Reply Brief: Constitution Pipeline v New York State DEC

16-1568United States Court of Appeals
for the
Second Circuit
CONSTITUTION PIPELINE COMPANY, LLC,
Petitioner,
– v. –
BASIL SEGGOS, ACTING COMMISSIONER, NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION, JOHN
FERGUSON, CHIEF PERMIT ADMINISTRATOR, NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION, NEW YORK
STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION,
Respondents.
STOP THE PIPELINE, CATSKILL MOUNTAINKEEPER, INC., SIERRA
CLUB, RIVERKEEPER, INC.,
Intervenors.
––––––––––––––––––––––––––––––
PETITION FOR REVIEW FROM THE NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
FINAL REPLY BRIEF FOR PETITIONER
YVONNE E. HENNESSEY, ESQ.
BARCLAY DAMON, LLP
80 State Street, 6th
Floor
Albany, New York 12207
(518) 429-4293
JOHN F. STOVIAK, ESQ.
SAUL EWING LLP
Center Square West, 38th
Floor
1500 Market Street
Philadelphia, Pennsylvania 19102
(215) 972-1095
ELIZABETH UTZ WITMER, ESQ.
SAUL EWING LLP
1200 Liberty Ridge Drive, Suite 200
Wayne, Pennsylvania 19087
(610) 251-5062
Attorneys for Petitioner,
Constitution Pipeline Company, LLC
Case 16-1568, Document 172, 10/17/2016, 1885578, Page1 of 39

i
TABLE OF CONTENTS
Page
INTRODUCTION....................................................................................................1
ARGUMENT............................................................................................................6
POINT I
THE COURT HAS JURISDICTION ...............................................................................6
POINT II
NYSDEC’S MISCHARACTERIZATIONS OF THE RECORD ILLUSTRATE THE
ARBITRARY AND CAPRICIOUS NATURE OF ITS DENIAL..........................................14
A. NYSDEC’s Inaccurate Statements About FERC’s Findings.....................18
B. NYSDEC’s Inaccurate Statements About USACE ...................................21
C. NYSDEC’s Untrue Statements About Constitution’s Wetlands
Analysis.............................................................................................................23
POINT III
NYSDEC IMPERMISSIBLY EXCEEDED THE SCOPE OF SECTION 401 IN DENYING THE
CERTIFICATION......................................................................................................24
CONCLUSION.......................................................................................................32

ii
TABLE OF AUTHORITIES
CASES
AES Sparrows Point LNG v. Wilson,
589 F.3d 721 (4th Cir. 2009) ..........................................................7, 8, 10, 11, 13
Alcoa Power Generating, Inc. v. FERC,
643 F.3d 963 (D.C. Cir. 2011)............................................................................11
Am. Rivers, Inc. v. FERC,
129 F.3d 99 (2d Cir. 1997) ...................................................................................7
Islander E. Pipeline Co., LLC v. McCarthy,
525 F.3d 141 (2d Cir. 2008) ...............................................................................29
Keating v. FERC,
927 F.2d 616 (D.C. Cir. 1991)............................................................................29
Matter of Chasm Hydro, Inc. v. N.Y. State Dep’t of Envtl. Conservation,
14 N.Y.3d 27 (N.Y. 2010) ..................................................................................30
Matter of Chasm Hydro, Inc. v. N.Y. State Dep’t of Envtl. Conservation,
58 A.D.3d 1100 (N.Y. App. Div. 3d Dep’t 2009)..............................................30
Matter of E. Niagara Project Power All. v. N.Y. State Dep’t of Envtl.
Conservation,
42 A.D.3d 857 (N.Y. App. Div. 3d Dep’t 2007)................................................28
Nat’l Fuel Gas Supply Corp. v. Pub. Serv. Comm’n,
894 F.2d 571 (2nd Cir. 1990) .............................................................................30
Niagara Mohawk Power Corp. v. N.Y. State Dep’t of Envtl. Conservation,
187 A.D.2d 7 (N.Y. App. Div. 3d Dep’t 1993)............................................26, 30
Niagara Mohawk Power Corp. v. State Dep’t of Envtl. Conservation,
82 N.Y.2d 191 (N.Y. 1993), cert denied, 511 U.S. 1141 (1994) ................passim
Norton v. S. Utah Wilderness All.,
542 U.S. 55 (2004)..............................................................................................13
PUD No. 1 v Wash. Dep’t of Ecology,
511 U.S. 700 (1994)............................................................................5, 27, 28, 30

iii
Puerto Rico Sun Oil Co. v. U.S. Environmental Protection Agency,
8 F.3d 73 (1st Cir. 1993).......................................................................................7
S.D. Warren Co. v. Maine Bd. Of Envtl. Protection,
547 U.S. 370 (2006)...................................................................................... 28-29
Weaver’s Cove Energy, LLC v. R.I. Dep’t of Environmental Mgmt.,
524 F.3d 1330 (D.C. Cir. 2008)......................................................................7, 12
Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council,
589 F.3d 458 (1st Cir. 2009)...............................................................................13
STATUTES
15 U.S.C. § 717b(d) .................................................................................................25
15 U.S.C. § 717r(d)(1) .........................................................................................6, 11
15 U.S.C. § 717r(d)(2) ...............................................................................................6
33 U.S.C. § 1341(a)(1)......................................................................................passim
33 U.S.C. § 1341(d) .....................................................................................25, 26, 27
OTHER AUTHORITIES
18 C.F.R. § 157.22...................................................................................................31
33 C.F.R. § 325.1(d)(10)..........................................................................................10
33 C.F.R. § 325.2(b)(1)(ii).......................................................................................11
51 Fed. Reg. 41,206, 41, 211 (Nov. 13, 1986) ........................................................11
6 NYCRR Parts 700-706, SPA101-278...................................................................25
6 NYCRR § 621.2(f)..................................................................................................8
6 NYCRR § 621.4(e) .................................................................................................8
6 NYCRR § 621.6(g) .................................................................................................8
6 NYCRR § 621.10(a) ...............................................................................................9

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GLOSSARY
Catskill Intervenors Catskill Mountainkeeper, Inc., Sierra
Club, and Riverkeeper, Inc.
Certificate Certificate of Public Convenience and Necessity
issued by FERC
CWA Clean Water Act
Denial NYSDEC’s April 22, 2016 letter denying
Constitution’s application for a CWA Section 401
Water Quality Certification
ECL New York Environmental Conservation Law
FEIS Final Environmental Impact Statement
FERC Federal Energy Regulatory Commission
Interstate Project Constitution Pipeline Project
NEPA National Environmental Policy Act
NOCA Notice of Complete Application
NYSDEC Respondents New York State Department of
Environmental Conservation; Basil Seggos, Acting
Commissioner; John Ferguson, Chief Permit
Administrator
Section 401 Certification CWA Section 401 Water Quality Certification
SEQRA State Environmental Quality Review Act
STP Intervenor Stop the Pipeline
USACE United States Army Corps of Engineers
USFWS United States Fish and Wildlife Service

