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Recent Water Law Developments
April 22, 2014
The NYS Department of Environmental Conservation (DEC) has given
notice of 13 water withdrawal permit applications under New York's
new water withdrawal permitting law and regulations to date. See
Table 1 below. Despite the clear wording of the new
law, as pointed out in
comments
filed on a number of the applications and in a
lawsuit filed by the Sierra Club and the Hudson River Fishermen's
Association, the DEC continues to rubber stamp the water withdrawal
permit applications it has been receiving and refuses to conduct
the reviews required under the state environmental quality review
act (SEQRA) and the state's coastal zone management laws. (I am
one of the attorneys for the petitioners in the Sierra Club suit.)
Comments on the two most recent applications are due this Thursday,
April 24, and next Thursday, May 1 for the Lafarge Cement Plant
in Ravena to withdraw 8.6 MGD from the Hudson River, and for
the DEC Salmon River Fish Hatchery in Altmar to withdraw 8.8 MGD
from
the
Salmon River, respectively. (Click
here for information on how to comment on the Lafarge Cement
Plant water withdrawal application.)
The procedure being followed for issuance of a water withdrawal
permit to the Lafarge Cement Plant illustrates some of the problems
with the DEC's approach. The Lafarge Company and its subsidiaries
are the nation's second largest manufacturer of Portland cement.
The Ravena plant is one of 13 Lafarge cement making facilities
in the US under a federal consent order with the State of New York
and a number of other states. See Lafarge
North America, Inc. Clean Air Act Settlement. The consent order
requires that the plant switch from wet processing facility to
a dry kiln plant by 2014. In 2013, Lafarge and the State of New
York, with the concurrence of the DEC, the US Department of Justice
and the US Environmental Protection Agency entered into a
stipulation to extend the dates prescribed in the consent order
for terminating operation of the two existing kilns at the Ravena
plant and completing construction of a replacement kiln. Lafarge's revised
water withdrawal application states, "A new kiln line
will become operational in 2016 which will produce cement using
a dry system, eliminating the production of slurry and that water
use. A closed-loop cooling water system will also be installed
as part of the Ravena Plant Modernization project. This project
will be completed in 2016 and will eliminate the current practice
of 'once-through' cooling water, currently the largest consumer
of water in the facility." This overhaul means that the modernized
plant will use a fraction of the amount of water used now. The Executive
Summary of the FEIS for the Ravena Plant Modernization
completed in July 2011 states in Section 4.11, p. ES-47:
The design capacity of the pumps at the existing facility is
8 MGD, therefore limiting the flow to 2 MGD represents a reduction
of 75% in potential withdrawal volume with an equivalent reduction
in numbers of passive organisms exposed to entrainment. . . .
In the future with the proposed project, the Ravena Plant would
incorporate the complete recycle (i.e., “zero discharge”) of
all process wastewaters and cooling waters to be generated by
the modernized dry kiln cement-making plant.
Notwithstanding the major reductions in water use planned for
the Ravena plant, the DEC is processing the Lafarge water withdrawal
application now for the design capacity of the pumps, rather than
the reduced usage anticipated in 2016. (It is confusing that, while
the Lafarge
Water Withdrawal Application Supplement WW-1 and the notice
of the application in the ENB state that the permit is for
8.6 MGD of water per day from the Hudson River, the Water
Conservation Program Form attached to the application states
that the facility is using 8.6 MGD from the Hudson River, 5 MGD
from surface water in an adjacent quarry and 0.6 MGD from a groundwater
well.)
Problems environmental groups are having with the DEC's handling
of water withdrawal permit applications received substantial coverage
in the Rochester media recently. See Environmental
groups in standoff with Eastman park firm, Steve Orr, Rochester
Democrat and Chronicle, April 11, 2014, and Eastman
park permit could set precedent, Jeremy Moule, Rochester City
Paper, April 1, 2014. The articles discuss comments submitted at
the end of March by 18 environmental groups on the water withdrawal
application for the Eastman Business Park in Rochester to take
up to 54 MGD from Lake Ontario. The D&C article quotes Larry
Levine, senior attorney for the Natural Resources Defense Council, "In
all the permits they've considered so far, [the DEC is] basically
rubber-stamping the applications." The article notes that
the groups submitted similar comments on other major water withdrawal
permit applications, and that the handling of these first applications
will set a precedent for hundreds of additional applications expected
in coming years. "We certainly hope that DEC will take these
comments seriously and will follow through ... to protect the state's
water resources," Levine said. "If they go ahead and
issue these permits without change, we'll have to evaluate what
they've done and decide from there."
Mr. Levine also addresses these issues in a recent
post on his blog:
But there’s a very disturbing trend with [the DEC's] roll-out
[of the new water permitting law]. The state should be ensuring
that these water users are employing all “environmentally
sound and economically feasible water conservation measures” and
avoiding “significant adverse environmental impacts” – as
required by the 2011 law. Instead, DEC has been issuing, or proposing
to issue, permits that simply rubber-stamp existing practices,
or even authorize major increases in existing water use – without
consideration of more water-efficient alternatives and without
regard to the environmental consequences.
In addition to challenging the failure of the DEC to require “environmentally
sound and economically feasible water conservation measures,” the
comment letters and the Sierra Club lawsuit also challenge the
failure of the DEC to conduct reviews of environmental impacts
of the proposed withdrawals under SEQRA and the state's coastal
zone management laws. For an overview of the Sierra Club suit,
see Sierra
Club Fights NY Over Water & Power, Marlene Kennedy, Courthouse
News Service, March 6, 2014.
Table 1. Notices of Water Withdrawal
Permit Applications Published in ENB
Date of Notice
|
Comments Due
|
Applicant
|
City/Town
|
County
|
DEC Region
|
Volume
|
|
Purpose of Withdrawal
|
04/16/14
|
05/01/14
|
|
Altmar
|
Oswego
|
7
|
8.78 MGD
|
|
"for fish production at the Salmon River Fish Hatchery"
|
04/09/14
|
04/24/14
|
|
Ravena
|
Albany
|
4
|
8.6 MGD
|
|
"for operation" of cement-making facility
|
03/12/14
|
03/28/14
|
|
Rochester
|
Monroe
|
8
|
54 MGD
|
|
"for operation of . . . Industrial Water Treatment Plant,
which serves the Eastman Business Park"
|
02/26/14
|
03/13/14
|
|
Astoria
|
Queens
|
2
|
1,246 MPD
|
|
"for operation of the Astoria Generating Station Facility"
|
02/26/14
|
03/13/14
|
|
Albany
|
Albany
|
4
|
92 MGD
|
|
"for operation of the air conditioning system at the
Empire State Plaza"
|
01/29/14
|
02/13/14
|
|
Sag Harbor, East Hampton
|
Suffolk
|
1
|
1.44 MGD
|
|
"construct . . . replacement production well" at the
Division Street Well Field
|
|
01/30/14
|
|
Utica
|
Herkimer and Oneida
|
6
|
32 MGD
|
|
"to increase MVWA's authorized service area to include
the Towns of Frankfort and Schuyler in Herkimer County,
and the Towns of Kirkland and Westmoreland in Oneida County" and "include
a maximum taking of up to 32 million gallons per day from
Hinckley Reservoir"
|
01/08/14
|
01/23/14
|
|
Elwood, Town of Huntington
|
Suffolk
|
1
|
2 MGD
|
|
"construct a new public supply well" at Larkfield
Road well field
|
12/11/13
|
12/26/13
|
|
Glen Cove
|
Nassau
|
1
|
2 MGD
|
|
"install a new water supply well" at Duck Pond Rd Water
Plant Extension
|
10/23/13
|
11/07/13
|
|
Mohawk
|
Herkimer
|
6
|
.0027 MPD
|
|
"new permissive service area will serve four residential
properties along Putts Hill Road"
|
10/16/13
|
10/31/13
|
|
Richland
|
Oswego
|
7
|
Not stated
|
|
"rehabilitate two (2) existing wells for public water
supply and install . . . (11.4 miles) of new . . . water
main and appurtenances"
|
08/14/13
|
08/29/13
|
|
Scarsdale
|
Westchester
|
3
|
0.572 MPD
|
|
"addition of two new wells to current irrigation water
system in order to lower the Club's reliance on municipal
water"
|
|
09/11/13
|
|
Long Island City
|
Queens
|
2
|
1,500 MGD
|
|
"for operation of the Ravenswood Generation Station"
|
April 2, 2014
The decision of the Appellate Division Fourth Department in Sierra Club v. Painted Post, Index No. 2012-0810,
was issued in Friday, March 28, 2014. Unlike the trial court,
the appeals court determined that Petitioner John Marvin did
not have standing. The court said “Marvin will not suffer
noise impacts ‘different in kind or degree from the public
at large.” The court also determined that the organizational
petitioners did not have standing, stating “Here, . . .
