You asked for the state permits required to build a natural gas pipeline, and about case law concerning federal preemption. The Office of Legislative Research is not authorized to issue legal opinions and this should not be construed as one.

SUMMARY

A pipeline may need certain Department of Environmental Protection (DEP) permits, depending on the specifics of the proposal. These include permits for regulated activities in tidal wetlands (CGS § 22a-32) and for structures, dredging, or fill in state waters (CGS § 22a-361). In issuing these permits, DEP's Office of Long Island Sound Programs (OLISP) must consider (1) factors enumerated in the relevant statutes and regulations and (2) the goals and policies of the state Coastal Management Act (CMA), which sets standards state and local authorities use to review all activities within the zone (CGS § 22a-90 et seq. ).

The factors include the proposed activity's effect on (1) coastal resources, (2) plant and animal species, (3) fisheries, (4) shore erosion, (5) coastal flooding, (6) adjoining lands, (7) navigation, (8) water quality, (9) recreational uses, and (10) aesthetic enjoyment. The decision on a particular permit depends on the specific facts related to the proposed activity and the site. We have attached OLR Report 97-R-0872, which discusses the CMA in detail.

A pipeline proposal also may require additional DEP permits, such as permits for storm channel encroachment lines (CGS §22a-342) or water diversion (CGS §22a-365 et seq. ).

Federal law requires that an applicant for a federal license or permit to conduct an activity that may result in a discharge into navigable waters obtain a state certificate (a "401 permit") that the discharge will comply with the federal Clean Water Act and state water quality standards.

The Connecticut Siting Council must permit the pipeline, taking into consideration its environmental impact (CGS §16-50i et seq. ). The U. S. Army Corps of Engineers must approve the project under § 10 of the federal Rivers and Harbors Act and § 404 of the federal Clean Water Act.

Courts have held that the Federal Energy Regulatory Commission (FERC) has the exclusive power to regulate natural gas pipelines, and so to preempt the state permitting process. But federal law (15 CFR 930) also requires DEP to determine that a pipeline project is consistent with the state CMA. FERC cannot issue a license for the pipeline unless the state makes this determination (15 CFR 930. 64). DEP finds a project is consistent if it complies with state statutes, regulations and policy. Federal regulations call for the determination to be made in six months, but DEP can request an extension. However, a state may not block or unreasonably delay a FERC-approved pipeline.

REGULATED ACTIVITY IN A TIDAL WETLAND

Anyone proposing to conduct a regulated activity in a tidal wetland must apply for a permit from the DEP (CGS § 22a-32). Regulated activities, as defined in CGS § 22a-29(3), include draining, dredging, and excavation, directly or indirectly in a tidal wetland, and building structures, driving pilings, or placing obstructions. The DEP must hold a hearing between 30 and 60 days after receiving the application, unless it determines the proposed activity is not likely to have a significant impact on the wetland (in which case it may waive the hearing after publishing notice of the commissioner's tentative decision).

The commissioner may grant, deny, or limit the permit; he must consider the effect of the proposed activity on:

1. the public health and welfare,

2. marine fisheries,

3. shellfisheries,

4. wildlife;

5. protection of life and property from floods, hurricanes, and other natural disasters, and

6. other public policy considerations set out in the tidal wetland statutes (including, under CGS § 22a-29, preservation of wetlands to protect marine commerce, fisheries, recreation, and aesthetic enjoyment) (see CGS § 22a-33).

In addition, the commissioner may deny the application if the DEP is in the process of acquiring the land.

Tidal Wetlands and the CMA

In addition to the statutory criteria for each permit, the law requires DEP to administer all coastal permitting programs in accordance with the goals and policies of the coastal zone management act (CGS § 22a-98). These include:

1. preserving tidal wetlands and preventing the despoliation and destruction of their vital natural functions;

2. encouraging rehabilitation and restoration of degraded wetlands;

3. encouraging the creation of wetlands for fisheries and habitat purposes when feasible;

4. regulating shoreland use and development to minimize harm to adjacent coastal systems and resources;

5. managing the area exposed at low tide to preserve its value as a nutrient source and reservoir, a healthy shellfish habitat and valuable feeding area for invertebrates, fish and shorebirds; and

6. disallowing filling of tidal wetlands and near shore and intertidal waters to create new land which is otherwise undevelopable (CGS § 22a-92).

Tidal Wetland Regulations

DEP adopted regulations consistent with the Tidal Wetlands Act and the CMA offering guidance on nine factors:

1. Wetland preservation and prevention of destruction;

2. recreational and navigational uses;

3. erosion and sedimentation;

4. marine fisheries, shellfisheries, and wildlife;

5. circulation and quality of coastal or tidal waters;

6. protection of life and property from hurricanes or natural disaster;

7. water dependant use of tidal wetlands;

8. special standards for the placement of sewer or water services; and

9. special standards for the siting or expansion of airports (Conn. Agencies Regs. § 22a-30-10).

The regulation also list activities that are (1) generally compatible with wetland functions under certain conditions and (2) generally incompatible (Conn. Agencies Regs. 22a-30-11). We have attached copies of these regulations.

STRUCTURES, DREDGING, AND FILL IN STATE WATERS

Anyone proposing to dredge, fill, obstruct, encroach, erect or maintain any structure or perform work incidental to such activities seaward of the high tide line in tidal, coastal, or navigable waters of the state must apply for a DEP permit (CGS §22a-361). The commissioner may approve, deny or modify the application.

