Petition for Writ of Certiorari — Constitution Pipeline Company, LLC, Petitioner v. New York State Department of Environmental Conservation, et al.

No. 17In the

Supreme Court of the United States

CONSTITUTION PIPELINE COMPANY, LLC,

Petitioner,

v.

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL

CONSERVATION; BASIL SEGGOS, COMMISSIONER, NEW

YORK STATE DEPARTMENT OF ENVIRONMENTAL

CONSERVATION; JOHN FERGUSON, CHIEF PERMIT

ADMINISTRATOR, NEW YORK STATE DEPARTMENT

OF ENVIRONMENTAL CONSERVATION,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Philip C. Bobbitt

Herbert Wechsler Professor of

Federal Jurisprudence and

Director for the Center for

National Security

Columbia Law School

Jerome Greene Hall, Room 720

435 West 116th Street

New York, NY 10027

Elizabeth U. Witmer

Saul Ewing A rnstein

& Lehr LLP

1200 Liberty Ridge Drive,

Suite 200

Wayne, PA 19087

John F. Stoviak

Counsel of Record

Patrick F. Nugent

Saul Ewing A rnstein

& Lehr LLP

Centre Square West

1500 Market Street,

38th Floor

Philadelphia, PA 19102

(215) 972-1095

john.stoviak@saul.com

A ndrew T. Bockis

Saul Ewing A rnstein

& Lehr LLP

Two North 2nd Street,

7th Floor

Harrisburg, PA 17101

Counsel for Petitioner

January 16, 2018

277774

i

QUESTION PRESENTED

The Energy Policy Act of 2005, amending the Natural

Gas Act of 1938 (“NGA”), reaffirms Congress’ clear intent

to federalize the approval and regulation of interstate

natural gas pipelines by providing for the comprehensive

federal regulation of the transportation and sale of

natural gas in interstate commerce by the Federal

Energy Regulatory Commission (“FERC”). See Islander

E. Pipeline Co., LLC v. Conn. Dep’t of Envtl. Prot., 482

F.3d 79, 84 (2d Cir. 2006); see also Schneidewind v. ANR

Pipeline Co., 485 U.S. 293, 300–01 (1988). “Congress

placed authority regarding the location of interstate

pipelines . . . in the FERC, a federal body that can make

choices in the interests of energy consumers nationally

. . . .” Nat’l Fuel Gas Supply Corp. v. Pub. Serv. Comm’n,

894 F.2d 571, 579 (2d Cir. 1990).

The NGA preempts state permitting and licensing

requirements, see Islander E. Pipeline Co., LLC v.

McCarthy, 525 F.3d 141, 143 (2d Cir. 2008), expressly

limiting narrowly tailored authority for states to

administer three federal regulatory statutes. One of these

is the Clean Water Act (“CWA”). See 15 U.S.C. § 717b(d)

(3). Under Section 401 of the CWA (“Section 401”), any

applicant seeking a federal permit for an activity that

“may result in any discharge into the navigable waters”

must obtain “a certification from the State in which the

discharge originates or will originate . . . that any such

discharge will comply with” the state’s federally-approved

water quality standards. 33 U.S.C. § 1341(a)(1). No

applicable federal license or permit will be granted unless

the certification required by Section 401 has been obtained,

or the reviewing state body waives the requirement by

ii

failing to act on an application for certification within a

reasonable period of time, not to exceed one year. Id.

This narrowly tailored authority does not allow a

state to frustrate principles of federal supremacy and

impede interstate commerce because it disagrees with

the FERC-approved route and location of an interstate

natural gas pipeline.

The question presented is:

Whether a state’s denial of a federally-approved

interstate natural gas pipeline’s request for certification

under Section 401 of the CWA on the basis of purportedly

receiving insufficient information regarding alternative

routes for the interstate natural gas pipeline exceeds

the state’s limited authority under the Energy Policy

Act of 2005 and the Natural Gas Act of 1938, interferes

with FERC’s exclusive jurisdiction over the routing of

interstate natural gas pipelines when consideration of

alternative routes is explicitly not part of the state’s

federally-approved water quality standards, and violates

fundamental principles of federal supremacy arising from

the Constitution’s Supremacy Clause?

iii

PARTIES TO THE PROCEEDING AND RULE 29.6

CORPORATE DISCLOSURE STATEMENT

The petitioner below was Constitution Pipeline

Company, LLC. The respondents below were: the New

York State Department of Environmental Conservation;

Basil Seggos, then Acting Commissioner of the New

York State Department of Environmental Conservation

(and now its Commissioner); and John Ferguson, Chief

Permit Administrator of the New York State Department

of Environmental Conser vation. The inter venors

below, supporting the respondents, were: Stop the

Pipeline; Catskill Mountainkeeper, Inc.; Sierra Club; and

Riverkeeper, Inc.

Constitution Pipeline Company, LLC is a limited

liability natural gas pipeline company organized and

existing under the laws of the State of Delaware. The

members of Constitution include Williams Partners

Operating LLC (41 percent), Cabot Pipeline Holdings,

LLC (25 percent), Piedmont Constitution Pipeline

Company, LLC (24 percent), and WGL Midstream CP,

LLC (10 percent). The respective members’ direct and

indirect parents are Williams Partners Operating LLC,

Williams Partners L.P., The Williams Companies, Inc.,

WGL Midstream, Inc., WGL Holdings, Inc., Washington

Gas Resources Corp., Duke Energy Pipeline Holding

Company, LLC, and Duke Energy Corporation. The

following publicly-held corporations directly or indirectly

own a 10% or more interest in Constitution Pipeline

Company, LLC: Williams Partners L.P., The Williams

Companies, Inc., Duke Energy Corporation, and WGL

Holdings, Inc. Cabot Oil & Gas Corporation is an indirect,

beneficial owner of a 25% membership interest through

iv

its wholly-owned subsidiary, Cabot Pipeline Holdings,

LLC. In addition, The Williams Companies Inc. owns

10% or more of the publicly-held limited partner interest

in Williams Partners, L.P. Duke Energy Corporation

is an indirect owner of Duke Energy Pipeline Holding

Company, LLC.

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PA RTIES TO THE PROCEEDING A ND

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 2

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . 10

I.

The Interstate Project . . . . . . . . . . . . . . . . . . . . . 10

II. FERC’s Comprehensive Review and

Approval of the Interstate Project . . . . . . . . . . . 11

III. NYSDEC’s Denial of the Section 401

Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

vi

Table of Contents

Page

IV. The Second Circuit Denies Constitution’s

Petition for Review of NYSDEC’s Denial of

the Section 401 Certification . . . . . . . . . . . . . . . . 15

REASONS FOR GRANTING THE PETITION . . . . 16

I.

The Second Circuit’s Decision Conflicts

With the Decisions of This Court and

Other Courts of Appeals on an Important

Question of Federal Law That Has Profound

Implications for the Development of Critical

National Energ y Infrastructure and

U.S. National Security . . . . . . . . . . . . . . . . . . . . . 16

A. Cong ress Gave FERC Exclusive

A ut hor it y t o R out e I nt e r st at e

Natural Gas Pipelines . . . . . . . . . . . . . . . . . 17

B. States’ Limited Authority Under Section

401 of the CWA Does Not Include Routing

of Interstate Natural Gas Pipelines . . . . . 19

vii

Table of Contents

Page

C. Allowing States to Act Beyond the

Limits of Their Authority Under Section

401 of the CWA and in an Area Reserved

Exclusively for Federal Regulation

Frustrates Fundamental Principles

A r ising f rom the Constitution’s

Supremacy Clause in A rticle VI

and the Commitment to Congress

of the Reg ulation of Commerce

Among the Several States and with

Foreign Nations in Article II . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

viii

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT, DATED

AUGUST 18, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — THE NEW YORK STATE

DEPARTMENT OF ENVIRONMENTAL

C ONS ERVA T ION ’ S A PR I L 2 2 , 2 016

DENIAL OF CONSTITUTION PIPELINE

COMPANY, LLC’S A PPLICATION FOR

A WATER QUALIT Y CERTIFICATION

UNDER SECTION 401 OF THE CLEAN

WATER ACT FOR THE CONSTITUTION

PIPELINE PROJECT . . . . . . . . . . . . . . . . . . . . . . . 35a

APPENDIX C — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT,

DATED OCTOBER 19, 2017 . . . . . . . . . . . . . . . . . . . . 66a

ix

TABLE OF CITED AUTHORITIES

Page

CASES

Constitution Pipeline Co., LLC v.

N.Y. State Dep’t of Envtl. Conservation,

868 F.3d 87 (2d Cir. 2017) . . . . . . . . . . . . . . . . . . passim

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) . . . . . . . . . . . . . . . . . . . . . 23

Islander E. Pipeline Co., LLC v.

Conn. Dep’t of Envtl. Prot.,

482 F.3d 79 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 24

Islander E. Pipeline Co., LLC v. McCarthy,

525 F.3d 141 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . 16, 18

Milk Control Bd. v. Eisenberg Farm Prods.,

306 U.S. 346 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Millennium Pipeline Co., L.L.C. v. Seggos,

No. 117CV1197MADCFH,

2017 WL 6397742 (N.D.N.Y. Dec. 13, 2017) . . . . 19-20

N. Nat. Gas Co. v. State Corp. Comm’n,

372 U.S. 84 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Nat’l Fuel Gas Supply Corp. v.

Pub. Serv. Comm’n,

894 F.2d 571 (2d Cir. 1990) . . . . . . . . . . . . . . . . . passim

x

Cited Authorities

Page

Niagara Mohawk Power Corp. v.

N.Y. State Dep’t of Envtl. Conservation,

592 N.Y.S.2d 141 (N.Y. App. Div. 1993), aff’d,

624 N.E.2d 146 (N.Y. 1993), cert. denied,

511 U.S. 1141 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Pennsylvania v. Wheeling & Belmont Bridge Co.,

59 U.S. 421 (1855) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Schneidewind v. ANR Pipeline Co.,

485 U.S. 293 (1988) . . . . . . . . . . . . . . . . . . . . . . . passim

Steward Machine Co. v. Davis,

301 U.S. 548 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Weaver’s Cove Energy, LLC v.

R.I. Coastal Res. Mgmt. Council,

589 F.3d 458 (1st Cir. 2009) . . . . . . . . . . 8, 16-17, 18, 19

STATUTES AND OTHER AUTHORITIES

U.S. Const. amend. XXI, § 2 . . . . . . . . . . . . . . . . . . . . . . 23

15 U.S.C. § 717(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22

15 U.S.C. § 717(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

15 U.S.C. § 717b(d) . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 18, 22

15 U.S.C. § 717f(c)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

xi

Cited Authorities

Page

15 U.S.C. § 717f(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

15 U.S.C. § 717r(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2101(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

33 U.S.C. § 1341(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 4, 14, 19

33 U.S.C. § 1344(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

6 N.Y.C.R.R. §§ 700-706 . . . . . . . . . . . . . . . . . . . . . . . . . . 20

David Biello, Can U.S. Fracked Gas Save Ukraine?,

Scientific A merican, Mar. 11, 2014 . . . . . . . . . . . . . 17

Dr. David Gordon, et al., Energy, Economic

Growth, and U.S. National Security, Ctr .

for a New A m Sec. (Nov. 13, 2017) . . . . . . . . . . . . . 6, 7

Elizabeth Rosenberg, Energy Rush: Shale

Production and U.S. National Security, Ctr.

for a New A m. Sec., (Feb. 2014) . . . . . . . . . . . . . . . . . 6

Elizabeth Rosenberg, et al., The New Great Game

– Changing Global Energy Markets, The ReEmergent Strategic Triangle, and U.S. Policy,

Ctr. for a New A m. Sec. (June 15, 2016) . . . . . . . . . . 7

George L. Haskins, John Marshall and the

xii

Cited Authorities

Page

Commerce Clause of the Constitution,

104 U. Pa. L. Rev. 23 (1955) . . . . . . . . . . . . . . . . . . . . 23

P r e s i d e n t i a l D e c i s i o n D i r e c t i ve 6 3 o n

Cr itical Infrastr ucture Protection,

63 Fed. Reg. 41804-01 (Aug. 5, 1998) . . . . . . . . . . . . 21

Project Benefits, Const. Pipeline . . . . . . . . . . . . . . . . . . 10

S. Rep. No. 109-78 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Sup. Ct. R. 13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 13.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

Petitioner Constitution Pipeline Company, LLC

(“Constitution”) respectfully petitions this Court for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Second Circuit.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Second Circuit (App. 1a-34a)1 is reported at 868 F.3d

87. The New York State Department of Environmental

Conservation’s letter denying Constitution’s application

for a water quality certification under Section 401 of the

Clean Water Act is reproduced at App. 35a-65a.

JURISDICTION

The United States Court of Appeals for the Second

Circuit issued its opinion and entered judgment in this

case on August 18, 2017. App. 1a. Constitution filed a

petition for panel rehearing and/or rehearing en banc

on September 1, 2017. The Court of Appeals denied

Constitution’s rehearing petition on October 19, 2017.

App. 66a-67a. This petition is timely under 28 U.S.C.

§ 2101(c) and Supreme Court Rules 13.1 and 13.3 because

it is being filed within 90 days of the date of the denial

of rehearing. This Court has jurisdiction to review the

Court of Appeals’ judgment under 28 U.S.C. § 1254(1).

Constitution originally invoked federal jurisdiction in

the Second Circuit under the Natural Gas Act, 15 U.S.C.

§ 717r(d)(1).

1. “App.” refers to the pages of the Appendices accompanying

this Petition for a Writ of Certiorari.

2

STATUTORY PROVISIONS INVOLVED

Section 717 of the Natural Gas Act (“NGA”) provides,

in relevant part:

(a) Necessity of regulation in public interest

As disclosed in reports of the Federal Trade

Commission made pursuant to S.Res. 83

(Seventieth Congress, first session) and other

reports made pursuant to the authority of

Congress, it is declared that the business of

transporting and selling natural gas for ultimate

distribution to the public is affected with a

public interest, and that Federal regulation

in matters relating to the transportation of

natural gas and the sale thereof in interstate

and foreign commerce is necessary in the public

interest.

15 U.S.C. § 717(a).

Section 717b of the NGA provides, in relevant part:

(d) Construction with other laws

Except as specifically provided in this chapter,

nothing in this chapter affects the rights of

States under—

(1) the Coastal Zone Management Act of 1972

(16 U.S.C. 1451 et seq.);

(2) the Clean Air Act (42 U.S.C. 7401 et seq.); or

3

(3) the Federal Water Pollution Control Act (33

U.S.C. 1251 et seq.).

15 U.S.C. § 717b(d).

Section 401 of the Clean Water Act (“CWA”) provides,

in relevant part:

(a) Compliance with applicable requirements;

application; procedures; license suspension

(1) Any applicant for a Federal license or permit

to conduct any activity including, but not limited

to, the construction or operation of facilities,

which may result in any discharge into the

navigable waters, shall provide the licensing

or permitting agency a certification from

the State in which the discharge originates

or will originate, or, if appropriate, from the

interstate water pollution control agency

having jurisdiction over the navigable waters

at the point where the discharge originates

or will originate, that any such discharge

will comply with the applicable provisions of

sections 1311, 1312, 1313, 1316, and 1317 of this

title. In the case of any such activity for which

there is not an applicable effluent limitation

or other limitation under sections 1311(b) and

1312 of this title, and there is not an applicable

standard under sections 1316 and 1317 of this

title, the State shall so certify, except that

any such certification shall not be deemed to

satisfy section 1371(c) of this title. Such State

or interstate agency shall establish procedures

4

for public notice in the case of all applications

for certification by it and, to the extent it deems

appropriate, procedures for public hearings in

connection with specific applications. In any

case where a State or interstate agency has

no authority to give such a certification, such

certification shall be from the Administrator. If

the State, interstate agency, or Administrator,

as the case may be, fails or refuses to act on a

request for certification, within a reasonable

period of time (which shall not exceed one year)

after receipt of such request, the certification

requirements of this subsection shall be waived

with respect to such Federal application. No

license or permit shall be granted until the

certification required by this section has been

obtained or has been waived as provided in

the preceding sentence. No license or permit

shall be granted if certification has been

denied by the State, interstate agency, or the

Administrator, as the case may be.