, because 'none of the individual petitioners alleges a unique,
direct environmental injury,' none of the organizational petitioners
can be found to have standing.” Having determined that
none of petitioners had standing, the appeals court reversed
the judgment of the trial court, and granted the motion of respondents
Village of Painted Post, Painted Post Development, LLC, and SWEPI,
LP to dismiss the petition.
The case challenged the failure of
the Village to conduct a
review under the state environmental quality review act (SEQRA)
of the
bulk water sale agreement made by the Village to sell up to
1.4 MGD from the Village water system to SWEPI, LP (an affiliate
of Shell Oil Company) for gas drilling in Pennsylvania. I am
working with attorney Richard J. Lippes from Buffalo to represent
the petitioners in the case. Click
here to review the decision on appeal. The briefs filed
on appeal may be reviewed
here.
December 10, 2013
The Sierra Club and the Hudson River Fishermen’s Association
filed suit December 6, 2013, in New York State Supreme
Court in Queens County against the New York State Department of Environmental
Conservation
and TransCanada Ravenswood LLC. The suit is an Article
78 proceeding challenging the DEC's failure to conduct an environmental
review under
the State Environmental Quality Review Act (SEQRA)
as part of the process in issuing a water withdrawal permit to the Ravenswood
Generating Station.
Ravenswood has applied for a permit to withdraw 1.5
billion gallons of water per day from the East River in New York Harbor.
The Ravenswood
water withdrawal application is the first application
to be considered by the DEC under the state’s new water withdrawal
permitting law and regulations. In addition to violations of SEQRA,
the suit asserts
that the DEC has failed to comply with the requirements
of the state’s
Water Resources Protection Act, the public trust doctrine,
the federal Coastal Zone Management Act, the NYS Waterfront Revitalization
of Coastal
Areas and Inland Waterways Act, the New York State
Coastal Management Plan and the New York City Waterfront Revitalization
Program. Continue
reading . . .
August 15, 2013
Under the permitting schedule adopted by the New York State Department of Environmental
Conservation (DEC) for issuing water withdrawal permits pursuant to the DEC's new
water withdrawal regulations, water users that withdraw or are designed to withdraw
100 million gallons per day (MGD) or more are required to apply for permits this year.
See Table
1 below. Twenty water users in the state have a maximum
daily usage above this threshold. See Table
2 below. Two of these
top 20 users are hydropower facilities that are exempt from the permitting requirements.
Two other top 20 users are public water supplies that are grandfathered under existing
permits. In addition, four of the top 20 users are using a combined 3.2 billion gallons
per day (BGD) of water from New York harbor which is not fresh water.
The total freshwater maximum usage of the remaining 12 facilities required to
obtain permits this year, each of which is a power generating station, is almost
7.9 BGD. (The amount was determined by adding the maximum daily usages
of the facilities shown in bold in Table 2 below.)
A comparison of this amount with New York State's total fresh water usage of 7.1
BGD
as determined by USGS for 2000, the last year for which I could find data, shows
that the maximum daily usage of these facilities is 111% of New York's total daily
freshwater usage.
The pie-chart above is a portion of Figure 3. Total freshwater withdrawals, fresh
surface water withdrawals and fresh groundwater withdrawals in New York in 2000, by
water-use category, New
York Water Use Program and Data, USGS Open-File Report 2005-1352, September 2005.
What will be the consequence of issuing permits for water withdrawals in these huge
amounts? How will water usage be allocated among competing water users? Will any sort
of priority be conferred on those who receive the first permits? Judging by the notice
filed last week of the first water withdrawal application, the DEC is not going to
give the public time to research and consider the issues raised by these permit applications.
The first notice of a water withdrawal application was given last week in the
DEC's August 7, 2013, Environmental Notice Bulletin (ENB). Notice was given of the
application of the Ravenswood Generating Facility in Queens County for a permit
to withdraw up to 1.5 bgd from the East River. See DEC
Gives Two Weeks to Comment on First Water Withdrawal Application for 1.5 Billion
GPD. Probably it is not a coincidence that the Ravenswood Facility, the sixth
largest water user in the state, is the only registered water user in the state that
must apply for a permit this year and is withdrawing water from a salt water
body rather than a fresh water body. The DEC may calculate that the public will have
less concern about saltwater withdrawals. But this permitting procedure is establishing
the precedent by which all other water withdrawal permits will be issued. And most
permits will be freshwater permits.
As I noted
last week, no hearings are
scheduled on the Ravenswood application and the entire comment period
is only two
weeks long until August 22, 2013. It was days into the comment period before anyone
I know was able to reach anyone at the DEC to discuss the permit by telephone. My own
telephone messages were not returned. Out of frustration, I resorted to filing a
Freedom of Information
Law request to obtain the documents I thought would be relevant, such as Ravenswood's
SPDES permit and the environmental reviews conducted in connection with the issuance
and renewal of the Ravenswood SPDES permit. I have been informed that it will take
at least 20 days before the documents I requested can
be provided.
That
means
that
I
won't have
them to review until after the comment period
has expired.
Furthermore, the
notice of application states that DEC determined
that the project is not subject to SEQRA
because "it
is a Type II action." This is despite the fact that projects that "would use
ground or surface water in excess of 2,000,000 gallons per day," are explicitly
defined as Type I actions in Section
617.4(6)(ii) of
the SEQRA regulations. Finally, the notice of application states that "the project
is not located in a Coastal Management area and is not subject to the Waterfront Revitalization
and Coastal Resources Act." I am not an expert on the Waterfront Revitalization
and Coastal Resources Act, but I note that the DEC webpage on Coastal Management states, "The
coastlines along Lake Erie and Lake Ontario, Long Island Sound, and the Atlantic Ocean
coastline of NYC and Long Island are at risk to coastal erosion from natural and human
activities and are regulated." The East
River listed on this webpage as one of New York's
coastal waters, together with "All connecting water bodies, bays, harbors,
shallows, and wetlands." It would seem that taking up to
1.5 billion gallons of water a day from the East River could have an effect on
the coasts along the tidal strait as well as on connecting water bodies, bays, harbors, shallows,
and wetlands.
