EPA Throws Roadblock at Bay State South Coast Rail Project

The U.S. Environmental Protection Agency has dropped a big barrier across plans to build a rail line from Fall River/New Bedford to Boston, according to an agency letter released today by Public Employees for Environmental Responsibility (PEER). This latest EPA objection is the next step in a process that could ultimately lead to a federal veto of the project.

The June 21, 2011 letter from EPA Regional Administrator Curtis Spalding informs the U.S. Army Corps of Engineers and the Commonwealth of Massachusetts that approval for the rail line will elevate review of the project to Washington D.C. because "the proposed project will have a substantial and unacceptable impact on aquatic resources of national importance." EPA rarely invokes this elevated review process.

EPA faulted the quality and accuracy of the massive environmental impact document, which it also found did not justify building a commuter rail through Massachusetts' largest vegetated freshwater wetland. In its letter, EPA independently raised many of the same objections made by PEER and other project opponents when it concluded that the draft report -

• Was guilty of "understating impacts to aquatic resources in the Stoughton and Whittenton alignments and overstating impacts to aquatic resources from the Rapid Bus alternative";
• Failed to address EPA "concerns" about the "characterization (both extent and severity).... of direct and secondary adverse impacts to wetlands and other waters of the U.S."; and
• Suffered from a "lack of sufficient information in order to determine which alternative would be the least environmentally damaging practicable alternative."

"It is clear that this project cannot pass muster under the Clean Water Act," stated New England PEER Director Kyla Bennett, a scientist, attorney and wetlands specialist who formerly worked for EPA and who had been calling for a supplemental new report to address precisely the issues EPA pinpointed. "The state can either continue dumping buckets of money on consultants to write volumes of worthless reports that ignore the obvious or it can take a step back or rethink its genuine transportation needs."

Under the Clean Water Act, once EPA determines that issuance of a permit will have unacceptable adverse effects to "Aquatic Resources of National Importance," that finding triggers heightened review until the effects are remedied or the permit is vetoed. If the Corps decides to issue a permit in the face of EPA's June 21 letter, it must notify EPA beforehand. The EPA Regional Administrator then can seek Headquarters review of the permit, during which time the permit is stayed. Ultimately, if EPA and the Corps do not agree, EPA must then decide whether to veto the permit.

"Compounding its lack of financing, unsustainable ridership projections and blindness to less expensive and more effective alternatives, this rail project has just waded into a legal swamp far deeper than the Hockomock," added Bennett, noting that EPA has elevated only 20 permit cases out of an estimated 1,580,000 permit applications to Washington between 1982 and 2005. "Even if EPA goes away, these same flaws leave this project vulnerable to a lawsuit brought under the Clean Water Act and both the Massachusetts and National Environmental Policy Acts."