PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________________

No. 15-2122

_________________________

DELAWARE RIVERKEEPER NETWORK;

MAYA VAN ROSSUM, the Delaware Riverkeeper,

Petitioners

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF 

ENVIRONMENTAL PROTECTION; PENNSYLVANIA 

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents

TRANSCONTINENTAL GAS PIPE LINE CORP,

 Intervenor Respondent
2

_________________________

No. 15-2158

_________________________

NEW JERSEY CONSERVATION FOUNDATION;

STONY BROOK MILLSTONE WATERSHED 

ASSOCIATION; FRIENDS OF PRINCETON 

OPEN SPACE,

Petitioners

v.

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL 

PROTECTION; TRANSCONTINENTAL GAS 

PIPE LINE CORP,

Respondents

On Petition for Review of an Order of the

Federal Energy Regulatory Commission

(Agency Nos. FERC CP13-551-00; EA40-013 & EA45-002)

(Agency Nos. 0000-13-0012.1FHA140001, 

0000-13-0012.1FWW140001, 0000-13-0012.2FHA140001 

& 0000-13-0012.2FWW140001)

Argued on October 29, 2015

Before: GREENAWAY, JR., SCIRICA

 and ROTH, Circuit Judges

(Opinion filed: August 8, 2016)
3

Aaron J. Stemplewicz, Esquire (Argued)

Delaware Riverkeeper Network

925 Canal Street

Suite 3701

Bristol, PA 19007

Counsel for Petitioners Delaware 

Riverkeeper Network and 

Maya Van Rossum

Katherine V. Dresdner, Esquire

299 Pennington-Titusville Road

Pennington, NJ 08534

Aaron Kleinbaum, Esquire

Eastern Environmental Law Center

744 Broad Street

Suite 1525

Newark, NJ 07102

Susan J. Kraham, Esquire

Edward Lloyd, Esquire (Argued)

Columbia University School of Law 

435 West 116th Street

New York, NY 10027

Counsel for Petitioners New Jersey

Conservation Foundation

Stony Brook Millstone Watershed 

Association and Friends of 

Princeton Open Space 
4

Joseph S. Cigan, III, Esquire (Argued)

Commonwealth of Pennsylvania

Department of Environmental Protection

2 Public Square 

Wilkes-Barre, PA 18701

Kimberly Hummel Childe, Esquire

Office of Attorney General of Pennsylvania

Department of Environmental Resources

P.O. Box 8464

Harrisburg, PA 17105

Margaret O. Murphy, Esquire

Pennsylvania Department of Environmental Protection

400 Market Street

P.O. Box 8469

Harrisburg, PA 17105

Curtis C. Sullivan, Esquire

Department of Environmental Protection

909 Elmerton Avenue

Harrisburg, PA 17110

Counsel for Respondents Secretary

Pennsylvania Department of

Environmental Protection and 

Pennsylvania Department of 

Environmental Protection

Pamela S. Goodwin, Esquire

Patrick F. Nugent, Esquire
5

John F. Stoviak, Esquire (Argued)

Saul Ewing

1500 Market Street

Centre Square West, 38h Floor

Philadelphia, PA 19102

Elizabeth U. Witmer, Esquire

Saul Ewing

1200 Liberty Ridge Drive

Suite 200

Wayne, PA 19087

Counsel for Intervenor Respondent

Transcontinental Gas Pipe Line Corp

Mark A. Collier, Esquire

John E. Doyle, Esquire

Timothy P. Malone, Esquire

Lewin J. Weyl, Esquire (Argued)

Office of the Attorney General of New Jersey

Department of Law & Public Safety

Richard J. Hughes Justice Complex

25 Market Street

P.O. Box 093

Trenton, NJ 08625

Counsel for Respondent New Jersey 

Department of Environmental Protection

Michael K. Rutter, Esquire 

Heather N. Oehlmann, Esquire
6

Christine A. Roy, Esquire (Argued)

Richard G. Scott, Esquire

Watson, Stevens, Rutter & Roy

3 Paragon Way

Suite 300

Freehold, NJ 07728

Counsel for Respondent 

Transcontinental Gas Pipe Line Corp 

_______________

O P I N I O N

_______________

ROTH, Circuit Judge:

In this appeal, we are called upon to review water 

quality-related permitting actions by New Jersey and 

Pennsylvania for a project by Transcontinental Gas Pipe Line 

Company, LLC (Transco), which operates the 

Transcontinental pipeline, a 10,000-mile pipeline that extends 

from South Texas to New York City. Transco sought federal 

approval to expand a portion of the pipeline, called the Leidy 

Line, which connects gas wells in Central Pennsylvania with 

the main pipeline. Pursuant to the Clean Water Act, the 

Pennsylvania and New Jersey Departments of Environmental 

Protection (PADEP and NJDEP, respectively) reviewed 

Transco’s proposal for potential water quality impacts and 

issued permits for construction. The New Jersey 

Conservation Foundation, Stony Brook-Millstone Watershed 

Association, and Friends of Princeton Open Space 
7

(collectively, the Foundation) petitioned this Court for review 

of NJDEP’s decision to issue these permits. In a separate 

petition to this Court, the Delaware Riverkeeper Network and 

Maya van Rossum (collectively, the Riverkeeper) challenged

PADEP’s issuance of a Water Quality Certification required 

under Section 401 of the Clean Water Act. The petitions 

were consolidated for review. 

For the reasons that follow, we conclude this Court has 

jurisdiction to hear these petitions, and NJDEP and PADEP 

did not act arbitrarily or capriciously in issuing the permits. 

Therefore, we will deny the petitions. 

I. Statutory Background

Under the Natural Gas Act of 1938,

1

the Federal 

Energy Regulatory Commission (FERC) has exclusive

authority to regulate sales and transportation of natural gas in 

interstate commerce. Section 7 of the Natural Gas Act grants 

FERC the power to authorize the construction and operation 

of interstate transportation facilities.2 Specifically, no

company or person may construct or extend any facilities for 

the transportation in interstate commerce of natural gas

without obtaining a “certificate of public convenience and 

necessity” from FERC.3 FERC determines whether a project 

serves “public convenience and necessity” by reviewing a 

number of factors, such as the project’s impact on 

competition for the transportation of natural gas, the 

possibility of overbuilding or subsidization by existing 

 

1 15 U.S.C. §§ 717-717z.

2

Id. § 717f.

3

Id.
8

customers, avoidance of unnecessary disruptions to the 

environment, the applicant’s responsibility for unsubscribed 

capacity, and the avoidance of unnecessary exercise of 

eminent domain.4 The issuance of a “certificate of public 

convenience and necessity” is conditioned on receipt of state 

and other federal authorizations required for the proposed 

project.

5

 

Other federal authorizations may be required because 

interstate sales and transmission of natural gas are further 

regulated through federal environmental laws, including the 

National Environmental Policy Act (NEPA)6and the Clean 

Water Act.

7

 To comply with NEPA, before issuing a 

certificate of public convenience or necessity, FERC must 

examine the potential environmental impact of a proposed 

pipeline project and issue an Environmental Assessment or, if 

necessary, an Environmental Impact Statement.8 

 

4 Transcontinental Gas Pipeline Co., LLC, 149 FERC ¶

61,258, 62,676 (2014); see Certification of New Interstate 

Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (1999); 90 

FERC ¶ 61,128 and 92 FERC ¶ 61,094 (2000) (clarifying 

policy).

5 See Islander East Pipeline Co., Algonquin Gas 

Transmission Co., 102 FERC ¶ 61,054 (2003) (“The 

Commission routinely issues certificates for natural gas 

pipeline projects subject to the federal permitting 

requirements of the . . . [Clean Water Act].”).

6 42 U.S.C. §§ 4321-4370h.

7 33 U.S.C. §§ 1251-1388.

8 42 U.S.C. § 4332; see 15 U.S.C. §§ 717b-1(a), 717n(b)(1); 

40 C.F.R. §§ 1501.1-.8 (implementing NEPA regulations); 18 
9

Although the Natural Gas Act preempts state 

environmental regulation of interstate natural gas facilities, 

the Natural Gas Act allows states to participate in

environmental regulation of these facilities under three

federal statutes: the Clean Air Act, the Coastal Zone 

Management Act, and the Clean Water Act.

9 As relevant 

here, the Clean Water Act regulates through a combination of 

state and federal mechanisms: the U.S. Environmental 

Protection Agency (EPA) limits the discharge of pollutants

into water bodies,10 and states establish water quality 

standards, subject to EPA approval, that must at a minimum 

comply with EPA’s limits.

11

 

This combination of state and federal mechanisms is 

apparent when a proposed activity involves discharge of 

dredged or fill material into the navigable waters of the 

United States and thus triggers the permitting requirements of 

Section 404 of the Clean Water Act.

12 Section 404 permits 

typically are issued by the U.S. Army Corps of Engineers; 

however, a state may assume the authority to administer these 

permits. Whether or not the state assumes this authority, a

Section 404 permit may be issued only if the state where the 

discharge will occur issues a Water Quality Certification,

governed by Section 401 of the Clean Water Act.13 A Water 

 

C.F.R. §§ 380.1-.16 (implementing NEPA regulations for 

FERC actions).

9 15 U.S.C. § 717b(d).

