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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.

Activities that Require A Permit

Section 601.6 prohibits engaging in the following activities without a water withdrawal permit:

(a) take, condemn or acquire lands for a source or for the protection of such source of public water supply equal to or greater than the threshold volume;
(b) commence or undertake the construction of any water withdrawal system, including any of its facilities or works, with a capacity equal to or greater than the threshold volume;
(c) operate or maintain any water withdrawal system with a capacity equal to or greater than the threshold volume;
(d) extend supply or distribution mains of a public water supply system into any new water service area or extension thereof such that the water withdrawal system remains or becomes one with a capacity equal to or greater than the threshold volume;
(e) make a non-incidental change in the permitted use(s) of a water withdrawal system with a capacity equal to or greater than the threshold volume;
(f) for a public water supply system with a capacity equal to or greater than the threshold volume, to enter into a final contract or other agreement for the bulk sale of 10,000 gallons per day or more of water for a commercial, industrial, or oil or gas well development purpose outside of the public water supply system's approved water service area;
(g) take, condemn or acquire an existing water withdrawal system with a capacity equal to or greater than the threshold volume;
(h) place into service any additional or replacement wells in connection with an existing water withdrawal system such that the water withdrawal system remains or becomes one with a capacity equal to or greater than the threshold volume;
(i) increase the amount of water withdrawal, whether by changing the pumping specifications, enlargement of the conduits, increased reservoir storage, or by any other means, such that the water withdrawal system becomes one with a capacity equal to or greater than the threshold volume, or further exceeds the threshold volume than it did previously;
(j) transport or carry water in any amount from any fresh surface waters of this State or from any ground waters of this State to any location outside the State through pipes, conduits, ditches or canals; or
(k) transport or carry by vessel, more than ten thousand gallons in any one day of the waters of any surface water in this State.

Threshold Volume Defined by Maximum Capacity of Water Withdrawal System in Most Cases

'Threshold volume' is defined in Section 601.1(p) to mean "the withdrawal of water of a volume of [100,000 gpd], determined by the limiting maximum capacity of the water withdrawal system; except that for withdrawals for agricultural purposes the threshold volume shall mean the withdrawal of water of a volume in excess of an average of [100,000 gpd] in any consecutive thirty-day period; and except that for public water supply systems that have an existing capacity of under [100,000 gpd] but are required by the Department of Health to add redundant wells, threshold volume shall mean the existing capacity of the system, excluding the redundant wells, so long as the withdrawal of water continues to remain below [100,000 gpd]."

The Consumptive Use of Water for Gas Drilling Is Not Specifically Subject to Review and Approval

Because the proposed permitting requirements contained in Section 601.6 apply to the withdrawers of water and not to the end uses of the water, and because many of the water withdrawals made for gas development purposes are made by independent trucking companies withdrawing less than the permitting threshold of 100,000 gpd, the DEC's proposed permitting requirements will not apply to many of the water withdrawals used for gas drilling purposes.

In sharp contrast, both the SRBC rules and the proposed DRBC rules require all consumptive uses of water for the purposes of gas development to be reviewed and approved. The regulations thus fall short of of the oft-stated goal of putting in place regulations in the Great Lakes Basin that will give the state's water resources in the Great Lakes Basin the same protections that apply in the Susquehanna and Delaware Basins. Because the DEC's permitting requirements are not tied to the consumptive use to which the withdrawals will be put, except in one limited case, the regulations fail to implement the requirements of the Great Lakes-St. Lawrence River Basin Water Resources Compact (GLSLRBC). Article 1, Section 4.3.1 of the GLSLRBC provides that "Each Party, within its jurisdiction, shall manage and regulate New or Increased Withdrawals, Consumptive Uses and Diversions, including Exceptions, in accordance with this Compact." ECL § 21-1001.

In only one instance under the proposed regulations does the use to which a withdrawal will be put trigger a permitting requirement. Section 601.6(f) requires a permit "for a public water supply system with a capacity equal to or greater than the threshold volume, to enter into a contract or other agreement for the bulk sale of water for a commercial, industrial, or oil or gas well development purpose outside of the public water supply system's approved water service area."