1
INTRODUCTION
Respondents (collectively, “NYSDEC”) fail to overcome Constitution’s
claims that NYSDEC’s denial (“Denial”) of Constitution’s application for a Clean
Water Act (“CWA”) Section 401 Water Quality Certification (“Section 401
Certification”) was too late and waived and must be remanded with the requested
relief granted to Constitution. In fact, in a desperate effort to justify their arbitrary
and capricious action, NYSDEC resorts to mischaracterizing the record and the
findings of the Federal Energy Regulatory Commission (“FERC”), the United States
Army Corps of Engineers (“USACE”), and Constitution’s submissions.
After disputing this Court’s jurisdiction, an argument which simply has no
basis, NYSDEC mischaracterizes this dispute as one over NYSDEC’s “jurisdiction”
under the CWA. Constitution, however, does not question NYSDEC’s jurisdiction
to issue a Section 401 Certification. What this dispute really involves is NYSDEC’s
determined political effort to dictate the routing of the Constitution Pipeline Project
(“Interstate Project”), which is a decision exclusively reserved to FERC and wholly
unrelated to NYSDEC’s federally-approved water quality standards. NYSDEC
commented often and vigorously to FERC about the proposed routing of the
Interstate Project. FERC carefully considered these comments, but decided to
approve the routing in its issuance of a Certificate of Public Convenience and
Necessity (“Certificate”), weighing all of the factors that FERC is required to

2
consider and balance. NYSDEC chose to not challenge FERC’s decision, but
instead orchestrated a process designed to nullify it by basing the Denial on its
improper requests for information designed to reevaluate areas already evaluated by
FERC. NYSDEC’s Denial states that NYSDEC “does not have adequate
information” due to “Constitution’s unwillingness to adequately explore the
Alternative M route alternative.” Denial at 11, JA2859.
FERC conducted a thorough review under the National Environmental Policy
Act (“NEPA”) and approved the Interstate Project route involving 289 stream
crossings. FERC evaluated each stream crossing and dictated the appropriate
crossing methodology, requiring trenchless crossing methods for only 21 streams
because trenchless methods (a) result in more surface clearing to accommodate the
necessary staging equipment, (b) are dependent on geology, and (c) can fail,
resulting in drilling fluid discharges. FERC is required to balance the impact of the
Interstate Project on the public, including on the public need, as well as the
environmental impact, and so it takes into account more factors in its analysis than
the state does in implementing its narrow review, limited to federally approved water
quality standards under Section 401.
Rather than directly challenge FERC’s Certificate, NYSDEC arbitrarily
attempted to use its limited CWA authority to compel a completely different pipeline
route. NYSDEC’s authority under Section 401 simply does not stretch that far, or

3
the result would be a never-ending process where state agencies participate in
FERC’s proceedings, then later (after failing to seek rehearing), get another “bite at
the apple” by attacking FERC’s determinations through their limited Section 401
certification process. Here, Constitution proposed common waterbody construction
techniques, endorsed by FERC and consistent with FERC’s construction
requirements, and approved by NYSDEC for other pipeline projects.
The record unequivocally shows that NYSDEC prepared a draft certification
with conditions, some of which would have required variances from FERC because
there were several more trenchless crossings proposed than had been approved by
FERC’s Certificate. But rather than further communicate with Constitution about
the terms and conditions of the draft certification it prepared in the summer of 2015,
NYSDEC stopped communicating with Constitution for almost nine months before
it issued its April 2016 Denial on Earth Day.
So how does NYSDEC support the Denial? It mischaracterizes the FERC
record. For example, NYSDEC states that FERC “did not comment upon or
endorse” Constitution’s proposed crossing methods (Respondents’ Brief at 64) when
the opposite is true, as evidenced by FERC’s statement from the Final
Environmental Impact Statement (“FEIS”):
Based on our request, Constitution evaluated the potential
for using trenchless crossing methods for sensitive or high
quality waterbodies. We concur with Constitution’s
assessment that it is not practicable to use trenchless

4
crossing methods where waterbodies were listed as
ephemeral or intermittent (because these waterbodies are
likely to be dry at the time of crossing) or for waterbodies
less than 30 feet in width (as extra workspaces needed
would offset potential benefits).
FEIS, Appendix S at S-52, JA1639 (emphasis added); Certificate ¶ 77, JA1691.
In addition to its mischaracterizations of the FERC record, NYSDEC pretends
that requests for information exist, when they simply do not. NYSDEC fails to rebut
Constitution’s recitation of the facts, and cannot point to a single document between
August 2015 (following NYSDEC’s preparation of the draft permit) and the April
2016 Denial where NYSDEC actually requested additional information regarding
any of the four bases for its Denial – stream-crossing methods, depth of pipeline
burial under waterbodies, blasting in or near waterbodies, or wetland-crossing
methods. NYSDEC relies on its alleged oral requests while vigorously contesting
the unrebutted Declarations of multiple members of Constitution’s team about the
actual verbal exchanges between Constitution and NYSDEC, further demonstrating
the arbitrary and capricious nature of its Denial (see Argument, Point II, below).
NYSDEC’s admissions also support Constitution’s waiver argument because
NYSDEC’s Denial was issued well beyond the statutorily prescribed “reasonable
period of time” and too late under any interpretation of the relevant regulations. By
failing to render its decision within a “reasonable period of time,” NYSDEC waived
its right to act. Constitution submitted a valid request for a Section 401 Certification

5
on April 27, 2015 when NYSDEC published a Notice of Complete Application
(“NOCA”), triggering the waiver period under CWA Section 401. NYSDEC
prepared its draft permit in July 2015, informed Constitution that it had all the
information it needed, never commented on Constitution’s subsequent submissions,
never requested additional information regarding its four bases for Denial at any
time after July 2015, and never informed Constitution that it was no longer willing
to issue a conditioned permit. The Denial’s timing, almost twelve months after the
NOCA, is unreasonable – particularly since NYSDEC admits that it prepared a
“preliminary” draft permit (and informed Constitution about the draft permit) nine
months before it issued its Denial. (see Argument, Point I, below).
Apparently realizing that Constitution met the federally mandated
requirements, NYSDEC raises concerns regarding potential compliance with state
law and regulations which are not part of New York State’s federally-approved water
quality standards. This arbitrary attempt to expand its narrowly circumscribed
jurisdiction under Section 401 directly contravenes the New York State Court of
Appeals’ decision in Niagara Mohawk Power Corp. v. State Dep’t of Envtl.
Conservation, 82 N.Y.2d 191 (N.Y. 1993), cert denied, 511 U.S. 1141 (1994).
Contrary to NYSDEC’s argument, PUD No. 1 v. Wash. Dep’t of Ecology, 511 U.S.
700 (1994) did not overrule Niagara Mohawk, and NYSDEC cannot cite a single

