they felt to evaluate any water quality standards when issuing the water quality sort of occasion which is direct directly contradicted by pennsylvania law so it was the absence of the no five sort of condition at least section one of five in section one of five included with every single water sort of water quality sort of vacation that is requested and if this court is looking for any guidance on the way in which pencil in the state of pennsylvania has the court stated that one of five fifteen b and i quote requires the submission of an environmental assessment containing the information i'm sorry that let me let me that one of five fifty requires a water quality sort of action to submit an environmental assessment equivalent to that required for state law kermit so the important issue here is that there is not and never was or never should have been t review the substandard water quality standards of the state was never part of the water quality sort of occasion it was a sit was a completely separate process and so the horns are sort of the result of that if they didn't follow their own procedures why didn't follow the procedures and here throughout the record we continually point out different deficiencies and the improper way in which this water quality sort of creation was issued and the department was ultimately silent explaining failing to explain why they didn't follow any of the any of the contradictory evidence that we had that we had proposed now i think in addition to the so both the department and intervener contended no construction activity was allowed to occur prior to the one of five permit being issued our that's that wasn't the case here we had eighty thousand linear feet of trees that were cut in exceptional value wetlands prior to that point and that's that's one of the problems here is that if you're if you allow this delay in time you make it substantially more likely that water quality  that sequencing of the vets it basically makes the review of the subsea end of standards and it's the review of the one o five permit immune from judicial review and let me explain how that happens if we're required ninth would be in net but they didn't make their decision department to make their decision until july so we'd be time barred from even bring the appeal even if we wanted to know whether there's a i'm sorry it's  enforce water quality standards that is that is there that is their prerogative that is their that's their job and relies on them to do that and here they had the responsibility not to allow the project to move forward or allow any true clearing value resources in the application material right and that accurate information was never provided the instead what was transco provided to the department to review was a series of one designations with the terms used in new be the remedy really would be to replant the trees you could replace the trees in these areas and this problem could've been taken care of from the very beginning if transco were required to just tunnel underneath these different exceptional by whelan's they tunnel underneath submission and the later stake submission is that have any effect on public hearings we do not we do not allow just part of our our case that that impacted any me please the court this case is about the state authority to enforce its state water quality standards and how that authority is preserved three hundred natural gas petitioners incorrectly relying on immunity have been established the water quality certification that was in it was issued in this case complies with state water quality standards subject to certain conditions in this state is authorized with wide process on we are there is a discrete application for a particular date or encroach on an activity the department has incorporated it larger projects such as we had here with the interstate natural gas pipeline only there are multiple federal authorizations involved in a number of state regulatory programs implicated we will entertain standalone requests for water quality certification and that has happened concerning clear power plants in hydroelectric power dams and i think what  deviate from those policies but this case the applications they want to find out what patients associated with the quote encroachments surface waters were filed with the agency in october of twenty thirteen  we also received permit applications concerning storm water discharge a sociedad with the natural gas activities in february of two thousand and fourteen we did not receive the request for water quality certification and to jammu twenty fourteen  it was a standalone request it contained an environmental assessment was provided with it and this was a very open process upon receiving the request we published in bogus that we received the request with that notice included in invitation for anyone who was interested in the project to review the materials that were submitted in submit comments to the agency and in fact we drafted a copy a draft of the water quality certification containing similar conditions as to what was in the at the final action also for public comment and we did not receive any comment so we jacked to the implication that there was any nefarious intent upon the agency in posture it was not a standalone for one water quality certification it was an action for a temporary restraining order concerning the appeals of department permits that were pending before the pennsylvania environmental hearing ford which is number of these projects this is a fairly new situation where we're receiving these types of requests from for these large interstate natural gas pipelines  water quality certification is consistent with what the what the fuck has done yes but you still you are still obligated to to make the state certifications which of course you did cutting down trees without any approval well to take exception to the allegations of the founding of the trees it's not subject to the regulatory program and here is where we had  certification i'm not aware of the timing perhaps the project proponent could speak to that ok not bestow any rights upon the state the