New York State Department of Environmental Conservation v. Federal Energy Regulatory Commission, No. 19-1610 (2d Cir. 2021)Annotate this Case
The Second Circuit denied a petition for review of the Commission's orders determining that the DEC had waived its authority under Section 401 of the Clean Water Act to issue or deny a water quality certification for a natural gas pipeline project sponsored by National Fuel. The court concluded that Section 401's one-year time limit may not be extended by the type of agreement between a certifying agency and an applicant used here. In this case, the Commission reasonably concluded that the Natural Gas Act's rehearing provision did not bar National Fuel from seeking a waiver determination outside of the 30-day window to file a rehearing request, and that FERC acted within its discretion in treating National Fuel's December 2017 filing as a timely motion for a waiver determination. Therefore, the Commission properly concluded that the DEC waived its certification authority.