Because Washington State’s environmental regulators did not act within the allotted statutory time frame, FERC said the state agency is “deemed” to have waived the certification requirements under the Clean Water Act (CWA) and Costal Zone Management Act (CZMA) with respect to Georgia Strait Pipeline Co. LP’s natural gas pipeline project in the Pacific Northwest.
In granting Georgia Strait’s petition for declaratory order, the Federal Energy Regulatory Commission on Tuesday agreed with the company’s position that Washington Department of Ecology had failed to respond in a timely fashion to its applications for a CZMA consistency determination and CWA certification. FERC required Georgia Strait to receive both the CZMA and CWA decisions before it could begin construction.
Georgia Strait sought CWA certification on July 12, 2001, and it expected the Department of Ecology to act within one year of that date. But the Department of Ecology had argued the U.S. Corps of Engineers did not issue a public notice of Georgia Strait’s request for CWA certification and CZMA consistency determination 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 Georgia Strait countered that the one-year period began when the Department of Ecology received its application for CWA certification. FERC concurred. “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 order said [CP03-350].
The law required Washington State to rule on CZMA certification for the proposed Georgia Strait project within six months of receiving the applicant’s request. The state and Georgia Strait had agreed to extend the deadline twice for the Department of Ecology to respond. “The last 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.”
Georgia Strait’s proposed 84-mile pipeline would supply natural gas to Cherry Point, WA. The targeted in-service date for the project is fall 2005.
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