The question as to whether users withdrawing less than 100 MGD may submit applications
in advance of the schedule shown in Table 1 has been answered
by the
announcement in yesterday's ENB that the Sunningdale
Country Club Club in Scarsdale has applied for a water usage permit for a total
of 572,000 gallons per day (GPD). Under the schedule,
Sunningdale is not required to apply until 2015. The ability to have a water use permit
application
considered ahead of schedule may offer an advantage to smaller water users. Other
smaller water users may want to consider making their applications soon, now that we
know that early
applications are being accepted by the DEC. Continue
reading . . .
Posted by Rachel Treichler at 08/15/13
4:30 PM. Updated 08/16/13 12:30 PM.
August 8, 2013
The first noticed application for a water withdrawal permit under New York's new water
withdrawal laws and regulations, the application of the Ravenswood Generating Station
in Queens, does not establish a comforting precedent for the handling of such applications
by the New York State Department of Environmental Conservation (DEC). Notice of the
Ravenswood application is given in the
DEC's August 7, 2013, Environmental Notice Bulletin,
No hearings are scheduled on the application for a permit to withdraw approximately
1.5 billion gallons per day from the East River in New York City, and the DEC determined
that the project is not subject to SEQRA because, according to the notice, "it
is a Type II action." Comments are due on Aug 22, 2013. The entire comment period
on this very first application by one of the state's largest water users is only two
weeks long and is located in the middle of August, when summer vacations are often
taken.
The categorization of the project as a Type II action is difficult to fathom because
projects that "would use ground or surface water in excess of 2,000,000 gallons
per day," are explicitly defined as Type I actions in Section
617.4(6)(ii) of the SEQRA regulations.
Although this is the first noticed application under the new water withdrawal regulations
and as such can be expected to be the subject of considerable interest across the state,
the filed application documents and DEC's draft permit are available for inspection
only during normal business hours at the address of the DEC contact person in Albany.
Members of the public who wish to comment on the application, but do not live in Albany,
are likely to find that it takes most of the two week comment period just to obtain
a copy of the application and draft permit. Continue
reading . . .
April 7, 2013
Surprisingly, the New York State Department of Environmental Conservation (the DEC),
the state agency charged with administering the State Environmental Quality Review
Act (SEQRA), did not conduct an environmental impact review pursuant to SEQRA of its
new water withdrawal permitting regulations, which became effective on April 1, 2013.
So the environmental impacts of the new program have not yet been assessed. (The new
water withdrawal regulations, amending 6 NYCRR Parts 601 and 621, are posted on
the DEC website here and here.)
But environmental impact assessments are required under SEQRA before the DEC processes
the individual permit applications it receives under the new program. Under the water
withdrawal regulations, applications for systems withdrawing 100 million gallons per
day (MGD) or more are due June 1, 2013. See 6 NYCRR 601.7(2).
Under the SEQRA regulations, 6 NYCRR 617.4(6)(ii), any project or action that would
use ground or surface water in excess of two MGD is a Type I action, requiring an environmental
impact review under SEQRA. A water withdrawal application for 100 MGD or more is without
a doubt a Type I action.
The names and locations of the water users subject to water permitting requirements
this year may be estimated from the list of large water users in the state I obtained
from the DEC pursuant to a Freedom of Information Law request several weeks ago. According
to this list, only 20 users in the state have a maximum daily usage of 100 MGD or more.
Eighteen of these users are power plants. Two are large municipal water systems—New
York City and Monroe County. A power plant is exempt from water withdrawal permitting
under Section Section 601.9 of the water regulations if it is a facility "operating
under a valid Federal Energy Regulating Commission license." I am currently researching
which, if any, of the power plants on the list below do not operate under FERC licenses.
Residents and water users in the communities where non-exempt projects are located
should begin researching their options now and preparing to get involved in the SEQRA
reviews of the water withdrawal permit applications by those projects.
Table 1. Water Users with Maximum Usage over 100 MGD
Facility Name |
Town/City |
County |
Average |
Units |
Max. |
Units |
St. Lawrence/ FDR Power Project |
Massena |
St.Lawrence |
79278.00 |
MGD |
108686.00 |
MGD |
Niagara Power Project |
Lewiston |
Niagara |
47463.00 |
MGD |
62164.00 |
MGD |
Indian Point 2&3 LLCs |
Cortlandt |
Westchester |
2024.00 |
MGD |
2489.00 |
MGD |
New York City DEP |
Neversink |
Sullivan |
1078.00 |
MGD |
1418.00 |
MGD |
James A. Fitzpatrick Nuclear Power Plant |
Scriba |
Oswego |
543.00 |
MGD |
596.00 |
MGD |
Ravenswood Generating Station |
Queens |
Queens |
512.90 |
MGD |
1390.00 |
MGD |
Arthur Kill Generating Station |
Richmond |
Richmond |
480.00 |
MGD |
712.80 |
MGD |
Astoria Generating Station |
Queens |
Queens |
455.60 |
MGD |
723.70 |
MGD |
RE Ginna Nuclear Power Plant |
Ontario |
Wayne |
427.00 |
MGD |
511.00 |
MGD |
Nine Mile Point Nuclear Station |
Scriba |
Oswego |
401.10 |
MGD |
457.10 |
MGD |
Roseton Generating Station |
Newburgh |
Orange |
340.54 |
MGD |
794.40 |
MGD |
Dunkirk Generating Station |
Dunkirk |
Chautauqua |
304.00 |
MGD |
|
|
Danskammer Generating |
Newburgh |
Orange |
278.80 |
MGD |
455.04 |
MGD |
East River Generating Station |
New York |
New York |
264.10 |
MGD |
371.80 |
MGD |
AES Somerset |
Somerset |
Niagara |
239.00 |
MGD |
274.00 |
MGD |
AES Cayuga |
Lansing |
Tompkins |
214.12 |
MGD |
243.36 |
MGD |
Huntley Generating Station |
Tonawanda |
Erie |
200.00 |
MGD |
406.00 |
MGD |
Oswego Harbor Power |
Oswego |
Oswego |
167.70 |
MGD |
364.21 |
MGD |
Genon Bowline |
Haverstraw |
Rockland |
74.94 |
MGD |
989.29 |
MGD |
Monroe County Water Authority-Shoremont |
Greece |
Monroe |
55.40 |
MGD |
109.00 |
MGD |
Source: Response to FOIL request to DEC, received March 27, 2013.
As noted in my overview of the new water
withdrawal permitting requirements, the implementation of the requirements by
DEC on a staggered schedule over a five-year period, with the largest users being
issued permits first is manifestly unfair to smaller users. While a review of the
water usage requirements of smaller users is not mandated under the water regulations
prior to the issuance of a permit to a larger water user, it is mandated by the SEQRA
regulations and needs to be addressed in the upcoming SEQRA reviews of each water
withdrawal permit application.
Table 2. Dates by which Application for Initial Permit Must Be Completed
June 1, 2013 |
Systems that withdraw or are designed to withdraw a volume of 100 million gallons
per day (mgd) or more |
Feb. 15, 2014 |
Systems that withdraw or are designed to withdraw a volume equal to or greater
than 10 mgd but less than 100 mgd |
Feb. 15, 2015 |
Systems that withdraw or are designed to withdraw a volume equal to or greater
than 2 mgd but less than 10 mgd |
Feb. 15, 2016 |
Systems that withdraw or are designed to withdraw a volume equal to or greater
than 0.5 mgd but less than 2 mgd |
Feb. 15, 2017 |
Systems that withdraw or are designed to withdraw a volume equal to or greater
than 0.1 but less than 0.5 mgd |
Source: 6 NYCRR 601.7(2) lists the dates by which a complete application for
an initial permit must be submitted.
