April 28, 2011

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

Environmental activists are debating the merits of two companion water withdrawal bills on the floor of the New York legislature, A5318A/S3798. Each bill is 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? An action alert sent yesterday by Food and Water Watch, Will New York Give Away Our Water Rights?, states that "[a}lthough the legislation appears to benefit the environment, it will actually weaken the state's regulation over water withdrawals and will give the natural gas industry easier access to the state's water to use for hydraulic fracturing." Similarly, a press release sent by the Coalition to Protect New York on April 25, Grassroots Opposition Grows to NY Water Withdrawal Bill, states that the bills "would put non-permitted water users at a disadvantage in terms of legal recourse in the case of harmful withdrawals," and "would give . . . large users priority in times of water scarcity to the detriment of farmers and other small users that will not be protected under this bill’s permitting scheme." My similar concerns about the bill were discussed in an April 18th article by Peter Mantius for the DCBureau.

These positions contradict statements issued last week by other environmental groups urging support for the proposed legislation. The Adirondack Mountain Club release on April 21 urged "Tell your Legislator to Protect our Streams & Rivers from High Volume Water Withdrawals," and stated that, "A water withdrawal permit system will . . . help prevent the depletion and degradation of New York’s clean water supply, . . . ." The website of Citizens Campaign for the Environment says,"This legislation is critical for New York to implement the [Great Lakes] Compact and ensure that Great Lakes water is protected for future generations!"

Also last week, Environmental Advocates (EA) announced that the water withdrawal legislation would be included in the environmental "super bills" designated by a group of environmental organizations coordinated by EA. EA's announcement states that the water withdrawal permitting program to be authorized by A5318A/S3798 "would protect all New York’s waters from wasteful withdrawals by requiring anyone with the capacity to withdraw more than 100,000 gallons of water per day to first obtain a permit from the Department of Environmental Conservation."

So what's the scoop? Will the proposed permitting system protect New York's waters? 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 10:07 AM

Copyright 2021, Rachel Treichler

About NY Water Law

New York Water Law covers legal developments relating to water usage in New York and elsewhere. The author, Rachel Treichler, practices law in the Finger Lakes region. .

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