ELR Citation: ELR 20007
No(s). 09-1539 (4th Cir. Dec 22, 2009)

The Fourth Circuit dismissed a petition for review challenging Maryland's denial of a water quality certification request under CWA §401(a)(1) for a proposed large-scale liquefied natural gas (LNG) marine import terminal and pipeline project. Petitioners argued that Maryland waived its right to grant or deny the water quality certification request by failing to act within the CWA's one-year waiver period. But the initial request was not complete, and only a valid request for §401(a)(1) water quality certification will trigger the one-year waiver period. Here, Maryland acted within one year of the applicants' valid request for certification—the date the Corps verified that the certifying agency received a valid request for certification. Petitioners also argued that the state's denial was arbitrary and capricious. Maryland relied on four independent and alternative grounds for its denial, one of which was that the dredging required to accommodate the LNG tankers would create additional deep water areas where dissolved oxygen levels would fail to meet Maryland water quality standards. The court concluded that Maryland examined the relevant data pertaining to the effect on water quality in the areas of the proposed deep channel dredging and articulated a satisfactory explanation for its denial on that basis sufficient to pass muster under the narrow arbitrary and capricious standard of review. Accordingly, the court denied the petition without reaching the remaining grounds for Maryland