The Federal Energy Regulatory Commission (“FERC”) issued an important decision today in favor of Millennium Pipeline Company, L.L.C. (“MPC”) that is sure to effect New York regulatory matters. FERC determined that the New York State Department of Environmental Conservation (“NYSDEC”) waived its authority to issue a water quality certificate under Section 401 of the Clean Water Act (“CWA”) for MPC’s 7.8 mile 16-inch-diameter pipeline and related facilities intended to provide 127,200 dekatherms per day to Competitive Power Ventures’ controversial Valley Energy Center; a 680 MW natural gas-fueled combined cycle electric generating facility in the Town of Wawayanda, New York (NYISO Electric Zone G). While MPC is still in need of a Notice to Proceed from FERC to continue with the project, FERC’s decision may clear the way for construction of the line.
FERC originally issued to MPC a Certificate of Public Convenience and Necessity for the project on November 9, 2016. This Certificate, however, required MPC to obtain all authorizations required by federal law, or a waiver thereof, prior to commencing construction of the line. This included the NYSDEC issued CWA Section 401 Water Quality Certificate. MPC first applied to the NYSDEC for this certification on November 23, 2015. According to FERC, the NYSDEC then had “a reasonable period of time (which shall not exceed one year) after receipt of (such) a request” (33 U.S.C. Section 1341(a)(1)) to make a decision and, in failing to do so, waived its authority on the matter. In re Millennium Pipeline Company, L.L.C., Docket No. CP16-17-000, 160 FERC ¶ 61,065, pp. 4-5 (FERC Sept. 15, 2017). The NYSDEC argued that it satisfied this requirement because it made a decision within one year of receipt of a “completed application,” but FERC rejected this argument, stating that the NYSDEC could have, at any time, simply denied the application prior to the deadline. In re Millennium Pipeline Company, L.L.C., Docket No. CP16-17-000, 160 FERC ¶ 61,065, at p. 8.
This is certainly an interesting development in light of the recent New York denials of pipeline infrastructure intended to satisfy present demands not only in New York but also throughout the New England region. In the future, though, the NYSDEC will most likely avoid this pitfall by making timely decisions.
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