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New York tries to win back permit authority in National Fuel pipeline case

New York asked a federal court to help the state recover its Clean Water Act permitting authority over the approximately $500 million Northern Access 2016 natural gas pipeline expansion project proposed by National Fuel Gas Co., after decisions by the Federal Energy Regulatory Commission stripped that authority.

The state's attorney general asked the U.S. Appeals Court for the 2nd Circuit to set aside the FERC order that waived the state's Clean Water Act authority in the case and also the commission's decision to deny rehearing requests filed by the state and the Sierra Club as "illegal, unreasonable, arbitrary and capricious." The New York petition was posted in the FERC library on May 30.

Restoration of Clean Water Act authority would allow the New York State Department of Environmental Conservation to block Northern Access 2016 as it has blocked other pipeline projects within the state's borders. On May 15, the agency rejected an application for a water quality permit filed by Williams Cos. Inc.'s Transcontinental Gas Pipe Line Co. LLC for the Northeast Supply Enhancement project that was designed to serve National Grid USA utilities in the New York City area.

New York has opposed pipelines as Gov. Andrew Cuomo moves the state away from fossil fuels and toward renewable sources of energy.

FERC, which approved the Northern Access 2016 project in February 2017, found in August 2018 that the New York State Department of Environmental Conservation had waived its Clean Water Act permitting authority when it did not act on the developers' application for a permit under Section 401 of the act within a one-year statutory deadline. On April 2, the federal commission denied requests for rehearing of that waiver decision filed by the state agency and the Sierra Club. The denial allowed the state agency to take its case to the federal appeals court. (FERC docket CP15-115)

The Northern Access 2016 project will expand firm gas transportation service on National Fuel's National Fuel Gas Supply Corp. and Empire Pipeline Inc. systems by 497,000 Dth/d and 350,000 Dth/d, respectively. FERC has issued a three-year extension to finish the project due to the delays caused by the state permit process. The project has a tentative in-service date in 2022.