New York State Department of Environmental Conservation v. Federal Energy Regulatory Commission

Summary

We

Holdings

1. The 30-day timeline in Section 717r(a) is permissive, allowing the aggrieved party to either proceed to federal court after the expiration of the 30-day window or wait until FERC's order denying rehearing as prescribed in subsection (b).
2. Section 401 prohibits a certifying agency from entering into an agreement or otherwise coordinating with an applicant to alter the beginning of the review period. The DEC waived its certification authority by failing to act within one year of the actual receipt of the application.
3. FERC could not be estopped from reaching the waiver issue because it could have addressed it on its own or at the behest of a third party.
4. FERC's treatment of the filing as a separate motion for a waiver determination was reasonable and within its discretion.

Questions Presented

1. Whether Section 401 of the Clean Water Act prohibits a state certifying agency from entering into an agreement with an applicant to modify the receipt date of a certification request, thereby extending the one-year deadline.
2. Whether equitable principles estopped FERC from finding a waiver.
3. Whether National Fuel's motion for a waiver determination was timely.

Disposition

dismissed