10 See 33 U.S.C. § 1311.

11 See id. § 1313.

12 Id. § 1344.

13 Id. § 1341.
10

Quality Certification confirms that a given facility will 

comply with federal discharge limitations and state water 

quality standards.14 Unlike the Section 404 permit, the Water 

Quality Certification is by default a state permit, and the 

issuance and review of a Water Quality Certification is 

typically left to the states.

15

New Jersey has assumed authority to issue Section 404 

permits and delegated administration of the permitting 

program to NJDEP, which exercises this authority pursuant to 

the New Jersey Freshwater Wetlands Protection Act.16

Therefore, for activities that result in discharge of dredged or 

fill material into New Jersey waters, NJDEP reviews 

applications for Water Quality Certifications and Section 404 

permits. In contrast, Pennsylvania has not assumed Section 

404 permitting authority. For activities affecting 

Pennsylvania waters, Section 404 permits are issued by the 

U.S. Army Corps of Engineers, and Water Quality 

Certifications are issued by PADEP. 

II. Administrative Background 

 

14 Id. § 1341(a)(1), (d).

15 See, e.g., Lake Erie All. for Prot. of Coastal Corridor v. 

U.S. Army Corps of Eng’rs, 526 F. Supp. 1063, 1074 (W.D. 

Pa. 1981) aff’d, 707 F.2d 1392 (3d Cir. 1983); Roosevelt 

Campobello Int’l Park Comm’n v. U.S. EPA, 684 F.2d 1041, 

1056 (1st Cir. 1982).

16 N.J. Stat. Ann. § 13:9B-1-30; 33 N.J. Reg. 3045(a); N.J. 

Admin. Code § 7:7A-2.1(c); Memorandum of Agreement 

between the New Jersey Department of Environmental 

Protection and Energy and the United States Environmental 

Protection Agency (1993).
11

In September 2013, Transco submitted an application 

to FERC for a certificate of public convenience and necessity 

for the Leidy Southeast Expansion Project. The Project

consists of two major types of improvements to existing 

natural gas pipelines: the construction of four new pipeline

“loops” and the upgrade of turbines at four compressor 

stations. “Loops” are sections of pipe connected to the main 

pipeline system that reduce the loss of gas pressure and 

increase the flow efficiency of the system. Compressor 

stations serve a similar function, using gas- and electricpowered turbines to increase the pressure and rate of flow at 

given points along the pipeline’s route. In its application, 

Transco proposed installing, within or parallel to existing 

Transco pipelines, approximately thirty miles of loops. The 

Skillman Loop and the Pleasant Run Loop, totaling 13.23 

miles, would be located in New Jersey; the Franklin Loop and 

Dorrance Loop, totaling 16.74 miles, would be located in 

Pennsylvania.

FERC completed the requisite Environmental 

Assessment in August 2014, and issued the certificate of 

public convenience and necessity on December 18, 2014. 

The certificate was conditioned on, inter alia, Transco’s 

receipt of “all applicable authorizations under federal law”17

enumerated in the Environmental Assessment, some of which 

were to be obtained from New Jersey and some from 

Pennsylvania. 

A. New Jersey 

 

17 Transcontinental Gas Pipe Line Co., LLC, 149 FERC ¶ 

61,258, 62,687 (2014).
12

FERC required Transco to obtain the following 

authorizations for each loop from NJDEP: a Freshwater 

Wetlands Individual Permit, a Flood Hazard Area Individual 

Permit, a Water Quality Certification, and a Letter of 

Interpretation. Transco first obtained Letters of 

Interpretation, in which NJDEP sets forth the boundaries of 

freshwater wetlands and state-regulated transition areas.18

Transco then applied for the remaining permits. In December 

2014, NJDEP deemed those applications “administratively 

complete,” a status that triggered a public notice and 

comment process. Two months later, NJDEP held a public 

hearing in Princeton, New Jersey. In light of comments from 

NJDEP staff and the public, Transco submitted revised plans. 

A few days later, NJDEP asked Transco to address additional 

comments, and Transco provided responses. 

In April, NJDEP issued, for each loop, a Freshwater 

Wetlands Individual Permit, a Flood Hazard Area Individual 

Permit, and a Water Quality Certification. In addition, 

NJDEP released Staff Summary Reports, which set forth the 

findings and analysis underlying its permitting decisions. 

Transco began construction on May 6, 2015. Two days later, 

the Foundation petitioned this Court for review of NJDEP’s 

decision to issue the permits. 

Later in May, while the Foundation’s petition was 

pending, Transco submitted a request to NJDEP for a minor 

modification to the Freshwater Wetlands Individual Permit 

for the Skillman Loop, to change the excavation method for a 

wetland in Princeton, New Jersey. NJDEP approved the 

request on June 4, 2015, which the Foundation challenged in 

 

18 N.J. Admin. Code § 7:7A-3.1 (2008). 
13

its opening brief. Later in June, the Foundation filed an 

emergency motion for a stay of construction. A week later, 

we denied the motion. At this time, the New Jersey portion 

of the project is substantially complete.

19

B. Pennsylvania 

 FERC required Transco to obtain from PADEP a 

Water Quality Certification and a Water Obstruction and 

Encroachment Permit. The latter, issued under Chapter 105 

of PADEP’s regulations, are referred to as “Chapter 105 

Permits.” FERC further required Transco to obtain a Section 

404 permit from the U.S. Army Corps of Engineers. Each 

certificate or permit covered both loops in Pennsylvania. 

Transco applied to PADEP for the Water Quality 

Certification in June 2014. In the following month, PADEP 

published notice in the Pennsylvania Bulletin that it intended

to issue a Water Quality Certification so long as Transco

obtained certain other state permits, including a Chapter 105 

Permit. In April 2015, PADEP issued a Water Quality 

Certification for the project. Shortly thereafter, the 

Riverkeeper filed a petition in this Court specifically 

challenging the Water Quality Certification. Three months 

later, PADEP issued a Chapter 105 permit. After receiving 

all of its required permits, Transco sought permission from 

FERC to proceed with construction. FERC granted this 

 

19 Transco submitted the Declaration of John B. Todd, who 

serves as project manager; Todd indicated that construction 

along both Skillman and Pleasant Run Loops is between 93 to 

100% complete in regulated and non-regulated areas. 
14

request in July 2015, during the pendency of the instant 

matter.

III. Threshold Challenges 

At the outset, we consider challenges by NJDEP and 

PADEP regarding this Court’s jurisdiction, the justiciability 

of the petitions, and whether sovereign immunity shields state 

agency actions. Specifically, NJDEP and PADEP allege that 

we lack subject matter jurisdiction to review the petitions and

that, even if we had jurisdiction, the petitions are barred by 

the Eleventh Amendment. NJDEP further argues that 

because construction in New Jersey is substantially complete, 

the petition is moot.

A. Subject Matter Jurisdiction

The Riverkeeper and the Foundation, in petitioning

this Court for review, invoke a provision of the Natural Gas 

Act that confers original jurisdiction on Courts of Appeals 

over certain state and federal permitting actions for interstate 

natural gas pipelines. Both PADEP and NJDEP contest 

whether that provision applies. Our jurisdiction ultimately 

depends on whether PADEP and NJDEP acted “pursuant to 

Federal law” in issuing permits to Transco.

We begin with the statute. In 2005, Congress amended 

the Natural Gas Act to subject certain state and federal 

permitting decisions for interstate natural gas pipeline 

projects to review by the federal Courts of Appeals.20 

 

20 Energy Policy Act of 2005, Pub. L. No. 109-58, Sec. 313, 

119 Stat. 594, 689-90.
15

Specifically, under Section 19(d) of the Natural Gas Act, the 

Courts of Appeals have jurisdiction to review actions 

undertaken (1) by a State administrative agency; (2) pursuant 

to federal law; (3) to issue, condition, or deny a permit, 

license, concurrence, or approval; (4) required for an 

interstate natural gas facility permitted under the Natural Gas 

Act; (5) that is located in the jurisdiction of the circuit Court 

of review.21 The parties do not dispute that all elements are 

met except whether NJDEP and PADEP acted “pursuant to 

Federal law” in issuing Water Quality Certifications, permits, 

and Letters of Interpretation.

NJDEP and PADEP contend that their decisions to 

issue Water Quality Certifications are not covered by the 

provision that grants jurisdiction to this Court and, 

consequently, we lack jurisdiction to hear these petitions. 

NJDEP further contests our jurisdiction to review those 

authorizations that “exclusively involv[e] issues of State 

law,” including the Flood Hazard Area Individual Permits,

the Letters of Interpretation, and those portions of the 

Freshwater Wetlands Individual Permits that address stateregulated issues such as transition areas or state threatened 

and endangered species. For the following reasons, we hold 

that we have jurisdiction over these petitions.

B. Jurisdiction over Water Quality 

Certifications

1. Permits Issued by PADEP

 

21 15 U.S.C. § 717r(d)(1) (2005). This amended section is 

also referred to as “Section 19(d)” based on where it appears 

in the Natural Gas Act.
16

PADEP argues that this Court does not have 

jurisdiction over Water Quality Certifications because our 

jurisdiction under the Natural Gas Act extends only to state 

agency action taken pursuant to federal law, whereas a Water 

Quality Certification is required by federal law. This 

argument does not pass muster. Although the Clean Water 

Act makes clear that states have the right to promulgate water 

quality standards as they see fit, subject to EPA oversight, the 

issuance of a Water Quality Certification is not purely a 

matter of state law.

