverkeeper said about the decision: “This is important vindication of the rights of our communities and environment to be honestly considered and protected by our federal agencies. FERC has been allowing illegal segmentation by pipeline companies for years, it has ignored the pleas of the public for equity and for honest review of impacts, and as such FERC has been complicit with the pipeline companies in their ongoing efforts to avoid the rule of law and to ignore the devastating impacts they are having on our environment, impacts that will harm not just present, but also future generations. It is rewarding that a federal court has finally held FERC to account.” 

The case was argued before the Court of Appeals by Delaware Riverkeeper Network attorney Aaron Stemplewicz. Said Stemplewicz of the decision, “The D.C. Circuit’s decision today should put other pipeline companies on notice that the practice of segmenting pipeline projects before the Federal Energy Regulatory Commission will no longer be tolerated, and that the cumulative environmental impacts resulting from these projects must be fully considered before a project is approved.” 

Added Delaware Riverkeeper Maya van Rossum: “This decision is important and powerful for every pipeline, related infrastructure and LNG project to come, but sadly for the communities, forests, streams, wetlands and critters impacted by the four projects at issue here, the decision comes too late to ensure their full consideration and protection. We will be able to press for important mitigation and efforts to undo the harms already inflicted, but as for avoiding the full array of harms, that is now impossible. FERC needed to do its job when it had the opportunity – but they were too busy servicing the gas pipeline companies to care.” 

Of particular note – all three justices ruling on this case concurred on the final judgment rendered. 


PA 401 Certification


February 7, 2017 the PADEP issued 401 Certification for the PennEast pipeline.  The Certification was formally noticed in the February 25, addition of the PA Bulletin.  February 28 the Delaware Riverkeeper Network submitted a Petition for Review to the US Court of Appeals for the Third Circuit.  (Appeal filed below).  

July 13, 2017 the Delaware Riverkeeper Network’s legal counsel argued in court that the third circuit should send the case back to the PA Environmental Hearing Board for review and identifying the myriad of ways that the oranization and its members had been denied critical rights as a result of the cart before the horse process the state, supported by PennEast, was utilizing.  To learn more about the arguments of the organization see the reply brief filed 8.7.17 below.

History of the Certification:

In a May 14, 2016 public notice PADEP announced its intent to issue a 401 Water Quality Certification pursuant to the Clean Water Act for the PennEast Pipeline Project.

A second request for comment was filed August 27, 2016, with a second 30 day comment period on what appears to be the identical filing of materials in May.

Key portions of the Application Submission and the public notice can be found in the resources below.

Additionally below you can find the comments and expert reports submitted by the Delaware Riverkeeper Network making the case to the state that they should deny the PennEast pipeline the Clean Water Act 401 Certification approval it is seeking.


FERC Certificate Challenge by DRN


January 24, 2018, the Delaware Riverkeeper Network filed a rehearing request challenging the FERC Certificate issued approving the PennEast Pipeline Project.  The FERC Certificate was issued at 8:20 pm on January 19, 2018.

A Rehearing Request must be submitted and denied before a legal challenge in court can be pursued.  FERC has 30 days to respond to the request.

Delaware Riverkeeper Network also submitted to FERC a Motion for Stay to halt construction and any other land disturbance pending the rehearing request. 

The Rehearing Request, Motion for Stay, and associated press release can be found below.

On February 22, 2018 FERC issued a tolling order in response to our rehearing request, placing our organization in legal limbo as it was neither a grant nor denial of our rehearing request. 

On March 15, 2018 the Delaware Riverkeeper Network submitted a rehearing request on the 2/22/2018 tolling order.  As expected, FERC issued a tolling order on this rehearing request on April 13, 2018.  Again, seeking to use this legal loophole strategy FERC has created to continue to prevent our access to the courts.  

On May 9, 2018, the Delaware Riverkeeper Network filed for a writ of mandamus seeking a court order that FERC respond affirmatively to our rehearing requests and also seeking to challenge the FERC final decision despite the tollling order.

All filings and documents can be found below.


Comments re Draft Environmental Impact Statement


On Friday, July 22, 2016, the Federal Energy Regulatory Commission (FERC) issued a Draft Environmental Impact Statement (DEIS) for the PennEast Pipeline project that is 1,174 pages long giving September 5 (then 12) as the deadline for comments.  FERC’s measly 45/52 day comment period was another blatant abuse of power by FERC in favor of the pipeline companies and to the detriment of the many people facing irreparable damage to their health, safety, environment and economic wellbeing.   Below is the cover comment and series of expert reports the Delaware Riverkeeper Network submitted in response.  

