reply brief: constitution pipeline v new york state dec

16-1568

United States Court of Appeals for the

Second Circuit

CONSTITUTION PIPELINE COMPANY, LLC, Petitioner,

– v. –

BASIL SEGGOS, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, JOHN

FERGUSON, CHIEF PERMIT ADMINISTRATOR, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, NEW YORK

STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondents.

STOP THE PIPELINE, CATSKILL MOUNTAINKEEPER, INC., SIERRA CLUB, RIVERKEEPER, INC.,

Intervenors. ––––––––––––––––––––––––––––––

PETITION FOR REVIEW FROM THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

FINAL REPLY BRIEF FOR PETITIONER

YVONNE E. HENNESSEY, ESQ. BARCLAY DAMON, LLP 80 State Street, 6th Floor Albany, New York 12207 (518) 429-4293

JOHN F. STOVIAK, ESQ. SAUL EWING LLP Center Square West, 38th Floor 1500 Market Street Philadelphia, Pennsylvania 19102 (215) 972-1095 ELIZABETH UTZ WITMER, ESQ. SAUL EWING LLP 1200 Liberty Ridge Drive, Suite 200 Wayne, Pennsylvania 19087 (610) 251-5062

Attorneys for Petitioner, Constitution Pipeline Company, LLC

Case 16-1568, Document 172, 10/17/2016, 1885578, Page1 of 39

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TABLE OF CONTENTS

Page

INTRODUCTION .................................................................................................... 1

ARGUMENT ............................................................................................................ 6

POINT I THE COURT HAS JURISDICTION ............................................................................... 6 POINT II NYSDEC’S MISCHARACTERIZATIONS OF THE RECORD ILLUSTRATE THE

ARBITRARY AND CAPRICIOUS NATURE OF ITS DENIAL .......................................... 14 A. NYSDEC’s Inaccurate Statements About FERC’s Findings..................... 18 B. NYSDEC’s Inaccurate Statements About USACE ................................... 21 C. NYSDEC’s Untrue Statements About Constitution’s Wetlands Analysis ............................................................................................................. 23

POINT III NYSDEC IMPERMISSIBLY EXCEEDED THE SCOPE OF SECTION 401 IN DENYING THE

CERTIFICATION ...................................................................................................... 24

CONCLUSION ....................................................................................................... 32


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TABLE OF AUTHORITIES

CASES

AES Sparrows Point LNG v. Wilson, 589 F.3d 721 (4th Cir. 2009) .......................................................... 7, 8, 10, 11, 13

Alcoa Power Generating, Inc. v. FERC, 643 F.3d 963 (D.C. Cir. 2011) ............................................................................ 11

Am. Rivers, Inc. v. FERC, 129 F.3d 99 (2d Cir. 1997) ................................................................................... 7

Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141 (2d Cir. 2008) ............................................................................... 29

Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991) ............................................................................ 29

Matter of Chasm Hydro, Inc. v. N.Y. State Dep’t of Envtl. Conservation, 14 N.Y.3d 27 (N.Y. 2010) .................................................................................. 30

Matter of Chasm Hydro, Inc. v. N.Y. State Dep’t of Envtl. Conservation, 58 A.D.3d 1100 (N.Y. App. Div. 3d Dep’t 2009) .............................................. 30

Matter of E. Niagara Project Power All. v. N.Y. State Dep’t of Envtl. Conservation, 42 A.D.3d 857 (N.Y. App. Div. 3d Dep’t 2007) ................................................ 28

Nat’l Fuel Gas Supply Corp. v. Pub. Serv. Comm’n, 894 F.2d 571 (2nd Cir. 1990) ............................................................................. 30

Niagara Mohawk Power Corp. v. N.Y. State Dep’t of Envtl. Conservation, 187 A.D.2d 7 (N.Y. App. Div. 3d Dep’t 1993) ............................................ 26, 30

Niagara Mohawk Power Corp. v. State Dep’t of Envtl. Conservation, 82 N.Y.2d 191 (N.Y. 1993), cert denied, 511 U.S. 1141 (1994) ................passim

Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) .............................................................................................. 13

PUD No. 1 v Wash. Dep’t of Ecology, 511 U.S. 700 (1994) ............................................................................ 5, 27, 28, 30


iii

Puerto Rico Sun Oil Co. v. U.S. Environmental Protection Agency, 8 F.3d 73 (1st Cir. 1993) ....................................................................................... 7

S.D. Warren Co. v. Maine Bd. Of Envtl. Protection, 547 U.S. 370 (2006) ...................................................................................... 28-29

Weaver’s Cove Energy, LLC v. R.I. Dep’t of Environmental Mgmt., 524 F.3d 1330 (D.C. Cir. 2008) ...................................................................... 7, 12

Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458 (1st Cir. 2009) ............................................................................... 13

STATUTES

15 U.S.C. § 717b(d) ................................................................................................. 25

15 U.S.C. § 717r(d)(1) ......................................................................................... 6, 11

15 U.S.C. § 717r(d)(2) ............................................................................................... 6

33 U.S.C. § 1341(a)(1) ......................................................................................passim

33 U.S.C. § 1341(d) ..................................................................................... 25, 26, 27

OTHER AUTHORITIES

18 C.F.R. § 157.22 ................................................................................................... 31

33 C.F.R. § 325.1(d)(10) .......................................................................................... 10

33 C.F.R. § 325.2(b)(1)(ii) ....................................................................................... 11

51 Fed. Reg. 41,206, 41, 211 (Nov. 13, 1986) ........................................................ 11

6 NYCRR Parts 700-706, SPA101-278 ................................................................... 25

6 NYCRR § 621.2(f) .................................................................................................. 8

6 NYCRR § 621.4(e) ................................................................................................. 8

6 NYCRR § 621.6(g) ................................................................................................. 8

6 NYCRR § 621.10(a) ............................................................................................... 9


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GLOSSARY Catskill Intervenors Catskill Mountainkeeper, Inc., Sierra

Club, and Riverkeeper, Inc. Certificate Certificate of Public Convenience and Necessity

issued by FERC CWA Clean Water Act Denial NYSDEC’s April 22, 2016 letter denying

Constitution’s application for a CWA Section 401 Water Quality Certification

ECL New York Environmental Conservation Law FEIS Final Environmental Impact Statement FERC Federal Energy Regulatory Commission Interstate Project Constitution Pipeline Project NEPA National Environmental Policy Act NOCA Notice of Complete Application NYSDEC Respondents New York State Department of

Environmental Conservation; Basil Seggos, Acting Commissioner; John Ferguson, Chief Permit Administrator

Section 401 Certification CWA Section 401 Water Quality Certification SEQRA State Environmental Quality Review Act STP Intervenor Stop the Pipeline USACE United States Army Corps of Engineers USFWS United States Fish and Wildlife Service


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INTRODUCTION

Respondents (collectively, “NYSDEC”) fail to overcome Constitution’s

claims that NYSDEC’s denial (“Denial”) of Constitution’s application for a Clean

Water Act (“CWA”) Section 401 Water Quality Certification (“Section 401

Certification”) was too late and waived and must be remanded with the requested

relief granted to Constitution. In fact, in a desperate effort to justify their arbitrary

and capricious action, NYSDEC resorts to mischaracterizing the record and the

findings of the Federal Energy Regulatory Commission (“FERC”), the United States

Army Corps of Engineers (“USACE”), and Constitution’s submissions.