6
post-PUD case that supports its expansive view of a state’s Section 401 jurisdiction
to review and deny a Section 401 Certification (see Argument, Point III, below).
ARGUMENT
POINT I
THE COURT HAS JURISDICTION
NYSDEC essentially makes a ripeness argument – that it is up to FERC or
USACE to first make a determination of waiver. Intervenors Stop the Pipeline
(“STP”) and Catskill1
contend that the waiver argument must be made to the United
States Court of Appeals for the District of Columbia Circuit. Neither of these
arguments have merit.
The NGA establishes original and exclusive jurisdiction over any civil action
for the review of an action of a state administrative agency acting pursuant to Federal
law to deny any approval required under Federal law. 15 U.S.C. § 717r(d)(1). All
parties admit that NYSDEC denied the Section 401 Certification, which squarely
puts the waiver issue before this Court. Section 19(d)(2) of the NGA does not apply
once an agency has taken action, since it only pertains to an agency’s “alleged failure
to act.” 15 U.S.C. § 717r(d)(2).
1
Intervenors Catskill Mountainkeeper, Inc., Sierra Club, and Riverkeeper, Inc.
are collectively referred to as “Catskill” herein.

7
The only other court to address this issue, the Fourth Circuit Court of Appeals,
had no hesitation in adjudicating a Section 401 waiver claim under the NGA in AES
Sparrows Point LNG v. Wilson, 589 F.3d 721 (4th Cir. 2009), a case that was decided
over a year and a half after Weaver’s Cove Energy, LLC v. R.I. Dep’t of Envtl.
Mgmt., 524 F.3d 1330 (D.C. Cir. 2008).
NYSDEC attempts to distinguish AES Sparrows by arguing that Constitution
never raised the waiver issue before NYSDEC and that USACE “never determined
that Constitution had submitted a valid request for certification.”2
This attempt to
distinguish AES Sparrows fails for two reasons. First, NYSDEC fails to point to
any statutory or regulatory mandate that would require Constitution to raise its
waiver claim first before NYSDEC or forever lose it. NYSDEC’s reliance on Puerto
Rico Sun Oil Co. v. U.S. Envtl. Protection Agency, 8 F.3d 73 (1st Cir. 1993) is
unavailing, since that case dealt with whether it was appropriate for a federal agency
to consider a late-issued Section 401 Certification. In any event, the First Circuit’s
reasoning supports Constitution’s claim, which is that “courts have adequate
power” to address agency decisions. Id. at 80 (emphasis added).
2
This Court owes no deference to NYSDEC’s interpretation of the CWA,
contrary to STP’s argument. Tellingly, STP stands alone in making this
argument – even NYSDEC does not contend that its CWA interpretation is
entitled to deference. See Am. Rivers, Inc. v. FERC, 129 F.3d 99, 107 (2d Cir.
1997).

8
Second, USACE did not expressly determine that the applicant in AES
Sparrows submitted a valid request for certification. Rather, the Fourth Circuit
inferred “[b]y necessary implication” that AES’s certification request was a valid
request given USACE’s public notice declaring that Maryland had one year to
consider the request. AES Sparrows, 589 F.3d at 729. Thus, NYSDEC’s argument
that USACE must expressly determine that a valid request has been submitted before
NYSDEC’s review period begins is not supported by AES Sparrows.
There is a record-supported basis under both NYSDEC’s and USACE’s
regulations that the waiver period commenced on April 27, 2015. NYSDEC
determined on December 24, 2014 and again on April 27, 2015 that Constitution
submitted a complete application. NOCAs, JA1725-JA1732, JA2074-JA2075.
NYSDEC argues that its determination to treat the application as complete “for
purposes of public comment” did not mean that it had received all necessary
information. That is not the test. NYSDEC’s regulations define “complete
application” to mean “an application for a permit which is in an approved form and
is determined by the department to be complete for the purpose of commencing
review of the application ….” 6 NYCRR § 621.2(f) (emphasis added); see also 6
NYCRR § 621.4(e) (establishing requirements for a “complete application for a
Water Quality Certification”). “If an application is determined to be complete, a
Notice of Complete Application must be prepared.” 6 NYCRR § 621.6(g)

9
(emphasis added). When NYSDEC issued the NOCA, it acknowledged that it had
a “valid request.”
NYSDEC’s suggestion that “the waiver period never commenced” is
preposterous. Under NYSDEC’s regulations, the NOCA triggers the time periods
in which NYSDEC must make a decision. 6 NYCRR § 621.10(a). NYSDEC cannot
erase its public declarations that Constitution submitted a complete application and
valid request allowing NYSDEC to commence review, as confirmed in both
NYSDEC’s December 24, 2014 and April 27, 2015 Notices of Complete
Application.3
Indeed, if NYSDEC did not believe that the application was a complete and
valid request, then there would have been no reason for NYSDEC’s request to
Constitution to withdraw and resubmit its application not once, but twice. Letter
from Lynda Schubring (Constitution) to Stephen Tomasik (NYSDEC) (May 9,
2014), JA851-JA852; Letter from Lynda Schubring (Constitution) to Stephen
Tomasik (NYSDEC) (April 27, 2015), JA2072-JA2073; NYSDEC Press Release
(April 29, 2015) (Noting NYSDEC request for additional time), JA2076-JA2077.
3
NYSDEC’s suggestion that Constitution’s submission of supplemental
information in September 2015 should be viewed as extending its review time
is without merit, since NYSDEC never commented on the submission, a fact
that NYSDEC does not dispute.

10
Even if the Court determines that it must look to USACE’s documents to
determine whether Constitution submitted a valid request, NYSDEC’s failure to act
within a reasonable period of time still results in a waiver. USACE regulations
provide that “an application is complete when sufficient information is received to
issue a public notice.” 33 C.F.R. § 325.1(d)(10). Here, USACE issued its public
notice regarding Constitution’s Joint Application to NYSDEC and USACE on
March 4, 2014, indicating that Constitution’s application was complete. JA474-
JA485. In its public notice, similar to the one at issue in AES Sparrows, USACE
noted that “the applicant will obtain a water quality certificate or waiver from the
appropriate state agency” prior to a permit decision. USACE Public Notice at 2-3,
JA475-JA476. USACE’s public notice explicitly noted that Constitution’s proposed
work “is also being coordinated with” NYSDEC. Id. at 3, JA476. Thus, by March
4, 2014, Constitution had provided sufficient information in its Joint Application to
enable USACE to proceed with its review of the Interstate Project, which contradicts
NYSDEC’s claim that USACE never determined whether Constitution had
submitted a valid request. NYSDEC cannot point to anything in the record where