conception want to one of the clean water act says that the state is primarily responsible for prevention of its pollution and its rights are preserved their rights that the state between the telecommunications act and the queen water act in the states not substituting for a federal regulator under the telecommunications act the state commissions were reviewing telecommunication agreements partnership here but the rights preserved in the state issue and the water quality certification alternately if we deny the water quality certification on there is an agency reviewing that decision and that affected we stop the project it would only be judicial review as to whether that decision on complies with the law so the exercise of the state discretion would not be subject to federal  granted on march ninth twenty fifteen to allow us to do tree felling which is not construction and not something that we have to get any permits from pennsylvania for but we had a notice to proceed tree felling on march eleventh one day later and administrative stays issued by the d c circuit and then after a briefing is completed eight days later on march nineteenth twenty fifteen didn't commence until we got a nose to proceed from the federal energy regulatory commission on jawad twenty third or twenty fifteen six days after the one zero five chapter one five permits were issued on july seventeenth twenty fift so i think there is no harm there that is not construction everything was appropriately followed and it was approved the second thing is i think it's important for the court to understand that with respect to the four one water quality sort of cation process and they want to fly they were parallel currently processes going on before the state beat one of five process started on october first twenty thirteen july seventeenth they didn't file an appeal with the environmental hearing board who are nor did they file an appeal with this court which they could have done and they could have consolidated with the briefing in this and had her think her they elected not to do that so that's that's an important piece of the puzzle here is they only have the right record before you to challenge the record of certification frankly based upon judge rescues ruling in the case that i submitted i do want to take it your honour's are correct you should follow islanders surekha suggested as much as what's interesting in response to the commentary that went down is if you look at the amendment to the natural gas act which was passed in two thousand and five and they energy policy act which created this drew just for you section seventeen or the one it says that the united states court of appeals for the circuit in which  located shall have a regional and exclusive jurisdiction over any civil action review water or state agency action acting pursuit the state coastal zone management act of making seventy two so if this was something out of the coastal zone measure next something required or that this a provision would imply it doesn't say other than the coastal zone management act and the clean under federal law to do these limited actions thank you thank you thank you project neutral regulatory commission jurisdictional project adhere to the jurisdictional project all require the same the same process for obtaining a water quality sort of occasion and that and that process is clearly outlined in one zero five fifteen b there is no language anywhere in the pennsylvania code where otherwise you know case law nothing that limits the request for water quality sort of occasions limits it went to five fifty the application of one to five fifteen b for some were cross and not for others it's the same it's the same process is required for every single water quality sort of occasion request that comes to the state of pennsylvania and here that process it was applied for were prior to the war but there was they had they requested set the way that this was processed other part was that there were two parallel separate permitting regimes going on simultaneously and one hand wasn't talking to the other right here we may impact our primary process right they recognize that tree felling may in fact impact their impact what they were doing on their end and they they didn't allow tree felling to occur and that's that's part of the  that was offered one note by one of or edited by one of interveners own attorneys says the same thing that one of five fifteen be requires an environmental something that didn't happen here and really ultimately in addition to that procedural failure it really doesn't matter when  probably standard secure were violated ok and we saw the state how they were violated throughout throughout our briefing and the department had the opportunity to supplement the record after you know after they made their final decision on ok thank you very much and i guess we're going to switch jurors we're going from one state  the beginning of the application process that we're the department to determine that in fact the most environmentally protective mechanisms were not used on site that there are mitigation and compensation  what is wrong with rishta or is it least one segment of a pipeline that's not yet built and it appears that there may be another process for a major modification that would call for additional public hearing similar clearly remedies that segment by the reg remy's with other segments as well so here's here's why i'd like to know so if the e p obviously went through some alter the alternative analysis you disagree that i get it they they rejected in part thought of the other alternatives and accept that one that full analysis and that were does rejections should all by the regulations should have been in the record before the application what the public public hearing ere's no question they had some problems with think about what were the regulation calls for though is at least psychoanalysis prior to opening this this permit for a public hearing so that the public have an opportunity to comment on what so all of those were required by the regulation to be in the record before it missed this case