Five-Year Phase-In, Largest Permits to be Issued First

The new permitting requirements are being implemented by DEC on a staggered schedule over a five-year period. Under the new regulations, the largest users will be issued permits first. 601.7(2) of the regulations lists the dates by which a complete application for an initial permit must be submitted. The staggered implementation schedule make it impossible for the DEC to weigh competing usage requirements. The schedule is manifestly unfair in that it gives priority to the state's largest water users in descending order.

Table 1. Dates by which Application for Initial Permit Must Be Completed

June 1, 2013 Systems that withdraw or are designed to withdraw a volume of 100 million gallons per day (mgd) or more
Feb. 15, 2014 Systems that withdraw or are designed to withdraw a volume equal to or greater than 10 mgd but less than 100 mgd
Feb. 15, 2015 Systems that withdraw or are designed to withdraw a volume equal to or greater than 2 mgd but less than 10 mgd
Feb. 15, 2016 Systems that withdraw or are designed to withdraw a volume equal to or greater than 0.5 mgd but less than 2 mgd
Feb. 15, 2017 Systems that withdraw or are designed to withdraw a volume equal to or greater than 0.1 but less than 0.5 mgd

Initial Permits to be Issued at Maximum Reported Capacity

Under Section 601.7, persons who operated a water withdrawal system with a capacity equal to or greater than the threshold volume and reported their water withdrawals to DEC by February 15, 2012, qualify for an “initial permit” at their maximum reported capacity. There are no additional requirements contained in Section 601.7 for obtaining an initial permit. The requirements contained in Section 601.10, which applies to those who do not qualify under Section 601.7 and to renewal permits, do not apply to initial permits. Even for other permits, the requirements in Section 601.10 are discretionary, not mandatory.

Section 621.4 (b) (2) (5) provides that applications for initial permits are considered “minor projects” under the Environmental Conservation Law. This means they may receive a reduced level of scrutiny under state administrative procedure laws and under the State Environmental Quality Review Act (“SEQRA”).

Maximum Term for All Permits is 10-Years

Ten years is set as the maximum permit term for water withdrawal permits in Section 621.4(b)(4). Section 601.7(e) provides that initial permits may be issued for the same term. This is a very long term. A waterbody can change significantly in ten years, depending on climatic conditions and the number of users withdrawing water.

Ongoing Monitoring Records Not Accessible to the Public

Under section 601.20, ongoing compliance documents will be housed with the permittee making them inaccessible to the public under the state Freedom of Information Law.

Sixteen Categories of Withdrawals Exempt from Permitting

The Water Resources Protection Act of 2011 contains six statutory categories of exemptions from the permitting requirements. Section 601.9 of the regulations adds nine additional exemptions for a total of 15 exempt categories of withdrawals. These categories are in addition to the exemption created by application of the threshold persons whose withdrawals are below the daily or monthly thresholds contained in the regulations.

  1. Withdrawals below the daily or monthly thresholds;
  2. Withdrawals for agricultural purposes that have been registered or their annual water usage reported;
  3. Withdrawals that have received an approval from the Delaware River Basin Commission or Susquehanna River Basin Commission;
  4. Withdrawals of hydropower facilities operating under a valid Federal Energy Regulating Commission license;
  5. Withdrawals from the New York State Canal System;
  6. Closed loop, standing column or similar non-extractive geothermal systems;
  7. Permitted Long Island wells;
  8. On-site water withdrawal systems for approved inactive hazardous waste remedial site programs;
  9. Withdrawals used for fire suppression or other public emergency purposes;
  10. Direct withdrawals from the Atlantic Ocean or Long Island Sound;
  11. Certain extensions of supply or distributing mains or pipes within a previously-approved water service area;
  12. Certain reconstructions of facilities in an existing water withdrawal system;
  13. The construction of certain filtration or other treatment facilities;
  14. Water withdrawals to supply ballast water necessary for lawful and normal vessel activity;
  15. Water withdrawal directly related to routine maintenance and emergency repairs of dams; or
  16. Certain temporary water withdrawals for the purposes of construction, dewatering, hydrostatic testing, or aquifer testing.

Discretionary Standards for Denial, Suspension or Revocation of Permit

Section 601.16 of the regulations lists the circumstances under which a permit may be denied, suspended or revoked. These are discretionary, not mandatory requirements.