33 U.S.C. § 1341(a)(1).

INTRODUCTION

Consistent with the express intent of the NGA

to federalize the regulation of interstate natural gas

pipelines, the Federal Energy Regulatory Commission

(“FERC”) conducted a comprehensive thirty-one

month review process that included consideration of

nine separate letters submitted by the New York State

Department of Environmental Conservation (“NYSDEC”)

addressing in detail NYSDEC’s objections to the proposed

5

route for Constitution’s proposed interstate natural

gas pipeline project (“Interstate Project”). FERC then

issued a Certificate of Public Convenience and Necessity

(“Certificate Order”) determining that Constitution’s

Interstate Project was in the national public interest.

It is noteworthy that NYSDEC did not file an appeal

challenging FERC’s issuance of the Certificate Order.

Instead, NYSDEC attempted to bootstrap its limited

authority to review interstate natural gas projects

for compliance with federally-approved water quality

standards under Section 401 of the CWA by denying a

water quality certification (“Section 401 Certification”).

Although a state is within its authority to deny a Section

401 Certification when its denial is timely and based

on federally-approved water quality standards, here

NYSDEC notably delayed issuing a denial until Earth

Day (April 22, 2016), justifying its ultimate denial (the

“Denial”) on, inter alia, an alleged failure to provide

NYSDEC sufficient information about an alternative route

for the Interstate Project—an issue over which FERC has

exclusive authority. It is undisputed that the basis for this

denial is not limited to an application of federally-approved

water quality standards. Nor is it disputed that Congress

provided FERC with exclusive authority over the routing

of interstate natural gas pipelines.

The NGA federalizes the regulation of interstate

natural gas pipelines, though it employs narrowly tailored

state determinations as part of the federally-mandated

process. These determinations are linked to specific state

findings under the CWA, the Coastal Zone Management

Act, and the Clean Air Act. See 15 U.S.C. § 717b(d). By

overstepping their carefully circumscribed roles under

6

the NGA in order to block interstate pipelines, states,

like New York here, would frustrate Congress’ express

intent in passing the Energy Policy Act of 2005, which was

to “provide a comprehensive national energy policy that

balances domestic energy production with conservation

and efficiency efforts to enhance the security of the United

States and decrease dependence on foreign sources of

fuel,” S. Rep. No. 109-78, at 1 (2005).

The last point can scarcely be overstated. Domestic

energy development and a robust energy supply with

reliable transportation infrastructure (including

interstate natural gas pipelines) are vitally important to

our national security interests. At this very time, “[t]he

United States is currently taking a major step forward in

energy production as a result of the shale energy boom, a

development that will contribute to . . . energy security.” 2

“The return of the United States as a major global energy

producer and exporter . . . open[s] global energy markets

. . . [and] provid[es] greater resilience to those markets,

which adds to the security of supply. This has already

led to concrete national security benefits for the United

States.” 3 “[G]reater resilience undermines would-be

regional hegemons who seek to use energy as a coercive

2. Elizabeth Rosenberg, Energy Rush: Shale Production

and U.S. National Security, Ctr . for a New A m. Sec., (Feb.

2014), https://www.cnas.org/publications/reports/energy-rush-shaleproduction-and-u-s-national-security (follow “Download PDF”

hyperlink).

3. Dr. David Gordon, et al., Energy, Economic Growth,

and U.S. National Security, Ctr. for a New A m Sec. (Nov. 13,

2017), https://www.cnas.org/publications/reports/energy-economicgrowth-and-u-s-national-security-the-case-for-an-open-trade-andinvestment-regime (follow “Download PDF” hyperlink).

7

tool against the United States and its allies by limiting

their ability to control access to their energy resources.”4

Additionally, “supporting and encouraging a strong

U.S. energy production and export capability . . . can

be a powerful lever to check adversaries or unwelcome

aggression on the international stage.”5

The affirmance of this Denial by the Second Circuit

ultimately turned on its acceptance of NYSDEC’s

maneuver. The “single cognizable rationale” identified by

the Second Circuit was the issue of alternative routes: “A

state’s consideration of a possible alternative route that

would result in less substantial impact on its waterbodies is

plainly within the state’s authority.” Constitution Pipeline

Co., LLC v. N.Y. State Dep’t of Envtl. Conservation, 868

F.3d 87, 101 (2d Cir. 2017), App. 29a.

If not corrected, this decision will have far-reaching

implications for all NGA infrastructure projects. Left

unchecked, states like New York, with an intent to

superimpose their political, parochial interests over

the interests of the nation, will use the Second Circuit’s

expanded reading of their narrowly tailored rights under

Section 401 of the CWA to undermine FERC’s routing

determinations by requiring applicants to consider

“a possible alternative route that would result in less

4. Id.

5. Elizabeth Rosenberg, et al., The New Great Game –

Changing Global Energy Markets, The Re-Emergent Strategic

Triangle, and U.S. Policy, Ctr. for a New A m. Sec. (June 15,

2016), https://www.cnas.org/publications/reports/the-new-greatgame-changing-global-energy-markets-the-re-emergent-strategictriangle-and-u-s-policy (follow “Download PDF” hyperlink).

8

substantial impact,” Constitution Pipeline, 868 F.3d at

101, App. 29a. This would effectively allow states to block

federally reviewed and approved interstate natural gas

pipelines for reasons entirely unrelated to the limited role

Congress has provided to states in the NGA’s regulatory

scheme. Indeed, NYSDEC has effectively instituted a

blockade of FERC-approved natural gas pipelines as

evidenced by its recent denials of Section 401 water quality

certifications for the Interstate Project and two other

projects (Millennium Pipeline Company’s Valley Lateral

Project and National Fuel Gas Supply Corporation’s and

Empire Pipeline, Inc.’s Northern Access Project).

The Second Circuit’s decision eviscerates the

carefully delineated boundaries of cooperative federalism

established by Congress in the NGA, as amended by the

Energy Policy Act of 2005, and presents a profound threat

to our national security by allowing states to intrude

upon FERC’s exclusive jurisdiction in an effort to prevent

development of critical natural gas energy infrastructure,

which, in turn, will impair the development of United

States energy resources, a key priority for our nation’s

national security.

The Court should grant this petition because the

Second Circuit’s decision conflicts with the decisions of this

Court and other federal Courts of Appeals on an important

question of federal law that has profound implications for

the development of critical energy infrastructure and

national security. See Schneidewind v. ANR Pipeline

Company, 485 U.S. 293, 300-01, 305 (1988); Nat’l Fuel Gas

Supply Corp. v. Pub. Serv. Comm’n, 894 F.2d 571, 579 (2d

Cir. 1990); Weaver’s Cove Energy, LLC v. R.I. Coastal Res.

Mgmt. Council, 589 F.3d 458, 472 (1st Cir. 2009). FERC

9

alone has authority to determine the routes of interstate

natural gas pipelines whose environmental impact is to

be assessed by the states strictly according to federal

guidelines. States should not be permitted to effectively

negate FERC’s determinations by maneuvers that are in

effect routing assessments disguised as the exercise of

their limited CWA Section 401 authority. Allowing states

to do so would conflict with the Supremacy jurisprudence of

two centuries of Supreme Court precedent and eviscerate

the NGA and amendments thereto in the Energy Policy

Act of 2005. Absent a ruling from this Court, state officials

will be emboldened by the Second Circuit’s ruling to

transform their CWA Section 401 authority into the power

to block pipelines at the expense of national interests that

FERC is charged to balance and protect. In essence, it

would elevate the Not-In-My-Backyard temptations and

pressures on state officials to an irresistible level by

removing the national check on those pressures carefully

crafted by Congress. Of course the problem of locating

energy pipelines is not the only public policy issue whose

solution cannot be thwarted by individual state action,6 but

6. Justice Cardozo discussed these so-called “collective

action” problems in his opinion for the Court in Steward Machine

Co. v. Davis, 301 U.S. 548 (1937):

Two consequences ensued. One was that the freedom

of a state to contribute its fair share to the solution

of a national problem was paralyzed by fear. The

other was that in so far as there was failure by the

states to contribute relief according to the measure

of their capacity, a disproportionate burden, and a

mountainous one, was laid upon the resources of the

Government of the nation.

Id. at 588.

10

it must be a paradigm case. How could a national critical

infrastructure ever come into being if the permitting

process were localized and held hostage to the political

vagaries of the various states and localities?

Here, Congress has spoken unmistakably: action by

the state must be part of a narrowly tailored process that

does not frustrate the routing plans determined by FERC.

STATEMENT OF THE CASE

I.

The Interstate Project

This case concerns NYSDEC’s Denial of Constitution’s

application for a Section 401 Certification for a 124-mile

interstate natural gas pipeline project from Pennsylvania

to New York.7 The Interstate Project is designed to

provide up to 650,000 dekatherms per day of cleanburning natural gas and its capacity is fully subscribed.

JA1667, JA1670. 8 The Interstate Project will transport

enough natural gas to serve over 3 million homes,9 and

is designed to transport domestically-sourced gas from

Pennsylvania to markets in New England and New York.

Certificate Order ¶ 25, JA1674.

7. Approximately 99 miles of the Interstate Project are

located in New York State; 25 miles are located in Pennsylvania.

Pennsylvania issued a Section 401 Certification on September 5,

2014.

8. “JA” refers to the Joint Appendix filed in the Second

Circuit proceeding.

9. Project Benefits, Const. Pipeline, http://constitutionpipeline.

com/about-the-project/project-benefits/ (last visited Jan. 11, 2018).

11

II. FERC’s Comprehensive Review and Approval of

the Interstate Project

Pursuant to Section 7 of the NGA, a natural gas

company must obtain from FERC a “certificate of public

convenience and necessity” before it constructs, extends,

acquires, or operates any facility for the transportation

or sale of natural gas in interstate commerce. 15 U.S.C.

§ 717f(c)(1)(A). FERC is required to issue a certificate

of public convenience and necessity if it finds that the

proposed project “is or will be required by the present

or future public convenience and necessity,” and FERC

may attach “to the issuance of the certificate . . . such

reasonable terms and conditions as the public convenience

and necessity may require.” Id. § 717f(e).

On June 13, 2013, Constitution filed an application

with FERC for a certificate of public convenience and

necessity authorizing construction and operation of the

Interstate Project. As the lead federal agency under the

National Environmental Policy Act (“NEPA”), FERC

considered extensive environmental data on the Interstate

Project’s potential impacts as part of the environmental

impact statement process. As a consequence of this

review, FERC issued a 400-page Draft Environmental

Impact Statement on February 12, 2014, on which it

received extensive comments (including four letters

from NYSDEC), and thereafter issued a 450-page Final

Environmental Impact Statement (“FEIS”) on October 24,

2014. The FEIS concluded that any adverse environmental

impacts that would result from the Interstate Project

“would be reduced to less than significant levels with the

implementation of Constitution’s . . . proposed mitigation

and the additional measures recommended by staff in

12

the final EIS.” FEIS at 1, JA1006. It is important to note

that as a part of its review, FERC’s Final Environmental

Impact Statement also considered alternative routes for

the Interstate Project, as well as the anticipated impact

on a host of environmental resources. See generally FEIS,

JA1005-JA1469.

NYSDEC actively participated in FERC’s review

proceedings by submitting nine separate comment letters

to FERC between November 2012 and May 2014.10 In its

comment letters to FERC, NYSDEC twice expressed

the commitment that it “intends to rely upon the federal

environmental review prepared pursuant to [NEPA] to

determine if the Project will comply with the applicable

New York standards.” JA75-JA76, JA164. NYSDEC also

expressed a strong preference for an alternative route,

referred to as Alternative M, that would have moved

the proposed pipeline route to a location parallel to New

York Interstate 88 for a substantial portion of the route.

JA223-JA224, JA496-JA515.

FERC specifically rejected NYSDEC’s proposed

alternative route (see FEIS, Volume 3, Appendix S,

Part 2, SA4-2, JA1641-JA1642), expressly articulating

why it did not find Alternative M to be preferable to

the proposed route, and noting that FERC “completed

numerous in-field reviews of the topographical constraints

associated with Alternative M on foot, by car along

I-88, and by helicopter.” Id. FERC’s analysis was

buttressed by an explicit comparison of the impact

10. JA75-JA80, JA81-JA88, JA89-JA127, JA164-JA206,

JA223-JA224, JA486-JA488, JA496-JA515, JA844-JA846, JA853JA855.

13

on waterbodies and wetlands. This comparison “was

one of several environmental parameters supporting

[FERC’s] conclusion that the Alternative M segments

were not preferable to the proposed route segments.”

Id. at SA4-3, JA1643. Additionally, both the New York

State Department of Transportation and the Federal

Highway Administration strongly voiced their safety and

operational concerns regarding the Alternative M routing

advocated by NYSDEC. See JA225-JA293.

After conducting an extensive review for more than

two years and seven months, FERC issued a Certificate

of Public Convenience and Necessity on December 2, 2014

approving the Interstate Project subject to conditions,

including Constitution’s obtaining necessary federal

authorizations. Certificate Order at 45, 51 (Environmental

Condition 8), JA1711, JA1717.

NYSDEC chose not to file an appeal challenging

FERC’s Certificate of Public Convenience and Necessity,

which set the route for the Interstate Project.

III. NYSDEC’s Denial of the Section 401 Certification

Following pre-application consultations with NYSDEC

in 2012 and 2013, Constitution submitted its Section 401

Certification application to NYSDEC on August 22, 2013,

the same day it submitted its application to the United

States Army Corps of Engineers (“U.S. Army Corps”)

for a permit under Section 404 of the CWA, 33 U.S.C.

§ 1344(a). Under Section 401, any applicant for a Section

404 permit to construct or operate a facility that may

result in a discharge must provide the U.S. Army Corps

with “a certification from the State in which the discharge

14

originates . . . that any such discharge will comply with”

federally-approved state water quality standards. 33

U.S.C. § 1341(a)(1).

On Earth Day, two years and eight months after

Constitution submitted its application to NYSDEC, and

following a multitude of detailed technical submissions

to NYSDEC, including a comprehensive summary

responding to over 15,000 public comments related to

Constitution’s application, NYSDEC denied Constitution’s

application on grounds that it purportedly did not contain

sufficient information to determine whether Constitution’s

proposed activities demonstrate compliance w ith

New York’s water quality standards. JA2870-JA2883.

NYSDEC denied Constitution’s application for lack of

sufficient information, notwithstanding that it twice

publicly acknowledged that Constitution had submitted

a complete application. JA1725-JA1732, JA2074-JA2075.

It should not be overlooked that NYSDEC prepared

a twenty-one page draft Section 401 Certification with

extensive conditions that it sent to the U.S. Army Corps

for comment on July 20, 2015, seeking its prompt review

and comment in light of the apparent imminence for

issuance of the Section 401 Certification. JA75-JA76,

JA164, JA2219-JA2241. Nevertheless, NYSDEC shut

down substantive communications with Constitution

regarding the draft Section 401 Certification and made

no request for additional information regarding routing

of the pipeline or any of the subjects on which it would

ultimately base its denial for lack of sufficient information

during the eight month period leading up to the 2016 Earth

Day denial by NYSDEC.

15

It would appear that this silence with the applicant

was not inadvertent, but was an essential element in

NYSDEC’s finding that “Constitution’s unwillingness to

adequately explore the Alternative M route alternative

. . . means that the Department is unable to determine

whether an alternative route is actually more protective

of water quality standards.” Denial at 11, SPA11.11 This

is particularly significant in light of the Second Circuit’s

decision to uphold the Denial.