22 A state issues a Water Quality 

Certification for an interstate natural gas facility to certify

compliance with state water quality standards, promulgated 

under federal supervision, as well as with federallyestablished Clean Water Act requirements.

23

 Specifically, a

Water Quality Certification confirms compliance with 

Sections 301, 306, and 307 of the Clean Water Act, all of 

which involve federal standards.24 Thus, a Water Quality 

Certification is not merely required by federal law: it cannot 

exist without federal law, and is an integral element in the 

regulatory scheme established by the Clean Water Act. To 

say otherwise would be to ignore the EPA’s supervisory role 

in the setting of state water quality standards, the fact that 

Water Quality Certifications must verify compliance with

federal standards, and the role of the federal government in 

regulating water quality as envisioned by drafters of the Clean 

Water Act.

25

 

22 See 33 U.S.C. § 1251(b).

23 Id. § 1341(a)(1).

24 Id. §§ 1311, 1316, & 1317.

25 See id. § 1251(a) (presenting the Clean Water Act’s goals 

as a matter of “national policy”). 
17

The conclusion that a Water Quality Certification is 

issued pursuant to federal law is bolstered by the Natural Gas 

Act’s provisions that allow states to regulate or subject state 

action to federal judicial review. The Natural Gas Act

preempts state environmental regulation of interstate natural 

gas facilities, except for state action taken under those statutes 

specifically mentioned in the Act: the Coastal Zone 

Management Act, the Clean Air Act, and the Clean Water 

Act.

26 In other words, the only state action over interstate 

natural gas pipeline facilities that could be taken pursuant to 

federal law is state action taken under those statutes. In 

another provision, Section 19(d), the Natural Gas Act grants

jurisdiction to the Courts of Appeals to review state agency 

action taken pursuant to federal law except for the Coastal 

Zone Management Act.27 Applying the statutory construction 

canon, the express mention of one thing excludes all others, 

the express exception of the Coastal Zone Management Act 

from review by the Court of Appeals indicates that Congress 

intended state actions taken pursuant to the two non-excepted

statutes, the Clean Water Act and the Clean Air Act, to be 

subject to review by the Courts of Appeals. This 

interpretation is supported by the legislative history of the bill 

amending Section 19(d), which indicates that the purpose of 

the provision is to streamline the review of state decisions 

taken under federally-delegated authority.28 Thus, a state 

 

26 15 U.S.C. § 717b(d).

27 Id. § 717r(d)(1).

28 See Islander East Pipeline Co. v. Conn. Dep’t Envt’l Prot., 

482 F.3d 79, 85 (2d Cir. 2006) (discussing the legislative 

history of the judicial review provision); see also The Energy 

Policy Act of 2005: Hearing Before the H. Subcomm. on 

Energy and Air Quality of the Comm. on Energy and 
18

action taken pursuant to the Clean Water Act or Clean Air 

Act is subject to review exclusively in the Courts of Appeals. 

To bar this Court’s review of PADEP’s actions in permitting 

an interstate natural gas facility pursuant to the Natural Gas 

Act and the Clean Water Act would frustrate the purpose of 

Congress’s grant of jurisdiction and render superfluous the 

explicit exception from federal judicial review of the Coastal 

Zone Management Act.

2. Permits Issued by NJDEP

NJDEP argues we have no jurisdiction over the 

Freshwater Wetlands Individual Permits or the Water Quality 

Certifications, and even if we had jurisdiction over those two 

authorizations, we cannot reach issues regarding aspects of 

the Freshwater Wetlands Individual Permits that concern

transition areas and threatened and endangered species, the 

Letters of Interpretation, or the Flood Hazard Area Individual

Permits. We consider each authorization in turn, and 

conclude that each is rooted in NJDEP’s exercise of authority 

that it assumed pursuant to Sections 401 and 404 of the Clean 

Water Act. 

 

Commerce, 109th Cong. 420 (2005) (statement of Donald F. 

Santa, Jr., President, Interstate Natural Gas Association of 

America) (observing that “[a]lthough state regulatory action 

[is] preempted” by the Natural Gas Act, “state action pursuant 

to federally delegated authority” is not, and prior to passage 

of the Natural Gas Act’s amendments, review of state 

permitting decisions could “frustrate pipeline projects already 

found by FERC to meet the public convenience and 

necessity.” (internal quotation marks omitted)).
19

First, with respect to NJDEP’s argument that we lack 

jurisdiction over the Freshwater Wetlands Individual Permits 

and the Water Quality Certifications, New Jersey’s

Freshwater Wetlands Protection Act provides for the state’s 

administration of Section 404 permits, and its implementing 

regulations make clear a permit issued under the Act, called 

the Freshwater Wetlands Individual Permit, “constitutes” the 

Water Quality Certification.

29

 Given that the Natural Gas Act

provides this Court with jurisdiction to review state 

authorizations issued pursuant to the Clean Water Act, this 

Court has jurisdiction over the Freshwater Wetlands 

Individual Permits and the Water Quality Certifications. 

Next, NJDEP argues that those portions of the 

Freshwater Wetlands Individual Permit that address state 

threatened and endangered species are governed by state law 

rather than the Clean Water Act, and thus are not subject to 

our review. A Freshwater Wetlands Individual Permit may 

be issued only if the regulated activity “[w]ill not destroy, 

jeopardize[,] or adversely modify a present or documented 

habitat for threatened or endangered species . . . .”

30 In 

issuing the permits, NJDEP imposed conditions on the 

proposed activity for the protection of state threatened and 

endangered species. Given that the Freshwater Wetlands 

Individual Permit constitutes both the Section 404 permit and 

the Water Quality Certification, and that, under Section 401 

of the Clean Water Act, “any other appropriate requirement 

of state law set forth in [the] certification” will be treated as a 

condition on the federal permit affected by the certification—

 

29 N.J. Admin. Code § 7:7A-2.1(d). 

30 Id. § 7:7A-7.2(b)(3).
20

in this case, the Section 404 permit31—the conditions that

protect threatened and endangered species are part of the 

Freshwater Wetlands Individual Permit, and we have 

jurisdiction to review these conditions.

Under similar reasoning, we have jurisdiction over the 

Flood Hazard Area Individual Permits. The Freshwater 

Wetlands Protection Act requires compliance with the Flood 

Hazard Act.32 Accordingly, Transco applied for and obtained 

Flood Hazard Area Individual Permits, which enumerate 

conditions on activities in flood hazard areas to protect water 

quality. The Flood Hazard Area Individual Permit is, in 

effect, a set of conditions on the Freshwater Wetlands 

Individual Permit. Given that we have jurisdiction over the 

Freshwater Wetlands Individual Permit, we have jurisdiction 

over the Flood Hazard Area Individual Permit as conditions 

set forth in the Water Quality Certification. 

Likewise, the Letters of Interpretation are part and 

parcel of the Freshwater Wetlands Individual Permits, and 

thus subject to this Court’s review. New Jersey regulations

require an applicant for a Freshwater Wetlands Individual 

Permit to submit the Letter of Interpretation as part of the 

application package if a Letter has been issued, or “[i]f the 

applicant applies for [a Freshwater Wetlands Individual 

Permit] without first obtaining [a Letter of Interpretation], the 

permit application must include all information that would be 

necessary for the Department to issue [a Letter of 

Interpretation] for the site . . . . The Department will then 

 

31 33 U.S.C. § 1341(d).

32 N.J. Admin. Code § 7:7A-2.1; see, e.g., id. §§ 7:7A4.3(b)(8), (9), 7.2(b)(10). 
21

review the submitted wetland delineation as part of the permit 

review process.”33 In other words, a Freshwater Wetlands 

Individual Permit application must include either an issued 

Letter of Interpretation or all the materials required for 

NJDEP to issue such a Letter. Therefore, the Letters of 

Interpretation are integral to the Freshwater Wetlands 

Individual Permit application and the review process of the 

permit, and thus subject to our review. 

B. Mootness 

We next consider NJDEP and Transco’s argument that 

the petition for review is moot because construction is 

complete and Transco has been conducting mitigation and 

restoration. Thus, any procedural remedy would be 

ineffectual. The Foundation argues the petition is not moot 

because we can provide relief in the form of additional 

analysis of environmental impact and measures to address 

those effects. 

Mootness raises both constitutional and prudential

concerns.34 Under Article III, “[i]t is a basic principle . . . that 

a justiciable case or controversy must remain extant at all 

stages of review . . . .”35 Prudentially, a court may decline to 

exercise discretion to grant declaratory and injunctive relief if 

 

33 Id. § 7:7A-3.1(h).

34 Marcavage v. Nat’l Park Serv., 666 F.3d 856, 862 n.1 (3d 

Cir. 2012) (citing Int’l Bhd. of Boilermakers v. Kelly, 815 

F.2d 912, 915 (3d Cir. 1987)). 

