DEC Decision On Stream Beds Overturned
By JIM KEVLIN • Special to www.AllOTSEGO.com
The Constitution Pipeline is back from what many thought was the dead.
Two weeks ago, FERC – the Federal Energy Regulatory Commission – issued an order that allows the 125-mile Constitution to proceed without the water-quality permits denied in April 2016 by the state Department of Environmental Conservation (DEC).
The water-quality permits were necessary for the pipeline to cross streambeds between Northeast Pennsylvania and its planned connection with the Iroquois Pipeline, near Cobleskill.
The Stop the Pipeline organization, based in Delaware County, and the state Attorney General’s Office, on DEC’s behalf, are expected to challenge FERC’s decision by Sept. 30, the 30-day deadline for appeals.
FERC’s order followed a D.C. circuit Court of Appeals Jan. 25 decision confirming a state has a year to review water-quality applications or it loses jurisdiction, even if an “applicant withdraws and resubmits its request … over a period of time greater than a year.”
The D.C. court was acting on a hydropower case in California, Hoopa Valley Tribe vs FERC, but FERC’s order expands it to cover the Constitution, which – at the DEC’s request – twice agreed to “simultaneously withdraw and resubmit” its application because the agency wasn’t ready to make a decision.
FERC’s decision came to light locally at the Sept. 4 monthly meeting of the county Board of Representatives, when county Rep. Andrew Marietta, D-Cooperstown/Town of Otsego, asked state Sen. Jim Seward, R-Milford, if Albany had any plans to address such issues as Con Ed’s moratorium on Westchester County hook-ups.
“The governor and the administration seem hell-bent not to do anything in terms of pipelines,” Seward responded. But, he added, “FERC is taking over approval of pipelines, such as the Constitution.”
“Whether or not that will ever be built remains to be seen,” said the senator.
In light of the Hoopa decision, “my agency had to rethink its earlier finding, that New York State had missed its deadline to deal with matters within a year,” said Tamara Young-Allen, FERC spokesman on natural-gas matters.
At Williams, the Houston-based company that initiated the Constitution Pipeline, spokesman Chris Stockton referred questions to a three-paragraph statement on the company website. After describing the FERC decision, the statement said:
“The Constitution project continues to represent much-needed energy infrastructure designed to bring natural gas to a region of the country confronting natural gas supply constraints that have resulted. The project sponsors are evaluating the next steps for advancing the project.”
The Hoopa decision, involving hydro dams in California and Oregon, came “under different laws … and completely different circumstances,” said Anne Marie Garti, East Merideth, lawyer for Stop the Pipeline, which is allied with Catskill Mountainkeeper and the Sierra Club in this matter.
FERC simply “decided to apply the same idea to what happened with Constitution,” Garti said.
FERC’s 23-page order details that the DEC received the Constitution’s application for “water quality certification” on Aug. 22, 2013. But twice, on May 9, 2014, and April 27, 2015, because DEC was not prepared to render a decision, the company “simultaneously withdrew and resubmitted” its application.
On April 22, 2016, within a year of the final withdrawal and resubmittal, DEC denied the company the certification it sought.
Under past practice, that decision would have come within a year of the final submittal. However, due to the Hoopa decision, FERC concluded the DEC had missed the deadline, according to the order.
While Cooperstown-based Otsego 2000 fought the pipeline, it is not involved in this legal proceeding, said its president, Nicole Dillingham.
However, she called it “another case in a long list of cases where FERC has done everything in its power to support the fossil-fuel industry to the detriment of the citizen of our communities, bending over backwards to allow the construction of yet another pipeline that we know will lead to a dead-end.”
Despite FERC’s decision, an industry official said “there’s a lot of uncertainly” about what happens next. He pointed out the initial work on the project occurred in 2010, almost a decade ago. “You can’t pick up where you left off,” he said.