11
USACE determined that the circumstances required a “period of time longer than
sixty days.” 33 C.F.R. § 325.2(b)(1)(ii).4
NYSDEC’s reliance on Alcoa Power Generating, Inc. v. FERC, 643 F.3d 963
(D.C. Cir. 2011) is misplaced because that decision involved FERC’s interpretation
of its Section 401 regulations under the Federal Power Act, which are limited in
scope to hydroelectric license applications.5
Here, however, where NYSDEC’s
Denial is subject to the judicial review provisions of the NGA, the waiver issue is
properly before this Court. 15 U.S.C. §717r(d)(1); AES Sparrows, 589 F.3d at 729.
4
This regulation provides that the waiver period commences upon receipt of “a
valid request for certification.” In promulgating this regulation, USACE
stated “we believe that the state has the responsibility to determine if it has
received a valid request.” 51 Fed. Reg. 41,206, 41,211 (Nov. 13, 1986).
Although the Fourth Circuit in AES Sparrows stated USACE’s comment is
not owed deference, requests for Section 401 Certifications are submitted to
states, not USACE, making USACE’s comment consistent with CWA Section
401(a) because USACE “will verify” (i.e. confirm with the state) that it has
received a valid request.
5
18 C.F.R. Part 4; 52 Fed. Reg. 5446-01 (Feb. 23, 1987). For this reason, STP’s
argument that FERC’s Section 401 regulations apply are unavailing. STP’s
alternative argument that FERC must determine waiver in the first instance is
equally unavailing, since it is Constitution’s application for a Section 404
permit from USACE that triggers the need for a Section 401 certification, not
Constitution’s application for a Certificate from FERC, since the Certificate
is not a license or a permit that authorizes activity that could result in a
discharge into the navigable waters of the United States. See 33 U.S.C. §
1341(a)(1).

12
Finally, Respondents’ reliance on Weaver’s Cove Energy, LLC v. R.I. Dep’t
of Envtl. Mgmt., 524 F.3d 1330 (D.C. Cir. 2008) is misplaced because neither of the
state agencies performing Section 401 certification reviews at issue in that case had
made a final decision. Id. at 1333. As a result, the D.C. Circuit ruled that Weaver’s
Cove did not have standing to challenge agency inaction because it “does not claim
to have been injured by it.” Id. (emphasis added). The court noted that “an agency’s
delay in processing an application may constitute a legally cognizable injury,” but
in Weaver’s Cove’s circumstance, a declaration that the states had waived their
Section 401 certification rights “would not alter the Army Corps’ timetable for
acting upon [Weaver’s Cove’s] application for a § 404 permit.” Id. at 1333-34.
Here, the opposite is true. USACE’s April 20, 2016 letter to Constitution, issued
two days before NYSDEC’s Denial, noted that the lack of a Section 401 Certification
from NYSDEC was delaying its review,6
and USACE’s later issued provisional
denial expressly states that USACE cannot proceed with its review absent a Section
401 Certification or determination of waiver.7
6
Letter from Stephan A. Ryba (USACE) to Timothy Powell (Constitution)
(Apr. 20, 2016), JA2847-JA2848.
7
Letter from Stephan A. Ryba (USACE) to Lynda Schubring (Constitution)
(May 11, 2016), JA2863-JA2864.

13
Nevertheless, NYSDEC, STP, and Catskill cite to Weaver’s Cove contending
that the only avenue to challenge a potential waiver of a Section 401 certification is
to argue to USACE that the Denial is void, and if USACE disagrees, challenge its
decision in court. But as the Fourth Circuit’s decision in AES Sparrows illustrates,
USACE is not the only avenue through which waiver may be determined. Here,
where Constitution is harmed by NYSDEC’s unreasonable delay in acting upon
Constitution’s valid request for Section 401 Certification, Constitution has standing.
See Weaver’s Cove Energy, LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458,
467 (1st Cir. 2009) (“Because [Rhode Island’s] regulatory requirements do affect
Weaver’s Cove’s ultimate ability to receive federal approval, we conclude that
Weaver’s Cove has standing.”).8
8
For this same reason, STP’s contention that Constitution’s waiver claim is
moot lacks merit. Weaver’s Cove, 589 F.3d at 468 (case not rendered moot).
Additionally, STP’s citation to Norton v. S. Utah Wilderness All., 542 U.S. 55
(2004) is inapposite because the relevant claim in Norton arose from the
agency’s failure to implement certain provisions in its land use plans and
became moot when the agency completed those actions. Id. at 61, 67-68.
Constitution does not argue that NYSDEC must act on its application – they
have already acted by denying it – but instead asserts that NYSDEC’s Denial
is untimely and therefore NYSDEC waived the Section 401 certification
requirements.

14
POINT II
NYSDEC’S MISCHARACTERIZATIONS OF THE RECORD
ILLUSTRATE THE ARBITRARY AND CAPRICIOUS NATURE OF ITS
DENIAL
NYSDEC concedes that it prepared a draft permit that would have authorized
Constitution to submit, post-permit issuance, additional geotechnical analyses to
confirm the feasibility of trenchless crossings at designated waterbodies.
Respondents’ Brief at 70 n.15. Yet, NYSDEC persists in arguing that its “repeated
requests” for additional information afforded Constitution repeated opportunities to
supplement its application. NYSDEC, however, cannot point to a single document
after August 2015 (following NYSDEC’s preparation of the draft permit) where it
requested additional information regarding the four bases for its Denial: stream-
crossing methods, depth of pipeline burial under waterbodies, blasting in or near
waterbodies, or wetland-crossing methods.
NYSDEC states that there are “at least 188 entries” in the record reflecting
ongoing communications between July 2015 and April 2016, but it neglects to
mention that the referenced correspondence involved a third-party monitoring plan,
a document required by FERC in its Certificate, which does not relate to
NYSDEC’s Denial. Certificate ¶ 86, JA1693. In the referenced correspondence,
NYSDEC noted it would concur with the third-party monitoring plan as long as
Constitution incorporated certain communication procedures, which Constitution

15
did.9
NYSDEC does not and cannot cite to any requests or correspondence about
the issues raised in the Denial, because none exist.
NYSDEC also cites to a draft permit it circulated to USACE on July 20, 2015.
Respondents’ Brief at 70 n.15. Constitution has never seen this draft permit, or the
transmittal to USACE. NYSDEC failed to include this draft permit in the record
submitted to the Court on June 24, 2016 despite its certification to the Court that the
Administrative Record submitted “represents the entire record.” ECF No. 49,
Certification of Administrative Record (June 24, 2016). Constitution supports the
inclusion of the draft permit in the record. However, NYSDEC’s failure to include
this important document highlights the post-July 2015 nine-month gap in
NYSDEC’s record leading up to the Denial, and raises doubts as to whether there
are other documents NYSDEC chose not to include in the record.
The date of the draft permit cited by NYSDEC aligns with NYSDEC’s
statements to Constitution in July and August 2015 that it was prepared to issue a
9
Letter from Stephen Tomasik (NYSDEC) to Lynda Schubring (Constitution)
(Feb. 23, 2016), JA2805-JA2806; Letter from Lynda Schubring
(Constitution) to Stephen Tomasik (NYSDEC) (Mar. 28, 2016), JA2837-
JA2838.

