Special Report: Will Northern Access be the Next Constitution?

National Fuel has stated in each of its recent weekly status reports that it continues "to work cooperatively with NYSDEC in order to secure a Section 401 Water Quality Certification by April 7, 2017." But why this Friday, April 7, 2017 and what should we expect to hear on that day? Various scenarios are possible, but the NYSDEC could follow the path of least resistance, and not provide a ruling.
As a brief recap, the Northern Access 2016 Project received its FERC Certificate in the flurry of orders issued on the eve of then Chairman Norman Bay's departure, which led to the current lack of quorum. Right now, Northern Access 2016 appears to be in a position similar to that of Williams' Constitution Pipeline this time last year; that is, the FERC certificate is in hand and pre-construction activities are underway as it anxiously awaits a NYSDEC determination on its Water Quality Certification (WQC). Based on these facts, is Northern Access destined to the same fate as Constitution?
The issuance of WQCs in New York State has become problematic since the NYSDEC denied the WQC for Constitution (as explained in Breaking News: New York Denies Constitution Pipeline Permit ). In the case of Northern Access 2016, on January 20, 2017, the NYSDEC executed a letter agreement with National Fuel which stipulated that, for purposes of reviewing National Fuel's application for a WQC, April 8, 2016 would be deemed the date on which the NYSDEC "received" National Fuel's application. This letter agreement was addressed to and executed by National Fuel's outside counsel, who is, most notably, a former Chief Legal Officer for the NYSDEC. That letter also states that it extends to April 7, 2017 the date by which the NYSDEC must make a final determination on the WQC application. As a result, there has been much interest and speculation regarding the NYSDEC's actions on this coming Friday.

Will the NYSDEC Act this Friday?

Interestingly, the same letter that seemingly fixes the receipt date of National Fuel's WQC application as April 8, 2016 also reserves for both parties all other rights under law regarding any other issues. National Fuel asserts its right under this "reservation clause" by noting in each of its weekly reports that it believes the NYSDEC waived its right to issue a WQC when it failed to issue one by October 26, 2016. This date was provided in FERC's schedule of environmental review, which maintains that cooperating agencies should issue related permits by the 90-day Federal Authorization Decision Deadline. On March 3, National Fuel filed a Rehearing Request with FERC in which it raised the "waiver" argument, much like Millennium and Constitution pipeline have done in federal courts.
Not surprisingly, the NYSDEC may have another date in mind. The NYSDEC's public notices page indicates that the Northern Access 2016 WQC application was not "complete" until January 18, 2017, but the page also indicates that a decision on the WQC is due on April 18, 2017. Given this contradiction and based on NYSDEC's arguments in the Constitution and Millennium appeals, it's entirely possible that NYSDEC may argue that it has until January 17, 2018 to make a determination, because the application wasn't "complete" until earlier this year.
For this Friday, here are some possible outcomes:

1. NYSDEC could do nothing and force National Fuel to assert that the NYSDEC has waived its right to issue a WQC. Until the Millennium and Constitution appeals are resolved, it is unclear where such an assertion should be made, but it seems likely that the appropriate forum could be FERC itself, which would be problematic for National Fuel so long as FERC lacks a quorum. The alternative to FERC is an appeal directly to the D.C. Circuit.
2. NYSDEC could issue the WQC with conditions that National Fuel finds acceptable, in which case National Fuel would then just need to seek permission from FERC to commence construction, which could be granted even without a quorum because the authority to issue a notice to proceed with construction has been delegated to the FERC staff.
3. NYSDEC could either deny the application or could issue the certification with conditions that National Fuel finds unacceptable. In either situation, National Fuel would then need to challenge the NYSDEC's action by appealing to the Second Circuit.