There are other attachments not included below but which can be provided upon request.


Southport Project (Dormant)

Editor’s note: This issue is currently dormant. We will continue monitoring the situation and may take up the issue in the future.


The Southport Development project involves the filling in of 12.28 acres of open water (.2 of which is emergent wetlands, 1.08 acres of which is shallow water habitat, and 3.62 of which is deep water habitat); 3.75 acres of nontidal wetlands; .73 acres of a tidal drainage area; filling in an unspecified amount of floodplain lands with 3 to 4 feet of fill in order to raise the area to above the 100-year floodplain (in fact to raise it to the 200 year floodplain); dredging a 35-acre area within the River to a 40+2 foot depth; impacts to approximately 4600 linear ft of existing shoreline; the permanent loss of 1.08 acres of submerged aquatic vegetation; and having a 116 acre development footprint which will necessarily be on riverside lands and result in the loss of potential terrestrial habitat. The project is being postured as a method for disposing of spoils from the Army Corps’ Delaware deepening proposal.  And that explains why the push by PA and the apparent interest of the Army Corps to skew the review and public process to make approval for the project easier. 
As part of its overall vision for the Delaware River Deepening project, Pennsylvania conceived of, and advanced the proposed Southport project.  The project never recieved full and fair review from the US Army Corps who appreciated the project for providing a much needed rationale for deepening.  The Delaware Riverkeeper Network repeatedly expressed our concerns regarding the proposed Southport development project and what appeared to us to be an evolving abuse of process and politics.  Our review of the files demonstrated that the Army Corps supported efforts to truncate the environmental review process that should be taking place around this proposal.  And so the Delaware Riverkeeper Network urged the Environmental Protection Agency to step in and take the reigns. But they failed to act.  In fact, documents on the record showed us that rather than exercising any oversight they instead sought to work in collusion to evade full and fair review of the project.  In email from EPA officials to Army Corps officials it is said: “In light of the rash of activity recently from the riverkeeper regarding the Southport project, we are hoping to set up a meeting with you guys to make sure we are on the same page.”   

Ultimately, because of its connectivity to the Deepening the Southport project was approved. 


Philadelphia Airport Expansion


Expansion of the PHL Airport continues at a variety of different locations. In 2019, DRN learned of the expansion of the West Cargo Redevelopment and Expansion Plan (Expansion Plan), which will relocate the UPS facility near Tinicum Township. DRN partnered with the Darby Creek Valley Association and the Eastwick Friends and Neighbors Coalition. DRN has served on EFNC’s Board for 7 years.  

In 2019, the partnership prepared substantive comment on the Environmental Assessment (EA) Scoping document and in 2020 on the EA itself.  In both comments, we stressed that the impacts would be significant enough that a full EIS should be conducted on the Expansion Plan to fully understand the cumulative impacts of this expansive project, which includes but is not limited to, increase is impervious surface, disturbance of wetland and open space, increase noise and pollution, change in local hydrology and likely impacts on flooding and wildlife habitat. The cumulative impacts that would be documented in an EIS would reveal the impact the Expansion Plan will have on the surrounding human communities and the local and regional environment. Further, we believe that the EA has insufficiently addressed up-stream development, the impacts of sea-level rise, storm surges and other effects of Climate Change. The Expansion Plan is a multi-billion dollar project whose impact will be felt for decades.  

Attached are the comments from both the 2019 EA Scoping and the 2020 EA. Mitigation is required under the EA and DRN and partners will continue to follow and monitor those efforts. 


Newtown Creek Watershed Photo Essay


The Delaware Riverkeeper Network and project partner the Newton Creek Watershed Association trained volunteers to photo-document sources of non-point source pollutants throughout the Newton Creek Watershed.  The photos show the good, the bad and the ugly of this urban watershed that stretches from Haddonfield to Camden.

Newton Lake and Peters Creek, a Newton tributary, are both listed as “impaired waterways” by NJDEP because they cannot support a healthy mix of aquatic life.  These degraded conditions are primarily due to excessive stormwater runoff, which causes erosion, nutrient enrichment, local flooding and sewage overflows.