IV. The Second Circuit Denies Constitution’s Petition

for Review of NYSDEC’s Denial of the Section 401

Certification

On May 16, 2016, Constitution filed a petition for

review of NYSDEC’s Denial with the United States Court

of Appeals for the Second Circuit pursuant to Section

19(d)(1) of the NGA, 15 U.S.C. § 717r(d)(1). Constitution

raised three primary arguments in support of its

petition: (1) NYSDEC waived the Section 401 certification

requirement by failing to act on Constitution’s application

within a reasonable period of time; (2) NYSDEC exceeded

its narrow authority under Section 401 of the CWA,

and intruded upon FERC’s exclusive jurisdiction, by

considering alternative routes for the Interstate Project;

and (3) NYSDEC acted arbitrarily and capriciously in

denying Constitution’s application.

The Second Circuit denied Constitution’s petition for

review and upheld NYSDEC’s Denial. First, the Second

Circuit decided that it lacked jurisdiction to consider

11. “SPA” refers to the Special Appendix filed in the Second

Circuit proceeding.

16

Constitution’s waiver argument. Constitution Pipeline

Co., LLC v. N.Y. State Dep’t of Envtl. Conservation, 868

F.3d 87, 100 (2d Cir. 2017), App. 26a. Turning to the merits,

the Second Circuit rejected the bulk of Constitution’s

arguments out of hand: “We need not address all of these

contentions. . . . [W]here an agency decision is sufficiently

supported by even as little as a single cognizable rationale,

that rationale, ‘by itself, warrants our denial of [a] petition’

for review under the arbitrary-and-capricious standard

of review.” Id. at 101-02 (quoting Islander E. Pipeline

Co., LLC v. McCarthy, 525 F.3d 141, 158 (2d Cir. 2008)),

App. 29a. The “single cognizable rationale” identified by

the Second Circuit was the issue of alternative routes: “A

state’s consideration of a possible alternative route that

would result in less substantial impact on its waterbodies

is plainly within the state’s authority.” Id. at 101, App. 29a.

REASONS FOR GRANTING THE PETITION

I.

The Second Circuit’s Decision Conflicts With the

Decisions of This Court and Other Courts of Appeals

on an Important Question of Federal Law That

Has Profound Implications for the Development of

Critical National Energy Infrastructure and U.S.

National Security

The Second Circuit’s decision conflicts with the

decisions of this Court and federal Courts of Appeals on

an important question of federal law that has material

implications for the development of critical energy

infrastructure in this nation. See Schneidewind v. ANR

Pipeline Co., 485 U.S. 293, 300-01, 305 (1988); Nat’l Fuel

Gas Supply Corp. v. Pub. Serv. Comm’n, 894 F.2d 571,

579 (2d Cir. 1990); Weaver’s Cove Energy, LLC v. R.I.

17

Coastal Res. Mgmt. Council, 589 F.3d 458, 472 (1st Cir.

2009). Without a ruling from this Court, there is a serious

risk that states will use the Second Circuit’s ruling

below to abuse their narrowly tailored CWA Section 401

authority in their efforts to frustrate interstate natural

gas pipeline development at the expense of vital national

interests, including the development of energy security

by the United States and the impact on energy prices

worldwide—with all the implications for the geopolitical

position of the U.S. and other countries—such as Iran

and Russia.12

A.

Congress Gave FERC Exclusive Authority to

Route Interstate Natural Gas Pipelines

“The NGA confers upon FERC exclusive [jurisdiction]

over the transportation and sale of natural gas in interstate

commerce for resale.” Schneidewind, 485 U.S. at 300-01

(citing N. Nat. Gas Co. v. State Corp. Comm’n, 372 U.S. 84,

89 (1963)); see also id. at 305 (“Congress occupied the field

of matters relating to wholesale sales and transportation

of natural gas in interstate commerce.”). This Court has

long held that “facilities of natural gas companies are”

one of “the things over which FERC has comprehensive

authority.” Id. at 308; see also Nat’l Fuel Gas Supply, 894

F.2d at 579 (“Congress placed authority regarding the

location of interstate pipelines . . . in the FERC, a federal

body that can make choices in the interests of energy

consumers nationally . . . .”). The Second Circuit’s holding

that “[a] state’s consideration of a possible alternative

12. See, e.g., David Biello, Can U.S. Fracked Gas Save

Ukraine?, S cientific A merican, Mar. 11, 2014, https://www.

scientificamerican.com/article/can-us-fracked-gas-save-ukraine/.

18

route that would result in less substantial impact on

its waterbodies is plainly within the state’s authority,”

Constitution Pipeline, 868 F.3d at 101, App. 29a, squarely

conflicts with this Court’s decision in Schneidewind, as

well as the Second Circuit’s decision in National Fuel and

the First Circuit’s decision in Weaver’s Cove,13 all of which

recognize FERC’s exclusive authority over the siting of

natural gas facilities.

The Second Circuit cites its previous decision in

Islander East Pipeline Co., LLC v. McCarthy, 525

F.3d 141, 151-52 (2d Cir. 2008) (“Islander East II”) as

support for its ruling that a state may second-guess

FERC’s routing determination, but Islander East II says

nothing to support a departure from its prior precedent

in National Fuel. In Islander East II, the Connecticut

Department of Environmental Protection (“CTDEP”)

made an affirmative determination that the FERCapproved route—not an alternative route preferred

by CTDEP—“would adversely affect shellfish habitat

and cause the loss of an existing and designated use,

i.e., shellfishing, over an unacceptably large area” and,

therefore, would not comply with state water quality

standards. Id. at 152. Nowhere did the Court in Islander

East II suggest—much less hold—that a state agency

may insist on the consideration of an alternative route

13. Weaver’s Cove involved the regulation of a proposed

liquefied natural gas (“LNG”) terminal under the Coastal Zone

Management Act—one of the three statutes pursuant to which

states may regulate NGA-governed projects. See 15 U.S.C.

§ 717b(d). The differences between that case and this one are

immaterial. Under the NGA, FERC possesses exclusive authority

over the siting of facilities. That remains true irrespective of

whether the proposed facilities are for a natural gas pipeline or

an LNG terminal.

19

or reject a Section 401 Certification because it prefers

a different route over the route FERC approved. The

Second Circuit’s endorsement of NYSDEC’s improper

efforts to re-evaluate alternative routes rejected by FERC

is a fundamental error of law that poses a serious threat

to development of interstate natural gas facilities. The

Second Circuit’s ruling below creates untenable conflicts

within the Second Circuit and with the First Circuit’s

decision in Weaver’s Cove,14 presenting a serious risk

that Courts of Appeals will continue to reach different

outcomes on an issue that should be uniformly decided

under the federal statutory scheme.

B. States’ Limited Authority Under Section 401

of the CWA Does Not Include Routing of

Interstate Natural Gas Pipelines

Section 401 of the CWA explicitly circumscribes the

states’ role in reviewing projects for compliance with

federally-approved water quality standards. 33 U.S.C.

§ 1341(a)(1)15; see also Millennium Pipeline Co., L.L.C.

14. See note 13, supra.

15. Sections 1311, 1312, 1316, and 1317 establish, and

allow the Environmental Protection Agency (“EPA”)

to establish, standards governing numerous aspects of

water quality; and § 1313 allows states to develop their

own water quality standards and submit them to the

EPA for approval. If the EPA approves a state’s water

quality standards, it publishes a notice of approval

and they become the state’s EPA-approved standards,

regulating water quality in that state. See 33 U.S.C.

§§ 1313(a), (c).

Constitution Pipeline, 868 F.3d at 101, App. 27a-28a.

20

v. Seggos, No. 117CV1197MADCFH, 2017 WL 6397742,

at *2 (N.D.N.Y. Dec. 13, 2017) (“In reviewing applications

for Section 401 certification, states may apply their own

EPA-approved state water quality standards.”). However,

“[r]eview by State agencies that would overlap or

duplicate the Federal purview and prerogatives was

not contemplated and would infringe on and potentially

conflict with an area of the law dominated by the nationally

uniform Federal statutory scheme.” Niagara Mohawk

Power Corp. v. N.Y. State Dep’t of Envtl. Conservation,

624 N.E.2d 146, 148 (N.Y. 1993), cert. denied, 511 U.S.

1141 (1994).

“Section 401 of the Clean Water Act . . . serves as

the conduit for the incorporation of relevant State water

quality standards in this otherwise Federally filled

universe.” Niagara Mohawk, 624 N.E.2d at 149; see also

Niagara Mohawk Power Corp. v. N.Y. State Dep’t of

Envtl. Conservation, 592 N.Y.S.2d 141, 143 (N.Y. App. Div.

1993), aff’d, 624 N.E.2d 146 (N.Y. 1993) (“[E]nvironmental

and conservation factors of concern to a State are to be

weighed at the Federal level; to allow them to serve as a

predicate for a State ‘veto’ of the project is indefensible for

it would effectively undermine the intent of Congress.”).

The routing of interstate natural gas pipelines falls

within the exclusive province of FERC and is scarcely a

federally-approved water quality standard. See Section

I.A., supra; 6 N.Y.C.R.R. §§ 700-706. The Second Circuit’s

ruling upholding NYSDEC’s Denial on the issue of

alternative routes is precisely the type of intrusion upon

“an area of the law dominated by the nationally uniform

Federal statutory scheme,” Niagara Mohawk, 624 N.E.2d

at 148, that is not permitted under a state’s narrowly

21

tailored Section 401 authority, particularly when FERC

rejected NYSDEC’s routing comments during the NEPA

review process and NYSDEC did not challenge the route

chosen in FERC’s Certificate of Public Convenience and

Necessity for the Interstate Project.

C.

Allowing States to Act Beyond the Limits

of Their Authority Under Section 401 of the

CWA and in an Area Reserved Exclusively for

Federal Regulation Frustrates Fundamental

Principles Arising from the Constitution’s

Supremacy Clause in Article VI and the

Commitment to Congress of the Regulation

of Commerce Among the Several States and

with Foreign Nations in Article II

NYSDEC’s denial of the Section 401 Certification for

the Interstate Project on grounds outside of its limited

authority under Section 401 of the CWA unlawfully

frustrates principles of federal supremacy, impedes

interstate commerce, deprives other states of the benefits of

clean-burning and inexpensive natural gas to satisfy their

energy needs, and threatens national security interests in

domestic energy development and a robust energy supply

with reliable and secure infrastructure.16 In the NGA,

Congress declared that “the business of transporting and

selling natural gas for ultimate distribution to the public is

affected with a public interest, and that Federal regulation

in matters relating to the transportation of natural gas

16. See Presidential Decision Directive 63 on Critical

Infrastructure Protection, 63 Fed. Reg. 41804-01 (Aug. 5, 1998)

(defining the nation’s “critical infrastructure” to include energy

infrastructure, which includes pipelines).

22

and the sale thereof in interstate and foreign commerce

is necessary in the public interest.” 15 U.S.C. § 717(a); see

also id. § 717(b) (Congress drafted the NGA to, among

other things, “apply to the transportation of natural gas

in interstate commerce”). Allowing an individual state

to unilaterally accord its interests dispositive weight

manipulates the balance of national interests with respect

to commerce among the states and with foreign nations, of

which Congress is the arbiter, and destroys the uniformity

that is essential to the success of the interstate system of

natural gas transportation.

Protecting interstate and foreign commerce is one

of the most basic and essential functions of our national

government. “The United States could not exist as a nation

if each of them were to have the power to forbid imports

from another state, to sanction the rights of citizens to

transport their goods interstate, or to discriminate as

between neighboring states in admitting articles produced

therein.” Milk Control Bd. v. Eisenberg Farm Prods., 306

U.S. 346, 351 (1939). Congress may choose to authorize state

actions that impede free trade and interstate commerce,

but without Congressional legislation authorizing such

actions, they are prohibited under the Commerce Clause.

See Pennsylvania v. Wheeling & Belmont Bridge Co.,

59 U.S. 421, 422 (1855). Here, Congress has established

a clear delineation of federal and state authority in the

regulation of interstate natural gas pipelines. The NGA,

as amended by the Energy Policy Act of 2005, allows

states a limited and narrowly circumscribed authority to

participate in the regulatory process by means of three

statutes, one of which is the CWA. See 15 U.S.C. § 717b(d).

In all other matters, interstate natural gas pipelines are

regulated at the federal level.

23

It is easy to confuse a federal regulatory scheme

that leaves state options intact—like Section 2 of the

Constitution’s XXI Amendment17—with one in which

a federal statute uses a state determination, carefully

circumscribed by Congress, as an element in a federal

agency’s overall final determination. But the two

regulatory schemes are not the same. Treating the latter

regulatory method as if it were the former permits the

state “tail” to wag the federal “dog”. It is not surprising

that in such a politically fraught area as pipeline location,

states have found this confusion very tempting indeed.

The threat to interstate commerce presented by

NYSDEC’s Denial and the Second Circuit’s decision is

reminiscent of Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1

(1824). “Gibbons v. Ogden was the needed guarantee

that interstate rail, telephone and telegraph, oil and gas

pipe lines might be built across state lines without the

threat of local interference from state action.” George

L. Haskins, John Marshall and the Commerce Clause of

the Constitution, 104 U. Pa. L. Rev. 23, 28 (1955). “The

question before the Court was whether the commerce

clause invalidated the act of a state purporting to grant

an exclusive right to navigate the waters of that state.” Id.

at 24. The Court “held that, under the commerce clause,

an act of Congress dealing with the subject matter of the

clause is superior to a state statute inconsistent therewith

and dealing with the same subject matter.” Id. at 25 (citing

Gibbons, 22 U.S. (9 Wheat.) at 221). Similar to Gibbons,

17. “Section 2. The transportation or importation into any

State, Territory, or possession of the United States for delivery or

use therein of intoxicating liquors, in violation of the laws thereof,

is hereby prohibited.” U.S. Const. amend. XXI, § 2.

24

here, New York is regulating subject matter Congress

reserved exclusively for federal regulation by FERC. The

supremacy of the essential federal prerogative must be

preserved.

The Second Circuit’s decision below poses a serious

threat to interstate and foreign commerce by allowing

states to wield power that Congress has not given them

to block development of interstate energy infrastructure.

The NGA thoroughly federalizes regulation of interstate

natural gas pipelines. “The NGA confers upon FERC

exclusive jurisdiction over the transportation and

sale of natural gas in interstate commerce for resale.”

Schneidewind, 485 U.S. at 300-01; see also Islander E.

Pipeline, 482 F.3d at 90 (“Congress wholly preempted and

completely federalized the area of natural gas regulation

by enacting [the NGA]”). States have no authority to act

beyond the limits of CWA Section 401 to second-guess

FERC’s determinations and regulate issues over which

only FERC has power to regulate. See Nat’l Fuel Gas

Supply, 894 F.2d at 579 (“Because FERC has authority to

consider environmental issues, states may not engage in

concurrent site-specific environmental review.”). To hold

otherwise would allow “all the sites and all the specifics to

be regulated by agencies with only local constituencies,”

and “would delay or prevent construction that has won

approval after federal consideration of environmental

factors and interstate need, with the increased costs

or lack of gas to be borne by utility consumers in other

states.” Id. That is precisely what is happening in New

York right now with NYSDEC’s recent trilogy of Section

401 Certification denials, and which may happen elsewhere

as states are emboldened by the Second Circuit’s ruling

that states may block FERC-approved interstate natural

25

gas pipelines if they disagree with FERC’s routing

determinations.

CONCLUSION

For each of the foregoing reasons, the Court should

grant the petition.

