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April 7, 2013

SEQRA Review Required of NY Water Withdrawal Permit Applications

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.

The names and locations of the water users subject to water permitting requirements this year may be estimated from the list of large water users in the state I obtained from the DEC pursuant to a Freedom of Information Law request several weeks ago. According to this list, only 20 users in the state have a maximum daily usage of 100 MGD or more. Eighteen of these users are power plants. Two are large municipal water systems—New York City and Monroe County. A power plant is exempt from water withdrawal permitting under Section Section 601.9 of the water regulations if it is a facility "operating under a valid Federal Energy Regulating Commission license." I am currently researching which, if any, of the power plants on the list below do not operate under FERC licenses.

Residents and water users in the communities where non-exempt projects are located should begin researching their options now and preparing to get involved in the SEQRA reviews of the water withdrawal permit applications by those projects.

Table 1. Water Users with Maximum Usage over 100 MGD

Facility Name Town/City County Average Units Max. Units
St. Lawrence/ FDR Power Project Massena St.Lawrence 79278.00 MGD 108686.00 MGD
Niagara Power Project Lewiston Niagara 47463.00 MGD 62164.00 MGD
Indian Point 2&3 LLCs Cortlandt Westchester 2024.00 MGD 2489.00 MGD
New York City DEP Neversink Sullivan 1078.00 MGD 1418.00 MGD
James A. Fitzpatrick Nuclear Power Plant Scriba Oswego 543.00 MGD 596.00 MGD
Ravenswood Generating Station Queens Queens 512.90 MGD 1390.00 MGD
Arthur Kill Generating Station Richmond Richmond 480.00 MGD 712.80 MGD
Astoria Generating Station Queens Queens 455.60 MGD 723.70 MGD
RE Ginna Nuclear Power Plant Ontario Wayne 427.00 MGD 511.00 MGD
Nine Mile Point Nuclear Station Scriba Oswego 401.10 MGD 457.10 MGD
Roseton Generating Station Newburgh Orange 340.54 MGD 794.40 MGD
Dunkirk Generating Station Dunkirk Chautauqua 304.00 MGD    
Danskammer Generating Newburgh Orange 278.80 MGD 455.04 MGD
East River Generating Station New York New York 264.10 MGD 371.80 MGD
AES Somerset Somerset Niagara 239.00 MGD 274.00 MGD
AES Cayuga Lansing Tompkins 214.12 MGD 243.36 MGD
Huntley Generating Station Tonawanda Erie 200.00 MGD 406.00 MGD
Oswego Harbor Power Oswego Oswego 167.70 MGD 364.21 MGD
Genon Bowline Haverstraw Rockland 74.94 MGD 989.29 MGD
Monroe County Water Authority-Shoremont Greece Monroe 55.40 MGD 109.00 MGD
Source: Response to FOIL request to DEC, received March 27, 2013.

As noted in my overview of the new water withdrawal permitting requirements, the implementation of the requirements by DEC on a staggered schedule over a five-year period, with the largest users being issued permits first is manifestly unfair to smaller users. While a review of the water usage requirements of smaller users is not mandated under the water regulations prior to the issuance of a permit to a larger water user, it is mandated by the SEQRA regulations and needs to be addressed in the upcoming SEQRA reviews of each water withdrawal permit application.

Table 2. 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
Source: 6 NYCRR 601.7(2) lists the dates by which a complete application for an initial permit must be submitted.
Posted by Rachel Treichler at 04/07/13 2:00 PM



Copyright 2013, 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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