Scott administration helped keep scathing EPA pipeline report out of legal challenge

This article was originally posted this story on 11/25/2015 here.

TALLAHASSEE — Gov. Rick Scott’s top environmental agency helped block a scathing federal report outlining environmental concerns from being submitted as part of a challenge to a controversial natural gas pipeline that would run across some of Florida’s most “environmentally sensitive areas.”

The Sabal Trail pipeline, a joint venture of Spectra Energy, Duke Energy and Florida Power & Light Co.’s parent company, would extend 515 miles from central Alabama to Osceola County. The project, which covers more than 260 miles in Florida, faces a legal challenge to a state permit in Florida from an environmental group named the WWALS Watershed Coalition.

On Oct. 26, the U.S. Environmental Protection Agency wrote to the Federal Energy Regulatory Commission, saying it had “very significant concerns” about the process of choosing a route because of the threat of pollution to the Floridan Aquifer and the impact on conservation areas.

Four days later, the WWALS Watershed Coalition asked Administrative Law Judge Bram D.E. Canter to take judicial notice of the EPA objections.

But the Florida Department of Environmental Protection joined Sabal Trail Transmission, LLC in objecting, and Canter refused the request.

A spokeswoman for the DEP, which is overseen by Scott’s office, was twice asked whether the permit should be re-evaluated in light of the EPA comments. Each time, she answered with a statement that neither acknowledged nor addressed the EPA concerns.

John Quarterman, president of the WWALS Watershed Coalition, told POLITICO Florida that the permit never should not be issued because of concerns about the project. WWALS refers to the Withlacoochee, Willacoochee, Alapaha, Little, and Upper Suwannee River watersheds in south Georgia and north Florida.

“It would be nice if they [DEP officials] decided on their own to not issue the permit,” Quaterman said. “I can’t say I’d be exactly holding my breath for that to happen.”

In 2009, Florida Power & Light Co. petitioned the Florida Public Service Commission to build a 280-mile natural gas pipeline to serve its Cape Canaveral and Riviera Beach electric generating units. The PSC denied the petition because it said it was not shown to be the most cost effective alternative, but the commission also said the pipeline was needed to meet future energy needs.

The Sabal Trail pipeline project was announced in 2013 as a joint venture to serve Florida Power & Light Co. and Duke Energy of Florida plants beginning in May 2017. Later that year, the PSC approved a request by Florida Power & Light to recover costs for the project from its customers.

In July, the Department of Environmental Protection said it intended to issue a state environmental resource permit for the project, which will affect 408 acres of wetlands. In August, the state Acquisition and Restoration Council granted approval for the pipeline to cross nearly 100 acres of state parks, state forests and state recreation trails. In some cases the pipeline will be drilled under rivers.

Meanwhile, permit applications are pending with the Federal Energy Regulatory Commission for the pipeline and with the Army Corps of Engineers for wetlands and waterway impacts.

A hearing on the state permit challenge was held in mid-October, before the EPA issued its comment letter to the Federal Energy Regulatory Commission.

At the same time, political opposition to the pipeline was building in Georgia. On Oct. 23, four Georgia congressmen sent a letter to the Federal Energy Regulatory Commission raising concerns about the threat of health and safety risks to disadvantaged black communities where the pipeline crosses.

The commission is obligated to consider environmental justice issues involving the pipeline, wrote Democratic U.S. Reps. Sanford D. Bishop Jr., John Lewis, Henry C. “Hank” Johnson Jr. and David Scott.

“Apart from the above legal considerations, common sense would suggest that a pipeline carrying a highly flammable substance and a massive polluting industrial facility should not be placed in any residential community, much less an environmental justice community,” they wrote. They also raised concerns about the region’s vulnerable geology of karst limestone that resemble Swiss cheese with its porous rock and watery passages.

In the Oct. 26 EPA comment letter, Christopher A. Militscher, chief of the agency’s NEPA Program Office, raised concerns about threats in Florida to springs and the Floridan Aquifer and “sensitive and vulnerable” karst geology as well as environmental justice communities. And the project, he noted, will affect 177 acres of numerous conservation areas in the three states, including Florida’s Green Swamp.

“The EPA recommends that the FERC re-evaluate its environmental alternatives analysis for routes that avoid environmentally sensitive areas including jurisdictional wetlands, conservation areas, (environmental justice) communities and sensitive karst terrain areas prior to proceeding with a final EIS (environmental impact statement),” Militscher wrote.

And an attached report with the letter raised numerous concerns about how the pipeline could be damaged by sinkhole collapse and cause contamination of springs and waterways. The report also noted that gas pipeline explosions in other states had left behind huge craters.

“The creation of craters in a sensitive, vulnerable aquifer such as the Floridan Aquifer are a problem to be avoided,” the EPA report said. “FERC provides no assurances with its route selection or karst mitigation that crater creation will be avoided.”

Four days later, the WWALS Watershed Coalition, in its legal challenge to the DEP permit, formally asked Canter to take “judicial notice” of the document in the challenge to the state permit. The group said the flow of the Suwannee River and other waterways could be affected by the pipeline.

“This is significant new evidence that was not available at the time of the expedited hearing,” the motion said.

On Nov. 2, Sabal Trail Transmission filed a motion arguing that the opponents had an opportunity to present facts during an earlier hearing and should not be allowed to retry the case. DEP joined Sabal Trail Transmission LLC in opposition to the opponents’ motion.

The EPA comment letter “is not an excuse to untimely request a second bite at the litigation apple,” the company wrote in its motion.

In denying the environmental group’s request, Canter said that taking notice of the EPA concerns would not have established their validity.

“The fact that EPA expressed concerns to FERC is not material in this state administrative proceeding,” he wrote on Nov. 9.

And Sabal Trail Transmission LLC told the Federal Energy Regulatory Commission that many of the issues raised by the U. S. Environmental Protection Agency don’t apply to the limited commission proceedings under the federal Natural Gas Act or EPA review under the National Environmental Policy Act.

The DEP spokeswoman who twice was asked whether the state, as a result of the EPA letter, should continue moving forward on the permit responded only that the operation had been reviewed to ensure that the pipeline operation protects the environment along with human health and safety.

“The department’s (DEP) intent to issue was based on the determination that the application met all requirements under Florida law, and in this case, DEP determined the applicant demonstrated reasonable assurance that the state’s wetlands and water resources would be protected,” spokeswoman Lori Elliott said.

A Sabal Transmission LLC spokeswoman said the company now is coordinating concerns with state and federal agencies and is not considering changing the proposed project or route.

Spokeswoman Andrea Grover also pointed to the company’s Nov. 9 response to the Federal Energy Regulatory Commission that addresses the EPA letter and other comments, while adding, “Sabal Trail remains on target to begin construction (in the) second quarter next year.”

In its response to the commission, Sabal Trail argued that a key point for the commission to consider is whether there is a market need for the project. Sabal Trail has said the project is needed to improve reliability for the fdelivery of clean-burning natural gas to power plants.

The National Environmental Policy Act, under which the federal EPA was reviewing the project, allows the commission and the Army Corps of Engineers to consider environmental impacts but not redefine the underlying purpose and need for the project, Lisa A. Connolly, general manager of rates and certificates, wrote in the response.

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