Tuesday, January 02, 2007

New York State Indicates That It Might Be Preparing to Say No To Broadwater

Broadwater, Shell and TransCanada got some bad news from New York State just before Christmas. Exactly how bad depends on what happens with the rest of the state’s review of the Broadwater environmental impact statement, and on whether that review and the decision that results can be overruled on the federal level.

Broadwater needs two things* from New York if it wants to build its huge liquefied natural gas terminal in Long Island Sound: an easement so it can use underwater lands owned by the people of the state to moor the terminal, and a determination that the easement and the project itself are consistent with the Long Island Sound Regional Coastal Management Program, which the state Department of State oversees.

On December 20, the Department of State sent a letter to the Federal Energy Regulatory Commission (read it here) that indicated that the department was leaning toward determining that Broadwater was not consistent with the program.

Without a consistency determination, the project can’t be built, unless FERC has the power to overrule the state, or unless Broadwater can go to federal court and get a judge to agree that the federal energy act gives the feds the final say. Both of those results are possible, certainly, but they remain to be seen.

So for now, Broadwater has hit its first bit of regulatory trouble. Here are some excerpts from the December 20 letter. They refer to the policies in the Long Island Sound Regional Coastal Management Program (the letter was full of typos, which I helpfully corrected):

Policy 1 : Foster a pattern of development id the Long Island Sound (LIS) coastal area that enhances community character, preserves open space, makes efficient use of infrastructure, makes beneficial use of a coastal location, and minimizes adverse effects of development.
Subpolicy 1. I: Concentrate development and redevelop~ent in or adjacent to traditional communities
Subpolicy 1.2: Ensure that development or uses take appropriate advantage of their coastal location
Subpolicy 1.3: Protect stable residential areas
Subpolicy 1.4: Maintain and enhance natural areas, recreation, open space. and agricultural lands.
Subpolicy 1.5: Minimize adverse impacts of new development and redevelopment.

There is concern that a semi- permanent industrial facility in the middle of the LIS could impair the character of the Sound and of its traditional coastal communities that Policy 1 seeks to advance.

Policy 9: Provide for public access to, and recreational use of, coastal waters, public lands, and public resources of the LIS coastal area.
Subpolicy 9.1: Promote appropriate and adequate physical public access and recreation throughout the coastal area.
Subpolicy 9.2: Provide public visual access from public lands to coastal lands and waters or open space at all sites where physically practical.
Subpolicy 9.3: Preserve the public interest in and use of lands and waters held in public trust by the state, New York City, and towns in Nassau and Suffolk counties.
Subpolicy 9.4: Assure public access to public trust lands and navigable waters.

There is concern that the proposed project will limit public access to a portion of the LIS area currently held in public trust. Policy 9 provides guidance in considering the conditions for minimum standards of public access.

Policy 10: Protect the LIS's water-dependent uses and promote siting of new water-
dependent uses in suitable locations.
Subpolicy IO. I: Protect existing water-dependent uses.
Subpolicy 10.2: Promote maritime centers as the most suitable locations for water- dependent uses.
Subpolicy 10.3: Allow for development of new water-dependent uses outside of maritime centers.
Subpolicy 10.4: Improve the economic viability of water-dependent uses by allowing for non-water-dependent accessory and multiple uses, particularly water-enhanced and maritime support services.
Subpolicy 10.5: Minimize adverse impacts of new and expanding water-dependent uses, provide for their safe operation, and maintain regionally important uses.
Subpolicy 10.6: Provide sufficient infrastructure for water-dependent uses.
Subpolicy 10.7: Promote efficient harbor operation.

There is concern that the proposed project, involving both water-dependent and non- water dependent uses, could potentially displace, adversely impact or interfere with water-dependent commercial and recreational fisheries, navigation, and general recreational uses that Policy 10 seeks to support.

I’m not sure what the purpose of a preliminary letter like that one would be. If you were leaning toward determining that the LNG terminal isn’t consistent with state policies, why wouldn’t you just wait til you had made up your mind and then say so? Perhaps it’s a courtesy to let FERC and Broadwater know that the real bad news lies ahead. Perhaps it’s a way for the Department of State to signal to the people of Long Island that it is intent on protecting the region’s interests. Perhaps it’s a way for the DOS under the Pataki administration to stake out its position before the Spitzer administration takes over, and therefore make it harder for the new administration to dictate a contrary determination (not that I have any reason to believe it would).

Whatever the case, it at least seems possible that New York State will be looking for ways to say no to Broadwater.

* An astute reader has pointed out that Broadwater also needs an air permit and a water quality certification from New York State.



Blogger Sam said...

Thanks to your astute reader, as I was working on the regional ozone modeling aspect rather than a state and Title V air permit. As I'm a Clean Air Head, here are some details.

A General Conformity analysis is required is the project emits more than 50 tons a year (I'll check that) of NOx or VOC. This detemination must include all direct and indirect air emissions associate with construction and operation of a federal-permitted source. This is known in the trade as a "certificate of conformity" if they can get one.

A state air permit is required and is in fact open to public hearings and comment. Federal quidance requires that the industrial source to be modeled using a model such as ICST3; any ship emissions would be included if physically attached to the terminal. Being located on the Sound, I would arge that a short-term permit model would not suffice, so a medium-range model should be used to determine impacts on all receptor sources (you and me breathing) on the mainland.

An interesting twist is that several New England states are part of the Ozone Transport Region, which is part of the Clean Air Act of 1990. In general, increases in one state's emissions "cannot cause of contribute" to exceedances of the ozone standard in downwind states such as Connecticut. Any increases in ozone prcursors (NOx and VOC) must be offset by reductions, credits, or some kind of strategy because of the "cap and trade" program.

That's the angle I was trying to address, although the regional ozone modeling is a little beyond what I can do for free on a PC, LOL. I also would closely examine particulate matter (PM-2.5) emissions because while ozone can make people temporarily ill, PM kills people - and is a national air quality standard now.

So that's the 1-2-3. General conformity, a state air permit, and regional, interstate impacts must be addressed.

If people will argue over air quality, they will fight to death over water quality and underwater easements. I won't address those because they are well beyond my field of expertise.


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