After disputing this Court’s jurisdiction, an argument which simply has no

basis, NYSDEC mischaracterizes this dispute as one over NYSDEC’s “jurisdiction”

under the CWA. Constitution, however, does not question NYSDEC’s jurisdiction

to issue a Section 401 Certification. What this dispute really involves is NYSDEC’s

determined political effort to dictate the routing of the Constitution Pipeline Project

(“Interstate Project”), which is a decision exclusively reserved to FERC and wholly

unrelated to NYSDEC’s federally-approved water quality standards. NYSDEC

commented often and vigorously to FERC about the proposed routing of the

Interstate Project. FERC carefully considered these comments, but decided to

approve the routing in its issuance of a Certificate of Public Convenience and

Necessity (“Certificate”), weighing all of the factors that FERC is required to


2

consider and balance. NYSDEC chose to not challenge FERC’s decision, but

instead orchestrated a process designed to nullify it by basing the Denial on its

improper requests for information designed to reevaluate areas already evaluated by

FERC. NYSDEC’s Denial states that NYSDEC “does not have adequate

information” due to “Constitution’s unwillingness to adequately explore the

Alternative M route alternative.” Denial at 11, JA2859.

FERC conducted a thorough review under the National Environmental Policy

Act (“NEPA”) and approved the Interstate Project route involving 289 stream

crossings. FERC evaluated each stream crossing and dictated the appropriate

crossing methodology, requiring trenchless crossing methods for only 21 streams

because trenchless methods (a) result in more surface clearing to accommodate the

necessary staging equipment, (b) are dependent on geology, and (c) can fail,

resulting in drilling fluid discharges. FERC is required to balance the impact of the

Interstate Project on the public, including on the public need, as well as the

environmental impact, and so it takes into account more factors in its analysis than

the state does in implementing its narrow review, limited to federally approved water

quality standards under Section 401.

Rather than directly challenge FERC’s Certificate, NYSDEC arbitrarily

attempted to use its limited CWA authority to compel a completely different pipeline

route. NYSDEC’s authority under Section 401 simply does not stretch that far, or


3

the result would be a never-ending process where state agencies participate in

FERC’s proceedings, then later (after failing to seek rehearing), get another “bite at

the apple” by attacking FERC’s determinations through their limited Section 401

certification process. Here, Constitution proposed common waterbody construction

techniques, endorsed by FERC and consistent with FERC’s construction

requirements, and approved by NYSDEC for other pipeline projects.

The record unequivocally shows that NYSDEC prepared a draft certification

with conditions, some of which would have required variances from FERC because

there were several more trenchless crossings proposed than had been approved by

FERC’s Certificate. But rather than further communicate with Constitution about

the terms and conditions of the draft certification it prepared in the summer of 2015,

NYSDEC stopped communicating with Constitution for almost nine months before

it issued its April 2016 Denial on Earth Day.

So how does NYSDEC support the Denial? It mischaracterizes the FERC

record. For example, NYSDEC states that FERC “did not comment upon or

endorse” Constitution’s proposed crossing methods (Respondents’ Brief at 64) when

the opposite is true, as evidenced by FERC’s statement from the Final

Environmental Impact Statement (“FEIS”):

Based on our request, Constitution evaluated the potential for using trenchless crossing methods for sensitive or high quality waterbodies. We concur with Constitution’s assessment that it is not practicable to use trenchless


4

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, Appendix S at S-52, JA1639 (emphasis added); Certificate ¶ 77, JA1691.

In addition to its mischaracterizations of the FERC record, NYSDEC pretends

that requests for information exist, when they simply do not. NYSDEC fails to rebut

Constitution’s recitation of the facts, and cannot point to a single document between

August 2015 (following NYSDEC’s preparation of the draft permit) and the April

2016 Denial where NYSDEC actually requested additional information regarding

any of the four bases for its Denial – stream-crossing methods, depth of pipeline

burial under waterbodies, blasting in or near waterbodies, or wetland-crossing

methods. NYSDEC relies on its alleged oral requests while vigorously contesting

the unrebutted Declarations of multiple members of Constitution’s team about the

actual verbal exchanges between Constitution and NYSDEC, further demonstrating

the arbitrary and capricious nature of its Denial (see Argument, Point II, below).

NYSDEC’s admissions also support Constitution’s waiver argument because

NYSDEC’s Denial was issued well beyond the statutorily prescribed “reasonable

period of time” and too late under any interpretation of the relevant regulations. By

failing to render its decision within a “reasonable period of time,” NYSDEC waived

its right to act. Constitution submitted a valid request for a Section 401 Certification


5

on April 27, 2015 when NYSDEC published a Notice of Complete Application

(“NOCA”), triggering the waiver period under CWA Section 401. NYSDEC

prepared its draft permit in July 2015, informed Constitution that it had all the

information it needed, never commented on Constitution’s subsequent submissions,

never requested additional information regarding its four bases for Denial at any

time after July 2015, and never informed Constitution that it was no longer willing

to issue a conditioned permit. The Denial’s timing, almost twelve months after the

NOCA, is unreasonable – particularly since NYSDEC admits that it prepared a

“preliminary” draft permit (and informed Constitution about the draft permit) nine

months before it issued its Denial. (see Argument, Point I, below).

Apparently realizing that Constitution met the federally mandated

requirements, NYSDEC raises concerns regarding potential compliance with state

law and regulations which are not part of New York State’s federally-approved water

quality standards. This arbitrary attempt to expand its narrowly circumscribed

jurisdiction under Section 401 directly contravenes the New York State Court of

Appeals’ decision in Niagara Mohawk Power Corp. v. State Dep’t of Envtl.

Conservation, 82 N.Y.2d 191 (N.Y. 1993), cert denied, 511 U.S. 1141 (1994).

Contrary to NYSDEC’s argument, PUD No. 1 v. Wash. Dep’t of Ecology, 511 U.S.

