Thursday, April 21, 2005

The State DOS Role in Broadwater

For process wonks, here’s what I learned late yesterday about the role of the New York State Department of State in approving Broadwater’s LNG terminal proposal:

No "permit" or other final form of approval is required from DOS. However, as part of federal agency permit application and review and approval processes, Broadwater is required to submit a "consistency certification" to DOS as part of its applications for authorization to the Federal Energy Regulatory Commission, U.S. Coast Guard, and U.S. Army Corps of Engineers.

As part of the federal decision-making processes, DOS must: 1) review the proposal and the consistency certification for it; 2) determine whether the proposal is or is not consistent with relevant coastal zone management policies (including those of the Long Island Sound CMP and approved local waterfront revitalization plans, such as the LWRP of the Town of Smithtown which covers an area extending to the Connecticut and New York boundary in the middle of the Sound); and 3) either concur with or object to Broadwater's consistency certification.

If DOS concurs with Broadwater's consistency certification the involved federal agencies may issue their required licenses, permits, or other forms of approval.

If DOS objects to Broadwater's consistency certification, the federal Coastal Zone Management Act and its implementing regulations in 15 CFR Part 930, Subpart D prohibit the federal agencies from issuing their approvals, unless the DOS decision is overridden (not overruled - this is instead an override of the results of the State's decision in federal agency decision-making, rather than an overruling or second-guessing or other means of questioning the State's decision regarding the consistency of a proposal with State coastal policy) on appeal to the U.S. Secretary of Commerce. Such an appeal must be based on the grounds that what is consistent with the objectives or purposes of the federal Coastal Zone Management Act, or is necessary in the interest of national security.


Anonymous David Blatt said...

sphere readers should be aware that the NY DOS role in Broadwater could be rendered irrelevant if the federal energy bill recently passed by the House of Representatives becomes law. Section 320 of the bill (HR 6) would preempt the authority of state and local governments to review and permit LNG facilities, making the Federal Energy Regulatory Commission (FERC)the lead federal agency for LNG siting decisions, with states being granted only a consultative role. Section 330 of the bill would substitute the record of MMS or FERC review of energy projects, which concentrates on energy supply needs, for the far broader record developed by the Department of Commerce in a review of CZMA consistency appeals. Check our the bill at at
New Yorkers should also reflect that their politicos' support for FERC/lack of support for the CZM consistency process when Connecticut was ojecting to the Islander East pipeline has now come back to bite them in the Broadwater.

9:58 AM  

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