(a) The Department may deny an application for a water withdrawal permit if the Department determines that:
(1) the water withdrawal will result in contravention of water quality standards or guidance values;
(2) the water withdrawal will exceed or cause to be exceeded the safe yield or sustainable supply of the water source;
(3) the water withdrawal will cause a new or increased interbasin diversion that results in a significant adverse impact on the water quantity of the source New York major drainage basin;
(4) the permittee or applicant has been convicted of a crime related to the permitted activity under any federal or state law;
(5) the permittee or applicant has been determined in an administrative, civil or criminal proceeding to have violated any provision of the ECL, any related order or determination of the Commissioner, any regulation of the Department, any condition or term of any permit issued by the Department, . . . and in the opinion of the Department, the violation that was the basis for the action posed a significant potential threat to the environment or human health, or is part of a pattern or is part of a pattern of non-compliance; or
(6) the water withdrawal has not been approved by the applicable compact basin commission.
(b) In addition to the criteria set forth . . . for suspension or revocation of a permit, the Department may suspend or revoke a water withdrawal permit if the Department determines that:
(1) the facility that would or does employ the permitted water withdrawal has not operated and is not likely to operate during the term of the permit;
(2) that the permittee or applicant has been convicted of a crime related to the permitted activity under any federal or state law;
(3) the permit was issued erroneously or by mistake;
(4) the permit was obtained through fraud, deceit, or through the submission of incorrect data;
(5) the permittee was negligent, or practiced fraud or deceit, in the performance of the permitted activities; or
(6) the permittee is out of compliance with the requirements of the Great Lakes-St. Lawrence River Basin Water Resources Compact, . . . , or any other compact basin commission.

Annual Reporting Requirements Apply to Certain Activities Exempt from Permitting

Certain withdrawals exempt from permitting under Section 601.16 are subject to annual reporting requirements under Section 601.5. Section 601.5 requires annual water withdrawal reports from any person subject to:

  1. The permit requirements whether their time for submitting an initial permit application has arrived or not;
  2. The agricultural registration requirements of subpart 601.17,;
  3. The interbasin diversion registration requirements of subpart 601.18;
  4. hydropower facilities operating under a valid Federal Energy Regulating Commission license;
  5. Susquehanna River Basin Commission-approved water withdrawals or Delaware River Basin Commission-approved water withdrawals; and
  6. Persons who are not otherwise exempt.

Registration of Interbasin Diversions

Section 601.18 requires the registration of interbasin diversions of water or wastewater in excess of an average of 1,000,000 gallons per day, and prohibits diversions above the threshold which are not registered. Registration is not required for interbasin diversions that are operating pursuant to a water withdrawal permit.

Prohibition against Withdrawals not in Compliance with Great Lakes-St. Lawrence River Basin Water Resources Compact and other Applicable Laws and Approvals

Section 601.4 of the regulations prohibits withdrawals from the waters of the State that are not in compliance with:

  1. The Great Lakes-St. Lawrence River Basin Water Resources Compact;
  2. The applicable provisions of a compact basin commission water withdrawal approval; or
  3. Any water withdrawal not in compliance with all applicable laws including, without limitation, ECL article 15 title 15.

This blanket prohibition is inadequate to ensure that the requirements of these laws will be sufficiently addressed by the applicant and DEC during the permitting process.

Affirmation of Riparian Rights

Common law riparian rights are affirmed in Section 601.12(o) of the regulations, which provides that “The issuance of a water withdrawal permit does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize any injury to private property or any invasion of personal rights, nor any infringement of federal, state or local laws or regulations; nor does it obviate the necessity of obtaining the assent of any other jurisdiction as required by law for the water withdrawal authorized.”

Required Engineer Certifications

Three sections of the new regulations require a certification from a licensed professional engineer.

Engineer’s Report for Permit Application

Section 601.10 which relates to applications for permits but not to applications for initial permits, requires in Subsection (e) that applications be accompanied by an engineer's report from the professional engineer, licensed by the State, who made the recommendations and/or designed the proposed water withdrawal system.