700 (1994) did not overrule Niagara Mohawk, and NYSDEC cannot cite a single


6

post-PUD case that supports its expansive view of a state’s Section 401 jurisdiction

to review and deny a Section 401 Certification (see Argument, Point III, below).

ARGUMENT

POINT I

THE COURT HAS JURISDICTION

NYSDEC essentially makes a ripeness argument – that it is up to FERC or

USACE to first make a determination of waiver. Intervenors Stop the Pipeline

(“STP”) and Catskill1 contend that the waiver argument must be made to the United

States Court of Appeals for the District of Columbia Circuit. Neither of these

arguments have merit.

The NGA establishes original and exclusive jurisdiction over any civil action

for the review of an action of a state administrative agency acting pursuant to Federal

law to deny any approval required under Federal law. 15 U.S.C. § 717r(d)(1). All

parties admit that NYSDEC denied the Section 401 Certification, which squarely

puts the waiver issue before this Court. Section 19(d)(2) of the NGA does not apply

once an agency has taken action, since it only pertains to an agency’s “alleged failure

to act.” 15 U.S.C. § 717r(d)(2).

1 Intervenors Catskill Mountainkeeper, Inc., Sierra Club, and Riverkeeper, Inc.

are collectively referred to as “Catskill” herein.


7

The only other court to address this issue, the Fourth Circuit Court of Appeals,

had no hesitation in adjudicating a Section 401 waiver claim under the NGA in AES

Sparrows Point LNG v. Wilson, 589 F.3d 721 (4th Cir. 2009), a case that was decided

over a year and a half after Weaver’s Cove Energy, LLC v. R.I. Dep’t of Envtl.

Mgmt., 524 F.3d 1330 (D.C. Cir. 2008).

NYSDEC attempts to distinguish AES Sparrows by arguing that Constitution

never raised the waiver issue before NYSDEC and that USACE “never determined

that Constitution had submitted a valid request for certification.”2 This attempt to

distinguish AES Sparrows fails for two reasons. First, NYSDEC fails to point to

any statutory or regulatory mandate that would require Constitution to raise its

waiver claim first before NYSDEC or forever lose it. NYSDEC’s reliance on Puerto

Rico Sun Oil Co. v. U.S. Envtl. Protection Agency, 8 F.3d 73 (1st Cir. 1993) is

unavailing, since that case dealt with whether it was appropriate for a federal agency

to consider a late-issued Section 401 Certification. In any event, the First Circuit’s

reasoning supports Constitution’s claim, which is that “courts have adequate

power” to address agency decisions. Id. at 80 (emphasis added).

2 This Court owes no deference to NYSDEC’s interpretation of the CWA,

contrary to STP’s argument. Tellingly, STP stands alone in making this argument – even NYSDEC does not contend that its CWA interpretation is entitled to deference. See Am. Rivers, Inc. v. FERC, 129 F.3d 99, 107 (2d Cir. 1997).


8

Second, USACE did not expressly determine that the applicant in AES

Sparrows submitted a valid request for certification. Rather, the Fourth Circuit

inferred “[b]y necessary implication” that AES’s certification request was a valid

request given USACE’s public notice declaring that Maryland had one year to

consider the request. AES Sparrows, 589 F.3d at 729. Thus, NYSDEC’s argument

that USACE must expressly determine that a valid request has been submitted before

NYSDEC’s review period begins is not supported by AES Sparrows.

There is a record-supported basis under both NYSDEC’s and USACE’s

regulations that the waiver period commenced on April 27, 2015. NYSDEC

determined on December 24, 2014 and again on April 27, 2015 that Constitution

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

NYSDEC argues that its determination to treat the application as complete “for

purposes of public comment” did not mean that it had received all necessary

information. That is not the test. NYSDEC’s regulations define “complete

application” to mean “an application for a permit which is in an approved form and

is determined by the department to be complete for the purpose of commencing

review of the application ….” 6 NYCRR § 621.2(f) (emphasis added); see also 6

NYCRR § 621.4(e) (establishing requirements for a “complete application for a

Water Quality Certification”). “If an application is determined to be complete, a

Notice of Complete Application must be prepared.” 6 NYCRR § 621.6(g)


9

(emphasis added). When NYSDEC issued the NOCA, it acknowledged that it had

a “valid request.”

NYSDEC’s suggestion that “the waiver period never commenced” is

preposterous. Under NYSDEC’s regulations, the NOCA triggers the time periods

in which NYSDEC must make a decision. 6 NYCRR § 621.10(a). NYSDEC cannot

erase its public declarations that Constitution submitted a complete application and

valid request allowing NYSDEC to commence review, as confirmed in both

NYSDEC’s December 24, 2014 and April 27, 2015 Notices of Complete

Application.3

Indeed, if NYSDEC did not believe that the application was a complete and

valid request, then there would have been no reason for NYSDEC’s request to

Constitution to withdraw and resubmit its application not once, but twice. Letter

from Lynda Schubring (Constitution) to Stephen Tomasik (NYSDEC) (May 9,

2014), JA851-JA852; Letter from Lynda Schubring (Constitution) to Stephen

Tomasik (NYSDEC) (April 27, 2015), JA2072-JA2073; NYSDEC Press Release

(April 29, 2015) (Noting NYSDEC request for additional time), JA2076-JA2077.

3 NYSDEC’s suggestion that Constitution’s submission of supplemental

information in September 2015 should be viewed as extending its review time is without merit, since NYSDEC never commented on the submission, a fact that NYSDEC does not dispute.


10

Even if the Court determines that it must look to USACE’s documents to

determine whether Constitution submitted a valid request, NYSDEC’s failure to act

within a reasonable period of time still results in a waiver. USACE regulations

provide that “an application is complete when sufficient information is received to

issue a public notice.” 33 C.F.R. § 325.1(d)(10). Here, USACE issued its public

notice regarding Constitution’s Joint Application to NYSDEC and USACE on

March 4, 2014, indicating that Constitution’s application was complete. JA474-

JA485. In its public notice, similar to the one at issue in AES Sparrows, USACE

noted that “the applicant will obtain a water quality certificate or waiver from the

appropriate state agency” prior to a permit decision. USACE Public Notice at 2-3,

JA475-JA476. USACE’s public notice explicitly noted that Constitution’s proposed

work “is also being coordinated with” NYSDEC. Id. at 3, JA476. Thus, by March

4, 2014, Constitution had provided sufficient information in its Joint Application to

enable USACE to proceed with its review of the Interstate Project, which contradicts

NYSDEC’s claim that USACE never determined whether Constitution had

submitted a valid request. NYSDEC cannot point to anything in the record where


11

USACE determined that the circumstances required a “period of time longer than

sixty days.” 33 C.F.R. § 325.2(b)(1)(ii).4

NYSDEC’s reliance on Alcoa Power Generating, Inc. v. FERC, 643 F.3d 963

(D.C. Cir. 2011) is misplaced because that decision involved FERC’s interpretation

of its Section 401 regulations under the Federal Power Act, which are limited in

scope to hydroelectric license applications.5 Here, however, where NYSDEC’s

Denial is subject to the judicial review provisions of the NGA, the waiver issue is

properly before this Court. 15 U.S.C. §717r(d)(1); AES Sparrows, 589 F.3d at 729.

