DELAWARE RIVERKEEPER NETWORK; MAYA VAN ROSSUM, the Delaware Riverkeeper, Petitioners
SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents Tennessee Gas Pipeline Co., Intervenor
July 13, 2017
Petition for Review from the Pennsylvania Department of
Environmental Protection WQ02-002 E52-253 E63-305 FERC-1:
J. Stemplewicz [ARGUED] Delaware Riverkeeper Network
Counsel for Petitioners
Aledandra C. Chiaruttini Joseph S. Cigan III [ARGUED]
Commonwealth of Pennsylvania Department of Environmental
Protection, Kimberly Hummel Childe Office of Attorney General
of Pennsylvania Department of Environmental Resources Counsel
S. Goodwin Saul Ewing, Patrick F. Nugent John F. Stoviak
[ARGUED] Saul Ewing, Elizabeth U. Witmer Saul Ewing Counsel
for Intervenor Respondent
Before: SMITH, Chief Judge, NYGAARD, and FUENTES, Circuit
Gas Pipeline Co. ("Tennessee Gas") submitted
applications to several federal and state agencies seeking
approval to build an interstate pipeline project. One such
agency is the Pennsylvania Department of Environmental
Protection ("PADEP"),  which issued a permit
approving the project. The petitioners, Maya van Rossum and
Delaware Riverkeeper Network (collectively,
"Riverkeeper"), argue that we lack jurisdiction to
rule on its petition because PADEP's order was not final.
As to the merits, Riverkeeper challenges PADEP's decision
on the grounds that the agency made an erroneous "water
dependency" finding and improperly rejected a
"compression" alternative to the pipeline project.
exercise jurisdiction because PADEP's decision was final.
We will also uphold PADEP's decision on the merits
because the agency's unique interpretation of water
dependency is reasonable and worthy of deference.
Furthermore, the agency considered and rejected the
compression alternative for reasons that are supported by the
record. We will therefore deny the petition for review.
issue is the so-called Orion Project-12.9 miles of pipeline
looping that would transport 135, 000 dekatherms of natural
gas per day via Pennsylvania. Approximately 99.5% of the new
pipeline would run alongside existing pipelines.
background information on the Orion Project is provided in a
companion case, Delaware Riverkeeper Network v. U.S. Army
Corps of Engineers, No. 17-1506 (3d Cir. 2017). For
purposes of this opinion, we will focus on the aspects of the
state administrative procedures at issue here.
the Natural Gas Act of 1938, the Federal Energy Regulatory
Commission ("FERC") is the "lead agency"
for evaluating interstate pipeline projects. 15 U.S.C. §
717n(b). As a condition of FERC approval, the applicant is
required to obtain any other state or federal licenses
required by law. One such license is called a Water Quality
Certification governed by Section 401 of the Clean Water Act.
33 U.S.C. § 1341. "A Water Quality Certification
confirms that a given facility will comply with federal
discharge limitations and state water quality
standards." Del. Riverkeeper Network v. Sec'y
Pa. Dep't of Envtl. Prot., 833 F.3d 360, 368 (3d
Cir. 2016), as amended (March 24, 2017). "For
activities affecting Pennsylvania waters, . . . Water Quality
Certifications are issued by PADEP." Id. at
condition of obtaining a Water Quality Certification, PADEP
requires applicants to obtain other state permits, including
a Water Obstruction and Encroachment Permit issued under
Pennsylvania's Dam Safety and Encroachment Act and its
implementing regulations, 25 Pa. Code Ch. 105. Those permits
are commonly referred to as "Chapter 105 permits."
105 gives special protection to "exceptional value"
wetlands. Wetlands are considered to have exceptional value
if, inter alia, they are located along a drinking
water supply or serve as habitat for endangered species.
See 25 Pa. Code § 105.17(1). It is undisputed
that the Orion Project would affect ten exceptional-value
wetlands in Pike County and three in Wayne County.
cannot issue a Chapter 105 permit for a project affecting
exceptional-value wetlands unless it certifies in writing
that seven requirements are met. 25 Pa. Code § 105.18a.
Two are relevant here:
(2) 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.
(3) 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.
Id. § 105.18a(a)(2)-(3).
September 20, 2016, PADEP issued a conditional Water Quality
Certification for the Orion Project. Then, on February 23,
2017, PADEP issued two Chapter 105 permits approving the
Orion Project's stream and wetland crossings-Permit Nos.
E52-253 (Pike County) and E64-305 (Wayne County). In doing
so, PADEP certified that the Orion Project "[i]s water
dependent" and would be "the least environmentally
damaging alternative." JA 49, 180.
March 10, 2017, Riverkeeper filed this petition for review.
We granted Tennessee Gas's motion to intervene on March
17, 2017. Riverkeeper filed a motion for an emergency stay,
which this Court denied on April 7, 2017. Riverkeeper then
filed a motion to expedite the case. We granted that motion
on May 8, 2017.
parties ask us to resolve two jurisdictional issues: (1)
whether we may review nonfinal administrative orders under
the Natural Gas Act; and (2) whether the petition was timely
filed. We need not reach the first question. The agency
decision at issue is final, and therefore
jurisdiction would be proper under either interpretation of
the Natural Gas Act. As for the second question, we conclude
that the petition was timely filed.
Riverkeeper argues that we lack jurisdiction because we may
only review final orders, and PADEP's order is not final
until it has been reviewed by a separate administrative
entity, Pennsylvania's Environmental Hearing Board.
Riverkeeper asks us to transfer the case to the
Board. We conclude that jurisdiction is proper
because PADEP's order is final.
jurisdiction is controlled by Section 19(d) of the Natural
Gas Act, as amended in 2005. Where an interstate pipeline
project is proposed to be constructed, see 15 U.S.C.
§ 717f, this Court has "original and exclusive
jurisdiction over any civil action for the review of an order
or action of a . . . State administrative agency acting
pursuant to Federal law to issue . . . any permit, license,
concurrence, or approval . . . required under Federal law,
" id. § 717r(d)(1).
recent precedential opinion, this Court exercised
jurisdiction over a similar PADEP decision involving the
"Leidy Line" pipeline project. Del.
Riverkeeper, 833 F.3d 360. The petitioner, also
Riverkeeper, challenged PADEP's decision to issue a Water
Quality Certification. This Court concluded that "the
issuance of a Water Quality Certification is not purely a
matter of state law" because the certification "is
an integral element of the regulatory scheme established by
the Clean Water Act." Id. at 371. Thus, PADEP
was "acting pursuant to Federal law" within the
meaning of the Natural Gas Act. 15 U.S.C. § 717r(d)(1).
We also exercised jurisdiction over various permits issued by
the New Jersey Department of Environmental Protection, even
though some permits were "governed by state law rather
than the Clean Water Act." Del. Riverkeeper,
833 F.3d at 374. Because those state-law permits were,
"in effect, a set of conditions" on obtaining
approval under the Clean Water Act, id. (citing 33
U.S.C. § 1341(d)), they were issued "pursuant to
Federal law, " 15 U.S.C. § 717r(d)(1). Likewise
here, the Chapter 105 permits were conditions of federal
approval and therefore were ...