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DEC rejects National Fuel's Northern Access Pipeline – again

For the second time, the state Department of Environmental Conservation has refused to grant a water quality certificate to National Fuel's Northern Access Pipeline, which would cross 192 streams on its 97-mile route through Allegany, Cattaraugus and Erie counties.

The 24-inch-wide pipeline would carry fracked natural gas from Pennsylvania to a connection with a Canadian pipeline beneath the Niagara River. The new pipeline would be laid within a 75-foot-wide right of way. Some property owners have resisted granting easements for the work, however.

In 2017, the DEC refused to issue the water quality certificate, but the Federal Energy Regulatory Commission said the refusal was invalid because the DEC missed a deadline to issue it, and in February, the Second Circuit Court of Appeals said the DEC should "more clearly articulate its basis for the denial."

Thursday, the DEC did so in a 20-page letter to the company, asserting the project would damage too many streams, especially by churning up too much sediment to enable them to meet state water quality standards, and harm too much fish habitat.

"If allowed to proceed, the project would materially interfere with or jeopardize the biological integrity and best usages of affected water bodies and wetlands," the DEC's letter said.

However, federal regulators have denied that the DEC has the right to make any rulings about Northern Access.

In April, FERC refused to give the DEC a second chance at a hearing before the commission, citing the missed 2017 deadline to rule on the water quality permit. The DEC appealed that ruling to the Second Circuit in June.

Company spokeswoman Karen Merkel said National Fuel agrees with FERC that the missed deadline invalidates all future DEC actions on the issue.

"Once DEC's deadline to act passed, its subsequent actions, such as this new denial, are of no consequence," Merkel said. "We are considering our legal options and continue to work to finalize the remaining federal authorizations to move this project forward."

Pennsylvania already has granted a water quality permit for the project.

"While we had positive rulings in the courts, we're in a position where we could apply for a notice to proceed in the near future," National Fuel President and CEO David Bauer said during an earnings call with Wall Street analysts last week.

"That said, we're thinking this is really a longer-term project likely in the 2022, 2023 time frame," Bauer added.

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