New York Law Review

Tag: Clean Water Act

  • Matter of Power Authority v. Flacke, 60 N.Y.2d 302 (1983): State’s Role in Federal Hydroelectric Licensing

    Matter of Power Authority v. Flacke, 60 N.Y.2d 302 (1983)

    When considering an application for state water quality certification under Section 401 of the Federal Clean Water Act, the Commissioner of Environmental Conservation is limited to determining whether applicable water quality standards will be met and cannot base the decision on a balancing of the need for the project against its adverse environmental impact.

    Summary

    The Power Authority of the State of New York (PASNY) sought to build a pumped storage power facility. Because federal law required state certification that the project would comply with water quality standards, PASNY applied to the NYS Department of Environmental Conservation (DEC) for this certification. The Commissioner of Environmental Conservation denied the application, citing failure to demonstrate that water quality standards would be met, without balancing other factors. The Appellate Division reversed, mandating consideration of state energy policy. The Court of Appeals reversed again, holding that the commissioner’s review is limited to water quality standards, as dictated by federal law.

    Facts

    PASNY planned to construct a pumped storage power facility (Prattsville Project) in the Catskill Mountains. The project involved pumping water from the Schoharie Reservoir to a higher reservoir, storing it, and then releasing it to generate power. Because the project required a federal license and involved a “discharge into navigable waters,” PASNY needed certification from the State of New York that the facility would comply with state water quality standards.

    Procedural History

    PASNY applied to the Federal Energy Regulatory Commission (FERC) for a license and to the State DEC for Section 401 certification. The DEC hearings were postponed until after the FERC hearings. After FERC hearings, the Commissioner of Environmental Conservation denied PASNY’s application based on noncompliance with water quality standards. PASNY then initiated a CPLR Article 78 proceeding challenging the commissioner’s denial. The Appellate Division annulled the commissioner’s determination, remitting the matter for further proceedings, requiring a balancing of the need for the project against its environmental impact. Intervenors appealed to the Court of Appeals.

    Issue(s)

    Whether, in acting on an application for state Section 401 water quality certification of a hydroelectric project, the Commissioner of Environmental Conservation is limited to determining whether applicable water quality standards will be met, or is empowered to base the decision on a balancing of the need for the project against its adverse environmental impact.

    Holding

    No, because the Commissioner of Environmental Conservation is limited to determining whether applicable water quality standards will be met and is not empowered to base his decision on a balancing of need for the project against adverse environmental impact.

    Court’s Reasoning

    The court relied heavily on its prior decision in Matter of de Rham v Diamond, 32 NY2d 34, which addressed the scope of the commissioner’s inquiry in Section 401 water quality certification. The court quoted Chief Judge Fuld in de Rham: “Congress, by the Federal Power Act (U.S. Code, tit. 16, § 792 et seq.), has vested the Federal Power Commission with broad responsibility for the development of national policies in the area of electric power, granting it sweeping powers and a specific planning responsibility with respect to the regulation and licensing of hydroelectric facilities affecting the navigable waters of the United States.” The court emphasized that Section 401 of the Federal Water Pollution Control Act “authorizes States to determine and certify only the narrow question whether there is ‘reasonable assurance’ that the construction and operation of a proposed project ‘will not violate applicable water quality standards’ of the State.”

    PASNY argued that the State Energy Law required the commissioner to consider the State’s energy needs, but the court rejected this, stating it “runs counter to the acknowledgment of Federal pre-emption” and “disregards the very limited nature of the activity left by FWPCA to State action in section 401 certification.” The court clarified that Section 401 certification is simply a determination of compliance with Section 303 of the federal statute (US Code, tit 33, § 1313), concerning water quality standards. Extending the process to include consideration of “countervailing energy and environmental interests” would be a failure by the commissioner to perform the function reserved to him and an intrusion into the federal agency’s area of responsibility.

    The court noted, however, that broader public interests are implicated in the classification of State waters and the fixing of standards of purity, in accordance with ECL 17-0301(2) and 17-0101.

  • deRham v. Diamond, 32 N.Y.2d 34 (1973): State Certification Authority Under the Clean Water Act

    deRham v. Diamond, 32 N.Y.2d 34 (1973)

    Section 21(b) of the Federal Water Pollution Control Act authorizes states to certify whether a proposed project provides reasonable assurance that it will not violate applicable water quality standards, but does not empower states to reconsider issues within the exclusive jurisdiction of the Federal Power Commission.

    Summary

    This case concerns the scope of New York State’s authority to issue a water quality certification for Consolidated Edison’s (Con Ed) proposed Cornwall pumped storage hydroelectric project under Section 21(b) of the Federal Water Pollution Control Act. The New York Court of Appeals held that the State Commissioner of Environmental Conservation’s certification was valid, emphasizing that the state’s review was limited to water quality standards and did not extend to issues already within the Federal Power Commission’s (FPC) jurisdiction. The court found that the Commissioner acted reasonably in determining that the project would not violate applicable water quality standards.

    Facts

    Con Ed applied to the FPC for a license to construct a pumped storage hydroelectric facility on the Hudson River at Storm King Mountain. After initial approval and subsequent remand by the Second Circuit, the FPC again granted a license. As required by Section 21(b) of the Federal Water Pollution Control Act, Con Ed applied to the New York State Department of Environmental Conservation for a certificate of reasonable assurance that the project would not violate state water quality standards. The Commissioner issued the certification with certain conditions designed to ensure future compliance with water quality standards.

    Procedural History

    Conservation groups and others opposed to the project initiated an Article 78 proceeding in New York State court to review the Commissioner’s determination. The Special Term annulled the certification, but the Appellate Division reversed and dismissed the petition. The petitioners then appealed to the New York Court of Appeals.

    Issue(s)

    Whether the State Commissioner of Environmental Conservation acted arbitrarily and capriciously in certifying that there is reasonable assurance that the Cornwall Project would not violate applicable water quality standards, and whether the Commissioner failed to consider relevant matters in making his determination, including the safety of the Catskill Aqueduct and the protection of the River’s fish life.

    Holding

    No, because the State Commissioner’s authority under Section 21(b) of the Federal Water Pollution Control Act is limited to determining whether there is reasonable assurance that the project will not violate applicable water quality standards. It does not extend to reconsidering issues within the Federal Power Commission’s exclusive jurisdiction, such as the safety of the Catskill Aqueduct or impacts on fish life beyond effects on water quality standards.

    Court’s Reasoning

    The court emphasized that Congress vested the FPC with broad authority over hydroelectric facilities affecting navigable waters, preempting most state licensing functions. Section 21(b) relinquishes only the narrow question of whether the project will violate state water quality standards. The Commissioner was only required to consider the regulations governing “Class B” waters, the classification of the Hudson River at Cornwall. The court found that the Commissioner gave due consideration to factors affecting water quality standards and that his determination was rational and reasonable. The court also rejected the argument that the Commissioner failed to adequately consider the effects on fish life, salt water intrusion, and thermal pollution, noting that the record contained ample evidence supporting the Commissioner’s findings. The court stated that the conditions attached to the certificate related to future compliance and were authorized by both state and federal law. Regarding the Catskill Aqueduct, the court held that the issue had already been litigated in federal court and that, in any event, the project would not discharge into the Aqueduct, and there was no suggestion that the project would pollute its contents. The court quoted the Appellate Division: “In regard to New York City’s contention that the implementation of the project may cause physical damage to ‘ The Catskill Aqueduct ’, such a consideration has no bearing on water quality and if such damage does result, it is a matter of concern between the licensee and the city and the certificate issued by the appellant Commissioner is obviously not a permission by the State, to cause physical injury to another’s property.”