because the public comment and they were not back in june in our view was not requested by any other agency was president transco because they had run into some problems but did not meet the requirements of the regs so because it was not requested by another agency we believe it was a major so i think clearly under the regulations it is a major modification and should have gone to a public hearing back in june it appears that that is the process that he is now following with his last segment where  and that if transferring he's to pursue this modification it wafted me through a major modification which will call for thirty days of a comment period so we will have an opportunity at least comment on that last segment we believe though based upon the record in this public interest requirement that has seven factors in it that you can supposed to consider they ignored those factors they made no findings of fact with respect to them similarly with respect to the analysis of threatened endangered species see morning your honour's throwing ryle deputy attorney general representing new jersey department of environmental protection i'd like to just start off with an overall summary of the harm it  of the analysis that the department did undertake eighty six percent of the permitted pipeline is colocated that is an important policy that the p pushes for it results in reduced impacts to wetlands it results in reduced impacts to land disturbances and that is the heart of the freshwater wetlands protection act and also it is the same approach that's used for the state road hazard pretty flood hazard area control the initial submission by transco proposed about seven and a half acres of wetlands disturbance since it was over five acres and d p has assumed the federal for for a program that was elevated to e p a and e p a said it had no objection or concern about the seven and a half acres that were originally and initially proposed for disturbance by transco not withstanding that deep a we reviewed the application and pushed and requested that transco minimize impacts that minimize wetlands disturbance and the auckland transition areas which only the state of new jersey regulates so that when p p ultimately issued the permits in april there was only four point six three acres of wetlands disturbance and when d p issued those permits they also impose mitigation so the the mitigation requirements are at pages i think there are pages thirty three thirty eight imposed was to require transco to by one point seven units of wetlands credits from a wetlands mitigation bank that was essentially the the most important element in terms of mitigation under the freshwater wetlands protection act the remaining they gave the restoration concerned most of it concerns up clay in transition areas which are only regulated by the state of new jersey under the fresh water well state fresh water wetlands protection act and the state's flood hazard act it's called the right caring tone and for that d p has insisted on nine acres of mitigation a two to one ratio there was no dispute petitioners never raised mitigation a princeton over eighty people attended including the mayor of princeton and ms wendy mager who was the president of the friends of princeton open space she actually asked ask for certain conditions or certain race certain concerns which are in the permit that was issued or concerns are addressed joint appendix pages twenty four twenty nine where the skillman loop what d p did was it continue to review the application that had been deemed administratively complete and there's a difference between being administratively complete and technically or substantively acceptable for a permit approval and that goes to the heart of the administrative process in a given take in the dialogue that an agency has with an applicant and with the public sell for administrative completeness an applicant needs to submit all of the documents and documentation that's on the on a checklist and there can be no item which is clearly deficient that's a relatively low standard perhaps it should be amended but that's what the rule is now and that's how people o p initially rejected the application the transco submitted in november of twenty going back to the public domain what about the alternatives that it was that information provided for the public yes it during the when during the application process while the application was pending and before a decision was made all of the  quarks and the groups that were involved and engaged princeton princeton rich coalition for instance that was pushing for a particular significant amount of open trenching d p pushed for borrowing which is about ten feet underground to avoid surface impacts and horizontal directional drilling there was one issue in significant contention about whether there was going to be horizontal directional drilling in the princeton rich and d p went back and forth we had a meeting with stony brook mill stone watershed association and the princeton rich folks about a week before the permanent decision was issued and it was a give and take we spoke to we are acting experts add thing a jersey to logic survey and they agreed with transpose assessment about the geology underneath the princeton that we made the right call because the princeton ridge geology is is just right that is at what he saw her at southern end of that one thousand to two thousand foot loop so two questions the the first is didn't have an opportunity come i'm not exactly new jersey conservation foundation i don't think was an active player at the time but princeton ridge and all of the folks who who were interested had the opportunity to comment and to submit documentation to d c and that dialogue did occur i'm not sure what what's referred to as on site or off site because it's a pipeline that goes  i guess about thirteen miles in the two loops in new jersey but it's most of it as i said at the beginning eighty six percent stayed within existing right of way so what  a decided was that that made the most sense in terms of the least adverse impacts to wetlands and to habitat and to disturbances