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The United States Court of Appeals for the 3rd Circuit (“Court”) addressed a challenge to a permit issued by the Pennsylvania Department of Environmental Protection (“DEP”) related to the proposed construction of an interstate pipeline project. See Delaware Riverkeeper Network, et al. v. Secretary of the Pennsylvania Department of Environmental Protection, et al., No. 17-1533 (August 30, 2017).
The proposed interstate pipeline project (“Project”) is described as 12.9 miles of pipeline transporting natural gas via Pennsylvania.
The Federal Energy Regulatory Commission (“FERC”) was designated the lead agency as required by the Natural Gas Act of 1938 since the project was one that involved multiple states. Project approval by the FERC required that the applicant obtain any other state or federal licenses required by law.
One such license is denominated a Water Quality Certification (“WQC”) which is required by Section 401 of the Clean Water Act. See 33 U.S.C. 1341. The Court describes this provision as:
. . . a Water Quality Certification confirms that a given facility will comply with federal discharge limitations and state water quality standards.
DEP had responsibility for addressing WQCs or activities affecting the State of Pennsylvania’s waters.
To obtain a WQC from DEP applicants were required to obtain a Water Obstruction and Encroachment Permit pursuant to 25 Pa. Code Ch. 105. Such permits are referenced as “Chapter 105 permits.” They are required to give special protection to “exceptional value” wetlands. These are wetlands that are located along the drinking water supply or serve as the habitat for endangered species.
The Project would affect a total of 13 exceptional-value wetlands.
To provide a Chapter 105 permit for the project, since it affected exceptional-value wetlands, the agency was required to certify that certain state statutory requirements were met. The two relevant requirements included:
- The project is water-dependent. A project is water-dependent when the project requires access or proximity to or siting within the wetland to fulfill the basic purposes of the project.
- There is no practicable alternative to the proposed project that would not involve a wetland or that would have less effect on the wetland, and not have other significant adverse effects on the environment.
DEP subsequently issued a conditional WQC for the project and two Chapter 105 permits. The agency certified...
