July 10, 2016
Oral arguments in the second suit filed by Sierra Club and Hudson River Fisherman’s
Association challenging DEC's procedures in issuing water withdrawal
permits under New York's new permitting law will be heard Wed.,
August 31, 2016 in New York County Supreme Court in Manhattan.
The case, Sierra Club and HRFA v. Martens II,
Index No. 100524/2015, challenges DEC's issuance of a water withdrawal
permit to Consolidated Edison for its East River generating station
take up to 373 million gallons of water per day from the East
River in the Hudson River estuary. The hearing will be before
Justice Alice Schlesinger at 2:30 pm in Part 16, 60 Centre Street,
222, Manhattan. Attorney Richard Lippes from
Buffalo will do the oral argument for the petitioners. Members
of the public are welcome to attend. For more information about
the case, see Second
Suit Filed Challenging DEC on Water Withdrawal Permits.
Posted by Rachel Treichler on 07/10/16.
July 10, 2016
Half Moon Seminars is offering an all-day
seminar on Water Laws and Regulations, Tuesday, August 23, 2015, at the Crown Plaza
in White Plains. The program will address the development of
water laws: quantity, quality and usage, complying with water
laws and regulations, water utility regulation, the reach of
water and wetlands regulations and water use in natural gas and
petroleum production. I will give the opening presentation
on the development of water laws. CLE credit for attorneys
and engineers is available. For more information, visit the seminar website.
Posted by Rachel Treichler 07/10/16.
June 26, 2016
On June 21, 2016, representatives from New York and seven other Great Lakes
states unanimously approved a measure allowing Waukesha, Wisconsin
a municipality located outside the Great Lakes watershed to divert
water from Lake Michigan for use in its community. Waukesha's application
required approval from the governors of each member state in the
Great Lakes Compact. Continue reading . . .
Posted by Rachel Treichler 06/26/16.
June 8, 2016
The recently published application of the New
Athens Generating Company for a water withdrawal permit for its
New Athens Generation Station in Athens, New York provides a stunning
illustration of the benefits of closed cycle cooling. The notice published by the New York State Department of Environmental Conservation (DEC)
states that the Athens Generating Station is applying to take "1.5 million gallons of water per day from the Hudson River for the facility's
A comparison of the 1.5 million GPD permit amount requested by Athens with the
1,246 million (or 1.25 billion) GPD amount permitted to Astoria
Generating Station in Queens, shows that New Athens is requesting
less than 1/800ths of the amount of water permitted to Astoria.
See DEC Continues to Rubber Stamp Water Withdrawal Permit Applications as Objections
Mount. Yet the generating capacity of the New Athens plant is more than the current
generating capacity of the Astoria plant. According to Talen Energy's webpage, the generating capacity of the New Athens plant is 1,080 MW, which is slightly
greater than the 959 MW generating capacity of Astoria
station, as shown on Eastern Generation LLC's website.
The average daily usage of each plant is much less than the plant's permitted
amount. According to the water withdrawal dataset posted on DEC's website, the average daily withdrawal of the New Athens plant is 170,000 gallons of
water per day, while the Astoria plant's average daily withdrawal
is 550,220,000 GPD, or 3,057 times as much.
The dramatic reduction in usage resulting from
closed-cycle cooling at the Athens plant results in an equally
dramatic reduction in aquatic impact.
DEC’s 2011 guidance on Best
Available Technology (BTA) for Cooling Water Intake Structures requires closed-cycle cooling. The guidance states that cooling water intake
structures will be subject to one of four “performance goals”
when selecting BTA—each of the four goals requires closed-cycle
In view of the tremendous reduction in aquatic
impacts from closed cycle cooling and DEC's BTA policy requiring
closed cycle cooling, why isn't DEC requiring all generating stations
in New York to adopt closed cycle cooling technologies?
Posted by Rachel Treichler on 06/08/16, updated
March 5, 2016
In a stunning revelation, John Ferro reports in
the Poughkeepsie Journal this week that a key state legislator at the time New York's new water withdrawal
permitting law was passed in 2011 is not in agreement with DEC's
interpretation of the law. See DEC's handling off water regs criticized.
The article reports that Ferro interviewed the
assembly sponsor of the legislation, former Assembly Environmental
Conservation Committee Chair, Robert Sweeney of Long Island. Sweeney's
sponsorship and support as Assembly EnCon chair was critical to
passage of the legislation in 2011. Sweeney retired in 2014.
After Sweeney and Ferro discussed DEC’s position
that the law compels them to issue the permits without any environmental
review, Sweeney told Ferro that DEC’s handling of water withdrawal
permit applications is not “in keeping with the letter and spirit
of the legislation.” Sweeney said, “if it was clear to us at that
time that they were going to take the position that they eventually
took, we would have objected.”
