Regulators block tree-cutting for Sandisfield pipeline spur


Federal regulators have slammed the brakes on Kinder Morgan's effort to start chopping down trees in Otis State Forest for its Connection Expansion pipeline project.

The $87 million extension along existing Tennessee Gas Pipeline Co. routes involves three spurs totaling about 13 miles — including a four-mile loop through Sandisfield that includes two miles of state-protected woodlands.

In a notice to Kinder Morgan, the Federal Energy Regulatory Commission (FERC) demanded additional information from the pipeline company.

Significantly, it told Kinder Morgan late Friday that it cannot proceed with tree-cutting across the state forest which is protected from encroachment under the state constitution's Article 97 amendment. Beacon Hill lawmakers have declined to approve a bill allowing easements through the state forest for the company. A two-thirds vote would be required.

Pipeline project managers are keen on beginning tree cutting right away, since federal environmental rules, which protect endangered species such as migrating birds, require cutting to end on March 31, unless the U.S. Fish and Wildlife Service grants an extension requested by the company.

The effect of the federal regulators' go-slow action is to toss the issue to the Berkshire Superior Court, where Kinder Morgan has filed for an injunction against the state to condemn the woodland route by eminent domain in order to start cutting trees. The company wants to put the pipeline spurs into service by Nov. 1 to supply additional natural gas for three Connecticut utilities that have signed purchase agreements.

The court had been scheduled to hear arguments Thursday on the company's suit against defendants, including the Department of Conservation and Recreation and its Commissioner Leo P. Roy, with Attorney General Maura Healey's office representing the state.

But Healey filed a motion late Monday to delay the Berkshire Superior Court hearing by at least two weeks in view of FERC's notice to Kinder Morgan affiliate Tennessee Gas Pipeline Co. for more information.

Assistant Attorney General Matthew Ireland wrote that the postponement "will not prejudice Tennessee because there is no pressing deadline" for the injunction the company is seeking.

Ireland added that "a short extension and hearing continuance is in the public and this court's interest because it will allow time for complex issues involving federalism and the Massachusetts Constitution to be fully briefed for the court."

Kinder Morgan contends that under the Natural Gas Act governing interstate pipeline projects, it can override state protections on conserved land. Massachusetts paid $5.2 million in 2007 to add Otis State Forest to woodlands saved by the state constitution from encroachment.

The Massachusetts Pipeline Awareness Network, an opposition group based in Cummington, filed a response with federal regulators in opposition to the company's condemnation injunction, the organization's director Kathryn Eiseman said.

"Otherwise, the agency may not have known that there are not easements in place through Otis State Forest," she stated. "FERC is essentially asking that the company's eminent domain authority be resolved in the courts before Kinder Morgan can proceed in any way through the protected land."

The commission's warning to the company not to cut trees unless it has gained an easement or permission from the state and other landowners could have a much greater effect on Kinder Morgan's 412-mile, $5 billion Northeast Energy Direct pipeline proposal, Eiseman said.

"How FERC's language impacts the NED proposal could hinge in large part on how the eminent domain proceedings over Otis State Forest play out in the court," she noted in an e-mail message to The Eagle.

The NED project extends from Wright, N.Y., 40 miles west of Schenectady, through eastern New York into the Berkshires, passing through portions of several Berkshire communities before exiting into the Pioneer Valley and northward into New Hampshire. It re-enters Massachusetts to end at the existing pipeline terminal in Dracut, near Lowell.

That proposed route also crosses protected Article 97 lands.

Eiseman's Mass PLAN group has been working with the Sandisfield Taxpayers Opposing the Pipeline (STOP), which petitioned FERC to halt its March 11 approval of the Connecticut Expansion Project.

In its filing to the federal commission, Mass PLAN contended that "allowing tree-cutting activity at this time would result in irreparable physical environmental harm. While it may take about 20 years for newly planted trees to mature there are trees in the area slated for clear-cutting that would take more than a human lifetime to replace."

STOP's attorneys in Washington also filed a notice that the group intends to file a lawsuit against the company in U.S. District Court, Springfield, within 60 days, arguing that the company has not received federal approval for the project under the Clean Water Act.

The pipeline route through the state forest would affect brooks and wetlands, as well as Lower Spectacle Pond, as well as Eastern Hemlock old-growth woodlands dating back four centuries.

The FERC notice to Kinder Morgan told the company to prove that the U.S. Army Corps of Engineers, the Massachusetts Department of Environmental Protection and the Connecticut Department of Energy and Environmental Protection would allow non-mechanized tree cutting without a Clean Water Act permit.

Finally, the regulators called on the company to provide a plan "ensuring that no ceremonial stone landscapes, including features, landscapes and their alignments would be affected by tree-felling activities in Massachusetts."

Contact Clarence Fanto at 413-637-2551.


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