16
permit and that it did not need additional information.10
NYSDEC contends that this
draft permit was “very preliminary” and that its existence “confirms [NYSDEC’s]
good faith in considering the possibility of issuing a Section 401 Certification subject
to substantial conditions.” NYSDEC glosses over the fact that the parties had
negotiated a draft permit condition regarding trenchless crossings which required
additional geotechnical analysis after the issuance of the Section 401 Certification
to confirm feasibility. Draft Permit Conditions (June 16, 2015), JA2146-JA2147;
Responsiveness Summary at 12-13, 45-46 (June 2, 2015), JA2132-JA2133, JA2136-
JA2137. Further, NYSDEC fails to point to any document in the record where it
ever informed Constitution that it was reconsidering issuing the conditioned Section
401 Certification or that it expected to see this geotechnical information in advance
of permit issuance, nor can it point to any document in the record post-July 2015 in
which NYSDEC requested that Constitution provide additional information
10
See generally Declaration of Lynda Schubring, ADD17-19; Declaration of
Pamela S. Goodwin, ADD20-21; and Declaration of Keith Silliman, ADD43-
49 (collectively, the “Declarations”). NYSDEC has not rebutted the
Declarations submitted in conjunction with Constitution’s opening brief.

17
regarding any of the bases for its Denial.11
These mischaracterizations undermine
NYSDEC’s claim that it was “transparent” and that it “afforded Constitution
repeated opportunities to supplement and explain its application.” What the record
shows is that after advising Constitution that the permit was in final form awaiting
authorization from the Governor’s office, NYSDEC shut down communications
with Constitution.12
The record further shows that in the Spring of 2015, NYSDEC asked
Constitution to prepare an initial draft Responsiveness Summary, which, among
other things, addressed public comments related to waterbody and wetland crossing
methods, pipeline burial depth, and in-stream blasting. In its revised draft, NYSDEC
proposed “minor changes” to some of the “sub-headings” used in the
Responsiveness Summary,13
but it did not raise any substantive concerns with
Constitution’s in-depth responses regarding pipeline depth and potential blasting,
11
NYSDEC contends that it is “unclear” whether site-specific information on
pipe depth is in Constitution’s application. The site-specific depth of pipe
beneath waterbodies is clearly depicted in the Waterbody/Wetland Feature-
Specific Support Documentation Submitted to NYSDEC in 2014. See
NYSDEC Record, ECF No. 59 (submitted via USB drive), Folder: 002 NYS
PERMITS002 APPLICATION SUBMITTALS01 Tech Reports, Maps,
Figures2014 NYS SUBMITTALS 012014-0813 APP BY CROSSING.
12
See Declaration of Keith Silliman, at ¶¶ 21-26, ADD47-48.
13
Email from Stephen Tomasik (NYSDEC) to Keith Silliman (Constitution)
(Aug. 26, 2015), JA2244.

18
nor did NYSDEC comment on Constitution’s responses that noted that NYSDEC
was prepared to issue a permit conditioned on the subsequent submission of
additional geotechnical analysis.14
In fact, when a Constitution representative
(twice) followed up with NYSDEC asking whether the draft watermarks could be
removed from the Responsiveness Summary, Mr. Tomasik responded that he
“cannot answer your questions at this time.” Email from Stephen Tomasik
(NYSDEC) to Tracy Darougar (Constitution) (Sept. 4, 2015), JA2245-JA2247.
NYSDEC’s reliance now on an argument that it was waiting to see
geotechnical information about stream crossings in order to issue the Section 401
Certification, when the record shows that Constitution was relying on a certification
condition that required submission of that information post-Section 401 Certification
issuance, and that NYSDEC never requested that information prior to the Denial,
illustrates NYSDEC’s arbitrary and capricious “bait and switch” approach, which
constitutes an abuse of discretion.
A. NYSDEC’s Inaccurate Statements About FERC’s Findings
The “repeated requests” for geotechnical or trenchless feasibility information
cited by NYSDEC in its brief were not even directed to Constitution; instead, the
14
Responsiveness Summary at 12-13 and 45-47 (discussing conditioned permit
requiring subsequent geotechnical investigation), 18-19 (pipeline burial
depth), and 79-81 (blasting), JA2132-JA2133, JA2136-JA2138, JA2134-
JA2135, JA2139-JA2141.

19
record shows that they were directed to FERC. See Respondents’ Brief at 58-59
(citing to NYSDEC’s comments to FERC).15
NYSDEC argues that FERC “did not comment upon or endorse”
Constitution’s proposed crossing methods, including Constitution’s position that
trenchless crossing methods were not practical for crossings of less than 30 feet, and
so it was up to NYSDEC to determine the number of trenchless crossings. NYSDEC
is wrong. FERC specifically requested that Constitution evaluate stream crossing
methods, and FERC explicitly concurred with Constitution’s analysis. See FERC
quote on pages 3-4, supra.16
NYSDEC mischaracterizes FERC’s discussion by arguing that FERC “noted
that ‘[u]se of trenchless crossing methods to cross waterbodies’ would ‘avoid or
15
NYSDEC fails to cite any written document from NYSDEC to Constitution
where it requested that trenchless methods be considered for all stream
crossings. NYSDEC points to its Denial at pages 9 to 11, but notably, every
reference in those pages (aside from references to NYSDEC’s comments to
FERC) relate to verbal statements that NYSDEC claims it made at meetings
and conference calls with Constitution, not any written document. Despite
reliance on its own verbal communications, NYSDEC attempts to strike
Constitution’s sworn Declarations about the verbal exchanges between the
parties. See ECF No. 66. Further, NYSDEC fails to note that its own
regulations require any request for additional information to be in writing,
“must be explicit,” and “must indicate the reasonable date by which the
Department is to receive the information.” 6 NYCRR § 621.14(b).
16
FERC also determined that impacts from dry crossings “would be temporary”
as “macroinvertebrate species rapidly recolonize impacted areas (Matthaei et
al. 1996, McCabe and Gotelli 2000).” FEIS at 4-95, JA1268.