35 Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1335 

(2013) (quoting United States v. Juvenile Male, 564 U.S. 932, 

936 (2011)). 
22

a controversy is “so attenuated” that considerations of 

prudence and comity counsel withholding relief.36 The 

central question in a mootness analysis is “whether changes in 

circumstances that prevailed at the beginning of the litigation 

have forestalled any occasion for meaningful relief.”

37

 A case 

becomes moot “only when it is impossible for a court to grant 

any effectual relief whatever to the prevailing party.”38 When 

a court can fashion “some form of meaningful relief” or 

“impose at least one of the remedies enumerated by the 

appellant,” even if it only partially redresses the grievances of 

the prevailing party, the case is not moot.39 The Foundation 

challenges NJDEP’s conclusions regarding the proposed 

pipeline’s environmental impact and the amount of mitigation 

required. 

This case is not moot because NJDEP may monitor 

mitigation outcomes following completion of mitigation.

Specifically, pursuant to New Jersey regulation and as set 

forth in the Freshwater Wetlands Individual Permits and the 

Flood Hazard Area Individual Permits, Transco must submit 

annual reports to NJDEP for three years after completing 

mitigation, and NJDEP may monitor the progress of remedial 

actions. If mitigation has not met the requirements in the 

 

36 Int’l Bhd. of Boilermakers, 815 F.2d at 915-16 n.3.

37 Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 

35, 39 (3d Cir. 1985) (citing Mills v. Green, 159 U.S. 651, 

653 (1985)).

38 Decker, 133 S. Ct. at 1335 (quoting Knox v. Serv. Emps.

Int’l, 132 S. Ct. 2277, 2287 (2012)).

39 In re Cont’l Airlines, 91 F.3d 553, 558 (3d Cir. 1996); 

Isidor Paiewonsky Assocs. v. Sharp Props., Inc., 998 F.2d 

145, 152 (3d Cir. 1993).
23

regulations, NJDEP may direct Transco to perform additional 

mitigation or other remedial action.40 Therefore, there 

remains possible effectual relief because further 

environmental analysis might lead NJDEP to require 

additional mitigation from Transco. Thus, we conclude that

this petition is not moot.

41

 

C. Sovereign Immunity 

NJDEP and PADEP contend that any challenge 

brought under Section 19(d) is barred by the Eleventh 

Amendment. With respect to the Water Quality Certifications

and Section 404 permits, NJDEP and PADEP argue that their 

mere participation in the Clean Water Act permitting process

does not waive their sovereign immunity provided by the

Eleventh Amendment. NJDEP further argues that when it 

assumed authority to administer Section 404, it explicitly 

 

40 N.J. Admin. Code § 7.7A-15:16(c)-(f); see N.J. Admin. 

Code § 7:13-10.2(u)(5); N.J. JA 18-19, 35-37 (“The permittee 

shall monitor forested and/or shrub scrub wetland mitigation 

projects for 5 full growing seasons and emergent wetland or 

State open water mitigation projects for 3 full growing 

seasons beginning the year after the mitigation project has 

been completed . . . The permittee shall monitor the riparian 

project for at least 3 years beginning the year after the 

riparian zone compensation project has been completed.”) 

(Freshwater Wetlands Individual Permits and Flood Hazard 

Area Individual Permits, Pleasant Run Loop and Skillman 

Loop). 

41 See Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 

43 (D.C. Cir. 2015) (citing Church of Scientology of Cal. v. 

U.S., 506 U.S. 9, 12-13 (1992)).
24

reserved its sovereign immunity for Section 404 actions 

through a Memorandum of Agreement with the EPA. 

Therefore, according to NJDEP, sovereign immunity bars this 

Court from reviewing the Freshwater Wetlands Individual 

Permits, Flood Hazard Area Individual Permits, and Letters 

of Interpretation. These arguments are unavailing. As 

discussed below, we hold that New Jersey and Pennsylvania’s 

voluntary participation in the regulatory schemes of the 

Natural Gas Act and the Clean Water Act constitutes a waiver 

of sovereign immunity, given the clear language in those 

statutes subjecting their actions to federal review.

1. Overview

The Eleventh Amendment of the United States 

Constitution states that federal courts may not hear “any suit 

in law or equity, commenced or prosecuted against one of the 

United States by Citizens of another State . . . .” 42 Courts 

have interpreted the amendment as applying to suits against 

states by their own citizens as well,

43 and have extended the 

immunity to state agencies.

44

 The immunity from suit is not 

absolute; Congress has limited power to abrogate the states’ 

immunity.45 

A state may waive its immunity by engaging in 

conduct that demonstrates the state’s consent to suit in federal 

 

42 U.S. Const. Amend. XI.

43 See Hans v. Louisiana, 134 U.S. 1 (1890).

44 See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 

89, 100 (1984).

45 See Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).
25

court.46 A state may consent to suit in federal court by

accepting a gift or gratuity from Congress when waiver of 

sovereign immunity is a condition of acceptance.47 When 

Congress makes a gift to a state that Congress is not obligated

to make and which the state cannot claim as a matter of right, 

Congress may attach conditions to this gift, including a 

waiver of sovereign immunity.48 These “gifts” need not only 

be monetary awards; a congressional grant of regulatory 

authority that a state may not otherwise possess is also a gift. 

We addressed the theory of “gratuity waiver” as applied to a 

grant of regulatory authority in MCI Telecommunications 

Corporation v. Bell Atlantic Pennsylvania, where

Pennsylvania’s Public Utility Commission argued that a 

section of the Telecommunications Act of 1996,49 which 

provides for federal court review of state-approved 

interconnection agreements, violated the agency’s Eleventh 

Amendment immunity.50 We held that Congress had made 

 

46 See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 

(1985); Clark v. Barnard, 108 U.S. 436, 447 (1883).

47 See College Sav. Bank v. Fla. Prepaid Postsecondary Educ. 

Expense Bd., 527 U.S. 666, 686-87 (1999) (holding that while 

states may not constructively waive immunity to Lanham Act 

claims based on term in Trademark Remedy Clarification 

Act, waiver may be a proper condition on authority granted 

by Congress that the state would not otherwise have). 

48 Id.; see Petty v. Tenn.-Mo. Bridge Comm’n, 359 U.S. 275 

(1959); see also South Dakota v. Dole, 483 U.S. 203, 206 

(1987) (holding that Congress may attach conditions to the 

receipt of federal funds). 

49 Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered 

sections of 47 U.S.C.).

50 271 F.3d 491 (3d Cir. 2001).
26

federal judicial review a necessary condition of state

participation in regulation of telecommunications. A state’s 

participation in the regulatory scheme constituted acceptance 

of the gift, and, thus, a waiver of Eleventh Amendment 

immunity.51 Nevertheless, mere acquiescence is insufficient

to abrogate sovereign immunity. A state’s gratuity waiver 

must be knowing and voluntary.52 In other words, Congress 

must make its intention to condition acceptance of a gratuity 

on the waiver of Eleventh Amendment immunity 

“unmistakably clear.”53

2. Sovereign Immunity and Section 19(d)

Here, the application of the gratuity waiver doctrine is 

consistent with precedent of our sister courts and supported 

by the language of Section 19(d) of the Natural Gas Act. In 

Islander East Pipeline Company v. Connecticut Department 

of Environmental Protection,

54 the Second Circuit recognized

that the Natural Gas Act strips states of any authority to 

regulate a particular field—in this case, interstate natural gas 

transmission facilities—save certain “rights of the states” 

granted under those three enumerated statutes, one of which 

is the Clean Water Act.55 Consistent with this doctrine, a

state participates in Clean Water Act regulation of interstate 

natural gas facilities by congressional permission, rather than 

 

51 MCI, 271 F.3d at 510.

52 College Sav. Bank, 527 U.S. at 675 (citing Beers v. 

Arkansas, 61 U.S. 527, 529 (1857)).

53 MCI, 271 F.3d at 506.

54 482 F.3d 79 (2d Cir. 2006).

55 Islander, 482 F.3d at 90.
27

through inherent state authority.56 A state may refuse the

grant of authority: under the Clean Water Act, a state’s nonparticipation in water quality regulation returns authority to 

the EPA. A state also may decline to exercise its authority to 

issue an applicant a Water Quality Certification, and in so 

doing waive the requirement for a Water Quality 

Certification, and the proposed activity proceeds without a 

Water Quality Certification.

57

 In the context of an interstate

natural gas facility, a state’s refusal to issue a Water Quality 

Certification would waive the need for the facility to obtain a 

Certification in order to satisfy conditions of FERC’s 

certificate of public convenience and necessity. In effect, 

such a refusal would return the state’s delegated authority to 

enforce Section 401 of the Clean Water Act to FERC with 

respect to the project.58 Therefore, state participation in the 

regulatory schemes of the Clean Water Act and under the 

framework of the Natural Gas Act constitutes a gratuity 

waiver. 

We agree with the Islander court that the principle of 

gratuity waiver applies to the regulatory scheme established 

by the Natural Gas Act. Section 19(d) grants the Courts of 

Appeals jurisdiction to review “state agency action.” This 

language is unambiguous. New Jersey and Pennsylvania’s 

participation in the regulatory scheme of the Clean Water Act

with respect to interstate natural gas facilities, pursuant to the 

 

56 Id.

57 33 U.S.C. § 1341(a)(1).