Sweeney told Ferro the legislation was meant to
provide information to help guide future decisions and legislation.
“But you certainly can’t determine what the impacts of water usage
and water withdrawals are without having information,” he said.
If he was still in the Assembly, Sweeney said the DEC's handling
of the law would be “ripe for revisiting.” Continue reading . . .
Posted by Rachel Treichler on 03/05/16, updated 06/05/16.
February 28, 2016
A forum on evaluating impacts of bulk water sales on the Corning aquifer, a primary
acquifer that provides drinking water to the Corning region, was
held February 27, 2016 at the Southeast Steuben County Library
in Corning. The program featured retired hydrologist Todd Miller.
Prior to his retirement from the U.S. Geological Survey in 2013,
Miller was the main author of ten USGS reports on the aquifers
in the Finger Lakes and Southern Tier regions, including the primary
aquifers in Corning and Elmira.
Miller explained how the Corning aquifer works and what hydrogeologic data is
needed to determine how much water can be withdrawn and exported
from an aquifer before there may be adverse impacts on the environment
and on the quality of local drinking-water supplies. He discussed
methods that can be used to track contaminants in aquifers and
how the movement of contaminants may be affected by large pumping
Additional speakers at the program included renowned
environmental author Sandra Steingraber, activist Mary Finneran,
and Bill Mattingly and Henry Faryna from the Painted Post Water
Sentinels. I spoke about legal issues with bulk water sales. Continue reading . . .
Posted by Rachel Treichler on 02/28/16, updated 04/05/16.
February 17, 2016
Amy Goodman asks tough questions today on Democracy
Now about who pays for water in Michicgan. See Michigan's Water Wars: Nestlé Pumps Millions of Gallons for Free While Flint
Pays for Poisoned Water.
Her guests on the program are residents of Mecosta
County, Michigan, who have engaged in a decade-long legal battle
challenging permits issued to Nestlé, the largest water bottling
company in the world, by the Michigan Department of Environmental
Quality (DEQ). The permits authorize Nestlé to take water from
groundwater wells drawing on aquifers that feed Lake Michigan.
According to the program, DEQ issued permits in
2001 and 2002 to Nestlé to pump up to 400 gallons of water per
minute (575,886 gallons of water per day) from its wells. Nestlé
is not required to pay any fees to extract water from the Mecosta
County aquifers besides a small permit processing fee and the cost
of leases to a private landowner. Not only is it receiving the
water for free, Nestlé received $13 million in tax breaks from
the state to locate a water
bottling plant in Michigan.
In contrast to the free water received by Nestlé, residents of Flint, Michigan
pay so the highest fees in the country to use poisoned water from
the Flint water system. Continue reading . . .
Posted by Rachel Treichler on 02/17/16, updated 04/29/16.
February 17, 2016
The US Supreme Court has granted leave to the State of Mississippi to file a
bill of complaint against the State of Tennessee, the City of
Memphis, and Memphis Light, Gas & Water for wrongfully converting groundwater from the interstate Sparta-Memphis
Aquifer. The dispute arises from the pumping of groundwater
in Tennessee by the City of Memphis. Mississippi alleges that
this pumping has lowered
water tables in Mississippi. This case will be the first time
the Court has addressed the question of what legal doctrine
applies to transboundary interstate
groundwater resources. Continue reading . . .
Posted by Rachel Treichler on 02/16/16, updated 04/05/16.
January 3, 2016
On New Year's Eve, the Appellate Division, Fourth Department in Rochester decided
in favor of the petitioners in the long-drawn out lawsuit challenging
a bulk water sale agreement entered into by the Village of Painted
The case, Sierra Club v. Village of Painted Post,
134 A.D.3d 1475 (4th Dep't 2015), involved a challenge by Sierra
Club, People for a Healthy Environment, Inc., Coalition to Protect
and five local residents to the decision of the Village to sell
up to 1.5 million gallons of water per day from its municipal
water system to SWEPI, LP, a subsidiary of Shell Oil Company. I
with attorney Richard J. Lippes from Buffalo to represent the petitioners.
On remittitur from the court of appeals, the Fourth Department affirmed the decision
of the trial court. The ruling of the appeals court was significant
in three respects. First, the court ruled that the bulk water sale
agreement was invalid because the Village failed to conduct a review
of the impacts of the sales under the State Environmental Quality
Review Act (SEQRA). The court rejected respondents' contention
that the withdrawal and sale of surplus water from a municipal
water supply is not an "action" for SEQRA purposes. Second, the Court invalidated the accompanying lease of
Village land for construction of a rail-loading facility to ship
water to Pennsylvania. The court invalidated the lease even though
the Village had conducted an environmental review of the lease
because the Village's review of the lease was segmented from its
review of the bulk water sale agreement, and such segmentation
is not allowed under SEQRA. Finally, the court ruled that the Susquehanna
River Basin Compact does not pre-empt New York's SEQRA law and
that the Susquehanna River Basin Commission was not a necessary
party to the proceeding. Continue reading . . .