March 26, 2013
As the Corning Leader reports
this morning, Judge Kenneth Fisher issued his ruling yesterday in Sierra Club
v. Painted Post, Index No. 2012-0810, a legal challenge to the agreement made
by the Village of Painted Post in Steuben County, New York to sell water to SWEPI,
LP (an affiliate of Shell Oil Company) for gas drilling in Pennsylvania. I worked
with attorney Richard J. Lippes from Buffalo to represent the petitioners in the
case. In a learned and scholarly opinion, the court determined:
"In sum, the Village Board acted arbitrarily and capriciously when it classified
the Surplus Water Sale Agreement as a Type II action and failed to apply the criteria
set out in the regulations to determine whether an EIS should issue, and when it
improperly segmented the SEQRA review of the Lease from the Surplus Water Sale Agreement.
. . . Accordingly, searching the record, summary judgment is granted to petitioners
as follows: The Village resolutions designating the Surplus Water Agreement as a
Type II action is annulled. Similarly, the Negative Declaration as to the Lease Agreement
must be annulled, as in reaching the decision as to a negative declaration, the Village
Board improperly segmented its review of the Lease from the Surplus Water Sale Agreement.
Petitioners also seek the annulment of the Village approvals of the Surplus Water
Sale agreement and the Lease. . . . [H]ere . . . the Village short circuited the
SEQRA process as to the Surplus Water Sale Agreement by an improper Type II designation
and failed to consider the Surplus Water Sale Agreement when issuing its negative
determination as to the Lease due to improper segmentation. Accordingly, the Village
Board resolutions approving the Surplus Water Sale Agreement and Lease agreement
of February 23, 2012, are annulled.
Petitioners are granted an injunction enjoining further water withdrawals pursuant
to the Surplus Water Sale Agreement pending the Village respondent’s compliance
with SEQRA.
In reaching its decision, the court noted that "it is not necessary to decide,
and the court does not reach, the parties' arguments related to SRBC except to hold
that compliance with SEQRA is not excused by the fact that the Susquehanna River Basin
Commission must issue a permit for the subsequent water withdrawal. Neither the Susquehanna
River Basin Compact (ECL 21-1301) or its regulations (21 NYCRR §1806-8) provide
for preemption of SEQRA."
The court noted also that it did not "address whether compliance with SEQRA in
this case means that the kind of comprehensive 'cumulative impact study' proposed by
petitioners is necessary." A copy of the judge's decision and the other papers
filed in the case are posted on
my law office website.
March 16, 2013
A USGS report released this week on the
hydrogeology of the aquifer system in the Susquehanna River Valley in parts of Broome
and Chenango Counties, New York highlights the role of aquifer protection in
the context of gas drilling impacts. In the section, "Considerations for Aquifer
Protection," the report states:
"Aquifer protection in the study area is a topic of public concern in relation
to the potential for natural gas drilling in this part of New York. Aquifer protection
efforts likely will focus on currently used resources. Information provided in this
report may help managers prioritize protection of largely unused aquifers whose characteristics
suggest that they are capable of providing large public or commercial water supplies." p.
17.
In the press
release accompanying the report, the author of the report, USGS scientist Paul
Heisig, states,"This study is intended to put basic facts into the hands of
those tasked with making decisions on future groundwater use and protection. We have
identified and mapped a variety of aquifer types and described their current use
and their potential as groundwater sources."
Local officials and concerned citizens in the study area now have excellent information
to assist efforts to put appropriate aquifer protections in place. Because the study
area is located in an area that is likely to be the target of some of the first high
volume horizontal hydrofracking (HVHF) activity in New York if HVHF is allowed to go
forward in the state, if local aquifer protections are sought in the area, such efforts
should be initiated quickly. Continue
reading . . .
March 7, 2013
The first hearing in the lawsuit challenging water exports to a gas drilling company
in Pennsylvania by the Village of Painted Post in Steuben County, NY, was held Friday,
March 1, 2013, before Judge Kenneth R. Fisher in Rochester. Several environmental organizations
in Rochester held a rally outside the courthouse before the hearing. See Rally
opposes possible water sale deal, and Groups
rally outside Hall of Justice over fracking lawsuit.
As previously reported,
the Article 78 proceeding was filed on June 25, 2012, in Steuben County Supreme Court
in Bath by the Sierra Club, the Coalition to Protect New York, People for a Healthy
Environment and five individual petitioners against the Village of Painted Post, Painted
Post Development LLC, SWEPI, LP (an affiliate of Shell Oil Company) and the Wellsboro & Corning
Railroad. See Lawsuit
Filed Against PP Bulk Water Sale Project. I am working with attorney Richard J.
Lippes from Buffalo to represent the petitioners. Several judges in Steuben County
and Monroe County recused themselves before the case was assigned to Judge Fisher.
Copies of the papers filed in the case are
posted on my law office website.
November 28, 2012
In my post two days ago, I pointed
out some of the problems with the new water withdrawal regulations released
by the New York State Department of Environmental Conservation (DEC) on Nov. 21,
2012. In this post, I give a more detailed overview of the new requirements.
Until the new permit conditions are made publicly available, it is not possible to
fully evaluate the new requirements. The new regulations, prepared as amendments
to 6 NYCRR Parts 601 and 621, are posted on the DEC website here and here.
The regulations become effective April 1, 2013. Applications for systems withdrawing
100 million gpd or more are due June 1, 2013.
New York's new water withdrawal regulations implement the Water Resources Protection
Act of 2011. The Act amended the law previously requiring permits for public drinking
water suppliers and certain other users to require that all persons withdrawing 100,000
gallons or more per day from any of the state's waters obtain a permit, except for
certain exempt users. The new permitting requirements contained in the legislation
did not become applicable until the DEC promulgated new regulations. Continue
reading . . .
Posted by Rachel Treichler at 11/24/12 4:05 PM, updated 11/28/12
11:10 AM
November 22, 2012
Governor Cuomo announced a delay in issuing the state's proposed gas drilling regulations
on Tuesday, but yesterday his Department of Environmental Conservation (DEC) went ahead
and issued the
state's new water withdrawal permitting regulations. The gas industry and other large
water users in the state have a generous gift to be thankful for this Thanksgiving
Day.
Despite the widely
noted inadequacies of the proposed regulations released a year ago on Nov. 23,
2011, the final regulations are virtually unchanged, as a
comparison of the two documents shows. The regulations, prepared as amendments
to 6 NYCRR Parts 601 and 621, are posted on the DEC website at http://www.dec.ny.gov/regulations/78258.html.
So what are the problems? As noted in
our post on the proposed regulations:
- No water usage or application fees are imposed
- A staggered schedule is being used to issue permits with the largest permits being
issued first, thereby prioritizing the state's largest water users
- The new permit language has not been made available for review
- The regulations do not require permits for all withdrawals for the consumptive
use of gas drilling and because of the thresholds will not cover most withdrawals
for this purpose
- There has been no cumulative impact analysis of water usage in the state to provide
a basis for determining permitted capacity
- No public hearings are required before permits are issued
Many of these deficiencies will not apply in the Delaware and Susquehanna River Basins
because withdrawals in those watersheds are subject to regulatory commissions whose
water withdrawal regulations are more sufficient. Continue
reading . . .
