May 7, 2018 James L. Messenger, Gordon Rees Scully Mansukhani, L.L.P. Clean Water Act Section 401 – Guardian of Water Quality or Political Hammer? May 7, 2018 James L. Messenger, Gordon Rees Scully Mansukhani, L.L.P.

Jurisdiction of US Courts of Appeals for WQC Appeal: Final Agency Action Requirement Berkshire Envtl. Action v. Tenn. Gas Pipeline, 851 F.3d 105 (1st Cir. 2017): Court lacks jurisdiction to review a “preliminary,” non-final WQC. Del. Riverkeeper Network v. PADEP, 870 F.3d 171 (3d Cir. 2017): Court does not need to address final agency action requirement because it concludes that PADEP WQC was final agency action. Court does not have to address whether agency appeal precluded a finding of final agency action because an agency appeal had not been timely filed. “We need not rule on whether § 717r(d)(1) includes an unstated finality requirement. In either case, our jurisdiction is proper because the agency action here is administratively final.” (emphasis in original)

Jurisdiction of US Courts of Appeals for WQC Appeal: Final Agency Action Requirement 3. Tenn. Gas Pipeline v. Del. Riverkeeper, 921 F. Supp. 2d 381 (M.D. Pa. 2013): “Section 717r(d)(1) provides for federal judicial review of ‘an order or action’ by a state administrative agency. It does not mandate that judicial review wait until a final agency decision has been rendered as DRN and PADEP contend. If Congress had intended to require final agency action it could easily have said so.” (emphasis in original) 4. Is Final Agency Action required? Split between First Circuit and Middle District of Pennsylvania. Third Circuit noted there is an open issue on whether there must be final agency action, but did not render a decision.

II. Jurisdiction to Determine Waiver 1. Constitution Pipeline Co. v. NYDEC, 868 F.3d 87 (2d Cir. 2017): DC Circuit has exclusive authority to declare waiver under 19(d)(2). 2. Millennium Pipeline Co., v. Seggos, 860 F.3d 696 (D.C. Cir. 2017): Pipeline company lacks standing to bring 19(d)(2) petition for failure to act within a year.

III. FERC Decisions on Waiver Millennium Pipeline Company, LLC, 160 F.E.R.C. ¶ 61,065 – Sept. 15, 2017: WQC must be issued within one year from receipt of WQC Application, not within one year of date that agency considers the WQC Application to be complete. 2. Constitution Pipeline Company, LLC, 162 F.E.R.C. ¶ 61,014 – Jan. 11, 2018: When pipeline company withdraws and resubmits WQC application, the one-year period is measured from the date of re-submission.

III. FERC Decisions on Waiver FFP Mo. 15, LLC, 162 F.E.R.C. ¶¶61,237, 62294 – Mar. 15, 2018: FERC rejects West Virginia’s argument that as “the state is ‘charged with administering section 401 of the CWA in West Virginia’ it is the state's regulations, and not the Commission's, that should dictate when the triggering event for the one-year waiver period occurs. West Virginia regulations state that the one-year waiver period is triggered when West Virginia DEP deems that an application is complete.”