4 This regulation provides that the waiver period commences upon receipt of “a

valid request for certification.” In promulgating this regulation, USACE stated “we believe that the state has the responsibility to determine if it has received a valid request.” 51 Fed. Reg. 41,206, 41,211 (Nov. 13, 1986). Although the Fourth Circuit in AES Sparrows stated USACE’s comment is not owed deference, requests for Section 401 Certifications are submitted to states, not USACE, making USACE’s comment consistent with CWA Section 401(a) because USACE “will verify” (i.e. confirm with the state) that it has received a valid request.

5 18 C.F.R. Part 4; 52 Fed. Reg. 5446-01 (Feb. 23, 1987). For this reason, STP’s argument that FERC’s Section 401 regulations apply are unavailing. STP’s alternative argument that FERC must determine waiver in the first instance is equally unavailing, since it is Constitution’s application for a Section 404 permit from USACE that triggers the need for a Section 401 certification, not Constitution’s application for a Certificate from FERC, since the Certificate is not a license or a permit that authorizes activity that could result in a discharge into the navigable waters of the United States. See 33 U.S.C. § 1341(a)(1).


12

Finally, Respondents’ reliance on Weaver’s Cove Energy, LLC v. R.I. Dep’t

of Envtl. Mgmt., 524 F.3d 1330 (D.C. Cir. 2008) is misplaced because neither of the

state agencies performing Section 401 certification reviews at issue in that case had

made a final decision. Id. at 1333. As a result, the D.C. Circuit ruled that Weaver’s

Cove did not have standing to challenge agency inaction because it “does not claim

to have been injured by it.” Id. (emphasis added). The court noted that “an agency’s

delay in processing an application may constitute a legally cognizable injury,” but

in Weaver’s Cove’s circumstance, a declaration that the states had waived their

Section 401 certification rights “would not alter the Army Corps’ timetable for

acting upon [Weaver’s Cove’s] application for a § 404 permit.” Id. at 1333-34.

Here, the opposite is true. USACE’s April 20, 2016 letter to Constitution, issued

two days before NYSDEC’s Denial, noted that the lack of a Section 401 Certification

from NYSDEC was delaying its review,6 and USACE’s later issued provisional

denial expressly states that USACE cannot proceed with its review absent a Section

401 Certification or determination of waiver.7

6 Letter from Stephan A. Ryba (USACE) to Timothy Powell (Constitution)

(Apr. 20, 2016), JA2847-JA2848.

7 Letter from Stephan A. Ryba (USACE) to Lynda Schubring (Constitution) (May 11, 2016), JA2863-JA2864.


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Nevertheless, NYSDEC, STP, and Catskill cite to Weaver’s Cove contending

that the only avenue to challenge a potential waiver of a Section 401 certification is

to argue to USACE that the Denial is void, and if USACE disagrees, challenge its

decision in court. But as the Fourth Circuit’s decision in AES Sparrows illustrates,

USACE is not the only avenue through which waiver may be determined. Here,

where Constitution is harmed by NYSDEC’s unreasonable delay in acting upon

Constitution’s valid request for Section 401 Certification, Constitution has standing.

See Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458,

467 (1st Cir. 2009) (“Because [Rhode Island’s] regulatory requirements do affect

Weaver’s Cove’s ultimate ability to receive federal approval, we conclude that

Weaver’s Cove has standing.”).8

8 For this same reason, STP’s contention that Constitution’s waiver claim is

moot lacks merit. Weaver’s Cove, 589 F.3d at 468 (case not rendered moot). Additionally, STP’s citation to Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) is inapposite because the relevant claim in Norton arose from the agency’s failure to implement certain provisions in its land use plans and became moot when the agency completed those actions. Id. at 61, 67-68. Constitution does not argue that NYSDEC must act on its application – they have already acted by denying it – but instead asserts that NYSDEC’s Denial is untimely and therefore NYSDEC waived the Section 401 certification requirements.


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POINT II

NYSDEC’S MISCHARACTERIZATIONS OF THE RECORD ILLUSTRATE THE ARBITRARY AND CAPRICIOUS NATURE OF ITS

DENIAL

NYSDEC concedes that it prepared a draft permit that would have authorized

Constitution to submit, post-permit issuance, additional geotechnical analyses to

confirm the feasibility of trenchless crossings at designated waterbodies.

Respondents’ Brief at 70 n.15. Yet, NYSDEC persists in arguing that its “repeated

requests” for additional information afforded Constitution repeated opportunities to

supplement its application. NYSDEC, however, cannot point to a single document

after August 2015 (following NYSDEC’s preparation of the draft permit) where it

requested additional information regarding the four bases for its Denial: stream-

crossing methods, depth of pipeline burial under waterbodies, blasting in or near

waterbodies, or wetland-crossing methods.

NYSDEC states that there are “at least 188 entries” in the record reflecting

ongoing communications between July 2015 and April 2016, but it neglects to

mention that the referenced correspondence involved a third-party monitoring plan,

a document required by FERC in its Certificate, which does not relate to

NYSDEC’s Denial. Certificate ¶ 86, JA1693. In the referenced correspondence,

NYSDEC noted it would concur with the third-party monitoring plan as long as

Constitution incorporated certain communication procedures, which Constitution


15

did.9 NYSDEC does not and cannot cite to any requests or correspondence about

the issues raised in the Denial, because none exist.

NYSDEC also cites to a draft permit it circulated to USACE on July 20, 2015.

Respondents’ Brief at 70 n.15. Constitution has never seen this draft permit, or the

transmittal to USACE. NYSDEC failed to include this draft permit in the record

submitted to the Court on June 24, 2016 despite its certification to the Court that the

Administrative Record submitted “represents the entire record.” ECF No. 49,

Certification of Administrative Record (June 24, 2016). Constitution supports the

inclusion of the draft permit in the record. However, NYSDEC’s failure to include

this important document highlights the post-July 2015 nine-month gap in

NYSDEC’s record leading up to the Denial, and raises doubts as to whether there

are other documents NYSDEC chose not to include in the record.