Tuesday, September 25, 2012
Reuters reported yesterday that U.S. District Judge Nicholas Garaufis in Brooklyn
dismissed a lawsuit seeking environmental studies to determine the effect of gas drilling
on the Delaware River Basin. See Judge
dismisses New York's anti-drilling lawsuit by Jessica Dye. The suit was filed May
31, 2011, by New York Attorney General Eric Schneiderman on behalf of the citizens
of New York and was joined in by several environmental groups. We previously reported
on the suit here and here.
The Delaware River and its tributaries supply water to about 15 million people, including
9 million New Yorkers.
Judge Garaufis dismissed the suit on procedural grounds, saying there was no basis
for the lawsuit since the regulations it sought to halt had not yet been finalized. "The
court concludes that this dispute is not currently fit for judicial review," Garaufis
wrote. "The harms that plaintiffs ultimately are concerned about are speculative,
and rely on a chain of inferences that may never come to pass."
The suit was filed against the U.S. Army Corps of Engineers, the National Park Service,
the U.S. Fish and Wildlife Service and the Environmental Protection Agency for their
failure to commit to a full environmental review of proposed regulations by the Delaware
River Basin Commission (DRBC) that would allow natural gas drilling in the Delaware
River Basin. The complaint, which is posted on
the AG's website, sought an injunction ordering the Defendants to comply with the National
Environmental Policy Act (NEPA) by preparing a draft EIS. The complaint was subsequently
amended to add the DRBC as a defendant.
The DRBC issued draft regulations in 2010 and revised draft regulations in 2011 that
would govern natural gas exploration and extraction in the Delaware River basin. The
proposed regulations would allow as many as 18,000 gas wells in the basin. The regulations
have not been finalized.
According to Reuters, a spokesman for the New York attorney general's office declined
to comment on the dismissal.
July 9, 2012
The Corning Leader reported Friday on a lawsuit challenging the plans of
the Village of Painted Post to engage in bulk water sales for gas drilling in Pennsylvania.
The suit was filed in Steuben County Supreme Court in Bath by the Sierra Club, the
Coalition to Protect New York, People for a Healthy Environment and five individual
petitioners against the Village of Painted Post, Painted Post Development LLC, SWEPI
and the Wellsboro & Corning Railroad on June 25, 2012. See Lawsuit
Filed Against PP Bulk Water Sale Project by Derrick Ek. I am working with attorney
Richard J. Lippes from Buffalo to represent the petitioners.
The suit alleges that the Village should have conducted a full environmental review
of the impacts of the proposed water sales and the proposed rail-loading facility for
the water shipments before signing a bulk water sale agreement and entering into a
lease of Village land for the rail-loading facility.
The papers filed in the case are
posted on my law office website.
May 7, 2012
Two New York water withdrawal applications and a number of Pennsylvania applications
are on the agenda for the May 10, 2012 public hearing of the Susquehanna
River Basin Commission (SRBC) in Harrisburg, PA and are scheduled for action by
SRBC at its June 7, 2012 business meeting in Binghamton, NY. Both New York projects
are to withdraw water from the Elmira-Horseheads-Big Flats Aquifer on the Chemung River.
The Elmira-Horseheads-Big Flats Aquifer is one of only 14 primary aquifers in New York
state.
It was reported
in December that the Delaware
River Basin Commission (DRBC) adopted a resolution at its meeting on December
8, 2011, postponing action on any applications for water withdrawals for natural
gas drilling in New York state until the New York State Department of Environmental
Conservation (DEC) has completed its environmental review of hydraulic fracturing,
and that the decision was made at the request of DEC Commissioner Joe Martens. Three
water withdrawal applications in Broome County were postponed by the DRBC's decision.
The SRBC should be urged to do likewise and put all water withdrawals in New York
on hold, including these renewal applications.
But putting withdrawals in New York on hold is not enough: the SRBC must put all withdrawals
in the Susquehanna River Basin on hold until it conducts a basin-wide cumulative impact
study of the impacts of gas drilling on water resources in the basin. On November 9,
2011, 44 organizations in the Susquehanna River Basin called
on the SRBC "to exercise its Compact powers to: (1) disclose the science
behind this rulemaking [granting water withdrawal permits for the consumptive use of
gas drilling]; [and] (2) conduct a Basin-wide study analyzing the impacts of unconventional
shale gas development on water resources and water resources management; . . ." Continue
reading . . .
March 20, 2012
On March 7, I spoke at a
forum in Bath, NY about legal issues presented by municipal water exports to
Pennsylvania. The forum was sponsored by the Bath Peace and Justice Group and the
Steuben County League of Women Voters. An overview of the issues discussed at the
forum is contained in an op-ed piece, Municipal
water export: Whose water? Whose rights? I wrote with Bath attorney Mark Schlechter
that appeared in the Steuben Courier Advocate on March 17, 2012.
February 11, 2012
A state court in Westchester County has annulled the general permit issued by the
New York State Department of Environmental Conservation (DEC) for Stormwater Discharges
from Municipal Separate Storm Sewer Systems (the MS4
General Permit) on the ground that it fails to comply with the federal Clean Water
Act and the provisions of New York law that implement it. Two key reasons for the ruling
were that the general permit process allowed municipalities to self-certify compliance
without oversight by the DEC and that the process did not provide for hearings on individual
applications. The decision may have repercussions for other general permits issued
by the DEC, including the General
Permit for Discharges from Construction Activity, the Multi-Sector
General Permit, the General
Permit for Concentrated Animal Feeding Operations, and the proposed General
Permit for Stormwater Discharges from High Volume Hydraulic Fracturing.
Judge Joan Lefkowitz of the Westchester County Supreme Court ruled against the MS4
General Permit on January 10, 2012, in a lawsuit brought by NRDC, Riverkeeper, Waterkeeper
Alliance, Soundkeeper, Save the Sound, Peconic Baykeeper, NY/NJ Baykeeper, and Hackensack
Riverkeeper. The decision, NRDC v. NYS DEC, can be downloaded here.
As noted by Larry Levine in his blog at NRDC Switchboard, Court
Finds New York State's Program to Stem Biggest Source of Water Pollution Too Lax,
the basic principles in the MS4 permit case—that municipalities cannot self-certify
compliance without oversight by environmental regulators, and that the public has
important rights to participate in decisionmaking on these matters—should be
uncontroversial. In issuing her ruling, Judge Lefkowitz followed the ruling of a
federal appeals court, EDC
v. US EPA, 344 F.3d 832 (9th Cir. 2003) cert. denied 541 U.S. 1085 (2004),
that rejected portions of EPA’s stormwater regulations for having precisely
the same flaws as the MS4 General Permit. Mr. Levine is the lead attorney for the
plaintiffs. The case is also discussed in a post by Vicki Shiah on the Sive,
Paget & Riesel Environmental Law Blog. Continue
reading . . .
January 30, 2012
The Susquehanna River Basin Commission (SRBC) has
announced changes to its public participation process. It will now conduct a
public hearing on project applications one month before the Commission acts on the
projects. In accordance with these changes, the SRBC will conduct a public hearing
on February 16 to accept public comments on water withdrawal and consumptive use
project applications scheduled for action by SRBC at its next business meeting in
mid-March. The SRBC will accept written comments on the project applications until
February 27.