20
adequately minimize impacts on surface water resources.’” Respondents’ Brief at
13. However, FERC recognized that trenchless crossings are not a panacea because
they are not appropriate for all crossings, result in more surface clearing to
accommodate the necessary staging equipment, are dependent on geology, and can
fail resulting in drilling fluid discharges.17
Because each HDD would generally require
approximately 2.5 acres of workspace in order to complete
the technique, it is rarely used to cross minor waterbodies,
as dry crossings can often be implemented with less long-
term impacts from staging workspaces. Additionally,
shorter HDDs must be located closer to the ground surface
(and resource) which may increase the risk of inadvertent
releases of drilling fluid.
FEIS at 4-50, JA1223 (emphasis added).
Further, FERC stated that “in the event that Constitution proposes to modify
its crossing methods, it would be required to seek” FERC’s approval. FEIS,
Appendix S at S-40, JA1638 (emphasis added).18
This contradicts NYSDEC’s claim
17
FEIS at 2-24, 4-56 through 4-57, and 4-96 through 4-97, JA1083, JA1229-
JA1230, JA1269-JA1270.
18
With respect to Alternative M, NYSDEC claims that it “did not require that
the pipeline be rerouted” and that its Denial statements were simply
expressing “dissatisfaction” with Constitution not developing the Alternative
M proposal further. See discussion on page 2, supra. NYSDEC now argues
that it “was not compelled to seek rehearing before FERC, even if it disagreed
with some of FERC’s conclusions,” which reveals its goal to function as a
shadow FERC. Respondents’ Brief at 48.

21
that it was authorized to conduct an independent review of FERC’s conclusions
regarding what waterbodies are to be crossed via trenchless methods.
B. NYSDEC’s Inaccurate Statements About USACE
NYSDEC’s attempt to mischaracterize the record by arguing that even in
February 2016 USACE was still requesting additional information regarding stream
crossings should be rejected. Respondents’ Brief at 67. NYSDEC inaccurately
claims that USACE sent Constitution a list of 17 waterbody crossings for which
Constitution needed to provide final plans in advance of a final permit decision.
However, the document NYSDEC cites to consists of draft permit conditions
proposed by USACE, not to pre-permit information demands. Draft Conditions to
Evaluate (Feb. 23, 2016), JA2807-JA2808. These draft conditions reflect the
framework, similar to that discussed with NYSDEC in the summer of 2015, where
Constitution would submit final stream crossing plans post-permit issuance
following additional geotechnical work.
NYSDEC argues that Constitution submitted plans to USACE for a “new”
proposal to construct a travel lane and “numerous temporary bridges to allow its

22
construction vehicles to access the [right-of-way].”19
NYSDEC cites to March 2016
correspondence between USACE and Constitution regarding certain plans for
temporary waterbody crossings related to access roads that had not yet been
submitted to USACE. Letter from Stephan Ryba (USACE) to Timothy Powell
(Constitution) (Mar. 21, 2016), JA2830-JA2836. However, USACE’s request
regarding access roads related to only three stream crossings in Pennsylvania.20
Further, USACE informed NYSDEC that its concern regarding access road
waterbody crossings was a “[moot]-point” because “only existing culverts are to be
used in NY for stream crossings.”21
NYSDEC also fails to respond to the fact that it proposed a permit condition
setting restrictions on the use of temporary stream crossings, which Constitution
19
NYSDEC’s hyperbolic reference to “a 100-mile ‘travel lane’” relates to
Constitution’s commitment to use free span temporary equipment bridges,
when necessary, along the pipeline right-of-way. This commitment, which
would eliminate waterbody encroachments, has been part of Constitution’s
application since March 2015. Joint Application Supplemental Information
at 3-36 (Mar. 2015), JA2063.
20
Email from Kevin Bruce (USACE) to Stephen Tomasik (NYSDEC) (Mar. 29,
2016), JA2829; Email from Kevin Bruce (USACE) to Stephen Tomasik
(NYSDEC) (Mar. 31, 2016) (forwarding Constitution’s responses to USACE
questions), JA2816-JA2825.
21
Id. (JA2829, JA2822.)

23
accepted.22
Thus, NYSDEC’s contention that the submission to USACE related to
the proposed construction of “a 100-mile ‘travel lane’” and “would have necessitated
additional review time” is factually wrong and reflects yet another instance where
the parties negotiated a permit condition that NYSDEC now ignores.
C. NYSDEC’s Untrue Statements About Constitution’s Wetlands
Analysis
With respect to wetlands, the only document NYSDEC cites is a
memorandum from Constitution regarding the Canadarago Lake mitigation site,
where Constitution noted NYSDEC’s request for a full delineation at the property.23
The Canadargo Lake mitigation site will not be crossed by the Interstate Project.
However, not only did Constitution submit wetland delineation reports for every
single wetland along the Interstate Project,24
Constitution also conducted a full
delineation of wetlands on the Canadarago Lake mitigation site and submitted it to
NYSDEC in September 2015. Canadarago Lake Mitigation Site Plan, JA2467-
22
Email from Chris Hogan (NYSDEC) to Keith Silliman (Constitution) (July
29, 2015), JA2242; Email from Keith Silliman to Chris Hogan (July 30,
2015), JA2243 (“the temporary bridging conditions are fine”).
23
Memorandum from Lynda Schubring (Constitution) to Stephen Tomasik
(NYSDEC) at 3 (June 16, 2015), JA2144.
24
Joint Permit Application, Attachment H (consisting of over 850 pages of
wetland delineation reports); see also Joint Permit Application, Attachment E
(consisting of 675 pages of waterbody and wetland crossing site specific
drawings).

24
JA2492. NYSDEC does not dispute that it never commented on this submission.
Rather, it resorts to an incorrect post hoc rationalization for its Denial by citing to a
document that has nothing to do with wetlands to be crossed by the Interstate Project.
POINT III
NYSDEC IMPERMISSIBLY EXCEEDED THE SCOPE OF SECTION 401
IN DENYING THE CERTIFICATION
Rather than accepting that its jurisdiction is narrowly circumscribed within
the confines of Section 401, NYSDEC seeks to have this Court rewrite the NGA and
its interplay with the CWA by arguing that it is free to consider any standard, no
matter how tangential to water quality, as the basis for its Denial. NYSDEC’s self-
created expansion of its jurisdiction allows NYSDEC to act like a shadow FERC by
basing water quality certifications on a broad range of state regulations and laws that
go well beyond any federally-approved water quality standards. NYSDEC wants
this Court to bless its self-created scope of review, arbitrarily allowing it to reassess
FERC’s assessment of routing alternatives, cumulative impacts, burial depth, and
blasting – all classic FERC matters. Indeed, these issues were all properly addressed
by FERC through a comprehensive NGA and NEPA-mandated environmental
review process (in which NYSDEC participated) which culminated in a 450-page
FEIS and the Certificate approving the Interstate Project.
Both NYSDEC and Intervenors mischaracterize Constitution’s argument that
NYSDEC has limited jurisdiction under CWA Section 401 in the context of NGA

