FERC “assumed [a] fact that was inaccurate” when it ruled in April that because Washington State environmental regulators had failed to act within the allotted statutory time frame on Georgia Strait Crossing Pipeline Co. LP’s application seeking consistency under the Coastal Zone Management Act (CZMA), the state agency had waived certification under the act and consistency was presumed.

Ironically, Georgia Strait — the party which was favored by the FERC ruling — is the one seeking clarification or rehearing of the late April order [CP03-350]. The Federal Energy Regulatory Commission based its decision on the belief that the Washington Department of Ecology did not timely process the proposed Pacific Northwest natural gas pipeline’s CZMA application, despite Georgia Strait giving the agency two deadline extensions.

The April order specifically noted that “the last [second] extension deadline, March 1, 2004, has expired. Nothing in the record indicates that [Georgia Strait] and Ecology agreed to a third extension. Accordingly, Ecology’s concurrence with [the company’s] CZMA certification must be conclusively presumed.”

But Georgia Strait, in its clarification bid, pointed out that there was a third extension. After being notified by the Department of Ecology on March 1 that its pending CZMA application would be denied unless it agreed to another extension, Georgia Strait said it “reluctantly agreed to a third extension in an effort to maintain the status quo while the Commission completed its review of [Georgia Strait’s] petition and in the spirit of working cooperatively with Ecology.” The third extension expires on May 28, it said.

Despite this third extension, Georgia Strait argues that there is “adequate basis” for FERC to reach the “same result” — that the Department of Ecology had failed to act in a timely manner and, thus, had waived certification under CZMA.

The law required Washington State to rule on the CZMA certification for the proposed Georgia Strait project within six months of receiving the applicant’s application on May 2, 2001. That meant the Washington agency should have responded by Nov. 2, 2001, the pipeline company said. But the state didn’t even issue a public notice of the application until July 18, 2002.

Also, Georgia Strait said Washington State waited until Jan. 14, 2003 to inform it that its CZMA application was deficient. The state is required to notify an applicant that an application is deficient within 30 days of it being filed, according to the pipeline company.

With respect to the three deadline extensions, Georgia Strait stressed that it entered into the agreements with the “specific recognition that [it] was not waiving any of its legal rights to assert that because of the lapse of time, CZMA consistency should be presumed.”

Georgia Strait is seeking clarification on two issues. “Was CZMA consistency conclusively presumed in early November 2001, six months after [the company] had submitted its application for a CZMA consistency determination, given that Ecology failed to notify” both Georgia Strait and FERC within 30 days of a deficiency in the company’s application, and given that Georgia Strait and Washington State had not agreed to an extension within six months of the CZMA application being filed?

Secondly, since the “first extension was entered into more than six months after [Georgia Strait] submitted its CZMA application to Ecology, were any of the extensions valid?” the pipeline company asked.

Even if the extensions that were agreed to by Georgia Strait “can be viewed as legitimately breathing continued life into [its] initial CZMA application, because of the specific reservation of legal rights that were memorialized in each extension, they should not be viewed as a waiver of [Georgia Strait’s] right to assert its position that the federal mandated requirements for timely processing of the CZMA application have not been met.” it told FERC.

Georgia Strait is not seeking rehearing of FERC’s ruling on the Clean Water Act (CWA) certification for the pipeline project, which the agency said also was waived by Washington State due to its failure to process it timely.

Georgia Strait sought CWA certification on July 12, 2001, and it expected the Department of Ecology to act within one year of that date. The Department of Ecology, however, had argued the U.S. Corps of Engineers did not issue a public notice of Georgia Strait’s request for CWA certification until July 18, 2002, and that it denied the company’s request for CWA certification on July 16, 2003, satisfying the one-year statutory deadline.

But FERC concurred with Georgia Strait that the one-year period began when the Department of Ecology received its application for CWA certification. “The clear and unambiguous language in section 401 [of the CWA]…required Ecology to act within one year of receiving [Georgia Strait’s] request…Ecology did not act on [the] request until July 16, 2003, well past the statutory one-year deadline. Accordingly, under the terms of the statute, Ecology waived section 401 [CWA] certification,” the Commission’s April order said.

Georgia Strait Crossing project was designed as an 84-mile pipeline that would deliver natural gas from Sumas, WA, across the Strait of Georgia to serve new generation capacity on Vancouver Island in British Columbia. Both the U.S. and Canadian legs of the project have been approved by regulators. But it has been put on hold until fall while the British Columbia Utilities Commission (BCUC) decides whether to permit a power generation plant (and, if so, which one) to be served by the proposed line on Vancouver Island, said Bev Chipman, a spokeswoman for Williams, a project sponsor.

If the BCUC should decide against a power generation facility, “then there would be no need for the pipeline,” she said. The $210 million pipeline project initially was targeted for in service in October 2005.

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