Pipeline plan granted state, federal permits through Otis State Forest

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The state Department of Environmental Protection has taken a major step toward clearing the way for the expansion of a Kinder Morgan pipeline through Otis State Forest in Sandisfield to serve three natural gas utility distributors in Connecticut.

The Tennessee Gas Pipeline Co., an affiliate of Houston-based Kinder Morgan, received the 23-page ruling from the DEP late last week granting federal and state approvals for the project. The state agency's document found that the pipeline expansion meets clean-water quality standards and other state regulations.

Since it affects Spectacle Pond in the state forest as well as the Clam River and numerous wetlands, the nearly four-mile, 36-inch diameter pipeline loop had to comply with federal as well as Massachusetts water quality requirements. The expansion has triggered strong opposition from a Sandisfield-based citizens group.

The decision asserts there is "reasonable assurance" that the project, which also includes a loop in Agawam connecting to northern Hartford County in Connecticut, "will be undertaken in a manner which will not violate" the Massachusetts standards.

The controversial project still requires a similar go-ahead from Connecticut's Department of Energy and Environmental Protection.

The state ruling acknowledged that the project would discharge "dredged or fill material " into nearly 11 acres of adjacent wetlands and other land near the Clam River in Sandisfield.

The decision requires Tennessee Gas to restore and preserve about 36 acres of forest, wetlands, vernal pools and open fields on a parcel of land to be granted to the state Department of Conservation and Recreation.

The parcel also will serve as compensation for the permanent filling of 4,792 square feet of vegetated wetland, the decision stated.

As additional compensation, the company must restore Spectacle Pond Brook, a cold-water fishery, and two other culverted streams.

In its findings, the DEP concluded that documents submitted by the company to the state show that "feasible measures will be taken to avoid damage to the environment and where damage to the environment cannot be avoided, all practicable measures will be implemented to prevent or minimize adverse impacts to water quality and the environment."

The water quality certification granted by the DEP includes 47 technical conditions requiring compliance by Tennessee Gas, including protection from injury or invasion to private property rights.

There's a three-week appeal period that expires July 20 for property owners, groups of 10 or more citizens who had submitted public comments, or government bodies and private organizations that have filed written comments.

Pipeline opponents are reviewing their options, said Kathryn Eiseman, director of the Massachusetts PipeLine Awareness Network.

An alliance of opposition groups has scheduled a protest demonstration, "On Spectacle Pond: Resisting the Pipeline," at noon Saturday, July 16, at the gazebo behind Town Hall in Great Barrington.

Participants in the event, billed as a celebration of solidarity with Berkshire friends and neighbors opposing the project, then move on to Lower Spectacle Pond off Cold Spring Road in Sandisfield at 2 p.m. for a two-hour rally with music, speakers, as well as a kayak and canoe flotilla.

Meanwhile, an appeal by Kinder Morgan against Berkshire Superior Court Judge John Agostini's ruling delaying tentative approval of the project until July 29 has been denied. The company had sought to lift the stay on the decision so it could begin work immediately.

On May 9, Agostini issued a memorandum to allow the project cutting through more than two miles of 400-year-old woodlands in Otis State Forest.

But he put a hold on his final, binding ruling to give time for state lawmakers to vote on whether to override by the required two-thirds majority an amendment to the state constitution guarding state-protected land such as Otis State Forest from pipelines. The state Legislature concludes this year's formal session on July 29.

There's no sign that state lawmakers intend to act on the case, nor has state Attorney General Maura Healey's office signaled any intention to intervene so far. Her spokeswoman, Chloe Gotsis, has stated that the office is "not pursuing an immediate appeal."

But, she added, "We are continuing to evaluate all of our legal options going forward, including appeal of the underlying decision once it becomes final."

The window for any potential appeal of the Berkshire Superior Court ruling opens for 60 days, starting on July 29.

Agostini's ruling upheld the right of the company under the 1938 U.S. Natural Gas Act to use eminent domain to access the state land, thus overriding the protection of the Massachusetts Constitution. He sided with Tennessee Gas attorneys, who argued that the federal law allows natural gas companies right-of-way authority to land across state lines for projects to assure natural gas supply capacity.

His memo also cited the Federal Energy Regulatory Commission's approval of the project as evidence that it would benefit the public interest.

Last March, the federal regulators ruled in favor of Kinder Morgan's Connecticut Expansion Project. It includes three new pipeline loops following 13.4 miles of an existing route in three segments — about 4 miles in Bethlehem, N.Y., 3.8 miles in Sandisfield, including 2.3 miles through Otis State Forest, and about 5 miles in northern Hartford County.

Tennessee Gas sought the Berkshire Superior Court approval so it could access the land to begin tree cutting and other preliminary work.

The state paid $5.2 million to acquire the woodlands a decade ago with the involvement of Mass Audubon.

Opponents have voiced concern over potential damage to Otis and Sandisfield roads from pipeline project trucks as well as the company's plan to use Spectacle Pond within the state forest to flush the new line.

Contact Clarence Fanto at 413-637-2551.


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