Respectfully submitted,

Philip C. Bobbitt

Herbert Wechsler Professor of

Federal Jurisprudence and

Director for the Center for

National Security

Columbia Law School

Jerome Greene Hall, Room 720

435 West 116th Street

New York, NY 10027

Elizabeth U. Witmer

Saul Ewing A rnstein

& Lehr LLP

1200 Liberty Ridge Drive,

Suite 200

Wayne, PA 19087

John F. Stoviak

Counsel of Record

Patrick F. Nugent

Saul Ewing A rnstein

& Lehr LLP

Centre Square West

1500 Market Street,

38th Floor

Philadelphia, PA 19102

(215) 972-1095

john.stoviak@saul.com

A ndrew T. Bockis

Saul Ewing A rnstein

& Lehr LLP

Two North 2nd Street,

7th Floor

Harrisburg, PA 17101

Counsel for Petitioner

January 16, 2018

APPENDIX

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT, DATED AUGUST 18, 2017

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

November 16, 2016, Argued; August 18, 2017, Decided

Docket No. 16-1568

CONSTITUTION PIPELINE COMPANY, LLC,

Petitioner,

- v. NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION;

BASIL SEGGOS, ACTING COMMISSIONER,

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION; JOHN

FERGUSON, CHIEF PERMIT ADMINISTRATOR,

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,

Respondents,

STOP THE PIPELINE, CATSKILL

MOUNTAINKEEPER, INC., SIERRA CLUB,

RIVERKEEPER, INC.,

Intervenors.*

*

The Clerk of Court is directed to amend the official caption to

conform with the above.

2a

Appendix A

Before: kearSe, weSley, and droney, Circuit Judges.

Petition for review of respondents’ decision denying

application for certification pursuant to § 401 of the Clean

Water Act, 33 U.S.C. § 1341, that petitioner’s proposed

interstate natural gas pipeline would comply with New

York State water quality standards (“§ 401 certification”).

Respondents denied the application on the ground that

petitioner had not complied with requests for relevant

information. Petitioner contends (1) that respondents

exceeded the statutory time limitations for the State’s

review of the application and that they must therefore

be ordered to notify the United States Army Corps of

Engineers (“USACE”) that the State waives its right to

issue or deny § 401 certification, thereby allowing USACE

to issue a permit to petitioner under § 404 of the Clean

Water Act, see 33 U.S.C. § 1344(a); and (2) alternatively,

that respondents’ decision should be vacated on the ground

that the denial of the application was arbitrary, capricious,

and ultra vires, and that respondents should be ordered

to grant the requested § 401 certification. To the extent

that petitioner challenges the timeliness of respondents’

decision, we conclude that we lack jurisdiction over that

challenge. As to the merits, we conclude that respondents’

actions were within their statutory authority and that the

decision was not arbitrary or capricious.

Petition dismissed in part and denied in part.

3a

Appendix A

KEARSE, Circuit Judge:

Petitioner Constitution Pipeline Company, LLC

(“Constitution”), petitions pursuant to 15 U.S.C. § 717r(d)

(1) for review of an April 22, 2016 decision of the New

York State Department of Environmental Conservation

(“NYSDEC” or the “Department”) denying Constitution’s

application for certification pursuant to § 401 of the

Federal Water Pollution Control Act, more commonly

known as the Clean Water Act (or “CWA”), 33 U.S.C.

§ 1341 (“§ 401 certification”), that Constitution’s proposed

interstate natural gas pipeline would comply with New

York State (or “State”) water quality standards (or

“WQS”). NYSDEC denied the application on the ground

that Constitution had not provided sufficient information.

In its petition, Constitution contends principally (1) that

NYSDEC exceeded the § 401(a) time limitations for

the State’s review of the application and that NYSDEC

must therefore be ordered to notify the United States

Army Corps of Engineers (“USACE” or “Army Corps of

Engineers” or “Army Corps”) that the State has waived

its right to act upon Constitution’s § 401 certification

application, thereby allowing USACE to issue a permit

to petitioner under § 404 of the Clean Water Act, see 33

U.S.C. § 1344(a); and (2) alternatively, that Constitution

submitted sufficient information and that NYSDEC’s

decision should be vacated on the ground that its denial

of the application was arbitrary, capricious, and ultra

vires, and that NYSDEC should be ordered to grant

the requested § 401 certification. To the extent that

Constitution challenges the timeliness of the NYSDEC

decision, we dismiss the petition for lack of jurisdiction.

4a

Appendix A

As to the merits, we conclude that NYSDEC’s actions

were within its statutory authority and that its decision

was not arbitrary or capricious, and we deny the petition.

I. BACKGROUND

Constitution proposes to construct a 121-mile

interstate natural gas pipeline in Pennsylvania and New

York, approximately 98 miles of which would be in New

York. In connection with this project (the “Project”),

Constitution applied for, to the extent pertinent here, a

“certificate of public convenience and necessity” from the

Federal Energy Regulatory Commission (“FERC”), 15

U.S.C. § 717f(c), a CWA § 401 water quality certification

(or “WQC”) from New York State that the Project

would comply with State water quality standards (see 6

N.Y.C.R.R. parts 701 to 704), and a CWA § 404 permit

from the Army Corps of Engineers to allow discharges

into United States navigable waters.

A. Proceedings Before FERC

In September 2012, FERC announced that it would

prepare an environmental impact statement (“EIS”) for

Constitution’s Project and asked Constitution to submit a

feasibility study explaining how it would install the pipeline

across waterbodies (generally using that term to refer to

streams but not wetlands). For such installations, there

is a trenched method--a dry open-cut crossing--which

involves diverting a stream, digging a trench through

the banks and stream bed, installing and burying the

pipeline, and then allowing the stream to resume flowing

in the stream bed. (See, e.g., FERC Final Environmental

5a

Appendix A

Impact Statement (“FEIS”) pages 2-21 to 2-22.) There are

also trenchless crossing methods--including Horizontal

Directional Drill (or “HDD”), Direct Pipe (or “DP”), and

conventional bore--which involve digging pits on either

side of a waterbody and boring or drilling underneath the

stream. FERC asked Constitution to provide information

with regard to trenchless construction methods for

crossing several categories of streams, including those

classified by the states as sensitive or high quality and

those greater than 30 feet wide where a dry construction

method would not be feasible.

1.

Constitution’s Trenchless Feasibility Study

Constitution submitted to FERC a study discussing

trenchless crossing methods. (See Constitution,

Feasibility Study: Trenchless Construction Methods

for Sensitive Environmental Resource Crossings (Nov.

2013) (“Constitution 2013 Feasibility Study” or “Study”)

pages 1-3 to 1-5.) Trenchless methods do not disturb soil

or organisms in the stream banks, stream bed, or in the

stream itself, but require disturbing surrounding areas

to clear space for installation pits; there are also risks of

mid-project drill breakage, with leakage of drill fluid into

the waterbody. (See Constitution 2013 Feasibility Study

page 2-3; FEIS page 2-24.) Use of the trenched method

does not require as much installation space or present the

risk of drill failure; but it requires stream diversion and

digging into the stream bed and banks. (See, e.g., FEIS

pages 2-21 to 2-22.)

The Constitution feasibility study dealt principally

with locations where the waterbody was designated by

6a

Appendix A

New York or Pennsylvania as sensitive or high quality.

(See Constitution 2013 Feasibility Study pages 2-2 to 2-3.)

As a result, Constitution eliminated from consideration

for trenchless crossings all but 89 of the 251 New York

waterbodies that would be crossed by the pipeline or

affected by pipeline construction.

The remaining 89 locations were addressed in three

phases. The Study’s “Phase I[] Desktop Analysis” (id.

pt. 1.0 page 1-1) further reduced the number of New York

waterbodies considered by Constitution for trenchless

crossings from 89 to 26, in part by eliminating streams

less than 30 feet wide, even if they were classified by

New York as sensitive or high-quality (see id. pages 2-1,

2-3). Constitution stated that trenchless crossings for

such narrower waterbodies would potentially require

workspace requirements significantly greater than those

generally needed for a conventional dry crossing method.

(See id. page 2-3.) Thus, unless such a waterbody was

immediately associated with a larger wetland and/or

waterway complex crossed by the Project or was located

in the immediate vicinity of a proposed rail or roadway

crossing, “Constitution did not evaluate waterbody

crossings less than 30 feet in width” (id.).

Phase II was a “Cost/Time/Construction Workspace

Impact Analysis.” (Id. page 3-1; see also id. pt. 1.0 page 1-1

(“Trenchless construction methods are limited” not only by

such matters as “underlying geology, available workspace,

[and] available time,” but also by “available finances

budgeted for a capital project.”).) This phase eliminated

waterways from trenchless-crossing consideration largely

7a

Appendix A

on the basis of expense; as a result, there remained only 13

waterbody crossings in New York for which Constitution

planned to investigate a “formal trenchless construction

design.” (Id. pages 3-2 to 3-4 & tbl.3.2-1.) The Study stated

that Phase III, a “geotechnical field analysis” of each of the

13 locations, was in progress. (Id. page 5-1.) Constitution

thus planned to use the trenched method for 238 of the

251 New York waterbodies to be crossed.

2.

NYSDEC Comments and the FEIS

In connection with FERC’s announcement of a planned

EIS for the Constitution pipeline--and its subsequent draft

EIS (“DEIS”)--NYSDEC submitted numerous letters

to FERC. The first noted that NYSDEC’s preferred

method for crossing waterbodies is a trenchless method,

in particular

Horizontal Directional Drilling (HDD) because

it has the advantages of minimizing land

disturbance, avoiding the need for dewatering

of th e stream , l eav in g th e imm edi a t e

stream bed and banks intact, and reducing

erosion, sedimentation and Project-induced

watercourse instabilities.

(November 7, 2012 Letter from NYSDEC to FERC

at 3 (emphasis added).) Stating that the DEIS should

identify the New York classification of each stream the

proposed pipeline would cross, NYSDEC urged FERC to

“evaluate cases where other methods are proposed” and

have Constitution “explain why HDD will not work or is

8a

Appendix A

not practical for that specific crossing.” (Id. (emphasis

added).)

A May 2013 letter again stated that “NYSDEC’s

preferred methodology for all stream crossings is . . .

(HDD)”; that letter also stated that “[w]ithin stream

crossings, pipelines should be buried at least 6' below a

stream bottom. Minimum cover depth is not subject to

variance based on field conditions.” (May 28, 2013 Letter

from NYSDEC to FERC (“NYSDEC May 2013 Letter”)

at 1-2 (emphasis added).)

In September 2013, NYSDEC wrote to join a request

by the Army Corps for additional analysis of whether

the Constitution pipeline could be routed along a certain

interstate highway, a route referred to as “Alternative

M.” (September 25, 2013 Letter from NYSDEC to FERC

at 1.) Constitution responded by arguing that Alternative

M would have greater environmental impact than

Constitution’s proposed route and noting likely difficulties

in obtaining highway agencies’ approvals. (See October

22, 2013 Letter from Constitution to NYSDEC at 2-4.)

In 2014, FERC issued its DEIS, which drew criticism

from several sources including NYSDEC. (See, e.g.,

March 24, 2014 Letter from NYSDEC to FERC and

Army Corps at 1-2 (urging a revised DEIS to include

“geotechnical feasibility studies for all trenchless crossing

locations,” as well as “site specific blasting plans that

include protocols for in-water blasting and the protection

of aquatic resources and habitats” (emphasis added));

April 7, 2014 Letter from NYSDEC to FERC and Army

9a

Appendix A

Corps (“NYSDEC April 2014 Letter”) at 1-5 (adding

additional comments and requesting additional analysis

of Alternative M which, in NYSDEC’s view, would reduce

the amount of disturbance of higher-quality waterbodies).)

FERC issued its FEIS in 2014 without significantly

expanding on several aspects of the DEIS. It did not

address NYSDEC’s concern that Constitution had not

developed site-specific blasting plans. (See FEIS pages

4-15 to 4-16; DEIS page 4-16.) The FEIS added discussion

of two new versions of Alternative M proposed by NYSDEC

(see FEIS pages 3-46 to 3-47), but rejected them without

analyzing disturbances to high-quality waterbodies

(compare id. pages 3-32 to 3-47 with NYSDEC April

2014 Letter at 3-4). And the FEIS stated that the pipeline

would be buried 60 inches below streams in normal soil

conditions and 24 inches in areas of “consolidated rock”

(FEIS page 2-16), as contrasted with the NYSDEC May

2013 Letter’s statement that the pipe needed to be buried

“at least 6' below a stream bottom” (NYSDEC May 2013

Letter at 2).

The FEIS expanded on the DEIS’s waterbody

crossing information but repeated DEIS explanations

for why relatively few crossings were slated to be

crossed by trenchless techniques, stating, inter alia, that

“[a]ccording to Constitution, trenchless crossing methods

are not practical [except in limited circumstances] for

waterbody crossings less than 30 feet in width” and that

“Constitution indicated that such crossings would be

impractical due to minimum length requirements, depth

of pipeline considerations, and workspace requirements,”

10a

Appendix A

and describing the areas that would be required for

trenchless crossing “[a]ccording to Constitution” (FEIS

page 4-50). The FEIS stated that

[t]he potential impacts on waterbodies

associated with the use of conventional bore

or Direct Pipe trenchless crossing methods

are considered minimal when compared to

other crossing methods. The waterbody and

its banks, and typically the entire immediate

riparian zone, would not be disturbed by

clearing or trenching; rather, the pipe would

be installed below the feature.

(Id. page 4-56 (emphasis added).) FERC added:

We concur with Constitution’s assessment that

it is not practicable to use trenchless crossing

methods where waterbodies were listed as

ephemeral or intermittent (because these

waterbodies are likely to be dry at the time of

crossing) or for waterbodies less than 30 feet

in width (as extra workspaces needed would

offset potential benefits). . . .

(FEIS, App’x S, page S-52 (emphases added).) The FEIS

noted that Constitution had completed geotechnical

feasibility studies at only two New York sites. (See FEIS

page 4-4.)

11a

Appendix A

B. Proceedings Before NYSDEC

While its application to FERC for a certificate of public

convenience and necessity was pending, Constitution

submitted an application to the Army Corps for a CWA

§ 404 permit for the discharge of dredged or fill material

while constructing the pipeline and to NYSDEC for a

CWA § 401 certification that the Project would comply

with State water quality standards. In December 2014,

NYSDEC issued a notice that Constitution’s application

was complete; but on December 31, it asked Constitution

for more information about stream crossings. In JanuaryMarch 2015, Constitution submitted more information

to NYSDEC, and on April 27, 2015, at NYSDEC’s

request, Constitution withdrew and resubmitted its

§ 401 application. (Constitution had also withdrawn and

resubmitted its § 401 application at NYSDEC’s request

in May 2014.)

1.

Stream-Crossing Information Requests by

NYSDEC

On January 23, 2015, staff from Constitution and

NYSDEC met to discuss trenchless stream-crossing

methods (see January 14, 2015 email from NYSDEC

Project Manager Stephen M. Tomasik to Constitution

engineering consultant Keith Silliman; January 27, 2015

email from Tomasik to Constitution Environmental

Project Mananger Lynda Schubring (“NYSDEC January

27, 2015 email”)). Prior to that meeting, Constitution wrote

to NYSDEC stating that it had

12a

Appendix A

conducted subsurface geotechnical

investigations at the majority of the proposed . . .

(HDD) and . . . (DP) trenchless locations. Results

of the subsurface geotechnical investigations

revealed crossing locations that present a high

risk of failure if a trenchless method is used.

As a result, trenchless crossing locations with

a high risk of failure are not feasible and have

been modified to a dry open cut design. Since

the last . . . submissions to the USACE, three (3)

HDD or DP locations affecting six (6) wetlands

or waterbodies have changed to an open cut

construction method . . . .

(January 22, 2015 Letter from Schubring to Tomasik

at 1.) Constitution also stated that six other originally

proposed trenchless crossings would be crossed by a

trenched method, “to address various concerns raised

by [state and local] authorities relative to the trenchless

crossings of specific public roadways and associated

infrastructure.” (Id . at 2.) A fter the January 23

meeting, NYSDEC requested additional documents that

Constitution personnel had said informed its decision to

use the trenched crossing method at two locations, as well

as “information about stream crossings that we requested

on 12/31/2014.” (NYSDEC January 27, 2015 email).