mr roy raise the issue of the threatened endangered species  it is accurate that there was no written documentation by our expert before the permit was issued but the declaration that she submitted reflects what she had done previously and the on pages fourteen zero seven fourteen ten twelve fourteen twenty four twenty five and twenty six so those species were considered and what miss all the saudi indicated was the wetlands were marchin they were small the pipeline was being installed in an existing already fragmented area with the pipeline itself with  landscaping and homes so she did not think that the spotting of the right shoulder top three hundred feet away from the proposed pipeline would make any difference because that survey was really looking for breeding habitat and the nearest nests that b p was aware of and its landscape plan were six and nine miles away let me ask you a logistical question about the summary report information presented at the fed was that information presented at the february public meeting or public hearing that you mentioned now the summary report is issued know the substance of  know it's a she did it well but the substance of it available at any time prior to that as it unfolds and as the e p during that pending process pushed transco and asked them to reconsider and to reduce the extent of disturbance those revised plans are submitted to the municipal quark so that if someone wanted to they could go down and see what the queen is receiving from transco on an ongoing rolling basis so it's not put together for for your honor but but it it does get issues it is a back check really comment period is as it was sometime in march so as a practical matter the information in that who are they didn't have a opportunity to comment on which is why i asked you whether that information whether in that form or some other form was available before the end of the comment period so that you know the essence of what's in the summary report was available before they have the opportunity to comment that's the the  and the alternative would be to loot conflate administrative completeness with substantive provability all up front at once and it would preclude the opportunity for the department in fact to hear comments from from the public too which it did in this case if i may i would like to address jurisdiction which is we think that the state of new jersey has not waived its sovereign immunity we understand the statute however new jersey stands apart from the we're all of the other states in the union except for michigan because we have assumed the federal role for a program and the federal for a for a program which was adopted back in one nine hundred ninety four contemplated it was published in the march second one thousand nine hundred four federal register contemplated that new jersey's courts and new jersey court determines to follow islander which we would ask not to but if it does then at the very least the remaining issues the flood hazard act which is a state act to protect against local flooding the transition area of regulation which is part of the reason why new jersey said to transco no you can't cut down those trees yet you don't have water is ation new jersey regulates poppers beyond the wetlands themselves fifty to one hundred fifty feet on that that's only in new jersey and the letter of interpretation which delineates wetlands and cross supplies exceptional resource value wetlands that are stored america all of those elements are only in the new jersey program and we would we would argue pursuant to regular that there's been no consensus no no waiver of sovereign immunity at the burial least for the state run program parsed out and then have them subject to inconsistent decisions by two different courts one being a state and one being this court so we disagree with that we feel that the power that the state of new jersey has over these perm same and services december one so they will rightly be completing their construction obviously in pennsylvania by that time but they're new jersey we were able to get through ninety six or ninety seven percent of the construction up  to be ins and i but no formal agency action has been taken and we've also now put in for this major modification but we would submit this court that although that's in the context of the complete the construction completion that that would be part of this appeal again there's no agency action at this time on either one of those applications so it's still it's still something that we're pursuing certainly it's in our papers but we understand that at the time we made the argument that we almost be as if there's a whole new parliament there be a whole new process that would be you know could be could be appealed by petitioners at that time if they don't like the outcome but i'll say i made a few things about the public process which i think is a big part of their papers which is this you know we transco put in permits much of those permits called for open cut construction there was a public hearing in on february twenty third as a result of that the department issued the letter that mr lloyd refers to that march sixteenth rather i believe in which the department did its job the department heard the public comments listen to them took note of them and said we write to do better transco we want you to do me is extraordinary in the sense that there are twenty two or twenty three crossings now all of which there was just a handful of trenches construction methodology that were proposed by transco in the original permits as a result of the public hearing of the public comments the department required eighteen of twenty two to be trenches construction is extraordinary i think that's getting ross in all of this what the department job or our clients did have discussions with the me after the comment period another of them did not so so so i don't think you can chew were a violation of a regulation that requires a certain set of you know the deficiencies process because of before us and in the the deficiency in your application that was a wonderful way to complete your presentation