The volunteers, nearly all from area high schools, were given an introduction on the urban water cycle and the impacts on local waterways from impervious surfaces, poor stormwater compliance and maintenance.  The volunteers were each assigned a segment of the creek and, utilizing their own smartphones, took pictures of excessive erosion, discharge pipes going directly into the waterway, illegally disposed of yard waste and trash.  All photos were geo-tagged so the exact locations could be found again and placed on a GIS map.

The photos have already resulted in inspections by NJDEP compliance officers and meetings set up with officials from two town.

The objective of the Delaware Riverkeeper Network’s photo-documentation project is to show municipal officials and the general public what the source of the problems on the Newton Creek Watershed are and why it’s wasting tax-payer money and bad for the environment to continue to only focus on activities such as dredging, aeration and chemical treatment, which are only symptoms of a bigger stormwater management problem.

View the photo essay below:


Newton Creek Dredging Task Force


The Newton Creek Watershed is located in Camden County New Jersey with its headwaters located in suburban Collingswood, Haddonfield and Haddon Heights and its confluence with the Delaware in the City of Camden. The Newton is a small (13.6 sq mi), urbanized watershed consisting of 11 municipalities.  It is approximately 38%   Multiple historic mill dams have created several manmade lakes that are now extremely popular parks.

As a result of past and present land use, including industrial in Gloucester and Camden cities, as well as densely developed, older residential with little or no stormwater management infrastructure, water quality in the Newton Creek does not meet state water quality standards. In fact, it is listed as an “impaired waterway” by the NJ Department of Environmental Protection (NJDEP) indicating that it does not measure up to the standards required for maintenance of healthy aquatic communities of wildlife, especially of fish and smaller creatures at the base of the food chain. Based on DEP assessments, Newton Creek is characterized as having excessive siltation, nutrient enrichment, inadequate stormwater management, diminished stream base flows, nonpoint source pollution impacts, degraded habitat, and frequent nuisance flooding.

Over the past 15 years, the Delaware Riverkeeper Network has been actively engaged in a variety of efforts ranging from water quality monitoring, the preservation of Saddlers Woods, an old growth forest, advocating for riparian buffers, design and installation of several green stormwater infrastructure, trained volunteers to photo-document nonpoint pollution sources, leading stormwater driving tours and even sponsored a snakehead fishing contest.

Camden County is now proposing to dredge 260,000 cubic yards of sediment from the Newton and its largest tributary, the Peter’s Creek.  DRN and other members of the Newton Creek Dredging Task Force submitted joint comments to NJDEP on Camden County’s proposed 260,000 CY dredging project. The Newton and Peters are older, suburban watersheds and so, like many similar communities throughout the Delaware River Watershed, are recipients of large volumes of sediment and urban nonpoint pollution. Our comments focused on protecting sufficient areas of shallow water littoral zones that provide important aquatic habitat and wadding bird foraging area and the choice of dewatering technology. Not all dewatering is the same with some allowing significant amounts of dredged contaminants to actually flow back into the waterway. DRN’s strategy that we believe will result in better post-dredging water quality started with meeting with the County to discuss what actions need to be taken upstream to reduce the volume of runoff and increase infiltration. We focused on the many innovative stormwater green infrastructure in this watershed. Our strategy also included calling and meeting with NJDEP permit review team to establish a relationship with them, walking the dewatering sites, partnering with the impacted stakeholders, including fishing clubs, municipal environmental commissions and Sustainability Teams and making sure our comments not only pointed out our areas of concern, of which there were many, but also any positive aspects in the permits.

Areal Image showing the site
Image: Western portion of project near Route 168.


Mohican Lake Herbiciding (Dormant)

Editor’s note: This issue is currently dormant. We will continue monitoring the situation and may take up the issue in the future.


The Mohican Lake Homeowners, which only represented a portion of the residents around Mohican Lake, used the presence of an invasive aquatic plant (Myriophyllum spicatum) to conduct broad herbicide treatments in the tannic-water lake over the objections of other lake residents, particularly the Mohican Lake Resort.  Despite multiple problems with the permit applications and objections from lake residents, NYDEC issued permits in two subsequent years to allow herbicide treatments.  Clearly this was not intended to be an invasive species control effort, but instead an overall aquatic plant reduction effort (primarily native aquatic plants) to make the lake recreation more compatible with high-intensity uses (motor boats, water skiing, jet skiing) compared to passive recreation (kayaking).

Photo of the Mohican Lake