The project applications scheduled for the February 16 hearing include those that
were approved at SRBC’s December 15, 2011 hearing in Wilkes-Barre. Pa. “The
Commission has decided to reconsider its December action on those project applications
because the disruptive behavior of certain individuals prevented interested persons
from offering testimony at the time,” SRBC Executive Director Paul Swartz said in
the January 23, 2012, press release announcing the changes. “We are committed
to preserving the due process rights of all citizens so they can provide constructive
and meaningful comments on proposed projects.”
“Conducting a public hearing on project applications one month before the Commission
acts on the projects is a new procedure and represents an improvement over our past
practice,” said Swartz. “This change will give the public ample opportunities
for commenting and will give the commissioners more time to review and consider comments
before voting on proposed projects.”
The change is one of a several procedural changes recently adopted by the SRBC to
its public participation process. Other changes include not accepting comments at its
business meetings on project applications or other actions scheduled for vote, having
the commission's business meetings streamed live via webcast and requiring that all
persons attending the hearing must sign-in and show photo identification. Signage,
posters, banners or other display media will be permitted only in designated areas.
The press will be permitted to set up and use video and recording devices. The public
will be permitted to use small, hand-held devices in a non-disruptive manner. The full
set of procedures is available on SRBC’s web site at www.srbc.net/pubinfo/publicparticipation.htm.
The announcement of the new procedures comes following a
letter to the SRBC submitted on December 22, 2011, by a group of environmental
organizations. The letter pointed out that the Commission’s approval of water
withdrawal applications at its December 15, 2011, meeting may not have been legally
effective because the approvals occurred after the meeting was adjourned. The letter
pointed out that by adjourning the meeting prematurely, the SRBC prevented the testimony
of non-protesting members of the public who wished to testify on individual water
withdrawal applications. The letter asserted that by not allowing public testimony
and approving water permits off-the-record, the SRBC penalized the entire public
and violated its own rules and procedures. Continue
reading . .
January 20, 2012
The New York State Department of Environmental Conservation (DEC) has extended the
public comment period for the department's proposed water withdrawal regulations discussed
on our post earlier
this week by 15 days. The new deadline for comments is 5:00 PM on Monday, February
6, 2012. For more information about the proposed regulations and how to submit comments,
visit the DEC website at http://www.dec.ny.gov/regulations/78258.html.
January 16, 2012
My initial review of the proposed water withdrawal regulations published by the New
York State Department of Environmental Conservation (DEC) in the New
York State Register on November 23, 2011, discloses six preliminary areas
of concern:
- The proposed regulations are being issued without a cumulative impact analysis
of water usage in the state, including water usage for hydrofracking
- The proposed regulations are being issued without the revised permit language being
available for review.
- The proposed withdrawal regulations do not address the consumptive use of water
for gas drilling and will not cover most withdrawals for this purpose, leaving the
Great Lakes Basin less protected than the Delaware and Susquehanna River Basins
- A staggered schedule of implementation is proposed, with the largest permits being
issued first, thereby prioritizing the state's largest water users
- No public hearings are required before permits are issued, leaving residents of
the Great Lakes Basin with fewer rights than residents of the Delaware and Susquehanna
River Basins
- No water usage fees are imposed for withdrawals in the Great Lakes Basin although
fees are imposed by the DRBC and the SRBC for withdrawals in the Delaware and Susquehanna
River Basins
I urge the DEC to withdraw the proposed regulations and offer new regulations for
comment that address these concerns. Continue
reading . . .
January 14, 2012
Half Moon Seminars is offering an all-day
seminar on New York Water Law, Wed., Feb. 29, 2012, at NYC Seminar and Conference
Center, 71 West 23d Street, in New York City. The program will address federal, state
and local regulation of New York waters and water supplies, water use in natural
gas and petroleum production, clean up of polluted water resources, complying with
water quality laws and regulations and water utility regulation. I will give the
opening presentation on the Development of New York Water Laws. CLE credit for attorneys
and engineers is available. For more information, visit
the seminar website or download
the brochure.
December 27, 2011
At its December 15, 2011, meeting in Wilkes Barre, PA, the Susquehanna
River Basin Commission (SRBC) voted to amend its project
review regulations for gas drilling and approved 22 water withdrawal and consumptive
use applications, as
reported on the SRBC website. The amended SRBC rules become effective April 1,
2012. The official Final Rule will be published in the Federal Register. Both the full
text of the new rules and an executive
summary are posted on the SRBC website. The revised deadline for written comments
on the proposed regulations was November 10, 2011.
The SRBC’s Project Review Regulations, codified at 18 Code of Federal Regulations
(CFR) Parts 801, 806, 807 and 808), contain the standards and procedures used by the
Commission for the review and approval of water resources projects, and for related
enforcement and oversight activities. The SRBC's Project Review Regulations were previously
amended in September 2010, effective November 1, 2010.
In response to some outspoken
members of the public, the SRBC's December 15th meeting was adjourned before
the agenda was completed. After adjourning, the Commissioners voted off-the-record
to approve the majority of the water withdrawal applications on the agenda. On December
22, 2011, a group of environmental organizations submitted
a letter to the SRBC pointing out that the Commission’s approval of the
water withdrawal applications may not be legally effective because the approvals
occurred after the meeting was adjourned. The letter also points out that by adjourning
the meeting prematurely, the SRBC prevented the testimony of non-protesting members
of the public who wished to testify on individual water withdrawal applications.
The letter asserts that by not allowing public testimony and approving water permits
off-the-record, the SRBC penalized the entire public and violated its own rules and
procedures.
Prior to the meeting, a number of commentators had urged the SRBC to announce a moratorium
on water withdrawals for hydraulic fracturing until the Commission has in place a comprehensive
plan for water use and management based on a study of the cumulative impacts of projected
gas development in the Susquehanna River Basin. Continue
reading . .
December 12, 2011
The Binghamton
Press and Sun Bulletin and the Ithaca
Journal report that the Delaware
River Basin Commission (DRBC) adopted a resolution at its meeting on December
8, 2011, postponing action on any applications for water withdrawals for natural
gas drilling in New York state until the New York State Department of Environmental
Conservation (DEC) has completed its environmental review of hydraulic fracturing.
The decision was made at the request of DEC Commissioner Joe Martens.
The DRBC's decision to postpone consideration of applications from New York puts on
hold a controversial application from XTO Energy—a subsidiary of Exxon-Mobil—to
withdraw up to 250,000 gallons of water per day from Oquaga Creek, a pristine trout
stream in eastern Broome County. Two other water withdrawal applications, both in Broome
County, were also postponed by the commission's decision.
December 5, 2011
With little fanfare, in the midst of the public hearing schedule for its environmental
review of hydrofracking, proposed gas drilling regulations and proposed stormwater
permit for gas development activities, the New York State Department of Environmental
Conservation (DEC) has published its proposed regulations to implement the water withdrawal
legislation passed
unanimously by both houses of the legislature earlier this year and signed
into law by Governor Cuomo on August. 15, 2011.
The proposed water withdrawal regulations, amendments to 6 NYCRR Parts 601 and 621,
were announced in the New York State Register on November 23, 2011, and are
posted on the DEC website.
Written public comments on the proposed regulations are being accepted for 60 days
through January 22, 2012. No public hearings on the proposed regulations have been
scheduled. On Dec. 2, 2011, the DEC announced public information sessions in New Paltz
on December 6, 2011, in Henrietta on December 13, 2011, and in Albany on December 12,
2011.