The law requires the commissioner to consider the effect of proposed activities on (1) indigenous aquatic life, fish, and wildlife, (2) preventing or alleviating shore erosion and coastal flooding, (3) the use and development of adjoining uplands, (4) improving coastal and inland navigation, (5) use and development of adjacent lands, and (6) the state's interests including water quality, recreational uses, and coastal resource management (CGS §22a-359).

The commissioner may adopt regulations establishing criteria for judging applications, including consideration for the impact of regulated activities on natural resources. The regulations may also include consideration of state, local, and federal programs affecting tidal wetlands, coastal and navigable waters, and upland development. The DEP has not adopted such regulations, so relies on statutory guidelines and water quality standards.

Structures, Dredging and Fill and the CMA

The CMA lists a number of criteria related to structures, dredging and fill that OLISP must consider. They include:

1. requiring structures in tidal wetlands and coastal waters to be designed to minimize their harm to coastal resources, circulation, sedimentation, water quality, flooding, and erosion;

2. disallowing filling of tidal wetlands and nearshore, offshore, and intertidal waters to create new land which is otherwise undevelopable;

3. disallowing new dredging in tidal wetlands, except where no feasible alternative exists or where adverse impacts to coastal resources are minimal;

4. requiring that access to public beaches below the mean high water mark not be unreasonably impaired by structures including jetties, groins, and breakwaters;

5. encouraging the removal of illegal structures below mean high water that obstruct passage along the beach; and

6. maintaining, enhancing, or restoring natural water circulation patterns and fresh and saltwater exchange (CGS §22a-92).

In addition to structures and dredging permits the DEP may issue general permits for minor activities in tidal wetlands and state waters.

401 PERMIT

An applicant for a federal license or permit whose activity may result in the discharge of dredged or fill material into navigable waters, including wetlands, must obtain a state Water Quality Certificate under § 401 of the federal Clean Water Act (33 USC 1314). (Navigable waters are generally considered those subject to the flow of the tide, and used in interstate transport or foreign commerce).

Certification is generally made in conjunction with issuance of a state permit under the structures, dredging and fill laws. Conditions contained in a water qualify certificate become conditions of the federal permit or license.

In reviewing an application for a 401 permit, DEP must consider the effects of proposed discharges on ground and surface water quality and on the existing and designated water use. Such discharges could include the discharge of dredged and fill material or storm water during construction, in the incidental discharge of sediments during dredging operations, and any excavation, land clearing and grading in, or affecting, navigable waters.

CONSISTENCY DETERMINATION

Federal actions that are reasonably likely to affect any land or water use or natural resources of a coastal zone must be consistent with the policies of the federally approved coastal management plan. Federal actions include indirect actions, such as in this case, that require a federal permit. The federal government has authorized DEP to make this determination for Connecticut's CMA. FERC cannot issue a license if DEP does not find the project is consistent with state laws, regulations and policy. Federal regulations call for the determination to be made in six months, but DEP can request an extension.

SITING COUNCIL

The Connecticut Siting Council has jurisdiction over the siting of various types of utility facilities, including gas pipelines. We have attached OLR Report 2001-R-0657, which goes into more detail on state regulation of energy facilities, including pipelines.

CASE LAW CONCERNING PREEMPTION BY FERC

Federal law extensively regulates the siting of natural gas facilities, including pipelines (Natural Gas Act, 15 U. S. C. §§ 717-717w).

The U. S. Supreme Court and the U. S. 2nd Circuit Court of Appeals have held that the law and regulations under it control. In Schneidewind v. ANR Pipeline Co. , (485 U. S. 293 (1988)), the Supreme Court held that the Natural Gas Act confers upon FERC "exclusive jurisdiction over transportation and sale of natural gas in interstate commerce for resale. "

In National Fuel Gas Supply Corp. v. Public Service Commission of New York (894 F. 2d 571 (1990)), the New York Public Service Commission (PSC) required National Fuel to obtain a "certificate of environmental compatibility and public need" to build its pipeline. National Fuel sought to enjoin PSC from regulating the pipeline. Citing Schneidewind, the court held for the gas company. It found that even a site-specific environmental review is "undeniably a regulation" of the interstate pipeline that "would certainly delay and might well...prevent the construction of federally approved interstate gas facilities. "

The court noted that both federal and state regulation called for environmental review of the project. "The matters sought to be regulated by the PSC were thus directly considered by the FERC," the court held. "Under Schneidewind, such direct consideration is more than enough to preempt state regulation. "

The court went on to state that "because FERC has authority to consider environmental issues, states many not engage in concurrent site-specific environmental review. Allowing all the sites and all the specifics to be regulated by agencies with only local constituencies would delay or prevent construction that has won approval after federal consideration of environmental factors and interstate need, with the increased costs or lack of gas to be borne by utility consumers in other states. "

FERC encourages cooperation between interstate pipelines and local authorities (Maritimes & Northeast Pipeline, L. L. C. , Algonquin Gas Transmission Co. , 2001 WL 1638755 (F. E. R. C. ) (2001)). However, this does not mean that local authorities "through application of state and local laws, may prohibit or unreasonably delay the construction of facilities approved by [the] commission. " We have supplied your office with copies of these cases.

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