In response, Constitution submitted feasibility

evaluations based on geotechnical studies for four

locations: two wetlands crossings and two waterbody

crossings. One of the waterbody feasibility evaluations

concluded that using either HDD or DP was infeasible due

13a

Appendix A

to subsurface soil conditions; the other did not address

the feasibility of trenchless crossing methods, and instead

discussed only a contingency open-cut crossing to be used

if the proposed DP crossing failed.

In Febr uar y 2015, Constitution submitted to

NYSDEC a document titled “Draft Trenchless Feasibility

Study Edits” (“Constitution 2015 Feasibility Draft”) that

appears to be a version of part of the 2013 trenchless

feasibility study that Constitution had submitted to FERC,

merely expanding on the manner in which each trenchless

method operates. Again there was no discussion of stream

crossings site-by-site. The Constitution 2015 Feasibility

Draft stated that

Constitution recognizes that, in general,

performing . . . (HDD) for streams less than 30

feet in width causes greater net environmental

impacts than a dry open cut method and this

threshold is an industry recognized standard.

Constitution has not identified any NYSDEC

regulation, formally adopted policy or guidance

document that would warrant deviating from

this standard.

(Id. at 1 (emphases added).) It also discussed the Direct

Pipe method, stating that “it is likely that additional

forest will require clearing to perform DP for most of the

protected stream crossings,” and that “[m]any” streams

are in valleys whose slopes make the DP method infeasible.

(Id. at 2-3 (emphases added).) In addition, the Constitution

2015 Feasibility Draft stated that DP technology is of

14a

Appendix A

“limited availability,” leading Constitution to conclude that

using “DP technology for . . . streams less than 30 feet

in width is not a realistic or viable expectation within a

reasonable period of time.” (Id. at 3 (emphasis added).)

In March 2015, NYSDEC sent Constitution a list of

20 waterbody locations that NYSDEC “wants crossed

via HDD,” stating that NYSDEC “is still expecting

an evaluation as to whether an HDD is technically

feasible for each of these streams.” (March 17, 2015 email

from NYSDEC Major Project Management Unit Chief

Christopher M. Hogan to Silliman (emphasis added).) In

April 2015, as indicated above, Constitution withdrew and

resubmitted its § 401 WQC request.

2.

Subsequent Discussions

In May 2015, NYSDEC noted that it had agreed to

“eliminate” four streams from “further consideration for

trenchless crossing methods.” (May 22, 2015 email from

Tomasik to Schubring, Silliman, et al.)

In July 2015, a member of NYSDEC’s staff emailed

to certain Army Corps staff members a “Confidential”

message attaching a “VERY PRELIMINARY version

of a Constitution permit” (July 20, 2015 email from

Tomasik to Kevin J. Bruce et al., Army Corps), which

included a table of 19 locations that “shall be crossed

using a trenchless construction method”--unless an

“experienced and qualified engineer” concludes that

the techniques are “not constructible or not feasible”

(Confidential Draft NYSDEC Certification Conditions

15a

Appendix A

at 17). The draft, however, required Constitution,

“[p]rior to beginning construction of any trenchless

stream crossing,” to “submit a[] . . . ‘Trenchless Crossing

Plan’ for each trenchless stream crossing,” including

“detailed engineering plans” for each location. (Id. at 18

(emphases added).)

In September 2015, Constitution submitted to

N YSDEC an Env i ronmental Constr uction Plan,

attached to which was a Blasting Plan. (See Constitution,

Environmental Construction Plan 50 (Aug. 2015).) This

plan listed 253 “[a]reas of shallow depth to bedrock

crossed by the [pipeline]” in New York, but stated that

“[a] final determination on the need for blasting will be

made at the time of construction.” (Constitution, Blasting

Plan (Aug. 2015) (“Blasting Plan”) pages 1-1, 1-2 & tbl.1.22, 4-1.) The Blasting Plan identified regulations and a

permit that would govern blasting in Pennsylvania, but

stated that “[a]ll blasting operations in New York will

be conducted in accordance with an in-stream b[l]asting

protocol to be prepared by Constitution.” (Id. page 4-1

(emphasis added).)

C. NYSDEC’s Decision Denying § 401 Certification

In a 14-page letter to Constitution dated April 22,

2016, NYSDEC denied Constitution’s application for CWA

§ 401 certification (“NYSDEC Decision” or “Decision”),

stating that “the Application fails in a meaningful way to

address the significant water resource impacts that could

occur from this Project and has failed to provide sufficient

information to demonstrate compliance with New York

16a

Appendix A

State water quality standards,” NYSDEC Decision at 1.

Although also noting the lack of adequate information as

to such issues as the feasibility of the Alternative M route,

blasting information, pipe burial depth, and wetlands

crossings, see, e.g., id. at 11-14, the Decision focused

principally on Constitution’s failure to provide information

with respect to stream crossings.

NYSDEC noted that Constitution’s Project “would

disturb a total of 251 streams . . . , 87 of which support

trout or trout spawning,” and that “[c]umulatively,

construction would disturb a total of 3,161 linear feet

of streams and result in a combined total of 5.09 acres

of temporary stream disturbance impacts.” NYSDEC

Decision at 8. It stated that although

[f]rom inception of its review of the Application,

NYSDEC directed Constitution to demonstrate

compliance with State water quality standards

and required site-specific information for each

of the 251 streams impacted by the Project

[, and] NYSDEC informed Constitution that

all 251 stream crossings must be evaluated

for environmental impacts and that trenchless

technology was the preferred method for

stream crossing[, and that t]his information

was conveyed to Constitution and FERC on

numerous occasions since November 2012[,]

. . . Constitution has not supplied the Department

with the necessary information for decision

making.

Id. (emphasis in original).

17a

Appendix A

The Decision stated that because some form of

trenchless technology is the “most protective method for

stream crossings,”

NYSDEC directed Constitution to determine

whet he r a t r enc h le s s t e c h nolog y w a s

constructible for each stream crossing. On a

number of occasions NYSDEC identified the

need to provide information so that it could

evaluate trenchless stream installation methods

(see Table 2, below); however, Constitution has

not provided sufficient information . . . .

Id. (footnote omitted) (emphasis added).

Table 2 in the Decision principally chronicled

NYSDEC’s requests of Constitution--both directly

and indirectly in its submissions to FERC--and noted

Constitution’s resistance, including the following:

• In June 2012, “NYSDEC stated in a letter to

Constitution that for protected streams and

wetlands, trenchless technology is the preferred

method for crossing and should be considered for

all such crossings (emphasis added).”

• On November 7, 2012, “[i]n comments to FERC,

NYSDEC stated that for streams and wetlands

the preferred method for crossing is trenchless

technology,” and that as to each crossing where

another method is proposed “Constitution should

explain why trenchless crossing technology

18a

Appendix A

will not work or is not practical for that specific

crossing.”

• On April 9, 2013, “FERC[] . . . directed Constitution

to address all of the comments filed in the public

record by other agencies . . . including all

comments from the NYSDEC.”

• On May 28, 2013, at a “[m]eeting” of “Constitution

and NYSDEC staff . . . NYSDEC reiterate[d]

that acceptable trenchless technology was the

preferred installation method and that stream

crossings should be reviewed for feasibility of

using those technologies.”

• In July and August 2013, on “[f]ield visits of

proposed stream crossings prior to permit

applications to the Department[, a]t each crossing,

NYSDEC emphasized to Constitution staff

that trenchless technology is preferred/most

protective.”

• In its November 2013 Trenchless Feasibility

Study, Constitution “arbitrarily eliminated

from any consideration for trenchless crossing

methods” “all streams less than 30' wide.”

• On December 31, 2014, at a meeting w ith

Constitution staff, “NYSDEC indicated that the

Trenchless Feasibility Study was inadequate, e.g.

provided insufficient justification and removed all

streams less than 30 feet in width from analysis.”

19a

Appendix A

NYSDEC gave Constitution “an informational

request table including required technical

information.”

• On January 13, 2015, an “Army Corps of Engineers

letter reiterate[d] a request for a feasibility

analysis of trenchless crossings.”

• At a January 23, 2015 “[m]eeting between

Constitution and NYSDEC staff . . . Constitution

s t at e d it wa s u n a ble t o c omplet e t he

[informational request] table [it received from

NYSDEC] on December 31, 2014[]. NYSDEC staff

indicated that the justification for stream crossing

methods was insufficient and that appropriate site

specific information must be provided.”

• In a January 28, 2015 “[c]onference call[,] NYSDEC

reiterated its request for a site specific analysis

of trenchless stream crossings for all streams

including those under 30 feet wide.”

• On February 5, 2015, “Constitution provided an

updated example of a trenchless feasibility study

but that example continued to exclude streams

up to 30 feet wide from analysis and did not

provide detailed information of the majority of

streams.”

NYSDEC Decision at 9-10 (emphases added).

Although the Decision’s Table 2 ended with the

February 2015 entry, the Decision noted that Constitution’s

20a

Appendix A

“unwillingness to provide a complete and thorough[]

Trenchless Feasibility Study” persisted:

[I]n May 2015, Constitution provided detailed

project plans for 25 potential trenchless

crossings, but only two of those plans were

based on full geotechnical borings that are

necessary to evaluate the potential success

of a trenchless design. Detailed project plans

including full geotechnical borings for the

remaining stream crossings have not been

provided to the Department.

Id. at 11 (emphasis added). The NYSDEC Decision stated

that

[d]ue to the lack of detailed project plans,

including geotechnical borings, the Department

has determined to deny Constitution’s WQC

Application because the supporting materials

supplied by Constitution do not provide

sufficient information for each stream crossing

to demonstrate compliance with applicable

narrative water quality standards for turbidity

and preservation of best usages of affected

water bodies. Specifically, the Application lacks

sufficient information to demonstrate that

the Project will result in no increase that will

cause a substantial visible contrast to natural

conditions.10

Furthermore, the Application remains deficient

in that it does not contain sufficient information

21a

Appendix A

to demonstrate compliance with 6 NYCRR Part

701 setting forth conditions applying to best

usages of all water classifications. Specifically,

“the discharge of sewage, industrial waste or

other wastes shall not cause impairment of the

best usages of the receiving water as specified

by the water classifications at the location of

the discharge and at other locations that may

be affected by such discharge.”11

10

6 NYCRR § 703.2.

11

6 NYCRR § 701.1.

NYSDEC Decision at 12 & nn.10-11. The Decision added

that

[c]umulatively, impacts to both small and large

streams from the construction and operation of

the Project can be profound and include loss of

available habitat, changes in thermal conditions,

increased erosion, creation of stream instability

and turbidity, impairment of best usages, as

well as watershed-wide impacts resulting from

placement of the pipeline across water bodies in

remote and rural areas (See Project Description

and Environmental Impacts Section, above).

Because the Department’s review concludes

that Constitution did not provide sufficient

detailed information including site specific

project plans regarding stream crossings

(e.g. geotechnical borings) the Department

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Appendix A

has determined to deny Constitution’s WQC

Application for failure to provide reasonable

assurance that each stream crossing will be

conducted in compliance with 6 NYCRR §608.9.

NYSDEC Decision at 12; see 6 N.Y.C.R.R. § 608.9(a)

(2) (“The applicant” for a CWA § 401 certification “must

demonstrate compliance with sections 301-303, 306

and 307 of the Federal Water Pollution Control Act, as

implemented by . . . water quality standards and thermal

discharge criteria set forth in Parts 701, 702, 703 and 704

of this Title . . . .”).

II. DISCUSSION

In its petition for review (or “Petition”), Constitution

contends principally (1) that NYSDEC failed to issue

its Decision within a reasonable time as required by

§ 401 and thus must be required to inform USACE that

NYSDEC has waived its right to rule on Constitution’s

application for a WQC, thereby enabling the Army Corps

to grant Constitution a permit for its pipeline Project, or

(2) alternatively, that Constitution submitted sufficient

information and that NYSDEC’s decision should be

vacated on the ground that its denial of the application

was arbitrary, capricious, and ultra vires, and that

NYSDEC should be ordered to grant the requested § 401

certification. For the reasons that follow, we (1) conclude

that Constitution’s first contention, which would have

us treat NYSDEC’s Decision as an act that is void, lies

beyond the jurisdiction of this Court, and (2) conclude

that NYSDEC’s Decision was not ultra vires, arbitrary,

or capricious.

23a

Appendix A

A. Constitution’s Argument that NYSDEC Waived Its

§ 401 Authority

The Natural Gas Act (or “NGA”), 15 U.S.C. §§ 717717z, sets out provisions with respect to, inter alia, the

construction of transportation facilities for natural gas,

see id. § 717f. Such projects are also subject to restrictions

under other federal statutes, including provisions of the

Clean Water Act, see, e.g., id. § 717b(d)(3). Section 401 of

the CWA requires an applicant for a federal permit to

conduct any activity that “may result in any discharge

into the navigable waters” of the United States to obtain

“a certification from the State in which the discharge . . .

will originate . . . that any such discharge will comply

with,” inter alia, the state’s water quality standards. 33

U.S.C. § 1341(a)(1).

As to petitions for review relating to such applications,

§ 717r of the NGA divides jurisdiction between the Circuit

in which the facility is proposed to be constructed and

the United States Court of Appeals for the District of

Columbia Circuit. It states, in pertinent part, as follows:

(1) In general

The United States Court of Appeals for the

circuit in which a facility subject to . . . section

717f of this title is proposed to be constructed . . .

shall have original and exclusive jurisdiction

over any civil action for the review of an order

or action of a Federal agency (other than

[FERC]) or State administrative agency acting

24a

Appendix A

pursuant to Federal law to issue, condition,

or deny any permit, license, concurrence, or

approval (hereinafter collectively referred to

as “permit”) required under Federal law . . . .

(2) Agency delay

The United States Court of Appeals for the

District of Columbia shall have original and

exclusive jurisdiction over any civil action

for the review of an alleged failure to act by a

Federal agency (other than [FERC]) or State

administrative agency acting pursuant to

Federal law to issue, condition, or deny any

permit required under Federal law . . . .

15 U.S.C. §§ 717r(d)(1)-(2) (emphases added). We regard

subsection (2)--titled “Agency delay”--as encompassing

not only “an alleged failure to act” but also an allegation

that a failure to act within a mandated time period

should be treated as a failure to act. This is the nature of

Constitution’s first argument.

Constitution points out that CWA § 401 provides that

“[i]f” a “State . . . agency” from which an applicant for

a federal permit has sought a water quality certification

“fails or refuses to act on [the] request for certification,

within a reasonable period of time (which shall not

exceed one year) after receipt of such request, the

certification requirements of this subsection shall be

waived with respect to such Federal application.” 33 U.S.C.

§ 1341(a)(1). Constitution argues that NYSDEC did not

25a

Appendix A

issue its Decision until 32 months after Constitution

submitted its initial application, 16 months after NYSDEC

issued notice that that initial application was complete,

15 months after the deadline imposed by FERC, nearly

a year (“359 days”) after Constitution’s 2015 withdrawaland-resubmission of its application--and eight months

after Constitution claims it was advised by NYSDEC that

NYSDEC “had everything it needed to issue a Section 401

Certification.” (Constitution brief in support of Petition

at 28-29.) Constitution argues that NYSDEC “waived its

right” to rule on the certification application and must be

required to so notify the Army Corps. (Id. at 37.)

We note first that there is nothing in the administrative

record to show that NYSDEC received the information

it had consistently and explicitly requested over the

course of several years--much less anything to support

Constitution’s claim that NYSDEC said “it had” all of

the information it required “to issue” the requested

certification (id. at 29). Although Constitution proffered

in this Court non-record declarations from certain of its

personnel, those “outside-the-record declarations and

associated portions of [Constitution]’s brief” were stricken.

