In re Constitution Pipeline Co.

The Federal Energy Regulatory Commission (FERC) issued an order reversing its previous determination that the New York State Department of Environmental Conservation (NYSDEC) had not waived its authority under Section 401 of the Clean Water Act to issue or deny a water quality certification for the Constitution Pipeline, a 125-mile-long natural gas pipeline extending from Pennsylvania to New York. FERC issued the order on voluntary remand from a D.C. Circuit proceeding challenging the previous no-waiver determination so that FERC could consider the D.C. Circuit’s 2019 decision in Hoopa Valley Tribe v. FERC, which held that withdrawal and resubmission of water quality certification applications “does not trigger” a new one-year statutory period of review. FERC concluded that Hoopa Valley compelled a finding of waiver based on NYSDEC’s failure to act on the pipeline developer’s Section 401 application within one year and on NYSDEC’s actions encouraging the developer’s withdrawal and resubmission of its application for the purpose of avoiding the one-year waiver period.

FERC denied a pipeline company’s request for rehearing of its determination that the New York State Department of Environmental Conservation (NYSDEC) had not waived its authority to issue a water quality certification for the Constitution Pipeline Project. The company first submitted its application for the certification in August 2013. NYSDEC denied the water quality certification in April 2016, after twice requesting that the company withdraw and resubmit its application, with the final submission made in April 2015. FERC found that the record did not show that NYSDEC failed to act on the application outside of the one-year timeframe required by the Clean Water Act. The pipeline company <a href="https://af.reuters.com/article/commoditiesNews/idAFL1N1UF0ZE">said</a> it would appeal FERC’s decision.

The Federal Energy Regulatory Commission (FERC) denied a petition from the company developing the Constitution Pipeline. The petition requested that FERC find that the New York State Department of Environmental Conservation (NYSDEC) had waived its authority to act on the company’s application for a water quality certification. (The Constitution Pipeline would extend for approximately 124 miles from Pennsylvania through four counties in New York.) The company first submitted an application to NYSDEC in 2013, and subsequently withdrew and resubmitted applications in 2014 and again in 2015. NYSDEC denied the company’s application in April 2016, citing, among other things, the risk of future flooding events that could expose the pipeline and noting that flooding conditions from extreme precipitation events were projected to increase during the pipeline’s anticipated operational life due to climate change. NYSDEC also cited potential increases in water temperature related to the project’s removal of riparian vegetation and said climate change could exacerbate the temperature increases in the long term, resulting in long-term loss of trout populations. The Second Circuit Court of Appeals upheld NYSDEC’s denial in August 2017. In denying the company’s request for a waiver finding, FERC found no reason to depart from its previous determinations that the reasonable period of time for action on a water quality certification application was one year and declined to review NYSDEC’s review process for the company’s application to determine whether it had been reasonable. FERC also said the company’s voluntary withdrawal and resubmission of its application gave NYSDEC new deadlines.

On October 11, the pipeline company developing the Constitution Pipeline petitioned the Federal Energy Regulatory Commission for a declaratory order finding that the New York State Department of Environmental Conservation had failed to act within a reasonable period of time on its application for a water quality certificate and had therefore waived its jurisdiction. The Constitution is an interstate natural gas pipeline project in New York and Pennsylvania. NYSDEC denied the developer's application for a water quality certificate in April 2016; the Second Circuit upheld the denial in August 2017.