The date of the draft permit cited by NYSDEC aligns with NYSDEC’s

statements to Constitution in July and August 2015 that it was prepared to issue a

9 Letter from Stephen Tomasik (NYSDEC) to Lynda Schubring (Constitution)

(Feb. 23, 2016), JA2805-JA2806; Letter from Lynda Schubring (Constitution) to Stephen Tomasik (NYSDEC) (Mar. 28, 2016), JA2837-JA2838.


16

permit and that it did not need additional information.10 NYSDEC contends that this

draft permit was “very preliminary” and that its existence “confirms [NYSDEC’s]

good faith in considering the possibility of issuing a Section 401 Certification subject

to substantial conditions.” NYSDEC glosses over the fact that the parties had

negotiated a draft permit condition regarding trenchless crossings which required

additional geotechnical analysis after the issuance of the Section 401 Certification

to confirm feasibility. Draft Permit Conditions (June 16, 2015), JA2146-JA2147;

Responsiveness Summary at 12-13, 45-46 (June 2, 2015), JA2132-JA2133, JA2136-

JA2137. Further, NYSDEC fails to point to any document in the record where it

ever informed Constitution that it was reconsidering issuing the conditioned Section

401 Certification or that it expected to see this geotechnical information in advance

of permit issuance, nor can it point to any document in the record post-July 2015 in

which NYSDEC requested that Constitution provide additional information

10 See generally Declaration of Lynda Schubring, ADD17-19; Declaration of

Pamela S. Goodwin, ADD20-21; and Declaration of Keith Silliman, ADD43-49 (collectively, the “Declarations”). NYSDEC has not rebutted the Declarations submitted in conjunction with Constitution’s opening brief.


17

regarding any of the bases for its Denial.11 These mischaracterizations undermine

NYSDEC’s claim that it was “transparent” and that it “afforded Constitution

repeated opportunities to supplement and explain its application.” What the record

shows is that after advising Constitution that the permit was in final form awaiting

authorization from the Governor’s office, NYSDEC shut down communications

with Constitution.12

The record further shows that in the Spring of 2015, NYSDEC asked

Constitution to prepare an initial draft Responsiveness Summary, which, among

other things, addressed public comments related to waterbody and wetland crossing

methods, pipeline burial depth, and in-stream blasting. In its revised draft, NYSDEC

proposed “minor changes” to some of the “sub-headings” used in the

Responsiveness Summary,13 but it did not raise any substantive concerns with

Constitution’s in-depth responses regarding pipeline depth and potential blasting,

11 NYSDEC contends that it is “unclear” whether site-specific information on

pipe depth is in Constitution’s application. The site-specific depth of pipe beneath waterbodies is clearly depicted in the Waterbody/Wetland Feature-Specific Support Documentation Submitted to NYSDEC in 2014. See NYSDEC Record, ECF No. 59 (submitted via USB drive), Folder: 002 NYS PERMITS\002 APPLICATION SUBMITTALS\01 Tech Reports, Maps, Figures\2014 NYS SUBMITTALS 01\2014-0813 APP BY CROSSING.

12 See Declaration of Keith Silliman, at ¶¶ 21-26, ADD47-48.

13 Email from Stephen Tomasik (NYSDEC) to Keith Silliman (Constitution) (Aug. 26, 2015), JA2244.


18

nor did NYSDEC comment on Constitution’s responses that noted that NYSDEC

was prepared to issue a permit conditioned on the subsequent submission of

additional geotechnical analysis.14 In fact, when a Constitution representative

(twice) followed up with NYSDEC asking whether the draft watermarks could be

removed from the Responsiveness Summary, Mr. Tomasik responded that he

“cannot answer your questions at this time.” Email from Stephen Tomasik

(NYSDEC) to Tracy Darougar (Constitution) (Sept. 4, 2015), JA2245-JA2247.

NYSDEC’s reliance now on an argument that it was waiting to see

geotechnical information about stream crossings in order to issue the Section 401

Certification, when the record shows that Constitution was relying on a certification

condition that required submission of that information post-Section 401 Certification

issuance, and that NYSDEC never requested that information prior to the Denial,

illustrates NYSDEC’s arbitrary and capricious “bait and switch” approach, which

constitutes an abuse of discretion.

A. NYSDEC’s Inaccurate Statements About FERC’s Findings

The “repeated requests” for geotechnical or trenchless feasibility information

cited by NYSDEC in its brief were not even directed to Constitution; instead, the

14 Responsiveness Summary at 12-13 and 45-47 (discussing conditioned permit

requiring subsequent geotechnical investigation), 18-19 (pipeline burial depth), and 79-81 (blasting), JA2132-JA2133, JA2136-JA2138, JA2134-JA2135, JA2139-JA2141.


19

record shows that they were directed to FERC. See Respondents’ Brief at 58-59

(citing to NYSDEC’s comments to FERC).15

NYSDEC argues that FERC “did not comment upon or endorse”

Constitution’s proposed crossing methods, including Constitution’s position that

trenchless crossing methods were not practical for crossings of less than 30 feet, and

so it was up to NYSDEC to determine the number of trenchless crossings. NYSDEC

is wrong. FERC specifically requested that Constitution evaluate stream crossing

methods, and FERC explicitly concurred with Constitution’s analysis. See FERC

quote on pages 3-4, supra.16

NYSDEC mischaracterizes FERC’s discussion by arguing that FERC “noted

that ‘[u]se of trenchless crossing methods to cross waterbodies’ would ‘avoid or

15 NYSDEC fails to cite any written document from NYSDEC to Constitution

where it requested that trenchless methods be considered for all stream crossings. NYSDEC points to its Denial at pages 9 to 11, but notably, every reference in those pages (aside from references to NYSDEC’s comments to FERC) relate to verbal statements that NYSDEC claims it made at meetings and conference calls with Constitution, not any written document. Despite reliance on its own verbal communications, NYSDEC attempts to strike Constitution’s sworn Declarations about the verbal exchanges between the parties. See ECF No. 66. Further, NYSDEC fails to note that its own regulations require any request for additional information to be in writing, “must be explicit,” and “must indicate the reasonable date by which the Department is to receive the information.” 6 NYCRR § 621.14(b).

16 FERC also determined that impacts from dry crossings “would be temporary” as “macroinvertebrate species rapidly recolonize impacted areas (Matthaei et al. 1996, McCabe and Gotelli 2000).” FEIS at 4-95, JA1268.


