May 22, 2019

FERC Holds the Line on One-Year Limit for State Review of Clean Water Act Certifications for Interstate Natural Gas Pipelines

Andrew P. Mina

On April 2, 2019, the Federal Energy Regulatory Commission (FERC or Commission) determined that the one-year statutory limit on state review of interstate natural gas pipeline company applications for water quality certification was a bright-line deadline that could not be extended by private agreement. FERC found that the New York State Department of Environmental Conservation’s (NYDEC) failure to act within one year of receipt of a water quality certification application submitted by National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (together, National Fuel) constituted waiver of the state’s authority under Section 401 of the Clean Water Act to make a final determination on the application. Section 401 limits such review to one year or less from the date of receipt of the application. The Commission rejected contentions by NYDEC and Sierra Club that NYDEC could extend the date by which it could act on a water quality certification application. The Commission’s order will arguably restrict states’ ability to review water quality certification applications associated with interstate natural gas pipeline projects, may actually lead to uncertainty for entities proposing to construct such pipeline facilities, and will test the Commission’s interpretations of Section 401 and related case law.

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