Second Circuit Affirms FERC Ruling That NY DEC Waived Authority On CWA Permit For Pipeline Project

On March 12, 2018, the U.S. Court of Appeals for the Second Circuit ("Second Circuit") held that the New York Department of Environmental Conversation ("NY DEC") waived its authority to act on Millennium Pipeline Company, L.L.C.'s ("Millennium") application for a Clean Water Act ("CWA") section 401 water quality certification by not acting on the application within one year of receipt.  In doing so, the Second Circuit rejected the NY DEC's argument that the one-year statutory deadline begins when a state agency deems the application complete, rather than when the application is received.

On November 13, 2015, Millennium applied for a certificate of public convenience and necessity requesting authorization to construct the Valley Lateral Project in New York.  In connection with the environmental review of the project, Millennium applied for a CWA section 401 water quality certification from the NY DEC, which the NY DEC received on November 23, 2015.  Subsequently,