August 15, 2013

Will 12 NY Power Plants Get Permits this Year for 111% of NY's Total Fresh Water Usage?

Under the permitting schedule adopted by the New York State Department of Environmental Conservation (DEC) for issuing water withdrawal permits pursuant to the DEC's new water withdrawal regulations, water users that withdraw or are designed to withdraw 100 million gallons per day (MPD) or more are required to apply for permits this year. See Table 1 below. Twenty water users in the state have a maximum daily usage above this threshold. See Table 2 below. Two of these top 20 users are hydropower facilities that are exempt from the permitting requirements. Two other top 20 users are public water supplies that are grandfathered under existing permits. In addition, four of the top 20 users are using a combined 3.2 billion gallons per day (BGD) of water from New York harbor which is not fresh water.

The total freshwater maximum usage of the remaining 12 facilities required to obtain permits this year, each of which is a power generating station, is almost 7.9 BGD. (The amount was determined by adding the maximum daily usages of the facilities shown in bold in Table 2 below.) A comparison of this amount with New York State's total fresh water usage of 7.1 BGD as determined by USGS for 2000, the last year for which I could find data, shows that the maximum daily usage of these facilities is 111% of New York's total daily freshwater usage.

The pie-chart above is a portion of Figure 3. Total freshwater withdrawals, fresh surface water withdrawals and fresh groundwater withdrawals in New York in 2000, by water-use category, New York Water Use Program and Data, USGS Open-File Report 2005-1352, September 2005.

What will be the consequence of issuing permits for water withdrawals in these huge amounts? How will water usage be allocated among competing water users? Will any sort of priority be conferred on those who receive the first permits? Judging by the notice filed last week of the first water withdrawal application, the DEC is not going to give the public time to research and consider the issues raised by these permit applications.

The first notice of a water withdrawal application was given last week in the DEC's August 7, 2013, Environmental Notice Bulletin (ENB). Notice was given of the application of the Ravenswood Generating Facility in Queens County for a permit to withdraw up to 1.5 bgd from the East River. See DEC Gives Two Weeks to Comment on First Water Withdrawal Application for 1.5 Billion GPD. Probably it is not a coincidence that the Ravenswood Facility, the sixth largest water user in the state, is the only registered water user in the state that must apply for a permit this year and is withdrawing water from a salt water body rather than a fresh water body. The DEC may calculate that the public will have less concern about saltwater withdrawals. But this permitting procedure is establishing the precedent by which all other water withdrawal permits will be issued. And most permits will be freshwater permits.

As I noted last week, no hearings are scheduled on the Ravenswood application and the entire comment period is only two weeks long until August 22, 2013. It was days into the comment period before anyone I know was able to reach anyone at the DEC to discuss the permit by telephone. My own telephone messages were not returned. Out of frustration, I resorted to filing a Freedom of Information Law request to obtain the documents I thought would be relevant, such as Ravenswood's SPDES permit and the environmental reviews conducted in connection with the issuance and renewal of the Ravenswood SPDES permit. I have been informed that it will take at least 20 days before the documents I requested can be provided. That means that I won't have them to review until after the comment period has expired.

Furthermore, the notice of application states that the DEC determined that the project is not subject to SEQRA because "it is a Type II action." This is despite the fact that projects that "would use ground or surface water in excess of 2,000,000 gallons per day," are explicitly defined as Type I actions in Section 617.4(6)(ii) of the SEQRA regulations. Finally, the notice of application states that "the project is not located in a Coastal Management area and is not subject to the Waterfront Revitalization and Coastal Resources Act." I am not an expert on the Waterfront Revitalization and Coastal Resources Act, but I note that the DEC webpage on Coastal Management states, "The coastlines along Lake Erie and Lake Ontario, Long Island Sound, and the Atlantic Ocean coastline of NYC and Long Island are at risk to coastal erosion from natural and human activities and are regulated." The East River is listed on this webpage as one of New York's coastal waters, together with "All connecting water bodies, bays, harbors, shallows, and wetlands." It would seem that taking up to 1.5 billion gallons of water a day from the East River could have an effect on the coasts along the tidal strait as well as on connecting water bodies, bays, harbors, shallows, and wetlands.

The question as to whether users withdrawing less than 100 MGD may submit applications in advance of the schedule shown in Table 1 has been answered by the announcement in yesterday's ENB that the Sunningdale Country Club Club in Scarsdale has applied for a water usage permit for a total of 572,000 gallons per day (GPD). Under the schedule, Sunningdale is not required to apply until 2015.

The ability to have a water use permit application considered ahead of schedule may offer an advantage to smaller water users. Other smaller water users may want to consider making their applications soon, now that we know that early applications are being accepted by the DEC.

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

Source: 6 NYCRR 601.7(2) lists the dates by which a complete application for an initial permit must be submitted.

Table 2. 2012 Registered Water Users with Maximum Usage over 100 MGD

Source: Response to FOIL request to DEC, received March 27, 2013. Users that are not exempt or grandfathered are required to submit applications in 2013. Facilities in bold are required to apply for withdrawal permits this year and are using fresh water.
* Hydropower facilities are exempt from the water permitting requirements.
**Public water suppliers with existing permits are grandfathered under the regulations.
***Facilities that use water from New York harbor, including three using the East River, a tidal strait. The usage of these facilities has been excluded from the calculation of fresh water usage.
****Wikipedia reports that this plant was closed in 2010, although it appears on the list of currently registered water users provided by the DEC in March 2013.

Posted by Rachel Treichler on 08/15/13 4:30 PM. Updated 08/16/13.

Copyright 2021, Rachel Treichler

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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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