(1) a general description of the project and the engineering features of the existing or proposed water withdrawal system;
(2) a listing of all existing sources of water supply, including wells, surface withdrawals, and any purchases, sales or transfers of water;
(3) an evaluation of all practicable alternatives to the proposed source, which shall include an analysis of increased water conservation measures as a means to reduce or eliminate the need for the proposed source;
(4) for public water supply systems, the present and projected population of the water service area and the present and projected consumption rate;
(5) for public water supply systems, the radius of land owned or controlled for wellhead protection surrounding any proposed groundwater withdrawal, or the water quality classification and a copy of any Department of Health Watershed Rules and Regulations for any proposed surface withdrawal;
(6) the general character and extent and essential design features of proposed controlling, diverting or regulatory works;
(7) the proposed instantaneous and maximum daily rates of withdrawal; the existing and projected daily average, daily maximum, and 30 day maximum water demands of the water withdrawal system;
(8) when applicable, any fire suppression flows which can be supplied, including the duration for which such flows can be maintained;
(9) for public water supply systems, the location, extent and character of proposed treatment facilities;
(10) for groundwater sources, well drilling logs, monitoring well locations and pump test data and analyses of results; and
(11) for surface water sources, information on rainfall, stream flows and classifications, contributing watershed size, location of the nearby USGS stream gages, other upstream water withdrawals, safe yield analyses or passby flow calculations and proposed withdrawal methods including intake structure design and screening.

Engineer’s Certification of Completed Works

Section 601.14 relating to the approval of completed works, provides Subsection (a) that the construction of any works pursuant to a water withdrawal permit shall be under the general supervision of a person licensed to practice engineering in New York and that such works may not commence operation until the professional engineer first certifies in writing to the Department that the works have been constructed in accordance with the issued permit.

Engineer’s Report for Interbasin Diversions

Section 601.18 (e) (3) relating to the registration of interbasin diversions provides that the initial or renewal registration of an interbasin diversion shall contain a report from the professional engineer, licensed by the State, who made the recommendations and/or designed the proposed interbasin diversion. The report shall contain the following minimum information:

(i) a general description and the engineering features of the existing or proposed interbasin diversion;
(ii) a listing of all related Departmental permit applications or permits;
(iii) a description of the amounts of water or wastewater diverted on a daily, monthly and annual basis; and
(iv) an evaluation of the impacts of the diversion on the quantity of water in the New York major drainage basin that is the source of the diversion and from which waters are diverted.

Public Hearings on Water Permit Applications Not Required

No public hearings are provided under the regulations before a permit may be issued. Residents of the Delaware and Susquehanna River Basins have the right to publicly present their concerns on water use applications pursuant to DRBC and SRBC policies and procedures, and have made use of that right to protest recent applications for water withdrawals for gas drilling in both river basins. The failure to provide for public hearings in the regulations leaves residents of the Great Lakes basin and other watersheds outside the Delaware and Susquehanna basins without the opportunity to present their concerns regarding proposed water withdrawal applications in a public forum.

No Usage or Permit Fees

Neither the Water Resources Protection Act of 2011 nor the new regulations provide for any application fees or water usage fees. Both the DRBC and the SRBC charge application fees and fees for permitted water usage. The lack of application and water usage fees in the regulations provides an incentive to take water from watersheds of the state not subject to regulation by the DRBC and the SRBC.

Posted by Rachel Treichler at 11/24/12 4:05 PM, updated 11/28/12 11:10 AM

Previous Posts on New York's Water Withdrawal Legislation and Regulations

Cuomo's Gift to the Gas Industry: New York's Water Withdrawal Regulations Issued
Public Comment Period Extended 15 Days for New York's Proposed Water Withdrawal Regulations
New York's Proposed Water Withdrawal Regulations: Unequal Treatment for the Great Lakes Basin
New York's Proposed Water Withdrawal Regs Issued
New York Water Legislation Signed by Governor
NY Water Bills Pass Unanimously
What Protections Are Offered by NY's Pending Water Withdrawal Bills?
Permit Systems Entrench Large Water Users
New York Water Withdrawal Bills Advance

 

 

Copyright 2013, 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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Previous Posts on NY's Water Withdrawal Rules
Cuomo's Gift to the Gas Industry: New York's Water Withdrawal Regulations Issued
Public Comment Period Extended 15 Days for New York's Proposed Water Withdrawal Regulations
New York's Proposed Water Withdrawal Regulations: Unequal Treatment for the Great Lakes Basin
New York's Proposed Water Withdrawal Regs Issued
New York Water Legislation Signed by Governor
NY Water Bills Pass Unanimously
What Protections Are Offered by NY's Pending Water Withdrawal Bills?
Permit Systems Entrench Large Water Users
New York Water Withdrawal Bills Advance

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