NYDEC Waived Right to Act on a CWA 401 Water Qualification

The Federal Energy Regulatory Commission’s (FERC) decision in the matter of Millennium Pipeline Company, LLC was issued on September 15, 2017. FERC determined that the New York State Department of Environmental Conservation (NYDEC) waived its right to act on a state Clean Water Act (CWA) 401 water qualification by failing to act before the statutory deadlines established by the CWA, 33 U.S.C. § 1341(a)(1), expired. This certification, required of most pipeline applications under the Natural Gas Act (NGA), provides that the State must act on a request for certification “within a reasonable time (which shall not exceed one year) after receipt of such request,” or “the certification requirements of this subsection shall be waived with respect to such Federal application.”

According to FERC, Millennium’s application was received by the NYDEC on November 23, 2015, and NYDEC was required by law to make its certification decision by November 23, 2016 and at least this obstacle to the construction of the “Valley Lateral Project” in Orange, NY has been surmounted.

 Indeed, on November 18, 2016, NYDEC advised Millennium that, “regardless of any action by FERC… no construction activities may commence with respect to the Project unless the Application is approved and the [NYDEC] issues a [certification].” FERC had issued its Certificate to Millennium on November 9, 2016. Concerned by this delay, Millennium sought a ruling from the U.S. Court of Appeals for the D.C. Circuit, arguing that NYDEC had unlawfully delayed acting on its certification application. However, the Court of Appeals dismissed the petition, holding that it had no jurisdiction over the matter at this time, advising Millennium to make its case to FERC.

Now that FERC has acted, it will be interesting to see if additional challenges are made to the approval of the construction of the pipeline.