20

adequately minimize impacts on surface water resources.’” Respondents’ Brief at

13. However, FERC recognized that trenchless crossings are not a panacea because

they are not appropriate for all crossings, result in more surface clearing to

accommodate the necessary staging equipment, are dependent on geology, and can

fail resulting in drilling fluid discharges.17

Because each HDD would generally require approximately 2.5 acres of workspace in order to complete the technique, it is rarely used to cross minor waterbodies, as dry crossings can often be implemented with less long-term impacts from staging workspaces. Additionally, shorter HDDs must be located closer to the ground surface (and resource) which may increase the risk of inadvertent releases of drilling fluid.

FEIS at 4-50, JA1223 (emphasis added).

Further, FERC stated that “in the event that Constitution proposes to modify

its crossing methods, it would be required to seek” FERC’s approval. FEIS,

Appendix S at S-40, JA1638 (emphasis added).18 This contradicts NYSDEC’s claim

17 FEIS at 2-24, 4-56 through 4-57, and 4-96 through 4-97, JA1083, JA1229-

JA1230, JA1269-JA1270.

18 With respect to Alternative M, NYSDEC claims that it “did not require that the pipeline be rerouted” and that its Denial statements were simply expressing “dissatisfaction” with Constitution not developing the Alternative M proposal further. See discussion on page 2, supra. NYSDEC now argues that it “was not compelled to seek rehearing before FERC, even if it disagreed with some of FERC’s conclusions,” which reveals its goal to function as a shadow FERC. Respondents’ Brief at 48.


21

that it was authorized to conduct an independent review of FERC’s conclusions

regarding what waterbodies are to be crossed via trenchless methods.

B. NYSDEC’s Inaccurate Statements About USACE

NYSDEC’s attempt to mischaracterize the record by arguing that even in

February 2016 USACE was still requesting additional information regarding stream

crossings should be rejected. Respondents’ Brief at 67. NYSDEC inaccurately

claims that USACE sent Constitution a list of 17 waterbody crossings for which

Constitution needed to provide final plans in advance of a final permit decision.

However, the document NYSDEC cites to consists of draft permit conditions

proposed by USACE, not to pre-permit information demands. Draft Conditions to

Evaluate (Feb. 23, 2016), JA2807-JA2808. These draft conditions reflect the

framework, similar to that discussed with NYSDEC in the summer of 2015, where

Constitution would submit final stream crossing plans post-permit issuance

following additional geotechnical work.

NYSDEC argues that Constitution submitted plans to USACE for a “new”

proposal to construct a travel lane and “numerous temporary bridges to allow its


22

construction vehicles to access the [right-of-way].”19 NYSDEC cites to March 2016

correspondence between USACE and Constitution regarding certain plans for

temporary waterbody crossings related to access roads that had not yet been

submitted to USACE. Letter from Stephan Ryba (USACE) to Timothy Powell

(Constitution) (Mar. 21, 2016), JA2830-JA2836. However, USACE’s request

regarding access roads related to only three stream crossings in Pennsylvania.20

Further, USACE informed NYSDEC that its concern regarding access road

waterbody crossings was a “[moot]-point” because “only existing culverts are to be

used in NY for stream crossings.”21

NYSDEC also fails to respond to the fact that it proposed a permit condition

setting restrictions on the use of temporary stream crossings, which Constitution

19 NYSDEC’s hyperbolic reference to “a 100-mile ‘travel lane’” relates to

Constitution’s commitment to use free span temporary equipment bridges, when necessary, along the pipeline right-of-way. This commitment, which would eliminate waterbody encroachments, has been part of Constitution’s application since March 2015. Joint Application Supplemental Information at 3-36 (Mar. 2015), JA2063.

20 Email from Kevin Bruce (USACE) to Stephen Tomasik (NYSDEC) (Mar. 29, 2016), JA2829; Email from Kevin Bruce (USACE) to Stephen Tomasik (NYSDEC) (Mar. 31, 2016) (forwarding Constitution’s responses to USACE questions), JA2816-JA2825.

21 Id. (JA2829, JA2822.)


23

accepted.22 Thus, NYSDEC’s contention that the submission to USACE related to

the proposed construction of “a 100-mile ‘travel lane’” and “would have necessitated

additional review time” is factually wrong and reflects yet another instance where

the parties negotiated a permit condition that NYSDEC now ignores.

C. NYSDEC’s Untrue Statements About Constitution’s Wetlands Analysis

With respect to wetlands, the only document NYSDEC cites is a

memorandum from Constitution regarding the Canadarago Lake mitigation site,

where Constitution noted NYSDEC’s request for a full delineation at the property.23

The Canadargo Lake mitigation site will not be crossed by the Interstate Project.

However, not only did Constitution submit wetland delineation reports for every

single wetland along the Interstate Project,24 Constitution also conducted a full

delineation of wetlands on the Canadarago Lake mitigation site and submitted it to

NYSDEC in September 2015. Canadarago Lake Mitigation Site Plan, JA2467-

22 Email from Chris Hogan (NYSDEC) to Keith Silliman (Constitution) (July

29, 2015), JA2242; Email from Keith Silliman to Chris Hogan (July 30, 2015), JA2243 (“the temporary bridging conditions are fine”).

23 Memorandum from Lynda Schubring (Constitution) to Stephen Tomasik (NYSDEC) at 3 (June 16, 2015), JA2144.

24 Joint Permit Application, Attachment H (consisting of over 850 pages of wetland delineation reports); see also Joint Permit Application, Attachment E (consisting of 675 pages of waterbody and wetland crossing site specific drawings).


24

JA2492. NYSDEC does not dispute that it never commented on this submission.

Rather, it resorts to an incorrect post hoc rationalization for its Denial by citing to a

document that has nothing to do with wetlands to be crossed by the Interstate Project.

POINT III

NYSDEC IMPERMISSIBLY EXCEEDED THE SCOPE OF SECTION 401 IN DENYING THE CERTIFICATION

Rather than accepting that its jurisdiction is narrowly circumscribed within

the confines of Section 401, NYSDEC seeks to have this Court rewrite the NGA and

its interplay with the CWA by arguing that it is free to consider any standard, no

matter how tangential to water quality, as the basis for its Denial. NYSDEC’s self-

created expansion of its jurisdiction allows NYSDEC to act like a shadow FERC by

basing water quality certifications on a broad range of state regulations and laws that

go well beyond any federally-approved water quality standards. NYSDEC wants

this Court to bless its self-created scope of review, arbitrarily allowing it to reassess

FERC’s assessment of routing alternatives, cumulative impacts, burial depth, and

blasting – all classic FERC matters. Indeed, these issues were all properly addressed

by FERC through a comprehensive NGA and NEPA-mandated environmental

review process (in which NYSDEC participated) which culminated in a 450-page

FEIS and the Certificate approving the Interstate Project.

