On May 6, 2019, the Oregon Department of Environmental Quality (“Oregon DEQ”) denied a water quality certification under section 401 of the Clean Water Act (“CWA”) for the proposed Jordan Cove liquefied natural gas (“LNG”) export terminal and its feeder pipeline, the Pacific Connector, to be located on Oregon’s southern coast.
On October 24, 2017, the U.S. Army Corps of Engineers (“Corps”) notified Oregon DEQ that it had received an application from Jordan Cove LNG LLC and Pacific Connector Gas Pipeline, LP (together, “Jordan Cove”) for permits under section 404 of the CWA and sections 10 and 14 of the Rivers and Harbors Act (“RHA”) related to the construction and operation of its LNG terminal and associated pipeline. Between November 2017 and May 2018, the Corps requested additional information from Jordan Cove. On May 22, 2018, the Corps determined that it had received a complete application and issued a public notice, commencing Oregon DEQ’s one-year period to act on Jordan Cove’s water quality certification request under CWA section 401.
Just weeks before the expiration of Oregon DEQ’s one-year deadline under CWA section 401, it denied, without prejudice, Jordan Cove’s request for water quality certification. In its denial letter, Oregon DEQ explained that it “must have reasonable assurance that the proposed activities will be conducted in a manner” that will not violate the CWA and Oregon water quality standards. Although the Corps had determined that Jordan Cove’s application for authorizations under CWA section 404 and RHA sections 10 and 14 was complete, Oregon DEQ determined—approximately four months into its one-year deadline under CWA Section 401—that additional information was needed for its water quality certification decision, and therefore issued requests for additional information on September 7 and 25, 2018. Jordan Cove filed a response on October 8, 2018. Again finding Jordan Cove’s Section 401 request incomplete, Oregon DEQ issued three additional supplemental information requests on December 20, 2018 and on March 11 and 13, 2019. Jordan Cove responded to these responses on January 22, February 20, April 16, and April 30, 2019.
In its denial letter, Oregon DEQ determined that “the late date of Jordan Cove’s filing prevented any significant review of the material for this decision.” Oregon DEQ also expressed concern that, based on its review of the FAST-41 Coordinated Project Plan, Jordan Cove may be considering changes to the pipeline route. Accordingly, Oregon DEQ concluded that it “does not have a reasonable assurance that the construction and operation of the Project will apply with applicable Oregon water quality standards . . . .”
Under Oregon’s Administrative Procedures Act, Jordan Cove may seek a contested case hearing in response to Oregon DEQ’s denial of its CWA section 401 water quality certification request. Because its request was denied without prejudice, Jordan Cove also may “resubmit” its water quality certification request. Oregon DEQ’s denial letter recommends the following:
DEQ strongly recommends that Jordan Cove, the Corps and DEQ hold a pre-application conference to ensure a shared understanding of the information and actions required to complete a subsequent review of an application in a timely manner that would avoid delays in consideration of the application by DEQ, and that is coordinated with both the Corps and the FAST-41 Project Plan being managed by the Federal Energy Regulatory Commission.
A copy of Oregon DEQ’s denial letter is available here.