Constitution Pipeline Co., LLC v. Seggos, No. 16-1568,

2016 U.S. App. LEXIS 23831 (2d Cir. Oct. 3, 2016).

Second, Constitution’s “waive[r]” argument is that the

NYSDEC Decision must be treated as a nullity by reason

of NYSDEC’s “failing to act within the prescribed time

period under the CWA” (Constitution brief in support of

Petition at 37 (emphasis added)). Such a failure-to-act

claim is one over which the District of Columbia Circuit

would have “exclusive” jurisdiction, 15 U.S.C. § 717r(d)

26a

Appendix A

(2). See generally Weaver’s Cove Energy, LLC v. Rhode

Island Department of Environmental Management,

524 F.3d 1330, 1332, 381 U.S. App. D.C. 17 (D.C. Cir.

2008). Accordingly, we dismiss Constitution’s timeliness

argument for lack of jurisdiction.

B. Constitution’s Challenge to the Merits of NYSDEC’s

Decision

Judicial review of an administrative agency’s denial

of a CWA § 401 certificate is limited to grounds set forth

in the Administrative Procedure Act, 5 U.S.C. §§ 701-706.

We review the agency’s interpretation of federal law de

novo; if the agency correctly interpreted federal law, we

review its factual determinations under the arbitraryand-capricious standard, see id. § 706(2)(A); Islander

East Pipeline Co. v. McCarthy, 525 F.3d 141, 150 (2d Cir.

2008) (“Islander East II”); Islander East Pipeline Co. v.

Connecticut Department of Environmental Protection,

482 F.3d 79, 94 (2d Cir. 2006) (“Islander East I”).

1.

Federal Law

Constitution argues that as a matter of law, NYSDEC’s

“jurisdiction to review”--and “in effect, veto”--FERC

determinations is preempted by FERC’s performance of

its obligations under the National Environmental Policy

Act (“NEPA”), 42 U.S.C. §§ 4321-4370h, to prepare a DEIS

and a FEIS. (Constitution brief in support of Petition at 37,

39.) We disagree that NYSDEC’s action was preempted.

Although NEPA requires federal-agency review of

virtually any possible environmental effect that a proposed

27a

Appendix A

action may have, see generally 40 C.F.R. § 1502.16, it

does not impose substantive standards. See Robertson

v. Methow Valley Citizens Council, 490 U.S. 332, 350,

109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989). “[T]hrough a

set of action-forcing procedures,” NEPA “require[s] that

agencies take a hard look at environmental consequences,”

but it is “well settled that NEPA itself does not mandate

particular results[; it] simply prescribes the necessary

process.” Id. (internal quotation marks omitted). Thus,

NEPA states, in pertinent part, that “[n]othing in section

4332 or 4333 of this title shall in any way affect the specific

statutory obligations of any Federal agency . . . to act, or

refrain from acting contingent upon the recommendations

or certification of any . . . State agency.” 42 U.S.C. § 4334.

We note also that while the Natural Gas Act generally

preempts state laws, it states that “[e]xcept as specifically

provided[,] . . . nothing” in the NGA “affects the rights

of States under . . . the [CWA] (33 U.S.C. § 1251 et seq.),”

15 U.S.C. § 717b(d). CWA § 511, in turn, preserves the

states’ authority to determine issues of a planned project’s

effect on water quality. See 33 U.S.C. § 1371(c)(2)(A). CWA

§ 401(a)(1) requires that an entity such as Constitution,

proposing to construct an interstate pipeline, obtain

from each state in which the pipeline is to be constructed

a certification that “any . . . discharge” from a proposed

activity “will comply with the applicable provisions of

[33 U.S.C. §§] 1311, 1312, 1313, 1316, and 1317.” 33 U.S.C.

§ 1341(a)(1). Sections 1311, 1312, 1316, and 1317 establish,

and allow the Environmental Protection Agency (“EPA”)

to establish, standards governing numerous aspects of

water quality; and § 1313 allows states to develop their

own water quality standards and submit them to the EPA

28a

Appendix A

for approval. If the EPA approves a state’s water quality

standards, it publishes a notice of approval and they

become the state’s EPA-approved standards, regulating

water quality in that state. See 33 U.S.C. §§ 1313(a), (c).

The New York State water quality standards, approved

by the EPA, see generally 42 Fed. Reg. 56,786, 56,790 (Oct.

28, 1977), are found in 6 N.Y.C.R.R. parts 701 to 704, and

were invoked by the NYSDEC Decision, which stated that

“[d]enial of a WQC may occur when an application fails to

contain sufficient information to determine whether the

application demonstrates compliance with the above stated

State water quality standards and other applicable State

statutes and regulations due to insufficient information.”

NYSDEC Decision at 7; see also id. at 12 nn.10-11 and

accompanying text (quoted in Part I.C. above). The State

standards classify waterbodies in terms of, inter alia,

potability and their suitability for various activities such

as swimming and fishing, see 6 N.Y.C.R.R. pt. 701; they

set standards for characteristics such as water odor, color,

and turbidity, see id. pt. 703; and they regulate thermal

discharges into waterbodies, see id. pt. 704.

Thus, the relevant federal statutes entitled NYSDEC

to conduct its own review of the Constitution Project’s

likely effects on New York waterbodies and whether

those effects would comply with the State’s water quality

standards.

CWA § 401(a)(1), as pertinent here, states that “[n]o

license or permit shall be granted if [a § 401] certification

has been denied by the State,” 33 U.S.C. § 1341(a)(1).

Thus, we have indeed referred to § 401 as “a statutory

29a

Appendix A

scheme whereby a single state agency effectively vetoes

an energy pipeline that has secured approval from a host

of other federal and state agencies.” Islander East II, 525

F.3d at 164 (emphases added); accord Keating v. FERC,

927 F.2d 616, 622, 288 U.S. App. D.C. 344 (D.C. Cir. 1991)

(“Through [the § 401 certification] requirement, Congress

intended that the states would retain the power to block,

for environmental reasons, local water projects that

might otherwise win federal approval.” (emphasis added)).

Constitution also argues that NYSDEC’s demands

for information with regard to, e.g., possible alternative

routes for the planned pipeline (see, e.g., NYSDEC

Decision at 3 (NYSDEC “asked Constitution to analyze

alternative routes that could have avoided or minimized

impacts to an extensive group of water resources”)), as

well as Constitution’s planned blasting sites and the depth

at which the pipe would be buried, exceeded NYSDEC’s

authority (Constitution brief in support of Petition at 38).

We need not address all of these contentions. A state’s

consideration of a possible alternative route that would

result in less substantial impact on its waterbodies is

plainly within the state’s authority. See, e.g., Islander

East II, 525 F.3d at 151-52. And where an agency decision

is sufficiently supported by even as little as a single

cognizable rationale, that rationale, “by itself, warrants

our denial of [a] petition” for review under the arbitraryand-capricious standard of review. See, e.g., id. at 158.

30a

Appendix A

2.

Application of the Arbitrary-and-Capricious

Standard

Under the arbitrary-and-capricious standard, “[a]

reviewing court may not itself weigh the evidence or

substitute its judgment for that of the agency.” Islander

East II, 525 F.3d at 150. “Rather,” we “consider[] whether

the agency ‘relied on factors which Congress has not

intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation

for its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to

a difference in view or the product of agency expertise.’”

Id. at 150-51 (quoting Motor Vehicle Manufacturers

Ass’n of the United States, Inc. v. State Farm Mutual

Automobile Insurance Co., 463 U.S. 29, 43, 103 S. Ct.

2856, 77 L. Ed. 2d 443 (1983) (“State Farm”)).

[W]ithin the prescribed narrow sphere, judicial

inquiry must be searching and careful. . . .

Notably, a court must be satisfied from the

record that the agency . . . examine[d] the

relevant data and articulate[d] a satisfactory

explanation for its action. . . . Further, the

agency’s decision must reveal a rational

connection between the facts found and the

choice made.

Islander East II, 525 F.3d at 151 (internal quotation marks

omitted). If there is “sufficient evidence in the record

to provide rational support for the choice made by the

agency,” we must uphold its decision. Id. at 152.

31a

Appendix A

Usually, the agency’s choice concerns whether

the applicant’s submission of the relevant information

warrants the granting of the application. In the present

case, as summarized in Part I.C. above, NYSDEC denied

Constitution’s application because Constitution refused

to provide information that NYSDEC had repeatedly

requested with regard to, inter alia, issues such as

those just discussed in Part II.B.1. above, and issues as

to the feasibility, site-by-site, of trenchless methods for

most of the 251 stream crossings planned in New York.

Constitution does not contend that those requests were not

made. Indeed, in its own brief in this Court, Constitution

acknowledges that the NYSDEC Decision (the “Denial”)

explained that NYSDEC had requested but had not

received sufficient information with regard to:

♦ construction methods and site-specific project

plans for stream crossings (Denial at 8-11 . . . );

♦ alternative routes (Id. at 11 . . . );

♦ pipeline burial depth in stream beds (Id. at

12-13 . . . );

♦ procedures and safety measures Constitution

would follow in the event that blasting is

required (Id. at 13 . . . );

♦ Constitution’s plans to avoid, minimize, or

mitigate discharges to navigable waters and

wetlands (Id. at 13-14 . . . ); and

♦ cumulative impacts (Id. at 3, 5, 7, 14 . . . ).

32a

Appendix A

(Constitution brief in support of Petition at 21-22.)

Nowhere does Constitution claim to have provided the

above categories of information; rather, it insists that it

provided NYSDEC with “sufficient” information (id. at 5262) because use of trenchless crossing methods for streams

less than 30 feet wide is not “an industry recognized

standard” (Constitution 2015 Feasibility Draft at 1).

However, in order to show that an agency’s decision-or its request for additional information as to alternative

methods--is arbitrary and capricious, “it is not enough that

the regulated industry has eschewed a given [technology].”

State Farm, 463 U.S. at 49. Industry preferences do not

circumscribe environmental relevance.

In Marsh v. Oregon Natural Resources Council, 490

U.S. 360, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989), the

Supreme Court considered whether a federal agency,

presented with new evidence, should have been required to

file a new supplemental environmental impact statement;

the Court stated that the matter of whether additional

information is “significant” is “a classic example of

a factual dispute the resolution of which implicates

substantial agency expertise,” as to which the courts

“must defer to the informed discretion of the responsible

. . . agencies,” id. at 376-77 (internal quotation marks

omitted). We cannot conclude that any less deference is

due an agency’s determination that it should not grant a

permit application where it has already determined that

additional information is needed, and the applicant refuses

to supply it. Cf. University of Iowa Hospitals & Clinics v.

Shalala, 180 F.3d 943, 955 (8th Cir. 1999) (where agency

33a

Appendix A

regulations required substantiation of costs for which

reimbursement was sought, denial of reimbursement

based on inadequate documentation was not arbitrary

and capricious); Mendoza v. Secretary, DHS, 851 F.3d

1348, 1356 (11th Cir. 2017) (denial of visa application

where applicants declined to answer relevant questions

relating to eligibility was not arbitrary and capricious; the

applicants “were free to refuse to answer [the agency’s]

questions . . . but they did so at their own peril”).

Indeed, an agency’s decision may be found “arbitrary

and capricious” for “issuing a permit with insufficient

information.” Utahns For Better Transportation v. United

States Department of Transportation, 305 F.3d 1152, 1192

(10th Cir. 2002) (emphasis added).

Here, the record amply shows, inter alia, that

Constitution persistently refused to provide information

as to possible alternative routes for its proposed pipeline

or site-by-site information as to the feasibility of trenchless

crossing methods for streams less than 30 feet wide--i.e.,

for the vast majority of the 251 New York waterbodies to be

crossed by its pipeline--and that it provided geotechnical

data for only two of the waterbodies.

In sum, NYSDEC is responsible for evaluating the

environmental impacts of a proposed pipeline on New York

waterbodies in light of the State’s water quality standards.

Applying the arbitrary-and-capricious standard of review,

we defer to NYSDEC’s expertise as to the significance

of the information requested from Constitution, given

the record evidence supporting the relevance of that

information to NYSDEC’s certification determination.

34a

Appendix A

We conclude that the denial of the § 401 certification after

Constitution refused to provide relevant information,

despite repeated NYSDEC requests, was not arbitrary

or capricious.

CONCLUSION

We have considered all of Constitution’s arguments

and have found in them no basis for granting the petition

for review. Insofar as the petition contends that the

NYSDEC Decision is a nullity on the ground that it was

untimely, the petition is dismissed for lack of jurisdiction;

to the extent that the petition challenges the NYSDEC

Decision on the merits, the petition is denied.

35a

B YORK STATE

APPENDIX B —Appendix

THE NEW

DEPARTMENT OF ENVIRONMENTAL

CONSERVATION’S APRIL 22, 2016 DENIAL

OF CONSTITUTION PIPELINE COMPANY,

LLC’S APPLICATION FOR A WATER QUALITY

CERTIFICATION UNDER SECTION 401 OF THE

CLEAN WATER ACT FOR THE CONSTITUTION

PIPELINE PROJECT

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION

Division of Environmental Permits & Pollution Prevention

625 Broadway, 4th Floor, Albany, New York 12233-1750

P: (518) 402-9167 | F: (518) 402-9168

deppermitting@dec.ny.gov

www.dec.ny.gov

April 22, 2016

Lynda Schubring, PMP

Environmental Project Manager

Constitution Pipeline Company, LLC

2800 Post Oak Boulevard

P.O. Box 1396

Houston, Texas 77251-1396

Re: Joint Application: DEC Permit # 0 -9999 00181/00024 Water Quality Certification/Notice of Denial

Dear Ms. Schubring,

On April 27, 2015, Constitution Pipeline Company, LLC

(Constitution) submitted to the New York State Department

of Environmental Conservation (NYSDEC or Department)

36a

Appendix B

a Joint Application (Application)1 to obtain a Clean Water

Act2 Section 401 Water Quality Certification (WQC) for

the proposed Project and New York State Environmental

Conservation law (ECL) Article 15, Title 5 (Protection

of Waters) and Article 24, Title 23 Freshwater Wetlands

permits. Based on a thorough evaluation of the Application

as well as supplemental submissions, the Department hereby

provides notice to Constitution that in accordance with Title

6 New York Codes Rules and Regulation (NYCRR) Part

621, the Application fails in a meaningful way to address the

significant water resource impacts that could occur from

this Project and has failed to provide sufficient information

to demonstrate compliance with New York State water

quality standards. Constitution’s failure to adequately

address these concerns limited the Department’s ability

to assess the impacts and conclude that the Project will

comply water quality standards. Accordingly, Constitution’s

request for a WQC is denied.3 As required by 6 NYCRR

§621.10, a statement of the NYSDEC’s rationale for denial

is provided below.

1. New York State and U.S. Army Corps of Engineers Joint

Application, Constitution Pipeline, August, 2013. Constitution

initially submitted its WQC application on August 28, 2013. With

the Department’s concurrence Constitution subsequently withdrew

and re-submitted the WQC application on May 9, 2014 and April 27,

2015, each time extending the period for the Department to review

the application by up to one year.

2. See 33 U.S.C.A. Section 1341.

3. The other permits sought by Constitution in the Joint

Application remain pending before the Department and are not the

subject of this letter.

37a

Appendix B

BACKGROUND

The Federal Energ y Reg ulatory Commission

(FERC) issued a certificate approving construction

and operation of the pipeline on December 2, 2014,

conditioning its approval on Constitution first obtaining

all other necessary approvals. Accordingly, Constitution’s

Application for a WQC pending with the Department

must be approved before construction may commence.

Constitution’s Application was reviewed by NYSDEC in

accordance with ECL Article 70 (Uniform Procedures Act

or UPA) and its implementing regulations at 6 NYCRR

Part 621, which provide a review process for applications

received by NYSDEC.

