20170224-0013 FERC PDF (Unofficial) 02/23/2017

U
STATEOFNEW YORK
OFFICE OF THE ATTORNEY GENERAL

ERIC T. SCHNEIDERMAN ~
DIVISION OF SOCIAL JUSTICE
ATTORIIEV GEEERAE NVIRONMEIITAL PROTECTION BUREAU

February 14, 2017

The Honorable Kimberly D. Bose
Secretary
Federal Energy Regulatory Commission
888 First Street NE, Room IA
Washington, D.C. 20426

Re: Docket No. CP16-17-000

Millennium Pipeline Company, L.L.C.
Valley Lateral Project
Opposition to Request for Notice to Proceed with Tree Felling

Dear Secretary Bose:

The Office of the New York State Attorney General writes in opposition to Millennium
Pipeline L.C.C.'s Request for Partial Notice to Proceed (Request), dated February 6, 2017, seeking
written authorization from FERC's Director of the Office of Energy Projects to commence "tree
clearing activities in all upland areas" of the Valley Lateral Project. Millennium filed a renewed
request on February 15, 2017. To the extent that FERC would consider comments only from
interveners, then please consider this letter a request for intervention on this issue.

While Millennium contends that it "has all the applicable authorizations to conduct tree
felling in upland areas," that contention is not correct. In fact, Millennium lacks two key, federally-
required permits from the New York State Department of Environmental Conservation (NYSDEC)
that are necessary for Millennium to obtain before commencing the construction activity proposed
by the applicant. Millennium has not, to date, received a NYSDEC Water Quality Certification
pursuant to Section 401 of the federal Clean Water Act, 33 U.S.C. $ 1341.'dditionally,
Millennium has not obtained authorization to discharge pollutants under the State Pollutant
Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from
Construction Activities (GP-0-15-002), a permit that is required pursuant to Section 402 of the
federal Clean Water Act, 33 U.S.C. $ 1342, to construct the project.

I In fact, Millennium has challenged the N YDEC's continuing review of its Water
Quality Certification in the United States Court of Appeals for the D.C. Circuit.
Millennium Pipeline LLC v. Seggos, No. 16-1415 (D.C. Cir. 2017).
2 Part II.B of the General Permit states that an owner or operator (here, Millennium) cannot
commence construction activity until its authorization to discharge goes into effect.

TEE CAFITou AEEANT, N.Y. 12224-0341 ~ PIIGNE (518) 776-2400 ~ FAR (518) 650-9363 ~ www.AG.NT.Gov
20170224-0013 FERC PDF (Unofficial) 02/23/2017

On November 9, 2016, the Federal Energy Regulatory Commission (Commission) issued

an Order Denying Motion to Dismiss and Issuing Certificate for the Valley Lateral Project, as
proposed by Millennium (157 FERC $ 61,096) (Order). The Order, in part, is conditioned as
follows: "[p]rior to receiving written authorization... to commence construction of ~an [P]roject
facilities, Millennium shall file with the Secretary documentation that it has received all
authorizations reauired under federal law (or evidence of waiver thereof)'* (emphasis added)
(Order, Appendix, Environmental Conditions, p. 56, $9) (Condition 9). Tree cutting is
construction activity within the meaning of Condition 9.

The NYSDEC's authority to grant or deny a Section 401 Water Quality Certification and
to require a stormwater discharge permit under Section 402 of the federal Clean Water Act for this
project fall squarely within the scope of Condition 9. The Commission's Certificate Order must
not conflict with the federal Clean Water Act, which specifically provides that "[n]o license or
permit shall be granted until the certification provided by this section has been obtained or has
been waived as provided [above]. No license or permit shall be granted if certification has been
denied by the State..." (33 U.S.C.A. I]1341(A)(1)). This Clean Water Act provision precludes
site work and construction until all federal authorizations are issued and effective, including a
Water Quality Certification and stormwater discharge permit.

The Commission was clear in its language in Condition 9: Millennium must obtain "all
authorizations required under federal law" prior to commencement of construction on "~an
[P]roject facilities'* (emphasis added). The Order does not permit Millennium to selectively
construct the project in a piecemeal fashion, here by limiting work to areas purportedly "outside"
the areas covered by the required federal authorizations. Even if Millennium's fragmentary
approach were valid (and it is not), the SPDES General Permit for Stormwater Discharges applies
to the entire Project, including uplands.

The Commission must deny Millennium's Request to Proceed until Millennium obtains all
federally-required authorizations, including those discussed above, in order to satisfy Condition 9.
Millennium's Request to Proceed is untimely, and should be denied. The Commission's two
denials of similar Requests to Proceed made by Constitution Pipeline Company, LLC (FERC
Docket No. CP13-499-000) (Constitution Pipeline Project) provide precedent for the appropriate

Effectiveness does not occur at least until the owner or operator has obtained "all necessary
[NYSDEC] permits subject to the Uniform Procedures Act ("UPA") (see 6 NYCRR Part
621)," which includes, on the Valley Lateral Project, a water quality certification from the
NYSDEC.
20170224-0013 FERC PDF (Unofficial) 02/23/2017

denial of this request.

Respectfully submitted,

Lisa M. Burianek
Assistant Attorney General
Deputy Bureau Chief, Environmental
Protection Bureau
Phone: (518) 776-2423
Lisa. Burianek@ag.ny.gov

ecc: FERC Service List

Karen Gaidasz, NYSDEC
20170224-0013 FERC PDF (Unofficial) 02/23/2017

CERTIFICATE OF SERVICE

Pursuant to Rule 2010 of the Commission's Rules of Practice and Procedures, 18, C.F.R.

Section 385.2010 (2016), I hereby certify that I have this day served the foregoing document

upon each person designated on the official service list compiled by the Secretary in this

proceeding.

Dated at Albany, New York this 16 day of February, 2017.

J's/
Jeremy Magliaro
Environmental Protection Bureau
New York State Department of Law
The Capitol
Albany, New York 12224
(518) 776 2385
20170224-0013 FERC PDF (Unofficial) 02/23/2017
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