By Michael Kuser
Constitution Pipeline on Monday asked FERC to reconsider a January order upholding a denial of the company’s water permit application by New York environmental regulators, saying the commission “erred” in its interpretation of the federal Clean Water Act.
At issue is a proposed 124-mile natural gas pipeline originating in Pennsylvania that would deliver 650,000 dekatherms of gas per day into upstate New York.
Constitution last October petitioned the commission to rule that the New York State Department of Environmental Conservation (NYSDEC) had waived its authority under Section 401 of the Clean Water Act by failing to issue or deny a water quality certification within the one-year “reasonable period of time” stipulated by the act, despite the company’s cycle of withdrawing and resubmitting the application.
But the commission disagreed, ruling last month “that once an application is withdrawn, no matter how formulaic or perfunctory the process of withdrawal and resubmission is, the refiling of an application restarts the one-year waiver period under section 401(a)(1).”
Nonetheless, the commission said it continued to be concerned “that states and project sponsors that engage in repeated withdrawal and refiling of applications for water quality certifications are acting, in many cases, contrary to the public interest and to the spirit of the Clean Water Act by failing to provide reasonably expeditious state decisions.” (See FERC Upholds New York Denial of Constitution Pipeline.)
Constitution’s Feb. 12 petition calls on the commission “to curb this abuse of [the] legal process” in which DEC “has succeeded in delaying and frustrating the certification review process by claiming that Constitution’s serial submissions entitle the agency to successive year-long review periods.”
“The Commission erred in its interpretation of the “reasonable period of time” in this case because the mechanical application of the final submission date of April 27, 2015, wrongfully allowed NYSDEC to exceed the maximum allowable period of time under the Clean Water Act,” Constitution said.
The pipeline developer contends that the commission is fostering a regulatory scheme detrimental to the public interest and that its Jan. 11 order enables NYSDEC “to abdicate its responsibilities.” The company noted that, except for the Clean Water Act approvals, the project is federally approved and its right-of-way has been optioned or acquired.
“The piping and equipment for this project have now been held in storage for over three years, and the pipeline remains fully contracted with long-term commitments from established natural gas producers currently operating in Pennsylvania,” said the petition, which also requested expedited action by the commission to prevent further delay.
Constitution said its pipeline is a “critical natural gas infrastructure needed to meet the natural gas demands of the Northeast United States – the current winter supply and pricing environment in New England making this point most clear and obvious.” (See FERC, RTOs: Grid Performed Better in Jan. Cold Snap vs. 2014.)
In a proceeding related to the Millennium Pipeline, FERC last September ruled against the NYSDEC on a similar issue of timeliness, finding the agency had waived its authority to issue or deny a water quality certification for the project by failing to act within the one-year time frame required by the Clean Water Act (CP16-17). (See Environmentalists Denounce FERC Millennium Pipeline Ruling.)