Despit e FERC cond it ion i ng it s approva l on

Constitution’s need to obtain a WQC, the Department has

received reports that tree felling has already occurred in

New York on the Project’s right of way. This tree cutting,

both clear cutting and selective cutting, has occurred

notwithstanding the fact that Constitution has right-ofway agreements with the property owners where this

cutting has occurred. The tree felling was conducted

near streams and directly on the banks of some streams,

and in one instance has resulted in trees and brush being

deposited directly in a stream, partially damming it.

As described below, this type of activity, if not properly

controlled, can severely impact the best usages of the

water resource.

38a

Appendix B

Concurrent with its review, the Department received

a Clean Air Act Title V application 4 for the Wright

Compressor Station (Wright Compressor Station) from

Iroquois Gas Transmission System, Inc. Additionally,

Constitution is obligated to obtain coverage from

NYSDEC under the SPDES Stormwater General Permit

for Construction Activities (GP-0-15-002) and prepare a

Stormwater Pollution Prevention Plan (SWPPP) prior to

Project construction.

Proposed Project Description and Environmental Impacts

Constitution proposes construction of approximately

124.14 miles of new interstate natural gas transmission

originating in northeastern Pennsylvania, proceeding into

New York State through Broome, Chenango, Delaware,

and Schoharie Counties, terminating at the existing

Wright Compressor Station in Schoharie County. In

New York State, the Project, rather than co-locating a

significant portion of the pipeline on an existing New

York State Department of Transportation (NYSDOT)

Interstate 1-88 access area 5 , proposes to include new

4. Minor Source Air Permit Modification, Wright Compressor

Station, Town of Wright, Schoharie County, NY, Iroquois Gas

Transmission System, July 26, 2013.

5. On September 25, 2013, NYSDEC provided FERC with

comments on Constitution’s Environmental Report dated June 13,

2013, supplemented in July, 2013 that concurred with the United

States Army Corps of Engineers’ (ACOE) comments and supported

ACOE’s requcst to FERC for additional details and documentation

to support the reasons why all or some of the Project route could not

be routed with the New York State Department of Transportation

39a

Appendix B

right-of-way (ROW) construction of approximately 99

miles of new 30-inch diameter pipeline, temporary and

permanent access roads and additional ancillary facilities.

A lthough t he Depa r tment repeat ed ly a sked

Constitution to analyze alternative routes that could

have avoided or minimized impacts to an extensive

group of water resources, as well as to address other

potential impacts to these resources, Constitution failed

to substantively address these concerns. Constitution’s

failure to adequately address these concerns limited

the Department’s ability to assess the impacts and

conclude that the Project will comply with water quality

standards. Project construction would impact a total of

251 streams, 87 of which support trout or trout spawning.

Cumulatively, construction would include disturbance to

3,161 linear feet of streams resulting in a total of 5.09

acres of stream disturbance impacts. Furthermore,

proposed Project construction would cumulatively impact

(NYSDOT) Interstate 1-88 control of access area. On April 7, 2014,

the Department provided FERC with preliminary comments on

the DEIS whieh extensively analyzed the environmental benefits

of utilizing Interstate 1-88 (also referred to as Alternative “M”)

regarding stream, wetland, and interior forest habitats.

In June 2014, Constitution provided information about

Alternative M which Department Staff found did not contain sufficient

analysis to determine whcther Alternative M would generate

fewer impacts than Constitution’s preferred route. However, using

Constitution’s information, as well as publicly available information,

Department Staff conducted a review that found that Alternative

M could reduce overall impacts to water bodies and wetlands when

compared to Constitution’s preferred route.

40a

Appendix B

85.5 acres of freshwater wetlands and result in impacts to

regulated wetland adjacent areas totaling 4,768 feet for

crossings, 9.70 acres for construction and 4.08 for acres

for Project operation. Due to the large amount of new

ROW construction, the Project would also directly impact

almost 500 acres of valuable interior forest. Cumulatively,

within such areas, as well as the ROW generally, impacts

to both small and large streams from the construction

and operation of the Project can be profound and could

include loss of available water body habitat, changes in

thermal conditions, increased erosion, and creation of

stream instability and turbidity.

The individual quality and integrity of streams

form the primary trophic levels that support many

aquatic organisms and enable the provision of stream

ecosystems at large. Under the Project’s proposal, many

of the streams to be crossed present unique and sensitive

ecological conditions that may be significantly impacted

by construction and jeopardize best usages. For a number

of reasons, streams that support trout and other cold

water aquatic species are typically the most sensitive. The

physical features of these streams include dense riparian

vegetation often composed of old-growth trees which are

free of invasive species and that shade and cool streams

while also maintaining the integrity of adjacent banks or

hillslopes. Undisturbed spring seeps provide clean, cold

water and stable yet sensitive channel forms maintain the

integrity of the stream itself and further preserve water

quality. Biologically, these streams are vital in providing

complex habitat for foraging, spawning and nursery

protection by wild reproducing trout.

41a

Appendix B

Impacts to these streams are exacerbated as the

cumulative negative effects of multiple crossings are

added. Demonstrating this, the trout stream Clapper

Hollow Creek and its tributaries would be crossed 11 times

by the project. Likewise, Ouleout Creek and its tributaries

will be crossed 28 times. Many of these streams are

part of tributary networks that are dependent upon the

contributing quality of connected streams to supply and

support the physical and biological needs of a system.

This is especially true in supporting the viability of wild

trout populations.

Initially, 100 per cent loss of stream and riparian

habitat will occur within the ROW as it is cleared and

the pipeline trenched across streams. The trenching of

streams will destroy all in-stream habitat in the shorter

term and in some cases could destroy and degrade specific

habitat areas for years following active construction. For

example, highly sensitive groundwater discharge areas

within streams could be disturbed, resulting in loss or

degradation to critical spawning and nursery habitat. In

addition, physical barriers will temporarily prevent the

movement of aquatic species during active construction

and changes to the stream channel will persist beyond

the active construction period, creating physical and

behavioral barriers to aquatic organism passage.

Changes to thermal conditions will also likely occur

due to clearing of riparian vegetation. Because of the need

to maintain an accessible ROW, subsequent revegetation

will take considerable time to replace what was lost,

notably long-lived, slow growing forest trees. Loss of

42a

Appendix B

riparian vegetation that shades streams from the warming

effects of the sun will likely increase water temperatures,

further limiting habitat suitability for cold-water aquatic

species such as brook trout. The loss of shade provided

by mature riparian vegetation may be exacerbated in the

long term by climate change and thus be more significant

since small changes in the thermal loading of cold water

trout streams could result in the long term loss of trout

populations.

NYSDEC Staff’s extensive experience and technical

reviews have shown that destabilization of steep hillslopes

and stream banks will likely occur and may result in

erosion and failure of banks, causing turbid inputs to

waterbodies. Specifically, Project construction would

include approximately 24 miles of steep slope or side slope

construction. Cumulatively, this would account for roughly

24 percent of the new cleared right-of-way. Exposed

hillslopes can become less stable and, when appropriate

stormwater controls are not properly implemented,

erosion can result in increased sediment inputs to streams

and wetlands. If these events occur they can affect the

water quality and habitat quality of these streams.

Trenching of streams can also destabilize the stream

bed and such conditions can temporarily cause an

exceedance of water quality standards, notably turbidity.

Turbidity and sediment transport caused as a result

of construction can negatively impact immediate and

downstream habitat, can smother or kill sensitive aquatic

life stages and reduce feeding potential of all aquatic

organisms. More specifically, visual predators such as

43a

Appendix B

brook trout find food using visual cues. Thus, reductions

in clear water conditions may reduce feeding success

that can ultimately result in impacts on aquatic species’

propagation and survival and corresponding reductions

in the attainment of the waters’ best usages.

As a result of chronic erosion from disturbed stream

banks and hill slopes, consistent degradation of water

quality may occur. Changes in rain runoff along ROW

may change flooding intensity and alter stream channel

morphology. Disturbed stream channels are at much

greater risk of future instability, even if the actual work

is conducted under dry conditions; long ranging stream

erosion may occur up and downstream of disturbed stream

crossings well beyond the time of active construction.

This longer term instability and erosion can result in

the degradation of spawning beds and a decrease in egg

development. The loss of spawning potential in some

cold headwater streams may significantly reduce the

long-term viability of these streams to support trout.

Constitution proposes to cross 50 known trout spawning

streams which will likely result in cumulative impacts on

the trout populations in these streams. More specifically,

and by way of an example of cumulative impacts to a water

body, Constitution proposes to cross Ouleout Creek and its

tributaries a total of 28 times with 15 of these crossings

occurring in trout spawning areas.

Finally, at the landscape level, impacts to streams from

the ROW construction are analogous to the cumulative

impacts from roads. There is an established negative

correlation between road miles per watershed area and

44a

Appendix B

stream quality. Thus, increases in the crossings of streams

by linear features such as roads and the pipeline ROW can

have cumulative impacts beyond the individual crossings.

In the case of the 1 mile corridor surrounding the proposed

Constitution pipeline, the pre-construction crossing/area

ratio for the New York section is 2.28 crossings/square

mile. However, the post-construction ratio will increase 44

per cent to 3.29 crossings/square mile. In specific basins

this ratio will be higher and may cause a permanent

degradation in stream habitat quality and likewise affect

associated natural resources, including aquatic species’

propagation and survival.

NYSDEC Application Reviews

On August 21, 2013, Constitution submitted the

Application to obtain a CWA §401 WQC and NYSECL

Article 15 and Article 24 permits to the Department.

Due to insufficient information, NYSDEC issued a

Notice of Incomplete Application on September 12,

2013, indicating that the Application was not complete

for commencing review. On May 9, 2014, Constitution

simultaneously withdrew and resubmitted its WQC

request to the NYSDEC. Constitution supplemented

the Application a number of times in 2014. A Notice of

Complete Application for public review was published by

NYSDEC in the Environmental Notice Bulletin (ENB)

and local newspapers on December 24, 2014.

This notice commenced a public comment period

ending on January 30, 2015 which was subsequently

extended to February 27, 2015. To afford the Applicant

45a

Appendix B

time to respond to NYSDEC’s requests for information

based on thousands of public comments, and to extend

the time period by which NYSDEC was required to

issue the WOC and associated permits, Constitution

submitted its second request to withdraw and resubmit

the WOC on April 27, 2015. This resubmission initiated

an additional UPA comment period until May 21, 2015. A

total of 15,035 individual comments were received during

the two comment periods. Most of these comments related

to issues surrounding the Project applications; a relative

handful were related to issues specific to the Compressor

Station application.

Since August 21, 2013, Constitution supplemented

its Application numerous times in response to additional

information requests by the Department; Table 1 below

provides an easy reference of the requests and submittals·

associated with the Application over the past several

years.

Table 1

Prepared by

Date

Summary

DEC

June 21, 2012

Summary of PreApplication Meeting

DEC

May 30, 2013

Sample Matrix for

Linear Projects

Constitution

August 28,

2013

401 WQC and

related NYS Joint

Permit application/

documentation

received by DEC

46a

Appendix B

DEC

September

12, 2013

Notice of Incomplete

Application

Constitution

November 27, Joint Permit Application

2013

- Supplemental

Information

Constitution

May 9, 2014

401 WQC Application

Withdrawal and Resubmittal

DEC

July 3, 2014

DEC Recommendations

for Revised Joint

Application

Constitution

August 13,

2014

Joint Permit

Application Supplemental

Information #2

Constitution

November 17, Additional Information

2014

Submittal

Constitution

November 17, Responses to Wetland

2014

Mitigation Plan

Deficiencies

Constitution

November

24, 2014

Updated and Revised

Information

Constitution

December 1,

2014

Response to Request

for Additional

Clarification of

Wetland Impacts

DEC

December

24, 2014

Notice of Complete

Application

47a

Appendix B

DEC

December 31, NY Stream Crossing

2014

Feasibility Analysis

Information Request

Constitution

January 22,

2015

Summary of Changes

Trenchless Locations

Constitution

February 2,

2015

Revised Wetland

Mitigation Plan

Constitution

February 6,

2015

Phase I Stream

Analysis/Open Cut

DEC

February 19,

2015

DEC Proposed

Wetland Re-route

Constitution

March 27,

2015

Joint Permit

Application Supplemental

Information

Constitution

April 24,

2015

Response to DEC

Preferred List of

Trenchless Stream

Crossings

Constitution

April 27, 2015 401 WQC Application

Withdrawal and Resubmittal

DEC

April 27, 2015 Notice of Complete

Application - WQC

Withdrawal and Resubmittal

48a

Appendix B

Constitution

May 13, 2015

Wetland Mitigation

Area - Application for

Pesticide Permit

Constitution

May 20, 2015

Supplemental

Information Trenchless Crossings

DEC

June 1, 2015

Notice of Incomplete

Application - Pesticide

Permit

Constitution

June 19, 2015

Canadarago Lake

Mitigation Area

Update

Constitution

June 30, 2015

Updated Trenchless

Crossing Matrix

Constitution

July 8, 2015

Joint Permit

Application Supplemental

Information - Wetland

Re-route

Constitution

July 14, 2015

Additional Information

Submittal - Wetland

Impacts and Mitigation

Constitution

August 5,

2015

Response to Notice of

Incomplete Application

- Pesticide Permit

49a

Appendix B

Constitution

September

15, 2015

Joint Permit

Application Supplemental

Information

DEC

October 2,

2015

Acknowledgement of

NOI - SPDES MS GP Contractor Yard 5B

Constitution

January 6,

2016

Wetland Mitigation

Area - Application

for Pesticide Permit Betty Brook

DEC

February 26,

2016

Acknowledgement of

NOT - SPDES MS GP

- Contractor Yard 5B

STATEMENT OF REASONS FOR DENIAL

The Department, in accordance with CWA §401,

is required to certify that a facility meets State water

quality standards prior to a federal agency issuing a

federal license or permit in conjunction with its proposed

operation. An applicant for a water quality certification

must provide the Department sufficient information to

demonstrate compliance with the water quality regulations

found at 6 NYCRR Section 608.9 ( Water Quality

Certifications). Pursuant to this regulation, the Applicant

must demonstrate compliance with §§301, 302, 303, 306

and 307 of the Federal Water Pollution Control Act, as

implemented, by applicable water quality standards and

thermal discharge criteria set forth in 6 NYCRR Parts

50a

Appendix B

701,702,703,704 and 750, and State statutes, regulations

and criteria otherwise applicable to such activities. 6

Denial of a WQC may occur when an application fails to

contain sufficient information to determine whether the

application demonstrates compliance with the above stated

State water quality standards and other applicable State

statutes and regulations due to insufficient information.

The Department is guided by statute to take into account

the cumulative impact upon all resources in making a

determination in connection with any license, order,

permit or certification, which in this case includes being

able to evaluate the cumulative water quality impacts of

ROW construction and operation on the numerous water

bodies mentioned in this letter.7

As noted above, Constitution supplemented its

Application in response to information requests issued

to it by the Department but has not supplied sufficient

information for the Department to be reasonably assured

that the State’s water quality standards would be met

during construction and operation of the proposed

pipeline. As a result the Department cannot be assured

that the aforementioned adverse impacts to water quality

and associated resources will be avoided or adequately

minimized and mitigated so as not to materially interfere

with or jeopardize the best usages of affected water bodies.

The following are the Department’s reasons for denial of

Constitution’s Application based on applicable sections of

the New York State environmental laws, regulations or

standards related to water quality.

6. 6 NYCRR §608.9 (2) and (6).

7. ECL 3-0301(1)(b).

51a

Appendix B

Stream Crossings

Project construction would disturb a total of 251

streams under New York State’s jurisdiction, 87 of

which support trout or trout spawning. Cumulatively,

construction would disturb a total of 3,161 linear feet of

streams and result in a combined total of 5.09 acres of

temporary stream disturbance impacts. From inception

of its review of the Application, NYSDEC directed

Constitution to demonstrate compliance with State water

quality standards and required site-specific information

for each of the 251 streams impacted by the Project.

