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Constitution Pipeline asks FERC to overrule New York's rejection of water permit


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Constitution Pipeline asks FERC to overrule New York's rejection of water permit

Constitution Pipeline Co. LLC asked the Federal Energy Regulatory Commission to overrule a decision by a New York state agency to deny a water permit for the 121-mile, 650-MMcf/d natural gas pipeline project after the commission waived similar permitting for Millennium Pipeline Co. LLC's Valley Lateral project.

Constitution, backed by subsidiaries of Williams Cos. Inc., Cabot Oil & Gas Corp., WGL Holdings Inc. and Duke Energy Corp.'s Piedmont Natural Gas Co. Inc., in an Oct. 11 petition filed with FERC again argued that the New York State Department of Environmental Conservation, or DEC, "failed to act within a reasonable period of time on" the company's Clean Water Act Section 401 permit application, thus triggering a waiver of FERC's requirement for a state water certificate for the portion of the line that runs through New York.

Constitution said it resubmitted its application to the state agency twice, first in May 2014 and later in April 2015, after initially seeking authorization in August 2013. The New York DEC in April 2016 rejected the permit after "eight months of unexplained silence and inactivity," according to Constitution. (FERC docket CP18-5)

Constitution's water permit denial has sparked litigation that has underpinned contention over whether New York is usurping federal authority by obstructing interstate natural gas projects.

The pipeline developer on Sept. 1 filed a petition asking the U.S. Court of Appeals for the 2nd Circuit to reverse an Aug. 18 decision upholding the state DEC's rejection, saying the ruling by a three-judge panel conflicted with prior rulings, made clear errors of law and upended congressional intent in the Natural Gas Act by allowing a state to redo federal pipeline routing decisions.

The court said in its decision that Constitution's "failure-to-act" claim must be heard under the "'exclusive' jurisdiction" of the D.C. Circuit because the argument was not a matter on which it could rule. (U.S. Appeals Court for the 2nd Circuit docket 16-1568)

FERC in a Sept. 15 order granted a waiver to Millennium's Valley Lateral project in Orange County, N.Y., that eliminated the New York DEC from the water quality certification process. "We find that the New York [State Department of Environmental Conservation], by failing to act within the one-year timeframe required by the [Clean Water Act], waived its authority to issue or deny a water quality certification," FERC Chairman Neil Chatterjee and commissioners Cheryl LaFleur and Robert Powelson wrote in the declaratory order.