25
approvals, and attempt to cast it as a rejection of NYSDEC’s CWA jurisdiction.
Respondents’ Brief at 45-46; Catskill Brief at 26-28. On the contrary, the NGA
preserved NYSDEC’s jurisdiction to evaluate the Interstate Project pursuant to
CWA Section 401, provided, however, that its review was within the confines of
New York’s EPA-approved water quality standards. 33 U.S.C. § 1341(a)(1); 15
U.S.C. § 717b(d); Niagara Mohawk Power Corp. v. State Dep’t of Envtl.
Conservation, 82 N.Y.2d 191 (N.Y. 1993), cert denied, 511 U.S. 1141 (1994).
NYSDEC exceeded this narrowly circumscribed jurisdiction here.
NYSDEC’s position that its jurisdiction encompasses more than just its EPA-
approved water quality standards contradicts the New York Court of Appeals
decision in Niagara Mohawk which explicitly rejected NYSDEC’s attempt to apply
standards under the New York Environmental Conservation Law (“ECL”) to the
issuance of a Section 401 Certification.25
Niagara Mohawk, 82 N.Y.2d at 195-96;
compare Respondents’ Brief at 49 (arguing that it can apply Articles 15 and 24 of
the ECL to the Interstate Project).
25
NYSDEC argued in Niagara Mohawk that it had authority to apply standards
regarding the State Environmental Quality Review Act (“SEQRA”) (Article
8); fish and wildlife (Article 11); disturbance of stream beds, dam
construction, excavation or fill, dam safety, and reservoir release (Article 15);
and freshwater wetlands (Article 24). New York’s current EPA-approved
water quality standards are limited to 6 NYCRR Parts 700-706, SPA101-278
(https://www.epa.gov/wqs-tech/water-qualitystandards-regulations-new-
york).

26
In Niagara Mohawk, the New York Court of Appeals held that NYSDEC had
a “limited role of review, based on requirements affecting water quality, not on all
State water quality provisions.” Id. at 196 (emphasis added). The New York Court
of Appeals also distinguished between the review of a Section 401 certification
application under 401(a)(1), at issue here, and the conditioning of a Section 401
certification under CWA Section 401(d) based on “any other appropriate
requirement of State law,” and held that NYSDEC could not apply its conditioning
authority, which was also limited to EPA-approved water quality standards, to the
review process for a Section 401 certification. Id. at 199-200; 33 U.S.C. § 1341(d).
NYSDEC glosses over this important distinction in a footnote (Respondents’ Brief
at 50), ignoring the very problem recognized by the New York Court of Appeals,
namely, that granting NYSDEC broad authority would allow it to usurp federal
power by requiring an applicant to “supply information only indirectly related to
water quality.” Niagara Mohawk, 82 N.Y.2d at 198, 200; see also Niagara Mohawk
Power Corp. v. New York State Dep’t of Envtl. Conservation, 187 A.D.2d 7, 11 (N.Y.
App. Div. 3d Dep’t 1993) (“[T]o allow [standards not approved by EPA] to serve as
a predicate for a State ‘veto’ of the project is indefensible for it would effectively
undermine the intent of Congress.”).
NYSDEC takes the position that its Section 401 jurisdiction is bounded only
by the agency’s ability to find some connection, no matter how tangential, between

27
an activity and any nebulous, open-ended standard in its water-related regulations.
Consequently, NYSDEC does not even attempt to link the Denial as it relates to
alternatives, cumulative impacts, burial depth, or blasting to New York’s EPA-
approved water quality standards, because no such basis exists.26
Rather, in an attempt to distinguish Niagara Mohawk, NYSDEC incorrectly
claims that the decision in PUD No. 1 v. Wash. Dep’t of Ecology, 511 U.S. 700
(1994) effectively overruled Niagara Mohawk. Respondents’ Brief at 50; Catskill
Brief at 47; STP Brief at 32-34. This contention is incorrect.
In PUD, the State of Washington issued a conditional Section 401
certification, unlike here, where NYSDEC denied the Section 401 Certification. The
question before the Supreme Court in PUD was whether the State had the authority
to condition the Section 401 certification to require minimum stream flows through
the dam during its operation as opposed to using minimum stream flows as a basis
to deny an application. PUD, 511 U.S. at 709-10. The Supreme Court also
determined that the condition was based on the State’s EPA-approved standards, id.
at 712-13, a determination which directly refutes NYSDEC’s broad interpretation of
the Court’s holding regarding “other appropriate requirement[s].”
26
Intervenors’ improper post hoc rationalizations and attempts to tie the Denial
to EPA-approved water quality standards are noticeably absent from the
Denial and patently insufficient to save it. Catskill Brief at 40-48; STP Brief
at 30-32.

28
Furthermore, the Supreme Court explicitly refrained from interpreting the
scope of CWA Section 401(d)’s provision of “any other appropriate requirement of
State law,” stating that “[w]e do not speculate on what additional state law, if any,
might be incorporated into this language.” Id. at 713. The New York Court of
Appeals did address this question in Niagara Mohawk, however, holding that
NYSDEC could not apply non-EPA-approved standards to impose onerous
conditions on the review of a project. Niagara Mohawk, 82 N.Y.2d at 199.
Accordingly, to the extent this Court holds that PUD applies here, that case actually
preserves the limitations on NYSDEC’s CWA Section 401 jurisdiction established
in Niagara Mohawk.
NYSDEC has not cited a single post-PUD case that supports its expansive
view of a state’s Section 401 jurisdiction to review and deny a Section 401
certification. See Matter of E. Niagara Project Power All. v. N.Y. State Dep’t of
Envtl. Conservation, 42 A.D.3d 857, 860 (N.Y. App. Div. 3d Dep’t 2007) (finding
that NYSDEC had properly declined to consider issues pertaining to an ice boom
and shoreline erosion; expressly confirming that NYSDEC could not consider
“environmental interests beyond the limited bounds of water quality standards[;]”
also recognizing the holding in S.D. Warren Co. v. Maine Bd. Of Envtl. Protection,

29
547 U.S. 370, 383 (2006), but noting that it “did not expand the scope of state review
beyond issues impacting water quality”).27
Furthermore, any reliance on Islander East is misplaced. This Court
recognized that “the [CWA] reflects Congress’s intent that state environmental
agencies consider the factors enumerated in a state’s federally-approved water
quality standards.”). Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 151
n.10 (2d Cir. 2008).
Other arguments made by NYSDEC and Intervenors to avoid the ruling in
Niagara Mohawk also fail. STP argues that Niagara Mohawk is limited in its
application to cases under the Federal Power Act and mischaracterizes it as a
decision based on preemption. STP Brief at 28-29. CWA Section 401 jurisdiction,
not preemption, was squarely at issue in Niagara Mohawk, as it is at issue here. The
New York Court of Appeals concluded that limiting the scope of NYSDEC’s review
to EPA-approved water quality standards best reflected Congress’s vision “that the
States’ role would be fulfilled through the water quality standards adopted in
27
Furthermore, S.D. Warren concerned only whether a Section 401 Certification
was required for the project, not the state’s scope of review. See also Keating
v. FERC, 927 F.2d 616 (D.C. Cir. 1991); Islander E. Pipeline Co., LLC v.
McCarthy, 525 F.3d 141 (2d Cir. 2008).