Posted by Rachel Treichler on 01/03/16, updated
December 10, 2015
In a follow-up to his November
29 article about the handing of water withdrawal permits by the New York State Department
of Environmental Conservation (DEC), Poughkeepsie Journal reporter John Ferro interviewed Dutchess County Executive Marc Molinaro. See Molinaro questions DEC's execution of water law, John Ferro, Poughkeepsie Journal, December 8, 2015. The article reports that Molinaro, who voted for the new
water permitting legislation in 2011 as a state assemblyman,
disputes DEC's recent claims that the legislation exempts water
withdrawal permits issued to existing users from reviw under
the State Environmental Quality Review Act (SEQRA).
According to the
article, Molinaro says that when state legislators unanimously
approved the new water withdrawal permitting law in 2011 (see New York Water Legislation Signed by Governor), at least one block of lawmakers expected there would be some evaluation of
the impacts by DEC. He told the Journal the legislation was meant to ensure that large, existing withdrawals would require
permits for the first time, and that "through rules promulgated by the DEC, there would be a degree of oversight with
consideration of impact."
In 2011 Molinaro served as the third-ranking member
of the state Assembly's Republican Conference. "My job," Molinaro says in the article, "was to read these things and then advise, with counsel, other members in the
Assembly Republican Conference what is in the bill." Molinaro said the Republican Conference's bill memo specifically states there
would be criteria the DEC would use in issuing the permit. The
bill memo was a written analysis of the water bill distributed
to Republican members of the state legislature in the spring of
2011. "What, you just have to make sure you spell your name right?" Molinaro asked rhetorically.
The state, Molinaro says, requires even the smallest
of developments, through zoning laws and SEQR, "to consider and prove their impact is not going to negatively effect the health
and well-being of someone else." The same, he says, should be expected of the largest water withdrawals.
"We have a very sensitive ecosystem," he
says in the article. "We have a limited supply of potable and usable water. Any withdrawal of any kind
has an impact on the environment and human considerations. In my
estimation, the law is — and was — intended to ensure there was
some agency overseeing withdrawals and, at the end of the day,
some consideration of impact." Continue reading . . .
Posted by Rachel Treichler 12/10/16, updated 04/29/16.
November 30, 2015
Journal describes how DEC is handling IBM's application to take up to 86.4 million gallons
of water a day from the Hudson River for operation of its Town
of Poughkeepsie plant. See Millions of gallons taken from river—no state OK needed, John Ferro, Poughkeepsie Journal, November 29, 2015. DEC gave notice of IBM's application on October 28, 2015 and accepted comments through November 12, 2016.
The article addresses DEC's position that New
York's new water withdrawal permitting law exempts its staff from
conducting even the most basic environmental review of applications
by existing users, and notes the concerns some environmental groups
have with DEC's handling of such applications. Continue reading . . .
Posted by Rachel Treichler 11/30/15, updated 03/10/16.
November 21, 2015
On November 19, 2015, the New York Court of Appeals
ruled that Petitioner John Marvin had standing in the case of Sierra Club v. Painted Post, 26 N.Y.3d 301 (2015). The decision overturned the ruling of the Appellate Division,
Fourth Department, which had dismissed the case on the ground that
none of the petitioners had standing. The case now goes back to
the Fourth Department to decide the substantive issues in the case
regarding Painted Post's bulk water sales to a subsidiary of Shell
The Court of Appeals found that the Appellate
Division's standing analysis "applied an overly restrictive analysis of the requirement to show harm 'different
from that of the public at large.'" The Court of Appeals stated that an injury to a petitioner, while having to
be different than the public at large, "need not be unique."
reading . . .
Posted by Rachel Treichler on 11/21/15, updated
August 14, 2015
The NYS Department of Environmental Conservation
(DEC) announced this week that Greenidge Generation LLC qualifies for "initial" permit status for its application for a water withdrawal permit for its shuttered
Greenidge Generating Station in Dresden, New York. Greenidge, a
subsidiary of Atlas Holdings, is seeking a permit to take up to
159,897,000 gallons of water a day from Seneca Lake. That is more
than is used by all the other users of the lake combined. Comments
on the Greenidge application are due September 11, 2015.
DEC notice recognizes that the facility was "was placed in protective lay-up status in 2011" and that the Applicant “is now proposing to re-activate Unit 4 of the facility,”
nevertheless, the notice states that the Department has determined
that the facility is eligible for a type of permit, an "initial" permit, that is limited to existing water withdrawals. Continue reading.
