Second Circuit Upholds Denial of CWA Certification Where Applicant Failed to Submit Requested Information


The U.S. Court of Appeals for the Second Circuit, in the case of Constitution Pipeline Company, LLC v. New York Department of Environmental Conservation, et al. (released August 18, 2017), rejected the Constitution Pipeline Company, LLC ’s (Constitution) petition for review after the New York Department of Environmental Conservation (NYDEC) denied its application for a Clean Water Act (CWA) 401 certification. NYDEC denied the application on the ground that Constitution had not complied with requests for relevant information.

With respect to the merits, the Second Circuit agreed with the NYDEC that Constitution had consistently failed to submit the necessary information on which the NYDEC could determine whether the many stream crossings required to build the pipeline would adversely affect the quality of the waters the pipeline would be crossing. It found that NYDEC’s “actions were within their statutory authority and that the decision was not arbitrary or capricious.”

With respect to Constitution’s argument that the State was obliged to act within one year on its 401 certification application, the Second Circuit noted that this argument must be decided by the U.S. Court of Appeals for the DC Circuit; it had no jurisdiction to rule on this issue.