ELR Citation: ELR 20520
No(s). 214 (N.Y. Nov 11, 1993)

The court holds that the New York Department of Environmental Conservation's (DEC's) review of a utility's application for a Federal Water Pollution Control Act (FWPCA) §401 certification is limited to considering the state water quality standards approved by the U.S. Environmental Protection Agency (EPA). The DEC attempted to require that the projects proposed by the utility satisfy multiple provisions of the state's environmental conservation law in addition to those state regulations addressing water quality that were promulgated pursuant to FWPCA §303. The court holds that the DEC's review of the utility's project for purposes of §401 certification is restricted by the Federal Power Act's preemption of state regulation of hydroelectric facilities within the jurisdiction of the Federal Regulatory Commission. Under New York case law, the broad reach sought by the DEC is beyond its limited delegated powers. Although Congress sought in §401 to preserve the states' role in maintaining water quality, it simultaneously maintained essentially preemptive federal control by restricting state certification to compliance with requirements issued or approved by EPA.

Counsel for Respondent
Timothy P. Sheehan
Hiscock & Barclay
One Keycorp Plaza
30 S. Pearl St., Ste. 1100, Albany NY 12207
(518) 434-2163

Counsel for Appellants
Kathleen Liston Morrison, Ass't Attorney General
Attorney General's Office
State Capitol, Albany NY 12223
(518) 474-7330