We will be posting a detailed analysis of the proposed regulations.
November 22, 2011
On November 18, 2011, the Delaware
River Basin Commission (DRBC) issued a news
release announcing that the Commission's special meeting scheduled for November
21, 2011, in Trenton, NJ would be postponed. The announcement came after reports that
Governor Markell of Delaware and Governor Cuomo of New York would vote no on the
proposed regulations that would have opened the Delaware River Watershed for gas
drilling and fracking, which were to be voted on at the meeting. The provisions of
the proposed regulations were discussed in last week's post, DRBC
Revises Proposed Water Withdrawal Regs for Gas Drilling. A new meeting date is
still to be determined.
November 15, 2011
The Delaware River Basin Commission (DRBC)
published a
revised draft of its proposed regulations applicable to water withdrawals for
gas drilling in the Delaware River Basin on November 8, 2011. The revised regulations
reflect comments received on the initial draft of the proposed rules published on December
9, 2010. The public comment period on the proposed rules closed April 15, 2011. A record
number of comments were submitted on the initial draft—69,800 comments—breaking
all records for public involvement. The Commission is not holding a public hearing
or accepting comments on the revised proposed regulations. While it considers the new
rules, the DRBC has a moratorium on issuing approvals for water withdrawals for gas
wells.
The DRBC has scheduled a vote on the revised draft regulations on November 21, 2011
at a special meeting in Trenton, NJ. A vote to approve gas regulations would lift the
current moratorium. If rules permitting gas drilling in the Basin are adopted, it is
estimated that 15,000 to 18,000 gas wells could cover the four-state, 13,500 square
mile Basin over the next 30 years. The Basin covers 2,300 square miles of New York,
including portions of Broome, Chenango, Delaware, Schoharie, Greene, Ulster, Orange
and Sullivan Counties. Water from the Delaware River Basin supplies New York City and
Philadelphia—a total of over 15 million people—with their drinking water.
As noted in previous posts, the federal agencies overseeing the DRBC and the DRBC
have been sued by New
York Attorney General Eric Schneiderman and a
group of environmental organizations for their failure to conduct a full environmental
review of the proposed regulations under the National Environmental Policy Act (NEPA). Continue
reading . . .
August 22, 2011
On August 15, 2011, Governor Andrew Cuomo signed into law the water withdrawal permitting
legislation unanimously passed by the State Senate and Assembly, A5318A/S3798.
The new law (Chapters 400-402, Laws of 2011) expands the permitting requirements contained
in §§15-1501 et seq. of the Environmental Conservation Law to require
that persons withdrawing 100,000 gallons or more per day of the state's waters obtain
permits from the the New York State Department of Environmental Conservation (DEC)
. The law imposes no fees for water usage or permit issuance. The new permitting requirements
do not become applicable until the DEC promulgates new regulations implementing the
legislation.
The governor's
press release announcing the signing of the law states that, "[T]his law
will enable DEC to comply with commitments under the Great Lakes-St. Lawrence River
Basin Water Resources Compact (Compact) by regulating all significant water withdrawals
occurring in the New York portion of the Great Lakes Basin."
The release notes that the Great Lakes and their watersheds contain more than 18 percent
of the world's supply and nearly 90 percent of the United States' supply of fresh surface
water. Only about one percent of the water volume is renewed or replaced by precipitation
and tributary inflow each year. "Consequently," the release states, "Great
Lakes levels can be drawn down dramatically by sizeable water withdrawals. Large withdrawals
could adversely affect wetland habitat, spawning grounds, municipal and agricultural
water supplies, recreational boating access and hydropower production. As the nation's
population increases and water supplies in other regions are consumed, pressure to
utilize Great Lakes water outside the region will grow. This valuable resource must
be carefully managed to ensure that it continues to provide environmental and economic
benefits for future generations. This law will ensure that New York upholds its commitments
under the Compact."
August 15, 2011
A coalition of nonprofit organizations filed suit last week against the Army Corps
of Engineers and the Delaware River
Basin Commission (DRBC) for their failure to comply with federal law by proposing
to allow gas drilling within the Basin without first conducting a full environmental
review as required under the National Environmental Policy Act. Plaintiffs include
the National Parks Conservation Association, Riverkeeper, and the Delaware Riverkeeper
Network. The lawsuit was filed on August 4, 2011, in U.S. District Court in Brooklyn,
New York where the Army Corps office is located. A similar
suit was filed in the same court by New York Attorney General Eric Schneiderman
on May 31, 2011.
The Plaintiffs' joint
press release states that modern advances in hydraulic fracturing, or fracking,
are granting access to the country’s shale gas reserves. "Fracking involves
pumping millions of gallons of water, sand and toxic chemicals into a well, fracturing
the shale and releasing the natural gas trapped within. Companies are not required
to share information publicly about the chemicals used in this process. While all
harmful impacts of natural gas development have yet to be fully understood, impacts
may include: Health concerns for local communities and the environment including
water contamination related to drilling and the disposal of drilling fluid; Reductions
in stream flow and ground water levels; [and] Air quality degradation. . . ." Continue
reading . . .
August 10, 2011
Two Pennsylvania groups, Clean Water Action and Three Rivers Waterkeeper, filed suit
in federal court on July 19, 2011, against the Municipal Authority of the City of McKeesport
seeking to enjoin the Authority from accepting wastewater from gas drilling operations
and discharging it into the Monongahela River. The river supplies drinking water for
nearly a half million people, including a portion of the City of Pittsburgh. This is
the first time a federal court case has been filed to stop the discharge of drilling
wastewater in Pennsylvania.
The suit, filed in U.S. District Court in the Western District of Pennsylvania pursuant
to the Clean Water Act and Pennsylvania's Clean Streams Law, claims that the Authority
is in violation of the terms of its discharge permit because it did not disclose that
it receives oil and gas wastewater at the time it applied for the permit. The complaint
alleges that a subsequent order of the Pennsylvania Department of Environmental Protection
(DEP) allowing McKeesport to discharge up to 100,000 gallons per day of Marcellus drilling
wastewater into the Monongahela River cannot serve to modify the terms of the permit
because a change in the wastestream processed pursuant to a permit requires approval
from the permitting agency and public participation in the permitting process, including
a public notice and comment period, before commencement of the discharge. Continue
reading . . .
July 5, 2011
Brett Walton reports
in Circle of Blue that a lawsuit has been filed in Federal District
Court in Massachusetts demanding that the U.S. Department of Energy (DOE) release
a crucial study on water supply and energy demand that was ordered by Congress in
2005 and has never been made public. The Massachusetts-based Civil Society Institute
(CSI) has brought suit under the Freedom of Information Act (FOIA) and the Administrative
Procedure Act (APA) seeking release of the study, known as the National Energy-Water
Roadmap, and a score of documents used in the study’s preparation. Continue
reading . . .
June 20, 2011
On June 16, the NYS Senate became the second house of the NYS legislature to pass
the pending water withdrawal permitting legislation, A5318A/S3798.
The senate vote was 62-0. The assembly had passed the legislation on May 2nd with a
vote of 101-0. Although the assembly and senate have taken divergent views on a number
of bills before the legislature this year, it is notable that they were united in unanimous
support of this legislation. The bills await the governor's signature, which is expected.
The legislation provides that the new permitting requirements it contains do not become
applicable until the department promulgates new regulations implementing the legislation.