NYSDEC informed Constitution that all 251 stream

crossings must be evaluated for environmental impacts

and that trenchless technology was the preferred method

for stream crossing. This information was conveyed to

Constitution and FERC on numerous occasions since

November 2012; however, Constitution has not supplied the

Department with the necessary information for decision

making.

Deficient Trenchless Stream Crossings Information

and Lack of Specific Stream Crossings Details

Staff’s review of the Application includes an analysis

of adverse stream crossing impacts, specifically the

suitability of open trenching versus trenchless techniques

or subsurface boring methods. Open trenching is a highly

impactful construction technique involving significant

disturbance of the existing stream bed and potential

long-term stream flow disruption, destruction of riparian

vegetation and establishment of a permanently cleared

52a

Appendix B

corridor. Comparatively, trench less methods present

significantly fewer environmental impacts to the regulated

resource. Because alternative trench less techniques exist

for this Project, the Department requested additional

information from Constitution to evaluate their feasibility

and to determine if the Application provides enough

information to demonstrate compliance with water quality

standards.

Since NYSDEC’s most protective method for stream

crossings is some form of a trenchless technology,

NYSDEC directed Constitution to determine whether a

trenchless technology was constructible for each stream

crossing. 8 On a number of occasions NYSDEC identified

the need to provide information so that it could evaluate

trenchless stream installation methods (see Table 2,

below); however, Constitution has not provided sufficient

information to enable the Department to determine if the

Application demonstrates compliance with 6 NYCRR Part

703, including, but not limited to, standards for turbidity

and thermal impacts (6 NYCRR §703.2), and 6 NYCRR

Part 701 (best usages).

8. NYSDEC Comments to FERC, November 7, 2012.

Date

June 21, 2012

November 7,

2012

Prepared by

NYSDEC

NYSDEC

In comments to FERC, NYSDEC stated that for

streams and wetlands the preferred method for

crossing is trenchless technology. The draft EIS

should evaluate cases where other methods are

proposed and Constitution should explain why

trenchless crossing technology will not work or is

not practical for that specific crossing.

In a summary of the initial pre-application meeting

with Constitution, which took place on June 7, 2012,

NYSDEC stated in a letter to Constitution that

for protected streams and wetlands, trenchless

technology is the preferred method for crossing

and should be considered for all such crossings

(emphasis added).

Summary

Table 2

53a

Appendix B

April 9, 2013

May 28, 2013

July 17, 2013

FERC

NYSDEC

NYSDEC

NYSDEC comments to FERC reiterates that

trenchless technology is preferred method for

stream crossings. The DEIS should evaluate cases

where other methods are proposed and the Project

Sponsor should explain why trenchless technology

will not work or is not practical for that specific

crossing.

Meeting with Constitution and NYSDEC staff at

the DEC Region 4 office to review stream crossings.

NYSDEC reiterates that acceptable trench less

technology was the preferred installation method

and that stream crossings should be reviewed for

feasibility of using those technologies.

FERC’s Environmental Information Request (EIR)

directed Constitution to address all of the comments

filed in the public record by other agencies

regarding the draft Resource Reports including all

comments from the NYSDEC.

54a

Appendix B

July - August

2013

November

2013

December 31,

2014

NYSDEC

and

Constitution

staff

Constitution

NYSDEC

and

Constitution

staff

Meeting conducted with Constitution staff in which

NYSDEC indicated that the Trenchless Feasibility

Study was inadequate, e.g. provided insufficient

justification and removed all streams less than 30

feet in width from analysis.

Trenchless Feasibility Study provided by

Constitution that described its choices of stream

crossing techniques. Upon review, document and

justifications found insufficient and all streams less

than 30’ wide were arbitrarily eliminated from any

consideration for trenchless crossing methods.

Field visits of proposed stream crossings prior to

permit applications to the Department. At staff each

crossing, NYSDEC emphasized to Constitution

staff that trench less technology is preferred/most

protective.

55a

Appendix B

To aid in an appropriate review of stream crossing

techniques and compliance with water quality

standards, an informational request table including

required technical information was developed by

NYSDEC and provided to Constitution.

U.S. Army Corps of Engineers letter reiterates

a request for a feasibility analysis of trenchless

crossings.

Meeting between Constitution and NYSDEC

staff wherein Constitution stated it was unable to

complete the table (described above on December

31, 2014). NYSDEC staff indicated that the

justification for stream crossing methods was

insufficient and that appropriate site specific

information must be provided.

Conference call: NYSDEC reiterated its request for

a site specific analysis of trenchless stream crossings

for all streams including those under 30 feet wide.

December 31,

2014

January 13,

2015

January 23,

2015

January 28,

2015

NYSDEC

US Army

Corps of

EnQineers

Constitution

and

NYSDEC

Constitution

and

NYSDEC

56a

Appendix B

Constitution

Februaey 5,

2015

Constitution provided an updated example of

a trench less feasibility study but that example

continued to exclude streams up to 30 feet wide from

analysis and did not provide detailed information of

the majority of streams.

57a

Appendix B

58a

Appendix B

Constitution submitted a Trenchless Feasibility

Study (Study) to FERC in November of 2013 which the

Department has analyzed for the purpose of reviewing

Constitution’s WQC application. This Study did not include

the information that FERC directed Constitution to supply

to NYSDEC (and others) in its April 9, 2013 EIR, which

incorporated NYSDEC’s information requests, including

NYSDEC’s request to Constitution dated November 7,

2012. Moreover, the Study did not include information

that NYSDEC specifically requested in meetings and

site visits with Constitution throughout 2013 and did not

provide a reasoned analysis to enable the Department to

determine if the Project demonstrates compliance with

water quality standards.

Of the 251 streams to be impacted by the Project,

Constitution’s Study evaluated only 87 streams, in

addition to the Schoharie Creek, as part of the Phase I

desktop analysis9 which Constitution used to determine

if surface installation methods warranted consideration

for a trenchless design. Of the 87 streams reviewed,

Constitution automatically eliminated 41 streams from

consideration f9r trench less crossing because those

streams were 30 feet wide or less. Constitution further

eliminated 10 more streams from the Study because

although they were in the proposed ROW, they would

not be crossed by the Project. Accordingly, a total of 24

streams were subsequently analyzed in the Study’s Phase

9. Constitution described the Phase I analysis as “a general

evaluation of Project locations meeting the basic criteria for trench

less construction methods such as crossing distances, feature

classifications and potential associated impacts.”

59a

Appendix B

II analysis which evaluated construction limiting factors

including available workspace, construction schedules

and finances. Using its review criteria, Constitution’s

Study finally concluded that only 11 stream crossings of

the 251 displayed preliminary evidence in support of a

potentially successful trenchless design and were chosen

for the Phase III geotechnical field analysis. Department

staff consistently told Constitution that its November

2013 Trenchless Feasibility Study was incomplete and

inadequate (See Table 2).

Constitution’s continued unwillingness to provide

a complete and thorough, Trenchless Feasibility Study

required Department staff to engage in a dialogue

with Constitution on potential trenchless crossings

for a limited number of streams. On April 24, 2015,

Constitution’s consultant produced a revised draft list

of 29 trenchless stream crossings and an example of

plans that would be provided for each crossing on the

proposed list. Subsequently, in May 2015, Constitution

provided detailed project plans for 25 potential trenchless

crossings, but only two of those plans were based on

full geotechnical borings that are necessary to evaluate

the potential success of a trenchless design. Detailed

project plans including full geotechnical borings for the

remaining stream crossings have not been provided to the

Department. From May through August 2015, NYSDEC

engaged in a dialogue with Constitution on potential

trenchless methods for 19 streams, although NYSDEC

did not form a conclusion on a crossing method for the

remaining streams, including the vast majority of trout

and trout spawning streams. Furthermore, as noted

60a

Appendix B

above, Constitution’s unwillingness to adequately explore

the Alternative M route alternative, with the prospect

of potentially fewer overall impacts to water bodies and

wetlands when compared to Constitution’s preferred

route, means that the Department is unable to determine

whether an alternative route is actually more protective of

water quality standards. The Department therefore does

not have adequate information to assure that sufficient

impact avoidance, minimization or mitigation measures

were considered as to each of the more than 200 streams

proposed for trenched crossings.

Due to the lack of detailed project plans, including

geotechnical borings, the Department has determined

to deny Constitution’s WQC Application because the

supporting materials supplied by Constitution do not

provide sufficient information for each stream crossing

to demonstrate compliance with applicable narrative

water quality standards for turbidity and preservation

of best usages of affected water bodies. Specifically, the

Application lacks sufficient information to demonstrate

that the Project will result in no increase that will cause

a substantial visible contrast to natural conditions.10

Furthermore, the Application remains deficient in that

it does not contain sufficient information to demonstrate

compliance with 6 NYCRR Part 701 setting forth conditions

applying to best usages of all water classifications.

Specifically, “the discharge of sewage, industrial waste

or other wastes shall not cause impairment of the best

10. 6 NYCRR §703.2.

61a

Appendix B

usages of the receiving water as specified by the water

classifications at the location of the discharge and at other

locations that may be affected by such discharge.”11

Cumulatively, impacts to both small and large streams

from the construction and operation of the Project can be

profound and include loss of available habitat, changes in

thermal conditions, increased erosion, creation of stream

instability and turbidity, impairment of best usages, as

well as watershed-wide impacts resulting from placement

of the pipeline across water bodies in remote and rural

areas (See Project Description and Environmental

Impacts Section, above). Because the Department’s review

concludes that Constitution did not provide sufficient

detailed information including site specific project plans

regarding stream crossings (e.g. geotechnical borings) the

Department has determined to deny Constitution’s WQC

Application for failure to provide reasonable assurance

that each stream crossing will be conducted in compliance

with 6 NYCRR §608.9.

In addition, the Application lacks required sitespecific information for each of the 251 stream crossings

including, but not limited to the specific location of access

roads, definite location of temporary stream crossing

bridges, details of temporary bridges including depth of

abutments in stream banks, details of proposed blasting

and the location of temporary coffer dams for stream

crossings. Absent this information and the information

described above, the Department cannot determine

whether additional water quality impact avoidance,

11. 6 NYCRR §701.1.

62a

Appendix B

minimization or mitigation measures must be taken to

ensure compliance with water quality standards in water

bodies associated with this infrastructure.

Insufficient Site-Specific Information on Depth of Pipe

NYSDEC received numerous public comments

regarding the necessary depth for pipeline burial in

stream beds that would prevent inadvertent exposure

of the pipe. Historically, Department staff has observed

numerous and extensive vertical movements of streams

in New York State that have led to pipe exposure and

subsequent remedial projects to rebury the pipe and

armor the stream channel. These subsequent corrective

actions caused severe negative impacts on water quality

and seriously impacted the stability and ecology of the

stream that could have been avoided with a deeper pipe.

Department staff requested that Constitution provide

a comprehensive and site-specific analysis of depth for

pipeline burial, but Constitution provided only a limited

analysis of burial depth for 21 of the 251 New York

streams.12 Without a site-specific analysis of the potential

for vertical movement of each steam crossing to justify a

burial depth, NYSDEC is unable to determine whether the

depth of pipe is protective of State water quality standards

and applicable State statutes and standards.

In addition to impacts to water quality described

above and without proper site-specific evaluations, future

12. See, Trout Stream Restoration Report, dated August

2014.

63a

Appendix B

high flow events could expose the pipeline, resulting in

risks to the health, safety, and welfare of the people of New

York State. Pipe exposure would require more extensive

stabilization measures and in stream disturbances

resulting in addition degradation to environmental

quality. We note that flooding conditions from extreme

precipitation events are projected to increase on the

operational span of the pipeline due to climate change.

Deficient Blasting Information

Constitution’s Blasting Plan, dated August, 2014,

outlines the procedures and safety measures to which

Constitution would adhere in the event that blasting is

required for Project installation. The Blasting Plan does

not provide site-specific information where blasting will

occur but instead provides a list of potential blasting

locations based on the presence of shallow bedrock. In

New York alone, Constitution identifies 42.77 total miles

where shallow bedrock occurs, or approximately 44 per

cent of the route, involving 84 wetlands crossings and 27

waterbody crossings. Constitution indicates that a final

determination on the need for blasting will be made at

the time of construction in waterbodies and wetlands.

Due to the lack of specific blasting information needed for

review with respect to associated water bodies, NYSDEC

is unable to determine whether this Plan is protective of

State water quality standards and in compliance with

applicable State statutes and standards.

64a

Appendix B

Wetlands Crossings

Wetlands provide valuable water quality protection by

retaining and cleansing surface runoff to water bodies.

Constitution’s Application does not demonstrate that

wetland crossings will be performed in a manner that

will avoid or minimize discharges to navigable waters

that would violate water quality standards, including

turbidity. Absent detailed information for each wetland

crossing that demonstrates Constitution properly avoided,

minimized and mitigated impacts to wetland and adjacent

areas, the Application does not supply the Department

with adequate information to assure that streams and

water bodies will not be subject to discharges that do not

comply with applicable water quality standards.

NYSDEC Denial

Constitution was required to submit an Application

providing sufficient information to demonstrate compliance

with the regulations found at 6 NYCRR §608.9, Water

Quality Certifications. Pursuant to this regulation, an

Applicant must demonstrate compliance with §§301, 302,

303, 306 and 307 of the Federal Water Pollution Control

Act, as implemented, by applicable water quality standards

and thermal discharge criteria set forth in 6 NYCRR Parts

701,702,703,704 and 750, and State statutes, regulations

and criteria otherwise applicable to such activities.13 The

Department must also take into account the cumulative

impact to water quality of the full complement of

13. 6 NYCRR §608.9 (2) and (6).

65a

Appendix B

affected water resources in making any determination in

connection with any license, order, permit or certification.14

For the reasons articulated above, the Department hereby

denies Constitution’s WQC Application because it does

not supply adequate information to determine whether

the Application demonstrates compliance with the above

stated State water quality standards and other applicable

State statutes and regulations.

This notice of denial serves as the Department’s

final determination. Should Constitution wish to address

the above deficiencies, a new WQC application must be

submitted pursuant to 6 NYCRR §608.9 and 6 NYCRR

Part 621. Uniform Procedures Regulations, 6 NYCRR

§621.10 provide that that an applicant has a right to a

public hearing on the denial of a permit, including a §401

WQC. A request for hearing must be made in writing to

me within 30 days of the date of this letter.

Sincerely,

/s/

John Ferguson

Chief Permit Administrator

14. ECl 3-0301 (1)(b).

66a

Appendix

C

APPENDIX C — DENIAL

OF REHEARING

OF THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT, DATED OCTOBER 19, 2017

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No: 16-1568

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New

York, on the 19th day of October, two thousand seventeen.

CONSTITUTION PIPELINE COMPANY, LLC,

Petitioner,

v.

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION, BASIL

SEGGOS, ACTING COMMISSIONER, NEW YORK

STATE DEPARTMENT OF ENVIRONMENTAL

CONSERVATION, JOHN FERGUSON, CHIEF

PERMIT ADMINISTRATOR, NEW YORK

STATE DEPARTMENT OF ENVIRONMENTAL

CONSERVATION,

Respondents,

67a

Appendix C

STOP THE PIPELINE, CATSKILL

MOUNTAINKEEPER, INC., SIERRA CLUB,

RIVERKEEPER, INC.,

Intervenors.

ORDER

Petitioner, Constitution Pipeline Company, LLC, filed

a petition for panel rehearing, or, in the alternative, for

rehearing en banc. The panel that determined the appeal

has considered the request for panel rehearing, and the

active members of the Court have considered the request

for rehearing en banc.

IT IS HEREBY ORDERED that the petition is

denied.

FOR THE COURT:

/s/

Catherine O’Hagan Wolfe, Clerk