Federal Consistency Appeal by Millennium Pipeline Company From an Objection by the New York Department of State

AGENCY:

National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (Commerce).

ACTION:

Notice of appeal, request for comments, notice of availability of appeal documents, and notice of public hearing.

SUMMARY:

The Millennium Pipeline Company has filed an administrative appeal with the Department of Commerce asking that the Secretary of Commerce override the State of New York's objection to Millennium's proposed natural gas pipeline. The pipeline would extend from the Canadian border in Lake Erie and cross the Hudson River, affecting the natural resources or land and water uses of New York's coastal zone. This document: (a) Provides public notice of the appeal; (b) announces an opportunity for public comment on the appeal; (c) identifies locations where documents comprising the appeal record will be available for review; and (d) provides notice of a public hearing for the appeal.

DATES:

Public comments on the appeal must be received by December 2, 2002. A public hearing for the appeal is scheduled for November 13, 2002.

ADDRESSES:

All email comments on issues relevant to the Secretary's decision of this appeal may be submitted to Millennium.comments@noaa.gov. Comments may also be sent by mail to the Office of the Assistant General Counsel for Ocean Services, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, 1305 East-West Highway, Silver Spring, MD 20910. Materials from the appeal record will be available at the Internet site http://www.ogc.doc.gov/czma.htm and at the Office of the Assistant General Counsel for Ocean Services. Also, public filings made by the parties to the appeal may be available at the offices of the New York Department of State, Office of General Counsel, 41 State Street, 8th Floor, Albany, NY. The public hearing will be held at the Hilton Tarrytown Hotel, 455 South Broadway, Tarrytown, New York.

FOR ADDITIONAL INFORMATION CONTACT:

Karl Gleaves, Assistant General Counsel for Ocean Services, via email at gcos.inquiries@noaa.gov, or at 301-713-2967, extension 186.

SUPPLEMENTARY INFORMATION:

I. Notice of Appeal

Millennium Pipeline Company, L.P. (Millennium or Appellant) filed a notice of appeal with the Secretary of Commerce (Secretary) pursuant to section 307(c)(3)(A) of the Coastal Zone Management Act of 1972 (CZMA), as amended, 16 U.S.C. 1451 et seq., and the Department of Commerce's implementing regulations, 15 CFR Part 930, Subpart H, (revised, effective January 8, 2001). The appeal is taken from an objection by the New York Department of State (State) to Millennium's consistency certification for U.S. Army Corps of Engineers and Federal Energy Regulatory Commission permits to construct and operate a natural gas pipeline. The certification indicates that the project is consistent with the State's coastal management program. The project would traverse Lake Erie and cross the Hudson River, affecting the natural resources or land and water uses of New York's coastal zone.

The Appellant requests that the Secretary override the State's consistency objections for a procedural reason, concerning the timing of the State's objection to the Millennium project. The Appellant also requests an override of the State's objection on the two substantive grounds provided in the CZMA. The first ground requires the Secretary to determine that the proposed activity is “consistent with the objectives” of the CZMA. To make this determination, the Secretary must find that: (1) The proposed activity furthers the national interest as articulated in section 302 or 303 of the CZMA, in a significant or substantial manner; (2) the national interest furthered by the proposed activity outweighs the activity's adverse coastal effects, when those effects are considered separately or cumulatively; and (3) no reasonable alternative is available that would permit the proposed activity to be conducted in a manner consistent with the enforceable polices of the State of New York's coastal zone management program. 15 CFR 930.121.

The second substantive ground for overriding a State's objection considers whether the proposed activity is necessary in the interest of national security. To reach this conclusion, the Secretary must find that a national defense or other national security interest would be significantly impaired if the activity in question was not permitted to go forward as proposed. 15 CFR 930.122.

II. Public Comments

Public comments are invited on any of the issues that the Secretary must consider in deciding this appeal. Comments must be received by December 2, 2002, and may be submitted by email to Millennium.comments@noaa.gov. Comments may also be sent by mail to the Office of the Assistant General Counsel for Ocean Services, National Oceanic and Atmospheric Administration (NOAA). Comments will be made available to the Appellant and the State; they are also expected to be posted on a Department of Commerce website identified below.

III. Appeal Documents

The Secretary has required that Millennium file its initial brief and supplementary information on August 12, 2002, and that the State of New York file its initial brief and supplementary material on September 30, 2002. NOAA intends to provide the public with access to all materials and related documents comprising the appeal record via the Internet at http://www.ogc.doc.gov/czma.htm,, except that certain materials or documents or portions thereof may be withheld if they contain confidential materials, critical energy infrastructure information, national security information or other types of information that would be inappropriate for public release. Likewise, these public materials and documents also will be available during business hours at the NOAA Office of the Assistant General Counsel for Ocean Services. In addition, the State of New York may make copies of public filings by the parties available for review during business hours at the office of the New York Department of State.

IV. Public Hearing Notice

A public hearing has been scheduled to obtain information relevant to issues to be decided by the Secretary in the Millennium appeal. The public hearing will be held on Wednesday, November 13, 2002, at the Hilton Tarrytown Hotel. Further details concerning the hearing will be available via the Internet at http://www.ogc.doc.gov/czma.htm or through other forms of public notice.