Recent Water Law Developments

April 22, 2014

DEC Continues to Rubber Stamp Water Withdrawal Permit Applications as Objections Mount

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

Posted by Rachel Treichler at 04/22/14 11:40 AM.

April 2, 2014

Appeals Court Rules Against Petitioners in Painted Post Bulk Water Sale Case on Standing

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.

Posted by Rachel Treichler at 04/02/14 11:40 AM.

December 10, 2013

Sierra Club and HRFA Challenge DEC on Ravenswood Water Withdrawal Permit

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 . . .

Posted by Rachel Treichler at 12/10/13 5:30 PM.

August 15, 2013

Will 12 NY Power Plants Get Permits this Year for 111% of NY's Total Fresh Water Usage?

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

DEC Gives Two Weeks to Comment on First Water Withdrawal Application for 1.5 Billion GPD

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 . . .

Posted by Rachel Treichler at 08/08/13 10:30 PM

April 7, 2013

SEQRA Review Required of NY Water Withdrawal Permit Applications

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

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

Source: 6 NYCRR 601.7(2) lists the dates by which a complete application for an initial permit must be submitted.

Posted by Rachel Treichler at 04/07/13 2:00 PM

March 26, 2013

Judge Enjoins Painted Post Water Sales

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.

Posted by Rachel Treichler at 03/26/13 4:00 PM

March 16, 2013

Putting Local Aquifer Protections in Place

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 . . .

Posted by Rachel Treichler at 03/16/13 12:30 PM

March 7, 2013

Painted Post Water Export Suit Heard March 1

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.

Posted by Rachel Treichler at 03/07/13 12:00 PM

November 28, 2012

Overview of New York's New Water Permitting Rules

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

Cuomo's Gift to the Gas Industry: New York's Water Withdrawal Regulations Issued

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:

1. No water usage or application fees are imposed
2. A staggered schedule is being used to issue permits with the largest permits being issued first, thereby prioritizing the state's largest water users
3. The new permit language has not been made available for review
4. 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
5. There has been no cumulative impact analysis of water usage in the state to provide a basis for determining permitted capacity
6. 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 . . .

Posted by Rachel Treichler at 11/22/12 8:05 AM

Tuesday, September 25, 2012

Federal Judge Dismisses Lawsuit for Full Environmental Review of Gas Drilling in Delaware River Basin

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.

Posted by Rachel Treichler at 09/25/12 12:25 PM

July 9, 2012

Lawsuit Filed against Painted Post Bulk Water Sales for Gas Drilling

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.

Posted by Rachel Treichler at 07/09/12 12:00 PM

May 7, 2012

SRBC Should Put Water Withdrawals for Gas Drilling on Hold

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 . . .

Posted by Rachel Treichler at 05/07/12 09:45 AM

March 20, 2012

Municipal Water Exports for Gas Drilling

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.

Posted by Rachel Treichler at 03/20/12 12:40 PM

February 11, 2012

Court Finds New York's MS4 General Permit Violates the Clean Water Act

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 . . .

Posted by Rachel Treichler at 02/11/12 02:45 PM

January 30, 2012

SRBC Modifies Public Participation Process and Will Reconsider December Actions

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 . .

Posted by Rachel Treichler at 01/30/12 12:25 PM

January 20, 2012

Public Comment Period Extended 15 Days for New York's Proposed Water Withdrawal Regulations

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.

Posted by Rachel Treichler at 01/20/12 04:45 PM

January 16, 2012

New York's Proposed Water Withdrawal Regulations: Unequal Treatment for the Great Lakes Basin

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:

1. The proposed regulations are being issued without a cumulative impact analysis of water usage in the state, including water usage for hydrofracking
2. The proposed regulations are being issued without the revised permit language being available for review.
3. 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
4. A staggered schedule of implementation is proposed, with the largest permits being issued first, thereby prioritizing the state's largest water users
5. 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
6. 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 . . .

Posted by Rachel Treichler at 01/16/12 09:05 AM

January 14, 2012

New York Water Law Seminar, Feb. 29, 2012, NYC

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.

Posted by Rachel Treichler at 01/14/12 9:45 PM

December 27, 2011

SRBC Adopts Final Rulemaking on Gas Drilling, Ignores Concerns

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 . .

Posted by Rachel Treichler at 12/27/11 11:45 AM

December 12, 2011

DRBC Puts Water Withdrawals for Gas Drilling in New York on Hold

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.

Posted by Rachel Treichler at 12/12/11 11:00 AM

December 5, 2011

New York's Proposed Water Withdrawal Regs Issued

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.

Posted by Rachel Treichler at 12/05/11 9:45 AM

November 22, 2011

DRBC Postpones Consideration of Proposed Regulations

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.

Posted by Rachel Treichler at 11/22/11 11:45 AM

November 15, 2011

DRBC Revises Proposed Water Withdrawal Regs for Gas Drilling

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 . . .

Posted by Rachel Treichler at 11/15/11 10:00 PM

August 22, 2011

New York Water Legislation Signed by Governor

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."

Posted by Rachel Treichler at 08/22/11 8:35 PM

August 15, 2011

Nonprofits Challenge DRBC Gas Drilling Regulations

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 . . .

Posted by Rachel Treichler at 08/15/11 8:00 AM

August 10, 2011

Pennsylvania Suit Challenges Discharge of Gas Drilling Wastewater into the Monongahela River

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 . . .

Posted by Rachel Treichler at 08/10/11 9:35 AM

July 5, 2011

Suit Seeks Release of DOE Energy-Water Roadmap

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 . . .

Posted by Rachel Treichler at 07/05/11 11:52 AM

June 20, 2011

NY Water Bills Pass Unanimously

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.

Posted by Rachel Treichler at 06/20/11 10:45 PM

June 5, 2011

NY AG Sues for Full Environmental Review of Gas Drilling in Delaware River Basin

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 . . .

Posted by Rachel Treichler at 06/05/11 10:00 AM

May 5, 2011

Suit Challenges Hydrofracking in New York State Forests

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.

Posted by Rachel Treichler at 05/05/11 9:50 PM

April 28, 2011

What Protections Are Offered by NY's Pending Water Withdrawal Bills?

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:

1. 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.
2. 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.
3. 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?

Posted by Rachel Treichler at 04/28/11 10:00 AM

March 11, 2011

Private Landowners Granted Right to Challenge EPA’s Clean Water Act “Impaired Waters” Listing Decisions

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.

Posted by Rachel Treichler at 03/11/11 8:00 AM

March 10, 2011

Permit Systems Entrench Large Water Users

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 . . .

Posted by Rachel Treichler at 03/10/11 11:00 AM

Copyright 2014, Rachel Treichler

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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