58 See 15 U.S.C. § 717b(d) (providing that the NGA does not 

affect the rights of states under the Clean Water Act); id. § 

717f(e) (allowing FERC to attach reasonable conditions to a 

certificate of public convenience and necessity).
28

Natural Gas Act and after the amendment of Section 19(d),

constitutes a waiver of their immunity from suits brought 

under the Natural Gas Act. In effect, Section 19(d) creates a 

small carve out from sovereign immunity. Under this limited 

carve out, federal judicial review is proper over those state 

actions regarding interstate natural gas facilities pursuant to 

the Clean Water Act and the Clean Air Act. 

For these reasons, we have jurisdiction over the 

petitions. We therefore turn to the merits of these petitions.

IV. Merits Challenges

A. Standard of Review 

The standard of review of state action pursuant to the 

Clean Water Act for an interstate natural gas facility is a 

matter of first impression for this Court. Consistent with our

precedent in MCI, which dealt with a similar regulatory 

arrangement, we review de novo state agency interpretation of 

federal law, and review under the arbitrary and capricious

standard state action taken pursuant to federal law.

59 Agency 

action is arbitrary and capricious when the agency fails to 

“examine the relevant data and articulate a satisfactory 

explanation for its action including a rational connection 

between the facts found and the choice made.”60 When we 

review an agency action under this standard, the 

Administrative Procedure Act (APA) directs us to take 

 

59 MCI, 271 F.3d at 516; see Islander, 482 F.3d at 93-94. 

60 Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal 

quotation marks omitted).
29

account of “the rule of prejudicial error.”

61

 In other words, 

we apply a “harmless error” analysis to any administrative 

action we review;

62 mistakes that have no bearing on the 

substantive decision of an agency do not prejudice a party.63 

The party challenging the agency determination bears the 

burden of demonstrating prejudice.64 Where an agency errs in

fact finding, we remand only if the agency relied on the 

erroneous finding in its decision.

65

 

B. New Jersey 

The Foundation alleges four general problems with 

NJDEP’s issuance of the Freshwater Wetlands Individual

Permits, the Flood Hazard Area Individual Permits, the Water 

Quality Certifications, and the Letters of Interpretation: (1)

NJDEP deprived the Foundation of sufficient opportunity to 

comment, (2) NJDEP issued the Freshwater Wetlands 

Individual Permits based on unsupported conclusions, (3)

NJDEP erred in determining that Transco met the 

requirements for the Flood Hazard Area Individual Permits

and hardship exceptions for those permits, and (4) NJDEP

misconstrued regulation in granting a minor modification for 

the Freshwater Wetlands Individual Permit of the Skillman 

 

61 5 U.S.C. § 706.

62 Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (comparing a 

similarly worded provision applying to appeals of Veterans 

Affairs claims decisions).

63 See Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 

377 U.S. 235, 248 (1964). 

64 Sanders, 556 U.S. at 409.

65 See Communist Party of U.S. v. Subversive Activities 

Control Bd., 367 U.S. 1, 67 (1961).
30

Loop. We address each in turn and conclude that NJDEP did 

not act arbitrarily or capriciously with respect to the first three 

alleged errors. We hold that the fourth challenge is not 

properly before this Court. 

1. Opportunity for Public Comment

State regulations require NJDEP, after determining an 

application to be administratively complete, to publish a 

notice of the application in the DEP Bulletin, make the 

application available at its offices in Trenton, and, in some 

circumstances, hold a public hearing.66 The public may 

comment on the application within 30 days of the notice.67 

The Department “shall consider all written public comments 

submitted within this time” and “may, in its discretion, 

consider comments submitted after this date[,]” although state 

regulations do not define “consider.”68 The Foundation 

alleges that NJDEP committed two errors that deprived the 

Foundation of the opportunity to comment on Transco’s 

application. First, the Foundation argues that NJDEP 

prematurely determined that Transco’s application was 

“administratively complete,” a designation that triggers the 

public notice and comment process, even though Transco had 

failed to include a required element of the application. 

Second, the Foundation argues that NJDEP failed to provide 

proper notice to the public of Transco’s application because 

NJDEP’s initial notice of Transco’s application in the DEP 

bulletin cited only Hunterdon County as the project location 

 

66 N.J. Admin. Code §§ 7:7A-12.1, .3, & .4. 

67 Id. § 7:7A-12.3(d).

68 Id.; see In re Freshwater Wetlands Gen. Permits, 860 A.2d 

450, 461-462 (N.J. Super. Ct. App. Div. 2004).
31

and omitted three other affected counties—Somerset, 

Princeton, and Mercer. 

Although the Foundation argues that it was deprived of 

an opportunity to comment on the revisions because Transco 

submitted the revised analysis after the close of the public 

comment period, the Foundation reviewed the revised 

analysis and submitted additional written comments from its 

members and two drilling experts and had a face-to-face 

meeting with NJDEP to express its continued concern with 

the proposal. The record shows that NJDEP asked Transco to 

respond to the concerns raised. A party challenging the 

sufficiency of the public comment process bears the burden of 

showing it was prejudiced by the lack of opportunity to 

comment.69 The fact that NJDEP ultimately did not adopt the 

Foundation’s view does not mean that the Foundation lacked 

the opportunity to put forth that view.70

Similarly, petitioners were not harmed by the omission 

of three counties from the initial notice because Princeton 

Ridge Coalition and Stony Brook-Millstone Watershed 

Association—both located in the initially omitted counties—

were aware of the proposal well before the offending initial

notice was published. As early as 2013, both had met with 

NJDEP and Transco regarding the proposed project and 

provided written comments. Therefore, the Foundation has 

 

69 Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237 

(D.C. Cir. 2008). 

70 Friends of the Atglen-Susquehanna Trail, Inc. v. Surface 

Transp. Bd., 252 F.3d 246, 265 (3d Cir. 2001) (noting the 

agency was required to consider the comments but was “not 

required to follow the comments”).
32

failed to demonstrate that it was deprived of the opportunity 

to comment. For that reason, NJDEP’s actions were not 

arbitrary or capricious.

2. Agency Analysis on Environmental 

Impact of Proposal

New Jersey regulations require NJDEP to analyze the 

environmental impact of the proposed activity, such as the 

activity’s potential effect on water quality, the aquatic 

ecosystem, and threatened and endangered animals. The 

Foundation alleges NJDEP acted in an arbitrary and

capricious manner because NJDEP (1) failed to adequately

analyze alternatives to the proposed activity that would be 

less environmentally-adverse or result in the minimum 

feasible impairment of the aquatic ecosystem, (2) defined the 

project purpose in such a narrow manner as to exclude 

potential alternatives to the proposed activity, (3) improperly 

concluded that the proposed activity in connection with the 

Skillman Loop will not harm threatened or endangered 

species or their habitats, and (4) improperly determined that 

the proposal is in the public interest. 

a. Consideration of Alternatives

New Jersey regulations require NJDEP to issue a 

Freshwater Wetlands Individual Permit only if certain 

prerequisites are met. As relevant to this petition, New Jersey 

regulation requires NJDEP to consider practicable 

alternatives to the proposed activity that “would have a less 

adverse impact on the aquatic ecosystem or would not involve 

a freshwater wetland or State open water” and “would not 

have other significant adverse environmental consequences . . 
33

. .”71 Where Transco rejected alternatives on the basis of 

constraints such as inadequate zoning, infrastructure, or 

parcel size, NJDEP must consider whether Transco made 

reasonable attempts to remove or accommodate those

constraints.72 In addition, when a regulated activity would 

take place in wetlands or waters deemed of “exceptional 

resource value” or related to trout production, NJDEP must 

consider whether there is a compelling public need for the 

activity and whether denial of the permit would impose 

extraordinary hardship on the applicant.73 

The Foundation claims that NJDEP insufficiently 

considered alternatives, including those that would have

resulted in the minimum feasible environmental alteration or 

impairment of the aquatic ecosystem. The Foundation also 

alleges that NJDEP failed to rebut the presumption that the 

proposed activity has a practicable alternative—such as in 

size, scope, configuration, density, or design—that would 

avoid impact or have a lesser impact, a required analysis 

because the project is a “non-water dependent activity.”

74

 

The record shows NJDEP considered potential 

alternatives, such as replacing the existing pipeline with a 

larger one rather than constructing a new loop, increasing 

operating pressure within the existing loop, and building 

various alternative routes. NJDEP weighed the options, 

adopted some, and rejected others as impractical. 

Specifically, NJDEP required Transco to reduce the size of 

the construction workspace in regulated areas, substitute less 

 

71 N.J. Admin. Code § 7:7A-7.2(b).

72 Id. § 7:7A-7.4(c).

73 Id. § 7:7A-7.5.

74 Id. § 7:7A-7.4.
34

environmentally-adverse crossing techniques for six 

wetlands, and use specific drilling methods at three locations 

to reduce impacts. NJDEP provided explanation for those 

alternatives not adopted. For example, the use of horizontal 

direct drilling and direct pipe drilling at certain locations

would be more costly and carried the risk of equipment 

failure, damage to the pipe, and inadvertent release of drilling 

fluid into the soil. Similarly, alternative routes were 

impracticable because they might interfere with an existing 

water line or cause greater land or wetland disturbance. 