30
harmony with and under the Clean Water Act § 303.” Niagara Mohawk, 187 A.D.2d
at 201.28
NYSDEC and Intervenors also cite the New York Appellate Division’s
decision in a New York Article 78 case to imply that ECL Articles 15 and 17 are
approved water quality standards. Respondents’ Brief at 55; Catskill Brief at 47;
Matter of Chasm Hydro, Inc. v. N.Y. State Dep’t of Envtl. Conservation, 58 A.D.3d
1100 (N.Y. App. Div. 3d Dep’t 2009) (referring to ECL Articles 15 and 17 as being
incorporated into the conditions of a Section 401 certification for a dam). NYSDEC,
however, overlooks that this was another case where a Section 401 certification was
issued with conditions to “abide by applicable law,” that the applicant had obtained
an ECL Article 15 permit and that the judicial challenge was not to the conditions
but rather to NYSDEC’s enforcement authority. See Matter of Chasm Hydro, Inc.
v. N.Y. State Dep’t of Envtl. Conservation, 14 N.Y.3d 27, 31-32 (N.Y. 2010).
NYSDEC argues that “FERC’s Orders and FEIS . . . recognized and preserved
NYSDEC’s authority to ensure that the Project complied with state water quality
28
STP states that Niagara Mohawk is inapplicable here because it involved a
hydroelectric project, and yet argues that the Court should apply PUD, a case
that also involved a hydroelectric project. STP also incorrectly argues that
NYSDEC must comply with New York procedural laws including SEQRA.
STP Brief at 29. The application of SEQRA is not at issue in this case. See
also Nat’l Fuel Gas Supply Corp. v. Pub. Serv. Comm’n, 894 F.2d 571 (2nd
Cir. 1990).

31
standards.” Respondents’ Brief at 47-48. NYSDEC’s attempt to cobble together
statements in the FEIS and the Certificate to find an endorsement by FERC for the
application of standards that are not EPA-approved water quality standards is futile
because no such statement exists. FERC recognized, and Constitution does not
dispute, that NYSDEC has jurisdiction under CWA Section 401 to review the
Interstate Project. However, nowhere in the FEIS, the Certificate, or its order
denying rehearing does FERC authorize or acquiesce to the application of state
standards in NYSDEC’s Section 401 Certification review that are not EPA-approved
water quality standards. FERC required only that “[p]rior to receiving written
authorization from the Director of OEP to commence construction of their respective
project facilities, [Constitution] shall file documentation that [it] ha[s] received all
applicable authorizations required under federal law (or evidence of waiver
thereof).” Certificate, Environmental Condition 8, JA1717 (emphasis added).
Accordingly, NYSDEC’s references to the FEIS and orders from FERC do not save
the Denial from being a collateral attack on FERC’s decision.29
29
Intervenors’ example concerning the issuance of a biological opinion by the
United States Fish and Wildlife Service (“USFWS”) is inapposite. Catskill
Brief at 31-32. USFWS’s biological opinion pursuant to the Endangered
Species Act is a “federal authorization” under the NGA. 18 C.F.R. § 157.22.
The scope of the USFWS’s jurisdiction under the Endangered Species Act is
irrelevant to this proceeding.

32
CONCLUSION
Constitution respectfully requests that the Court: (1) grant the Petition for
Review; (2) vacate the Denial; and (3) remand to NYSDEC with instructions that
NYSDEC must either (a) notify USACE within 5 days that it has waived the Section
401 Certification requirements, or (b) otherwise act within five days on
Constitution’s application for the Section 401 Certification by issuing a Section 401
Certification consistent with the Certification prepared and ready for final signature
in July/August 2015, if the Court determines that waiver has not occurred.
Respectfully submitted this 17th day of October, 2016.
By: /s/ John F. Stoviak
Yvonne E. Hennessey, Esq.
BARCLAY DAMON, LLP
80 State Street
Albany, New York 12207
T: (518) 429-4293
F: (518) 427-3472
yhennessey@barclaydamon.com
John F. Stoviak, Esq.
Elizabeth U. Witmer, Esq.
SAUL EWING LLP
1500 Market Street, 38th Floor
Philadelphia, PA 19102
T: (215) 972-1095
F: (215) 972-1921
jstoviak@saul.com
ewitmer@saul.com
Counsel for Petitioner Constitution Pipeline Company, LLC

CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 6,979 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been
prepared in a proportionally spaced typeface in 14-point Times New Roman font.
Dated: October 17, 2016 /s/ John F. Stoviak
John F. Stoviak, Esq.
SAUL EWING LLP
1500 Market Street, 38th Floor
Philadelphia, PA 19102
T: (215) 972-1095
F: (215) 972-1921
jstoviak@saul.com
Counsel for Petitioner Constitution Pipeline Company, LLC

CERTIFICATE OF FILING AND SERVICE
I, Robyn Cocho, hereby certify pursuant to Fed. R. App. P. 25(d) that, on
October 17, 2016 the foregoing Final Reply Brief for Petitioner was filed through
the CM/ECF system and served electronically on all parties in the case:
Frederick A. Brodie, Esq.
Brian Lusignan, Assistant Attorney
General
New York State Office of the
Attorney General
Division of Appeals & Opinions
The Capitol
Albany, NY 12224
Anne Marie Garti, Esq.
P.O. Box 15
Bronx, NY 10471
Todd D. Ommen, Esq.
Pace University School of Law
Pace Environmental Law Clinic
78 North Broadway
White Plains, NY 10603
Moneen Susan Nasmith, Esq.
Staff Attorney
Christine Ernst, Esq.
Deborah Goldberg, Esq.
Earthjustice
48 Wall Street
New York, NY 10005
Kimberly Wan Peng Ong, Esq.
Natural Resources Defense Council
40 West 20th
Street
New York, NY 10011
Ryan C. Morris, Esq.
Tobias Samuel Loss-Eaton, Esq.
Sidley Austin LLP
1501 K Street, NW
Washington, DC 20005
James Bryan Bacon, Esq.
James Bacon, Esq.
P.O. Box 575
New Paltz, NY 12561
/s/ Robyn Cocho
Robyn Cocho

Reply Brief: Constitution Pipeline v New York State DEC

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Reply Brief: Constitution Pipeline v New York State DEC