The legislation expands the permitting requirements for public drinking water supplies
and certain other limited purposes contained in §§15-1501 et seq. of
Title 5 of Article 15 of the Environmental Conservation Law (ECL) to require the DEC
to issue water withdrawal permit for withdrawals of 100,000 gallons or more per day
by any user for any purpose from any of the state's waters, except that agricultural
users are exempt from the permit requirements.
The legislation was actively supported by the Business Council, the Farm Bureau and
a number of major environmental groups. It was opposed by some grassroots environmental
groups out of concerns that the legislation did not address water withdrawals for use
in gas drilling, did not address riparian rights and public trust issues and did not
impose fees for water usage or permits.
June 5, 2011
New York Attorney General Eric Schneiderman filed suit May 31, 2011, against the U.S.
Army Corps of Engineers, the National Park Service, the U.S. Fish and Wildlife Service
and the Environmental Protection Agency for their failure to commit to a full environmental
review of proposed regulations by the Delaware
River Basin Commission (DRBC) that would allow natural gas drilling in the Delaware
River Basin. The Basin includes a portion of the New York City watershed and parts
of Broome, Chenango, Delaware, Schoharie, Green, Ulster, Orange and Sullivan Counties.
The complaint, which is posted on
the AG's website, seeks various forms of relief, including an injunction ordering the
Defendants to comply with the National Environmental Policy Act (NEPA) by promptly
preparing a draft EIS subject to public comment, which shall include consideration
as an alternative to the proposed DRBC regulations a prohibition on natural gas development
within the New York City Watershed within the Basin, and which shall also include an
analysis of reasonable measures to mitigate all potentially significant adverse environmental
impacts. The suit was filed in U.S. District Court in Brooklyn, New York where the
Army Corps office is located. Continue
reading . . .
May 5, 2011
The Croton Watershed Clean Water Coalition (CWCWC) has filed suit against the New
York State Department of Environmental Conservation (DEC) challenging the failure of
the DEC's final Strategic Plan for State Forest Management (SPSFM) issued on December
29, 2010 to prohibit High Volume Horizontal Hydraulic Fracturing (HVHHF) in New York
State Forests. I am one of several individuals living adjacent to state forests who
are named plaintiffs in the lawsuit.
The complaint, filed on April 28, 2011, in Ulster County Supreme Court, Case No. 11-1833,
seeks judgment to void the SPSFM and its accompanying Final Generic Environmental Impact
Statement for the DEC's failure to take a hard look at the environmental impacts related
to the action as required by the New York State Environmental Quality Review Act (SEQRA).
The complaint also seeks a determination that industrializing State Forests with the
newly proposed natural gas extraction process known as High Volume Horizontal Hydraulic
Fracturing (HVHHF) is contrary to the enabling legislation authorizing the purchase
of lands for State Forests and is inconsistent with the responsible stewardship of
State Forests, sustainability and policies of New York State as set forth in the State
Constitution, Environmental Conservation Law (ECL), and the Common Law Public Trust
Doctrine. The plaintiffs are represented in the suit by Attorney James Bacon from New
Paltz.
For an independent analysis of the biological impacts of HVHHF in the State Forests,
CWCWC retained Hudsonia, a nonprofit, non-advocacy institute that conducts research
and provides information for land use planning and environmental management. Hudsonia
and Hickory Creek Consulting prepared a report analyzing a number of potential impacts
to biological resources, particularly including the toxicity of spilled or leaked wastewater
affecting streams and wetlands, and the fragmentation of forests by drilling pads,
access roads, and pipelines. An affidavit of Erik Kiviat, Executive Director of Hudsonia,
outlining Hudsonia's research has been filed with the complaint.
April 28, 2011
It is urgent to understand the ongoing debate among environmental activists about
the merits of two companion water withdrawal bills on the floor of the New York legislature,
A5318A/S3798, because both bills are scheduled for a vote on Monday, May 2nd according
to an April 22nd article in
the Binghamton Press and Sun Bulletin.
Will the bills protect New York's waters or not? A simple way to address that question
is to compare the permitting system proposed by the legislation with the permitting
system currently in place in the Susquehanna River Basin (SRB). Permits issued by the
SRB Commission offer better protection than proposed in the bills in three key ways:
- The SRB Compact states that nothing in the compact, i.e. the issuance of permits,
affects riparian rights. The proposed legislation does not contain a comparable provision
preserving riparian rights. This is important because riparian rights prevent users
from harming other users in the watershed and provide that all users have equal rights.
- The SRB Commission charges fees for permitted water usage. The proposed legislation
does not provide for fees to be charged for water usage authorized by a permit.
- The SRB Commission requires permits for any amount used for the consumptive use
of gas drilling. The proposed legislation does not give the DEC authority to require
permits for any amount of water withdrawn for use in gas drilling. The DEC is limited
by the proposed legislation to permitting persons withdrawing 100,000 gallons or
more per day without regard to use or to the amount used by the end user. Under the
proposed legislation, independent haulers withdrawing less than 100,000 per day for
gas drilling purposes will not be subject to permitting requirements.
If the purpose of the legislation is to put protections in place in the Great Lakes
basin so that waters in that basin are protected like waters in the Susquehanna River
Basin and the Delaware River Basin, why put in place legislation that will not give
comparable protections?
March 11, 2011
In a Marten
Law briefing, Meline MacCurdy reports a recent Ninth Circuit holding that a “perceived” decrease
in value of private property following EPA’s approval of a state’s “impaired
waters” listing under Section 303 of the Clean Water Act (CWA) is sufficient
to establish the standing of a private plaintiff to challenge the agency’s
decision. The case of first impression, Barnum Timber Co. v. EPA, 2011 WL
383012 (9th Cir. Feb. 3, 2009), gives private property owners adjacent to creeks,
rivers and other waterbodies in the West a seat at the table in CWA listing decisions,
a step that often occurs long before affirmative obligations are imposed on uses
of the private properties through the total maximum daily load (TMDL) program.
March 10, 2011
Dan Tarlock's paper on Water
Law’s Climate Disruption Adaptation Potential, prepared for the upcoming
Research Roundtable on Climate Change, Adaptation, and Environmental Law, at Northwestern
Law's Searle Center, April 7, 2011—April 18, 2011, has just been posted
online. The paper raises pertinent issues for the discussion going on in New
York now about the proposed
legislation to issue water withdrawal permits to large private water users. This
legislation would move New York from a riparian rights system to a regulated riparian
system of water rights law.
The paper points out that while permits in regulated riparian systems are not perpetual
as they are under prior appropriation systems in the Western United States, they are
still "hard to dislodge . . . even though the law permits the reassignment of
rights." The paper describes the role permits played in Georgia’s law making
responses to a severe drought and notes that, "[t]he reality is that the permit
system entrenches large withdrawals."
The paper begins with a discussion of how Global Climate Change (GCC) will alter many
of the fundamental hydrologic assumptions upon which water allocation, water pollution
control and aquatic ecosystem conservation are based, and says this will stress both
the laws of prior appropriation and riparian rights. Prof. Tarlock notes that the assumption
that regional water balances will remain relatively constant or stationary over time
is no longer viable, and says this will create conflicts between present right holders
and future claimants and between consumptive and non-consumptive, especially environmental,
uses. "The hard question," he says, "is how the law and those charged
with applying it and managing water within its framework should react to this new,
even more, uncertain world." Continue
reading . . .
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About NY Water Law
New York Water Law covers legal developments relating to water in
New York and in jurisdictions that may be influential in New York. The author, Rachel
Treichler, practices law in the Finger Lakes region.
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