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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.

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





Copyright 2014, Rachel Treichler



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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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