Additionally, NJDEP considered whether the proposed

activity would affect wetlands or waters categorized as

“exceptional resource value” or related to trout production. 

NJDEP noted that wetlands in the Pleasant Run Loop were 

neither of exceptional resource value nor trout-producing, and 

that, although certain wetlands in the Skillman Loop were of 

exceptional resource value, compelling public need for the 

project outweighed the impact on wetlands and waters. 

NJDEP not only considered but also acted upon 

alternatives, in direct contrast to the Foundation’s allegations. 

Adoption of alternatives reduced open water and wetland 

disturbance by 38 percent for the Pleasant Run Loop and 48

percent for the Skillman Loop, according to an NJDEP 

analysis. For the Skillman Loop, NJDEP consideration of 

alternatives led to the selection of the shortest proposed route, 

of which 86 percent is collocated within Transco’s existing 

pipeline right-of-way. NJDEP also required those portions 

not collocated to be constructed with a specific drilling 

technique to reduce wetland disturbance. Therefore, 

NJDEP’s actions were not arbitrary or capricious.
35

b. Definition of Project Purpose

Next, the Foundation charges NJDEP defined the 

project purpose in such way as to preclude alternatives, by 

including a durational limitation as part of the purpose. The 

limitation rendered impracticable those construction methods 

that are less environmentally-adverse but more timeconsuming.

75

 The Foundation’s challenge relies on language 

regarding project purpose in New Jersey regulations on 

practicable alternatives. Regulations define “practicable 

alternative” as “other choices available and capable of being 

carried out after taking into consideration cost, existing 

technology, and logistics in light of overall project purposes . 

. . .”

76

 However, neither New Jersey regulations nor case law

defines the term “project purpose.” For the present project, 

NJDEP stated that the project purpose was “to construct the 

pipeline and . . . to begin service through the proposed 

pipeline by . . . December 31, 2015.”77 A “short construction 

window” for the project was recommended by the U.S. Army 

Corps of Engineers to reduce disturbance to waterbodies, and 

FERC discussed temporal limitations on construction in its 

order granting the certificate of public convenience and 

necessity.

78

 Given this concern, NJDEP considered the 

 

75 Pet. Br. 46.

76 N.J. Admin. Code § 7:7A-1.4 (emphasis added). 

77 See N.J. JA 1302 (NJDEP Staff Summary Report, Pleasant 

Run Loop). 

78 E.g., Transcontinental Gas Pipe Line Co. LLC, 149 FERC 

¶ 61,258, 62,686 (2014) (“Back Brook . . . will be crossed 

within a 48 hour period . . . which will maintain water flow 

during construction and avoid in-stream construction 

impacts.”).
36

duration of disturbance of water bodies in choosing a drilling 

method, in addition to other factors, such as the number of 

trees that would need to be cleared to provide space for 

worksites. Therefore, NJDEP’s incorporation of a temporal 

term into the project purpose was not arbitrary and capricious.

 

c. Conclusions Regarding

Threatened or Endangered Species in the Skillman Loop

The Foundation alleges that NJDEP ignored reports by 

the Princeton Ridge Coalition that the project would 

adversely affect the Red-shouldered Hawk and Barred Owl 

and that it failed to impose conditions in the Freshwater 

Wetlands Individual Permit for the Skillman Loop to address 

these impacts. A Freshwater Wetlands Individual Permit may 

be issued only if NJDEP determines that the regulated activity 

“[w]ill not destroy, jeopardize[,] or adversely modify a 

present or documented habitat for threatened or endangered 

species; and shall not jeopardize the continued existence of a 

local population of a threatened or endangered species . . . .”

79

 

NJDEP stated in its Staff Summary Reports, “[t]he project 

right-of-way is documented and suitable habitat for . . . 

Barred Owl, Red-shouldered Hawk, Wood Turtle, Indiana 

Bat, and Northern Long-eared Bat.”80 In the Freshwater 

Wetlands Individual Permit for the Skillman Loop, NJDEP 

imposed conditions to protect most of the enumerated species

but not the Barred Owl or Red-shouldered Hawk. 

Nevertheless, NJDEP stated in its Staff Summary Report that 

“[p]rovided the conditions of the permits are followed . . . no 

 

79 N.J. Admin. Code § 7:7A-7.2(b)(3).

80 N.J. JA 1426 (Freshwater Wetlands Individual Permit, 

Skillman Loop).
37

adverse impacts are anticipated upon threatened/endangered 

species.” To explain why it did not impose conditions to 

protect the species, NJDEP filed with this Court affidavits 

from a staff member who explained her review of Transco’s 

application and the Foundation’s reports, and her

consideration of factors such as limited sightings of the 

species, small sizes of the wetlands, and fragmentation of 

habitat because of open areas and neighboring homes. Based 

on these considerations, NJDEP determined it would not 

impose conditions on the permit regarding the Barred Owl or 

Red-shouldered Hawk. The Foundation argues that NJDEP’s 

submission constitutes an attempt to supplement the 

administrative record after the fact. The administrative record 

is supposed to reflect the information available to the decision 

maker at the time the challenged decisions were made, as well 

as the rationale for why the agency acted as it did, but “since 

the bare record may not disclose the factors that were 

considered or the [agency’s] construction of the evidence,” it 

is sometimes appropriate to look to further explanation from 

agency officials to ascertain this rationale.

81

 Here, the

affidavits explain staff review conducted prior to issuance of 

the permit. Therefore, the submissions do not constitute post 

hoc rationalization of agency action. The Foundation has not

demonstrated that NJDEP failed to consider potential adverse 

impacts in issuing the Freshwater Wetlands Individual Permit 

for the Skillman Loop. 

d. Public Interest Analysis

 

81 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 

420 (1971) (abrogated on other grounds by Califano v. 

Sanders, 430 U.S. 99 (1977); see Motor Vehicle Mfrs. Ass’n, 

463 U.S. at 50. 
38

To issue a Freshwater Wetlands Individual Permit, 

NJDEP must determine the proposal is “in the public interest” 

on the basis of seven factors.

82 The Foundation argues 

NJDEP failed to consider five of the seven factors: 

[1] The public interest in preservation of natural 

resources and the interest of the property 

owners in reasonable economic development . . 

.;

[2] The extent and permanence of the beneficial 

or detrimental effects which the proposed 

regulated activity may have on the public and 

private uses for which the property is suited;

[3] The quality and resource value classification 

pursuant to N.J.A.C. 7:7A-2.5 of the wetland 

which may be affected and the amount of 

freshwater wetlands to be disturbed;

[4] The economic value, both public and 

private, of the proposed regulated activity to the 

general area; and

[5] The functions and values provided by the 

freshwater wetlands and probable individual 

and cumulative impacts of the regulated activity 

on public health and fish and wildlife . . . .

83

NJDEP did not fail to consider these factors. 

Regarding the first factor, the record shows consideration of 

 

82 N.J. Admin. Code § 7:7A-7.2(b)(12).

83 Id.
39

impact on landowners, surrounding communities, and the 

environment. For example, NJDEP sought to minimize any 

adverse economic impact by requiring the use of existing 

rights-of-way and areas adjacent and the installation and 

modification of compressors within existing compressor 

station facilities. As for the second factor, NJDEP considered 

the extent of any detrimental effects and required Transco to 

implement best management practices during construction 

and restoration to limit disturbance to the immediate 

construction and restoration period and avoid permanent 

detrimental effects. 

Likewise, regarding the third factor, NJDEP reviewed 

submissions, inspected sites to verify wetland and water 

boundary lines, and made wetlands resource value 

classifications as set forth in the Letters of Interpretation. In 

determining whether the proposal is in the public interest, 

NJDEP considered that wetlands in the Pleasant Run Loop 

were not of exceptional resource value, and that certain 

wetlands in the Skillman Loop were of exceptional resource 

value. Similarly, with respect to the proposed activity’s 

public and private economic value, NJDEP found that the 

project would provide public and private economic value by 

expanding Transco’s pipeline system capacity and serving 

end-users. Finally, the record shows NJDEP considered the 

functions and values provided by the freshwater wetlands and 

probable impact of the activity on public health and fish and 

wildlife. NJDEP examined the wetlands’ fishery resources, 

resource value classification, and its role as habitat for 

endangered and threatened species. The Department also 

considered the scale and duration of disturbance of the 

wetlands, and whether the proposed activity would discharge

toxic effluent or degrade ground or surface water.
40

The record rebuts the Foundation’s charge that NJDEP

reached its public interest determination without considering 

the appropriate factors. We therefore hold that NJDEP did 

not act arbitrarily or capriciously in issuing the Freshwater 

Wetlands Individual Permits. 

3. Flood Hazard Area Individual Permits

The Foundation claims that NJDEP erred by (1)

impermissibly issuing the Flood Hazard Area Individual 

Permit for the Skillman Loop because the Flood Hazard Area 

Control Act also prohibits the issuance of permits for 

activities that would adversely affect state threatened or 

endangered species and their habitats; and (2) improperly 

determining that Transco met the requirements of a hardship 

exception for the permits. 

Regarding the first allegation, the Flood Hazard Area 

Control Act, similar to the Freshwater Wetlands Protection 

Act, requires NJDEP to determine that any proposed activity

will not adversely affect threatened or endangered species or 

their habitats before issuing a Flood Hazard Area Individual 

Permit.

