By Michael Kuser

Environmental advocates criticized FERC for ruling last week that New York state failed to act in a timely manner on water quality permits sought by Millennium Pipeline.

In its Sept. 15 order, the commission ruled that the New York State Department of Environmental Conservation (DEC) 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).

In a statement, the department said it is reviewing FERC’s decision and would “consider all legal options to protect public health and the environment.” It would have to file any appeal with the D.C. Circuit Court of Appeals.

But opponents of the natural gas pipeline extension — the 7.8-mile Valley Lateral spur to the Valley Energy Center in Wawayanda, N.Y. — were not as circumspect.

“This is just another warping of the law by FERC,” Maya van Rossum, director of the Delaware Riverkeeper Network, told RTO Insider. “It’s not the first time, and it probably won’t be the last, that FERC acts only to help its friends in the pipeline industry.”

Sierra Club Atlantic Chapter Director Roger Downs said in a statement that “nowhere is FERC granted the right to override” a state’s authority to regulate its water quality.

Timeliness of the Essence

Millennium Pipeline in July filed with the commission a request for notice to proceed with construction, asserting that the DEC had failed to act before the statutorily imposed deadline. The department responded days later that it had not waived its authority, which it exercised on Aug. 30 when it denied Millennium’s application for certification.

Millennium and the department differed on when the one-year review process began, with the company contending that the clock started ticking when it submitted its application to DEC in November 2015. The DEC countered that the one-year period did not begin until it received a “complete” application on Aug. 31, 2016. (See Pipeline Sues to Force NY to Issue Permit for CPV Plant.)

FERC said in its order that the “starting point for interpreting a statute is the language of the statute itself,” and that “Section 401 [of the Clean Water Act] provides that water quality certification is waived when the certifying agency ‘fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request.’ Thus the term ‘receipt’ specifies the triggering event.”

The commission ruled that “giving effect to the plain text of a statute, the one-year review period began November 23, 2015” — when the DEC received the application.

New Pattern

Gavin Donahue, CEO of the Independent Power Producers of New York, last week told participants at the group’s fall conference that “the siting of natural gas pipelines is FERC’s jurisdiction, but the DEC has developed a pattern of denying water quality certificates for projects, most recently evidenced by the decision on the Millennium Pipeline.” (See NYPSC Chair Promises ‘Continuity’ on State Energy Policies.)

New York environmentalists might have thought they were succeeding in stopping pipelines after the 2nd U.S. Circuit Court of Appeals last month ruled that the department acted within its authority to deny water quality permits sought by Williams Co. for its Constitution Pipeline.

Now the natural gas industry sees hope. Following the Millennium order, Reuters reported that Williams now plans to seek a similar permit ruling from FERC.