By Michael Kuser
FERC last week denied requests by New York state officials and the Sierra Club for rehearing and stay of its determination that the state had waived its authority to issue or deny a water quality certification for the Northern Access natural gas pipeline (CP15-115-004).
National Fuel Gas Supply’s proposed 97 miles of pipeline would be capable of carrying about 500 MMcfd of gas from western Pennsylvania to the Buffalo area and also interconnect with the TransCanada pipeline.
The commission last summer ruled that the state Department of Environmental Conservation had waived its authority to issue or deny a water quality certification under Section 401 of the Clean Water Act by failing to act within one year of receiving National Fuel’s application.
The case hinges on the date of receipt of the application, which FERC asserts was March 2, 2016, but which the DEC contends was changed by agreement with National Fuel to April 8, 2016. The department denied the application on April 7, 2017.
In its April 2 ruling, the commission faulted the DEC for citing cases that address waiver of rights in criminal proceedings, saying, “by contrast to the statutory schemes at issue in the cases cited by New York DEC, the Section 401 deadline cannot be waived by agreement.”
The commission cited Hoopa Valley Tribe v. FERC, in which the D.C. Circuit Court of Appeals considered whether waiver occurs when there is a written agreement to delay water quality certification. The court concluded that such an agreement constituted a failure and a refusal to act under Section 401.
“Hoopa Valley Tribe determined that a ‘deliberate and contractual idleness’ not only usurps the commission’s ‘control over whether and when a federal [authorization] will issue’ but would contravene Section 401’s intended purpose, i.e. to prevent a state’s ‘dalliance or unreasonable delay,’” FERC said.
National Fuel remains “committed to the project” and intends “to request a notice to proceed from FERC once all necessary authorizations are secured,” including permits from the U.S. Army Corps of Engineers, company spokeswoman Karen Merkel said.
The project faces a number of legal challenges that are currently pending in different venues. The targeted in-service date is 2022, Merkel said.
In denying the DEC and Sierra Club their motion for a stay of the waiver order, the commission said, “The movant must substantiate that irreparable injury is ‘likely’ to occur. The injury must be both certain and great, and it must be actual and not theoretical. Bare allegations of what is likely to occur do not suffice.”
The commission also dismissed the DEC’s assertion that a state environmental assessment’s finding that the pipeline would have no significant impact — and a subsequent conditional certificate authority — were no longer valid given the department’s denial of the water quality certification. The DEC had argued that the environmental assessment assumed the existence of certain mitigation measures, including those set out in a future water quality certification.
“On balance, the Northern Access 2016 project, if constructed and operated in accordance with the application and environmental conditions imposed by the certificate order, would not significantly affect the quality of the human environment and would be an environmentally acceptable action,” the commission said.