84

 The Foundation alleges that NJDEP failed to 

consider the expert reports, which concluded that the clearing 

of forest canopy over riparian zones for construction would 

increase fragmentation of mature forest and thus damage the 

habitat of the Red-Shouldered Hawk and the Barred Owl. 

The record shows that NJDEP considered the expert reports

because, after the Foundation submitted its expert reports, in a 

March 11, 2015, letter, NJDEP directed Transco to address 

 

84 N.J. Admin. Code § 7:13-10.6(d).
41

the Department’s concern of “significant adverse impacts” on 

habitat areas of threatened or endangered species and to 

consider alternative construction methods. In a March 17, 

2015, letter, Transco addressed NJDEP’s concern by 

developing “a unique construction approach” that allowed 

Transco to cut “25 feet off of a typical 75 foot [worksite] 

corridor through environmentally sensitive areas” so that 

fewer trees would be removed and the impact of construction 

on the forest would be “half of what is typically required.” 

That NJDEP directed Transco to revise its application and 

address the Department’s concerns demonstrates NJDEP 

considered potential adverse environmental impact on 

habitats. Therefore, the grant of a Flood Hazard Area 

Individual Permit for the Skillman Loop was not arbitrary or 

capricious. 

As to the second allegation, the Foundation argues that 

NJDEP incorrectly determined that Transco met the 

requirements of a hardship exception for the Flood Hazard 

Area Individual Permits. Transco had requested hardship 

exceptions in its applications because the Skillman Loop 

would affect 13.2 acres of riparian zone vegetation, and 

Pleasant Run Loop 7.54 acres, both exceeding regulatory 

limits.85 A hardship exception requires the applicant to 

demonstrate:

(1) Due to an extraordinary situation of the 

applicant or site condition, compliance with this 

chapter would result in exceptional and/or 

undue hardship for the applicant; (2) The 

 

85 N.J. Admin. Code § 7:13-10.2, Table C, Maximum 

Allowable Disturbance to Riparian Vegetation.
42

proposed activities will not adversely affect the 

use of contiguous or nearby property; (3) The 

proposed activities will not pose a threat to the 

environment or to public health, safety, or 

welfare; and (4) The hardship was not created 

through the action or inaction of the applicant or 

its agents.86

In addition, one or more of the following requirements must 

be met: 

1. The Department determines that there is no 

feasible and prudent alternative to the proposed 

project, including not pursuing the project, 

which would avoid or substantially reduce the 

anticipated adverse effects of the project, and 

that granting the hardship exception would not 

compromise the reasonable requirements of 

public health, safety and welfare, or the 

environment;

2. The Department determines that the cost of 

compliance with the requirements of this 

chapter is unreasonably high in relation to the 

environmental benefits that would be achieved 

by compliance; and/or

3. The Department and applicant agree to one or 

more alternative requirements that, in the 

judgment of the Department, provide equal or 

 

86 Id. § 7:13-9.8(b). 
43

better protection to public health, safety and 

welfare and the environment.87

Further, because the proposed construction would cross 

regulated waters, NJDEP must find that the construction of an 

open trench through the riparian zone is necessary to install 

the pipeline.88

NJDEP’s grant of hardship exceptions was not 

arbitrary or capricious. Although neither New Jersey 

regulations nor case law defines the term “hardship” as used

here, state regulations indicate that the nature of the hardship 

may be economic, related to impact from floods, or otherwise 

subject to NJDEP’s determination.89 NJDEP determined that 

Transco addressed all the requirements, namely, that (1) there 

was not a feasible and prudent alternative; (2) the method of 

construction was necessary for safety; (3) granting the 

exception would not compromise reasonable requirements of 

public health, safety and welfare, or the environment; and (4) 

requiring compliance would impose a hardship on Transco, 

which Transco did not create through action or inaction. 

Given these determinations, we hold that the Department did 

not act arbitrarily or capriciously in granting the hardship 

exceptions to the Flood Hazard Area Individual Permits. 

 

4. Grant of Minor Modification to the 

Freshwater Wetlands Individual Permit for the Skillman 

Loop 

 

87 Id. § 7:13-9.8(a), 10.2(s). 

88 Id. § 7:13-10.2(k)(1)(i).

89 See id. § 7:13-9.8. 
44

The Foundation challenges NJDEP’s grant of a minor 

modification for Transco’s Freshwater Wetlands Individual 

Permit for the Skillman Loop as contrary to New Jersey 

regulation. After hard rock and boulders under wetlands in 

the Princeton Ridge damaged drilling equipment, Transco 

sought a minor modification to the permit to use a different

drilling method than the method NJDEP had originally 

permitted. By regulation, a modification of the Freshwater 

Wetlands Individual Permit is “minor” if it involves

[a] change in materials, construction techniques, 

or the minor relocation of an activity on a site, if 

the change is required by another permitting 

agency. However, this change is not a minor 

modification if the change would result in 

additional wetland, State open water or 

transition area impacts over those of the original 

permit or waiver.90

In granting the minor modification, NJDEP concluded FERC 

was the requisite “permitting agency” that required the 

change, because in approving the particular route of the 

Skillman Loop, FERC implicitly required the change in 

drilling technique to maintain the route. NJDEP also 

concluded the change in drilling method would not result in 

additional disturbance. 

This challenge is not properly before us. At the time 

of the filing of the petition, the challenged agency action must 

 

90 Id. § 7:7A-14.3(c)(4) (emphasis added).
45

be ripe for review.91 The Foundation petitioned for review on 

May 8, 2015, but the minor modification was not applied for 

until May 29, 2015, and granted on June 4, 2015. 

Based on the foregoing, we hold NJDEP did not 

deprive the Foundation of sufficient opportunity to comment

and did not act arbitrarily or capriciously in issuing permits 

and other authorizations. We further hold the challenge of the 

minor modification for the Freshwater Wetlands Individual 

Permit of the Skillman Loop is not properly before this Court.

C. Pennsylvania

The Riverkeeper raises two challenges to PADEP’s 

issuance of a Water Quality Certification: (1) PADEP failed 

to review an environmental assessment prepared by Transco

before issuing the Water Quality Certification, as required by 

state regulations; and (2) the materials that PADEP did

review were substantively insufficient. The Riverkeeper has 

not demonstrated prejudice from these alleged errors.

 

91 See TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133 (D.C. Cir. 

1989) (agency action that was not final at the time of filing of 

petition may only be reviewed upon the filing of another 

petition); W. Union Tel. Co. v. FCC, 773 F.2d 375, 378 (D.C. 

Cir. 1985) (court lacked jurisdiction over a challenge to a 

now-final agency action that was filed before action became 

final); Pennzoil Co. v. FERC, 645 F.2d 394, 398 (5th Cir.

1981) (requirement that an agency’s action be ripe for judicial 

review before merits of any review petition will be addressed 

is one which applies to action of other agencies as well as that 

of FERC). 
46

1. Sequence of Agency Action

The Riverkeeper’s first challenge involves whether 

PADEP was required to engage in an environmental review 

prior to issuing a Water Quality Certification, or whether 

PADEP may, as it did here, postpone environmental review 

until after a Water Quality Certification has been issued. 

Although PADEP has not published any procedures for 

issuing Water Quality Certifications, applicants for the 

Chapter 105 permits who are required to obtain Water Quality 

Certifications must “prepare and submit” an environmental 

assessment for PADEP’s review.

92 The Riverkeeper infers 

from this requirement that PADEP must review an 

environmental assessment prepared as part of an application 

for a Water Quality Certification before issuing a 

Certification. Based on this inference, and because PADEP 

did not do so, the Riverkeeper alleges that PADEP erred by 

failing to review an environmental assessment prior to issuing 

a Water Quality Certification to Transco. PADEP argues that 

for complex projects that require a large number of state and 

federal permits to ensure compliance with state water quality 

standards—such as interstate natural gas pipelines—this 

sequence is not mandatory and would cause unnecessary

delay if strictly followed.

93

 

 

92 25 Pa. Code § 105.15(b) (2011). 

93 See Clean Water Act Section 401 State Water Quality 

Certification: A Water Quality Protection Tool for States and 

Tribes, EPA Office of Wetlands, Oceans and Watersheds, 25 

(April 2010) (stating that states are not required to implement 

Water Quality Certification procedures).
47

The Riverkeeper has failed to demonstrate that it 

suffered harm from the sequence of PADEP’s permitting 

actions. According to FERC’s certificate, Transco could not 

begin construction until it obtained all applicable 

authorizations required under federal law. One of these 

federal authorizations, the Water Quality Certification, was 

conditioned on the issuance of, inter alia, a Chapter 105 

Permit. Prior to issuing a Chapter 105 Permit, PADEP was 

required to review an environmental assessment prepared by 

Transco. Thus, construction could not begin until after 

PADEP had reviewed an environmental assessment, 

regardless of whether this review occurred before the Water 

Quality Certification was issued. Because environmental 

review was required before construction could begin, the 

Riverkeeper was not harmed by the timing of the required 

review, and PADEP did not act arbitrarily or capriciously. 

