Natural Gas NOW
It’s time for someone to ask FERC for a waiver on that Section 401 Water Quality Certification needed by the Constitution Pipeline. It’s been done before.
I wrote a piece last week regarding the inexcusable delay by New York State in acting upon a request for a Section 401 Water Quality Certification for the Constitution Pipeline. I noted the specific language of the statute as well, but what I did not share was a FERC decision from a decade ago setting a precedent for such a waiver. I did pass it along to a knowledgeable reporter covering the pipeline in hopes there might be some followup, but all I heard back was crickets, to use an overworked expression. So, let me share that precedent myself.
The Section 401 authorization, as I explained last week, includes the following language (emphasis added):
If the State, interstate agency, or Administrator, as the case may be, 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, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be.
Once again, let me point out the Constitution Pipeline request for certification has now been before the DEC a total of 28 months and that’s 2.8 times the maximum period provided under Federal law. What to do?
Well, the answer is complicated by the fact Williams opted, last April, to accede to a DEC request for more time but the fact remains that what was resubmitted was exactly the same application, so there would seem to be a good argument it was really just an extension extorted out of Williams by DEC. We’ll leave that to the lawyers, but there is a decision from FERC establishing the fact the waiver language in the statute is more than academic. The key elements of that decision, in the case of Georgia Strait Crossing Pipeline LP (Docket No. CP03-350-000) may be found below (emphasis added):
On September 8, 2003, Georgia Strait Pipeline Company LP (GSX) filed a petition, pursuant to Rule 207 of the Commission’s Rules of Practice and Procedure, requesting the Commission to declare that because the Washington Department of Ecology (Ecology) has exceeded the statutory time limits for acting, it has waived the certification requirements of both section 401 of the Clean Water Act (CWA), and the Coastal Zone Management Act (CZMA), for the new pipeline facilities previously authorized by the Commission in Docket Nos. CP01-176-000 and CP01-179-000. For the reasons discussed below, the Commission grants GSX’s petition…
Section 401(a)(1) of the CWA prohibits the Commission from authorizing project construction until GSX first obtains State certification that the project will comply with the State’s water quality standards. Section 401(a)(1) further provides that a certifying agency is deemed to have waived the certification requirements of section 401(a)(1) if the certifying agency fails to act on the request “within a reasonable period of time (which shall not exceed one year) after receipt of such request” (emphasis added)…
GSX submitted a Joint Aquatic Resource Permit Application (JARPA), including its request for section 401 certification, to Ecology on July 12, 2001. The JARPA also indicated GSX was seeking a CWA section 404 permit from the U.S. Army Corps of Engineers (Corps). On July 16, 2003, Ecology denied without prejudice the request for section 401 certification; on July 29, 2003, the Corps denied without prejudice GSX’s application for a section 404 permit based on Ecology’s denial of the section 401 permit. GSX argues that because Ecology failed to act on GSX’s request for section 401 certification within one year of the July 12, 2001 submittal date, section 401 certification for the project was waived…
Ecology’s assertion that the one-year review period does not start to run until public notice of the application for section 404 certification contravenes the language of section 401(a)(1), which provides that the one-year period starts to run upon the certifying agency’s receipt of the application for certification. The clear and unambiguous language in section 401(a)(1) required Ecology to act within one year of receiving GSX’s request for section 401 certification. GSX submitted its request for section 401 certification to Ecology on July 12, 2001; Ecology did not act on GSX’s request until July 16, 2003, well past the statutory one-year deadline. Accordingly, under the terms of the statute, Ecology waived section 401 certification.
Notice FERC granted the waiver even though Washington State had denied the Section 401 Water Quality Certification, because the state had failed to act within the one-year provided and only did so afterward. We’re not even at the point in the case of the Constitution Pipeline; there’s been no decision, just unending political delay by a governor who chooses to ignore the good advice of his own DEC.
Obviously, the resubmission creates an issue and New York State can also say it did “act” by holding a hearing but even that limited action didn’t occur until more than a year after Williams’ application was filed, so there’s plenty of room to make a case from this layman’s perspective. More importantly, its way past time someone was pro-active on this. We’re not dealing with a rational Oklahoma regulator but an insane corrupt New York government that only understands street fighting. It’s time to do some of it. Unleash the litigators and the junkyard dogs!