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Millennium Pipeline Heads Back to FERC to Bypass New York

Millennium Pipeline Co. LLC has asked FERC for notice to proceed with construction activities on the Valley Lateral Project in New York, arguing that the state has waived its right to issue a Section 401 Water Quality Certification after 19 months of review.

Last week's filing could serve as a test for how the Federal Energy Regulatory Commission handles similar disputes between the New York State Department of Environmental Conservation (DEC) and other pipeline project sponsors. Millennium filed the water quality application in November 2015. The company argued in its filing that the DEC has not acted within the statutory timeframe and waived the certification under the U.S. Clean Water Act.

Millennium’s filing said it had "made every effort to work" with DEC to receive the water quality certification. "Millennium knows of no additional information that is needed by the DEC; nor is Millennium aware of any DEC concerns that have not been addressed," the company said in its filing. "But, despite the limited size of the project and Millennium's considerable mitigation efforts, the DEC failed to act on Millennium's application."

The project calls for constructing a 16-inch diameter natural gas pipeline in Orange County, NY, to serve a gas-fired power plant. The pipe would run nearly eight miles from Millennium's existing mainline to Competitive Power Ventures’ Valley Energy Center under construction in Wawayanda.

The company filed a petition for review of the permitting process earlier this year in the U.S. Court of Appeals for the District of Columbia Circuit. The court declined a request by Millennium to compel state regulators to expedite the certification, suggesting the pipeline could bypass the agency and go directly to FERC, which already has approved the project.

The company's latest filing has even more import as others have made similar arguments before the Commission and continue to battle DEC in court. DEC denied National Fuel Gas Co. subsidiaries a water quality certification and other permits for the Northern Access expansion project earlier this year. The agency also denied a water quality certification for the Constitution Pipeline last year. Both are challenging the DEC's decisions in the U.S. Court of Appeals for the Second Circuit.

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