Both NYSDEC and Intervenors mischaracterize Constitution’s argument that

NYSDEC has limited jurisdiction under CWA Section 401 in the context of NGA


25

approvals, and attempt to cast it as a rejection of NYSDEC’s CWA jurisdiction.

Respondents’ Brief at 45-46; Catskill Brief at 26-28. On the contrary, the NGA

preserved NYSDEC’s jurisdiction to evaluate the Interstate Project pursuant to

CWA Section 401, provided, however, that its review was within the confines of

New York’s EPA-approved water quality standards. 33 U.S.C. § 1341(a)(1); 15

U.S.C. § 717b(d); Niagara Mohawk Power Corp. v. State Dep’t of Envtl.

Conservation, 82 N.Y.2d 191 (N.Y. 1993), cert denied, 511 U.S. 1141 (1994).

NYSDEC exceeded this narrowly circumscribed jurisdiction here.

NYSDEC’s position that its jurisdiction encompasses more than just its EPA-

approved water quality standards contradicts the New York Court of Appeals

decision in Niagara Mohawk which explicitly rejected NYSDEC’s attempt to apply

standards under the New York Environmental Conservation Law (“ECL”) to the

issuance of a Section 401 Certification.25 Niagara Mohawk, 82 N.Y.2d at 195-96;

compare Respondents’ Brief at 49 (arguing that it can apply Articles 15 and 24 of

the ECL to the Interstate Project).

25 NYSDEC argued in Niagara Mohawk that it had authority to apply standards

regarding the State Environmental Quality Review Act (“SEQRA”) (Article 8); fish and wildlife (Article 11); disturbance of stream beds, dam construction, excavation or fill, dam safety, and reservoir release (Article 15); and freshwater wetlands (Article 24). New York’s current EPA-approved water quality standards are limited to 6 NYCRR Parts 700-706, SPA101-278 (https://www.epa.gov/wqs-tech/water-qualitystandards-regulations-new-york).


26

In Niagara Mohawk, the New York Court of Appeals held that NYSDEC had

a “limited role of review, based on requirements affecting water quality, not on all

State water quality provisions.” Id. at 196 (emphasis added). The New York Court

of Appeals also distinguished between the review of a Section 401 certification

application under 401(a)(1), at issue here, and the conditioning of a Section 401

certification under CWA Section 401(d) based on “any other appropriate

requirement of State law,” and held that NYSDEC could not apply its conditioning

authority, which was also limited to EPA-approved water quality standards, to the

review process for a Section 401 certification. Id. at 199-200; 33 U.S.C. § 1341(d).

NYSDEC glosses over this important distinction in a footnote (Respondents’ Brief

at 50), ignoring the very problem recognized by the New York Court of Appeals,

namely, that granting NYSDEC broad authority would allow it to usurp federal

power by requiring an applicant to “supply information only indirectly related to

water quality.” Niagara Mohawk, 82 N.Y.2d at 198, 200; see also Niagara Mohawk

Power Corp. v. New York State Dep’t of Envtl. Conservation, 187 A.D.2d 7, 11 (N.Y.

App. Div. 3d Dep’t 1993) (“[T]o allow [standards not approved by EPA] to serve as

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

undermine the intent of Congress.”).

NYSDEC takes the position that its Section 401 jurisdiction is bounded only

by the agency’s ability to find some connection, no matter how tangential, between


27

an activity and any nebulous, open-ended standard in its water-related regulations.

Consequently, NYSDEC does not even attempt to link the Denial as it relates to

alternatives, cumulative impacts, burial depth, or blasting to New York’s EPA-

approved water quality standards, because no such basis exists.26

Rather, in an attempt to distinguish Niagara Mohawk, NYSDEC incorrectly

claims that the decision in PUD No. 1 v. Wash. Dep’t of Ecology, 511 U.S. 700

(1994) effectively overruled Niagara Mohawk. Respondents’ Brief at 50; Catskill

Brief at 47; STP Brief at 32-34. This contention is incorrect.

In PUD, the State of Washington issued a conditional Section 401

certification, unlike here, where NYSDEC denied the Section 401 Certification. The

question before the Supreme Court in PUD was whether the State had the authority

to condition the Section 401 certification to require minimum stream flows through

the dam during its operation as opposed to using minimum stream flows as a basis

to deny an application. PUD, 511 U.S. at 709-10. The Supreme Court also

determined that the condition was based on the State’s EPA-approved standards, id.

at 712-13, a determination which directly refutes NYSDEC’s broad interpretation of

the Court’s holding regarding “other appropriate requirement[s].”

26 Intervenors’ improper post hoc rationalizations and attempts to tie the Denial

to EPA-approved water quality standards are noticeably absent from the Denial and patently insufficient to save it. Catskill Brief at 40-48; STP Brief at 30-32.


28

Furthermore, the Supreme Court explicitly refrained from interpreting the

scope of CWA Section 401(d)’s provision of “any other appropriate requirement of

State law,” stating that “[w]e do not speculate on what additional state law, if any,

might be incorporated into this language.” Id. at 713. The New York Court of

Appeals did address this question in Niagara Mohawk, however, holding that

NYSDEC could not apply non-EPA-approved standards to impose onerous

conditions on the review of a project. Niagara Mohawk, 82 N.Y.2d at 199.

Accordingly, to the extent this Court holds that PUD applies here, that case actually

preserves the limitations on NYSDEC’s CWA Section 401 jurisdiction established

in Niagara Mohawk.

NYSDEC has not cited a single post-PUD case that supports its expansive

view of a state’s Section 401 jurisdiction to review and deny a Section 401

certification. See Matter of E. Niagara Project Power All. v. N.Y. State Dep’t of

Envtl. Conservation, 42 A.D.3d 857, 860 (N.Y. App. Div. 3d Dep’t 2007) (finding

that NYSDEC had properly declined to consider issues pertaining to an ice boom

and shoreline erosion; expressly confirming that NYSDEC could not consider

“environmental interests beyond the limited bounds of water quality standards[;]”

also recognizing the holding in S.D. Warren Co. v. Maine Bd. Of Envtl. Protection,


29

547 U.S. 370, 383 (2006), but noting that it “did not expand the scope of state review

beyond issues impacting water quality”).27

Furthermore, any reliance on Islander East is misplaced. This Court

recognized that “the [CWA] reflects Congress’s intent that state environmental

agencies consider the factors enumerated in a state’s federally-approved water

quality standards.”). Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 151

n.10 (2d Cir. 2008).

