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