Posted by Rachel Treichler on 08/14/15. Updated
August 1, 2015
On July 27, Sierra Club and Hudson River Fisherman’s
Association (HRFA) perfected their appeal of the decision of the
Queens County Supreme Court in Sierra Club and HRFA v. Martens, Index No. 2949-14, to the Appellate Division, Second Department, Docket No.
2015-02317. The suit challenges the procedures followed by the
New York State Department of Conservation (DEC) in issuing a water
withdrawal permit to TransCanada for its Ravenswood Generating
Station in Queens to take over 1.5 billion gallons per day from
the East River in the Hudson River estuary. The Ravenswood permit
is the first permit issued by DEC under New York's new water permitting
law and new regulations. Continue reading . . .
Posted by Rachel Treichler on 08/01/15. Updated
April 4, 2015
In an ironic coincidence, the NYS Department of
Environmental Conservation (DEC) released its Draft Hudson River Estuary Action Agenda 2015-2020 on April 1, 2015, just a week after the Sierra Club and Hudson River Fisherman’s
Association (HRFA) filed their second suit challenging a water
withdrawal permit issued by DEC to a power plant drawing water
from the estuary. Issuance of the action agenda is mandated by
the Hudson River Estuary Management Act, Environmental Conservation
Law § 11-0306. Target 4 of the draft action agenda calls for
the reduction of fish kills at the "four remaining steam electric power plants that use once-through cooling systems" in the estuary. Yet, at the same time DEC was drafting the action agenda, DEC
pushed three of these plants to the head of the line for permits
under New York's new water withdrawal permitting law.
Continue reading . . .
Posted by Rachel Treichler on 04/04/15, updated 04/29/16.
April 4, 2015
Last week Sierra Club and Hudson River Fisherman’s
Association (HRFA) filed a second suit challenging the procedures
being followed by the NYS Department of Environmental Conservation
(DEC) in issuing water withdrawal permits. The Article 78 proceeding, Sierra Club and HRFA v. Martens II, was filed in New York County Supreme Court, Index No. 100524-2015, on March
Martens II challenges
DEC's issuance of a water withdrawal permit to Consolidated Edison
for its East River generating station to take up to 373 million
gallons of water per day from the East River in the Hudson River
estuary. The suit asserts that DEC's issuance of the permit violated
New York's water withdrawal permitting law, the State Environmental
Quality Review Act (SEQRA), New York's coastal zone laws and DEC's
public trust responsibilities, and that these violations occurred
because DEC failed to consider the impacts on other users and the
estuary of the huge withdrawals authorized by the permit and failed
to include necessary water conservation conditions in the permit. Continue reading . . .
Posted by Rachel Treichler on 04/02/15. Updated
April 2, 2015
The NYS Department of Environmental Conservation
(DEC) is pushing forward to process water withdrawal permit applications
under our states's new water permitting law without requiring compliance
with the water conservation standards contained in the new law
or conducting environmental reviews of the permit applications.
The permits are being issued gratis without the payment of water usage fees or application processing fees.
As of April 1, 2015, notice of 125 water withdrawal
permit applications has been given in the weekly Environmental
Notice Bulletin (ENB) published by DEC. The pace of processing
is picking up. Notice of 75 applications has been given since January
1st (three/fifths of all applications noticed to date). Continue reading . . .
October 27, 2014
On October 23, New York's highest court granted
Petitioners' motion for leave to appeal the case of Sierra Club v. Village of Painted Post. In their motion for leave to appeal, Petitioners urged the Court of Appeals
to clarify the confusing array of standing decisions in cases
involving adverse environmental consequences affecting a large
number of people and to address the application of SEQRA to municipal
bulk water sales. Continue reading . . .
October 10, 2014
In a case of first impression, Justice Robert
McDonald of the Queens County Supreme Court ruled October 1, 2014
that the first permit issued under New York’s new water withdrawal permitting law was not subject to review under the State
Environmental Quality Review Act ( “SEQRA”) or the State Waterfront Revitalization Act, and on October 2, 2014 he issued
an order dismissing the petition filed by Sierra Club and Hudson
River Fisherman’s Association (HRFA).
The case challenged the procedures followed by
the New York State Department of Conservation (DEC) in issuing
a water withdrawal permit to TransCanada for its Ravenswood Generating
Station in Queens to take up to 1.5 billion gallons per day from
the East River in the Hudson River estuary.
reading . . .
Posted by Rachel Treichler on 10/10/14, updated
April 21, 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.) Continue reading . . .
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. Continue reading . . .
February 20, 2014
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 12/10/13, updated
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
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. Continue reading . . .
Posted by Rachel Treichler at 08/15/13
4:30 PM. Updated 08/16/13.
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. Continue reading . . .
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.
reading . . .
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.
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
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
- No public hearings are required before permits
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
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
- 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
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.
here for older posts.
About NY Water Law
New York Water
Law covers legal developments relating to water usage 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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