The Riverkeeper alleges that as a result of PADEP’s 

failure to review the environmental assessment prior to 

issuing the Water Quality Certification, FERC prematurely 

authorized tree felling activities. According to the 

Riverkeeper, in delaying review of the environmental 

assessment, PADEP postponed substantive determinations 

until after the issuance of the Water Quality Certification, 

which allowed trees to be felled in contravention of 

Pennsylvania water quality standards. The record does not 

support the Riverkeeper’s view of the timeline of events. In 

fact, FERC authorized tree felling several weeks before 

PADEP issued the Water Quality Certification. Therefore, 

the Water Quality Certification could not have led to tree

felling because such felling was approved without a

Certification. 
48

Moreover, the Riverkeeper is incorrect in assuming 

that tree-felling is implicated by PADEP’s substantive water 

quality determinations: the Army Corps of Engineers stated 

that the tree-felling activity for which Transco sought 

authorization would not trigger the need for permits under the 

Clean Water Act. FERC designated the tree-felling activity 

as “pre-construction activity,” while FERC’s certificate 

requires a Water Quality Certification only for “construction 

activity.” This suggests that FERC allows tree-felling activity 

to be authorized without Transco obtaining any Clean Water 

Act permits. Thus, there is no nexus between the tree felling 

activity and the Water Quality Certification, and the 

Riverkeeper’s challenge fails. 

2. Sufficiency of Factfinding

The Riverkeeper alleges that PADEP relied on an 

incomplete environmental assessment from Transco and 

failed to correct the assessment’s deficiencies prior to issuing 

the Water Quality Certification. PADEP and Transco counter

that the majority of the Riverkeeper’s arguments relate not to 

the issuance of the Water Quality Certification, but the 

issuance of the Chapter 105 Permit. We find this argument 

unavailing. Because the Chapter 105 Permit was a condition 

of the Water Quality Certification, it is inextricably 

intertwined with the Water Quality Certification.

94

 

Nevertheless, because the Riverkeeper does not challenge the 

Chapter 105 Permit specifically and argues only that the 

Water Quality Certification itself was improperly issued, we 

 

94 See Tenn. Gas Pipeline Co. LLC. v. Delaware Riverkeeper 

Network, 921 F. Supp. 2d 381, 387-88 (M.D. PA. 2013).
49

will address the Riverkeeper’s challenges only as they pertain 

to the issuance of the Water Quality Certification. 

The Riverkeeper alleges two problems with PADEP’s 

environmental review: (1) PADEP relied on incorrect

wetlands classifications without gathering data necessary to 

correct these classifications; and (2) construction activity was 

improperly authorized because the faulty wetlands 

classifications led PADEP to ignore construction impacts on 

exceptional value wetlands. We will consider these 

arguments in turn.

a. Wetlands Classifications

Under Pennsylvania regulations, classifying a wetland 

as “exceptional value”

95 triggers a number of regulatory 

protections, including a more stringent permitting process that 

disallows construction where construction will have an 

“adverse impact” on these wetlands.96 The Riverkeeper 

contends that Transco improperly classified wetlands in the 

application it submitted to PADEP for a Water Quality 

Certification, because Transco (1) used incorrect 

 

95 “Exceptional value” wetlands are those that serve as habitat 

for a threatened or endangered species, or are hydrologically 

connected to, or lie within one half mile of, such a wetland; 

are located in or along the floodplain of a wild trout stream or 

a national wild or scenic river, or such a tributary; are located 

along an existing drinking water supply; or are located in an 

area designated as a “natural” or “wild” area within a state 

forest or park or a designated federal wilderness or natural 

landmark. 25 Pa. Code § 105.17(1).

96 See id. § 105.18a(a).
50

classification terms, and (2) miscategorized wetlands that are

of “exceptional value” as belonging to a lesser protected

category. As evidence, the Riverkeeper cites to a table in an 

environmental assessment prepared by Transco that identified 

affected Pennsylvania wetlands and their state classifications. 

This table identifies wetlands as “ordinary,” “intermediate,” 

“exceptional,” and “other.” As the Riverkeeper correctly 

points out, these terms are not used by PADEP, which 

classifies wetlands either as “exceptional value” or “other.”97 

The Riverkeeper argues that Transco’s incorrect

classifications frustrated PADEP’s ability to determine the 

correct classification for the affected wetlands and adhere to 

state water quality standards. In addition, the Riverkeeper 

alleges that at least eleven wetlands affected are “exceptional 

value” wetlands but were marked as “ordinary” or 

“intermediate” in Transco’s table. According to the 

Riverkeeper, PADEP’s failure to address these problems is 

evidence that it has acted arbitrarily and capriciously.98

To prevail in its petition, the Riverkeeper must show 

not only that an error was made but that the error in question 

prejudiced the Riverkeeper in some way.

99

 In this instance,

the Riverkeeper can only claim to have suffered prejudice 

from Transco’s classifications if PADEP actually relied on 

those classifications; otherwise, the error, if any, was 

harmless. The prejudice the Riverkeeper alleges is simple:

PADEP would not have issued the Water Quality 

 

97 Id. § 105.17.

98 See Pa. Trout v. Dep’t Envt’l Prot., 863 A.2d 93, 98 (Pa. 

2004) (discussing requirements for wetlands classifications).

99 See supra Section IV.A.
51

Certification if Transco had properly classified wetlands in its 

environmental assessment. 

The Riverkeeper’s argument falls short. PADEP is not 

required to review a project’s effect on wetlands prior to 

issuing a Water Quality Certification. In this case, a review 

was required before PADEP could issue the Chapter 105 

Permit, and Transco had to obtain the Chapter 105 Permit as a 

condition of the Water Quality Certification.100 Thus, while 

Transco may have submitted miscategorized information for 

the Water Quality Certification, that submission was of no 

consequence since a full review of the appropriate wetland 

categories was conducted before the Chapter 105 Permit was 

issued. PADEP had ample time and opportunity to request 

that Transco remedy any shortcoming in analysis during these 

review processes, and the Riverkeeper also had the 

opportunity to submit its comments on the Chapter 105 

Permit as well as other state permits not at issue. No 

additional review was required before PADEP could issue the 

Water Quality Certification. There is nothing in the record to 

indicate that PADEP relied on Transco’s miscategorized 

submission in issuing the Certification. Therefore, we hold 

that any error in Transco’s initial classification of wetlands 

did not prejudice the Riverkeeper. 

Because the Riverkeeper has not demonstrated that 

PADEP relied on these classifications, we need not address 

the Riverkeeper’s argument that PADEP failed to collect and 

 

100 See 25 Pa. Code § 105.14(b)(13) (requiring determination 

of impact on wetlands for Chapter 105 permits); cf. id. § 

92a.21(d)(3) (allowing PADEP to require an applicant for an 

NPDES permit to provide information on a project’s wetlands 

impact).
52

analyze the necessary data to make appropriate wetlands 

classifications following their receipt of Transco’s 

environmental assessment.

b. Authorization of Construction Activity

The Riverkeeper also alleges that PADEP erred in 

authorizing construction activity that violates state water 

quality standards. This challenge is broader than the 

Riverkeeper’s challenge regarding FERC’s authorization of 

tree-felling: rather than arguing that a sequencing error 

resulted in some particular activity, the Riverkeeper here 

alleges that any construction that would follow the issuance 

of a Water Quality Certification violates Pennsylvania water 

quality standards. The Riverkeeper contends that this is true 

because any construction impact on an exceptional value 

wetland is “adverse.” According to the Riverkeeper, because

construction could not begin without the issuance of the 

Water Quality Certification, and construction would 

adversely affect what the Riverkeeper alleges are exceptional 

value wetlands, PADEP’s decision to issue a Water Quality 

Certification authorized construction activity that violated

Pennsylvania water quality standards. However, PADEP 

itself has no power to “authorize” construction of interstate 

natural gas facilities because the only government entity that 

may do so is FERC.101 While FERC would not allow 

construction to occur without a Water Quality Certification, 

the Certification is only relevant because it is required by 

FERC’s certificate of public convenience and necessity. The 

Natural Gas Act grants FERC exclusive authority to authorize 

 

101 See Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 302-

04 (citing 15 U.S.C. § 717f(c)).
53

construction by issuing a certificate of public convenience 

and necessity, as FERC did here.102 Any interested party may 

file a petition with FERC for a hearing on the issuance of a

certificate, and we note that the Riverkeeper did participate in 

such a hearing.

103 In contrast, PADEP’s role in the permitting 

process is to certify that any construction that occurs is in 

accordance with Pennsylvania water quality standards. 

PADEP did so here by requiring Transco to obtain various 

state permits and submit to the review processes associated 

with these permits. 

Because the Riverkeeper has not shown that it was 

prejudiced by PADEP’s permitting actions, we see no reason 

to disturb PADEP’s decision to issue the Water Quality 

Certification.

VI. Conclusion 

For the foregoing reasons, we conclude NJDEP and 

PADEP did not act arbitrarily or capriciously in issuing 

permits and related authorizations to Transco. We decline to 

address the challenge of NJDEP’s grant of a minor 

modification to the Freshwater Wetlands Individual Permit of 

the Skillman Loop. Accordingly, we will deny the petitions. 

 

102 15 U.S.C. § 717f(c).

103 See 15 U.S.C. § 717n(e); 18 C.F.R. § 156.10.