Other arguments made by NYSDEC and Intervenors to avoid the ruling in

Niagara Mohawk also fail. STP argues that Niagara Mohawk is limited in its

application to cases under the Federal Power Act and mischaracterizes it as a

decision based on preemption. STP Brief at 28-29. CWA Section 401 jurisdiction,

not preemption, was squarely at issue in Niagara Mohawk, as it is at issue here. The

New York Court of Appeals concluded that limiting the scope of NYSDEC’s review

to EPA-approved water quality standards best reflected Congress’s vision “that the

States’ role would be fulfilled through the water quality standards adopted in

27 Furthermore, S.D. Warren concerned only whether a Section 401 Certification

was required for the project, not the state’s scope of review. See also Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991); Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141 (2d Cir. 2008).


30

harmony with and under the Clean Water Act § 303.” Niagara Mohawk, 187 A.D.2d

at 201.28

NYSDEC and Intervenors also cite the New York Appellate Division’s

decision in a New York Article 78 case to imply that ECL Articles 15 and 17 are

approved water quality standards. Respondents’ Brief at 55; Catskill Brief at 47;

Matter of Chasm Hydro, Inc. v. N.Y. State Dep’t of Envtl. Conservation, 58 A.D.3d

1100 (N.Y. App. Div. 3d Dep’t 2009) (referring to ECL Articles 15 and 17 as being

incorporated into the conditions of a Section 401 certification for a dam). NYSDEC,

however, overlooks that this was another case where a Section 401 certification was

issued with conditions to “abide by applicable law,” that the applicant had obtained

an ECL Article 15 permit and that the judicial challenge was not to the conditions

but rather to NYSDEC’s enforcement authority. See Matter of Chasm Hydro, Inc.

v. N.Y. State Dep’t of Envtl. Conservation, 14 N.Y.3d 27, 31-32 (N.Y. 2010).

NYSDEC argues that “FERC’s Orders and FEIS . . . recognized and preserved

NYSDEC’s authority to ensure that the Project complied with state water quality

28 STP states that Niagara Mohawk is inapplicable here because it involved a

hydroelectric project, and yet argues that the Court should apply PUD, a case that also involved a hydroelectric project. STP also incorrectly argues that NYSDEC must comply with New York procedural laws including SEQRA. STP Brief at 29. The application of SEQRA is not at issue in this case. See also Nat’l Fuel Gas Supply Corp. v. Pub. Serv. Comm’n, 894 F.2d 571 (2nd Cir. 1990).


31

standards.” Respondents’ Brief at 47-48. NYSDEC’s attempt to cobble together

statements in the FEIS and the Certificate to find an endorsement by FERC for the

application of standards that are not EPA-approved water quality standards is futile

because no such statement exists. FERC recognized, and Constitution does not

dispute, that NYSDEC has jurisdiction under CWA Section 401 to review the

Interstate Project. However, nowhere in the FEIS, the Certificate, or its order

denying rehearing does FERC authorize or acquiesce to the application of state

standards in NYSDEC’s Section 401 Certification review that are not EPA-approved

water quality standards. FERC required only that “[p]rior to receiving written

authorization from the Director of OEP to commence construction of their respective

project facilities, [Constitution] shall file documentation that [it] ha[s] received all

applicable authorizations required under federal law (or evidence of waiver

thereof).” Certificate, Environmental Condition 8, JA1717 (emphasis added).

Accordingly, NYSDEC’s references to the FEIS and orders from FERC do not save

the Denial from being a collateral attack on FERC’s decision.29

29 Intervenors’ example concerning the issuance of a biological opinion by the

United States Fish and Wildlife Service (“USFWS”) is inapposite. Catskill Brief at 31-32. USFWS’s biological opinion pursuant to the Endangered Species Act is a “federal authorization” under the NGA. 18 C.F.R. § 157.22. The scope of the USFWS’s jurisdiction under the Endangered Species Act is irrelevant to this proceeding.


32

CONCLUSION

Constitution respectfully requests that the Court: (1) grant the Petition for

Review; (2) vacate the Denial; and (3) remand to NYSDEC with instructions that

NYSDEC must either (a) notify USACE within 5 days that it has waived the Section

401 Certification requirements, or (b) otherwise act within five days on

Constitution’s application for the Section 401 Certification by issuing a Section 401

Certification consistent with the Certification prepared and ready for final signature

in July/August 2015, if the Court determines that waiver has not occurred.

Respectfully submitted this 17th day of October, 2016.

By: /s/ John F. Stoviak

Yvonne E. Hennessey, Esq. BARCLAY DAMON, LLP 80 State Street Albany, New York 12207 T: (518) 429-4293 F: (518) 427-3472 [email protected]

John F. Stoviak, Esq. Elizabeth U. Witmer, Esq. SAUL EWING LLP 1500 Market Street, 38th Floor Philadelphia, PA 19102 T: (215) 972-1095 F: (215) 972-1921 [email protected] [email protected]

Counsel for Petitioner Constitution Pipeline Company, LLC


CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 6,979 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been

prepared in a proportionally spaced typeface in 14-point Times New Roman font.

Dated: October 17, 2016 /s/ John F. Stoviak John F. Stoviak, Esq.

SAUL EWING LLP 1500 Market Street, 38th Floor Philadelphia, PA 19102 T: (215) 972-1095 F: (215) 972-1921 [email protected]

Counsel for Petitioner Constitution Pipeline Company, LLC


CERTIFICATE OF FILING AND SERVICE

I, Robyn Cocho, hereby certify pursuant to Fed. R. App. P. 25(d) that, on

October 17, 2016 the foregoing Final Reply Brief for Petitioner was filed through

the CM/ECF system and served electronically on all parties in the case:

Frederick A. Brodie, Esq. Brian Lusignan, Assistant Attorney General New York State Office of the Attorney General Division of Appeals & Opinions The Capitol Albany, NY 12224 Anne Marie Garti, Esq. P.O. Box 15 Bronx, NY 10471 Todd D. Ommen, Esq. Pace University School of Law Pace Environmental Law Clinic 78 North Broadway White Plains, NY 10603

Moneen Susan Nasmith, Esq. Staff Attorney Christine Ernst, Esq. Deborah Goldberg, Esq. Earthjustice 48 Wall Street New York, NY 10005 Kimberly Wan Peng Ong, Esq. Natural Resources Defense Council 40 West 20th Street New York, NY 10011 Ryan C. Morris, Esq. Tobias Samuel Loss-Eaton, Esq. Sidley Austin LLP 1501 K Street, NW Washington, DC 20005 James Bryan Bacon, Esq. James Bacon, Esq. P.O. Box 575 New Paltz, NY 12561

/s/ Robyn Cocho Robyn Cocho


reply brief: constitution pipeline v new york state dec

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