On April 20, 2018, the New York State Department of Environmental Conservation (“NYSDEC”) denied the Transcontinental Gas Pipe Line Company, LLC’s (“Transco”) application (“Application”) for a Water Quality Certification (“WQC”) for the Northeast Supply Enhancement Project (“Project”). The NYSDEC denied the Application without prejudice, asserting that the Application provided incomplete information upon which to make a determination.
On March 27, 2017, Transco filed an application, pursuant to section 7(c) of the Natural Gas Act, with FERC for a Certificate of Public Convenience and Necessity (“Certificate”) in order to construct, own, and operate the Project. In addition to the Certificate, Transco must obtain a WQC in accordance with section 401 of the Clean Water Act (“CWA”). Pursuant to section 401 of the CWA, Transco must first obtain a WQC from the NYSDEC before FERC may issue a Certificate. On June 30, 2017, Transco submitted to the NYSDEC its Application for a WQC. Under the CWA, a certifying agency has one year from the date of the WQC application to decide whether to grant, deny, or waive the WQC application. The NYSDEC had until June 29, 2018 to make its final decision on Transco’s Application.
Upon its initial review, the NYSDEC denied Transco’s Application, without prejudice, due to incomplete information. The NYSDEC reviewed the Application, supplemental information, and the record before FERC and found that the NYSDEC cannot make a final determination until more information is added to the record. First, the NYSDEC stated that Application lacked information on the Project’s compliance with New York water quality standards. Second, the NYSDEC cited the incompleteness of FERC’s environmental review of the Project as potentially changing the record. Finally, because FERC will not issue a Final Environmental Impact Statement (“FEIS”) until September 17, 2018, the NYSDEC will not have the additional information provided by the FEIS upon which to make its final determination. Based upon these findings, the NYSDEC denied the Application. According to section 401 of the CWA, construction on the Project cannot begin – even if Transco has received all other necessary approvals – now that the NYSDEC has denied Transco’s Application.
The NYSDEC’s decision to deny the Application without prejudice comes after the U.S. Court of Appeals for the Second Circuit’s determination that the CWA’s one-year deadline for the NYSDEC’s review of a different pipeline’s WQC application began when the NYSDEC received the WQC application, rather than when the NYSDEC deemed the application complete, and thus the NYSDEC waived its authority under CWA section 401 for that pipeline (see March 20, 2018 edition of the WER).
A copy of the NYSDEC’s notice of denial is available here.