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October 10, 2014

Queens Judge Rules against SEQRA Review of Water Withdrawal Permits

In a case of first impression, Justice Robert McDonald of the Queens County Supreme Court ruled October 1, 2014 that the first permit issued under New York’s new water withdrawal permitting law was not subject to review under the State Environmental Quality Review Act ( “SEQRA”) or the State Waterfront Revitalization Act, and on October 2, 2014 he issued an order dismissing the petition filed by Sierra Club and Hudson River Fisherman’s Association (HRFA).

The case challenged the procedures followed by the New York State Department of Conservation (DEC) in issuing a water withdrawal permit to TransCanada for its Ravenswood Generating Station in Queens to take up to 1.5 billion gallons per day from the East River in the Hudson River estuary.

The petition in the case, Sierra Club and HRFA v. Martens, Index No. 2949-14, asserted that DEC should have conducted an environmental review under SEQRA and the Waterfront Act prior to issuance of the Ravenswood permit. Petitioners also claimed that issuance of the permit violated the requirements of the the Water Resource Protection Act of 2011, New York's new water withdrawal permitting law, and the public trust doctrine.

The court did not accept petitioners’ claims. “The issuance of an initial permit is a ministerial act not subject to review under either SEQRA or the Waterfront Act,” the decision stated, “While ECL §15-1501(9) does state that DEC ‘shall issue an initial permit, subject to appropriate terms and conditions as required under this article,’ the statute does not give the agency the type and breadth of discretion which would allow permit grant or denial to be based on environmental concerns detailed in an EIS.” Rather, the court said, “The statute left DEC with only one course of action regarding Ravenswood -- the issuance of a permit allowing the facility to withdraw water from the East River at existing volumes.” “Whatever information DEC could have obtained from conducting an environmental review,” the court said, “could not have affected its decision to issue or deny an initial permit to TC Ravenswood. . . . The DEC had to issue the initial permit to TC Ravenswood on the basis of statutory specifications regardless of environmental concerns.”

Petitioners had argued that even though DEC was required to issue a permit for Ravenswood’s reported capacity, it was mandated by the new law to exercise discretion in setting permit conditions to ensure that withdrawals pursuant to the permit “will result in no significant individual or cumulative adverse impacts on the quantity or quality of the water source and water dependent natural resources,” and will incorporate “environmentally sound and economically feasible water conservation measures” as required by the Water Resources Protection Act, ECL §15-1503.2 (f) and (g), and that the conditions in the permit failed to meet these requirements. Petitioners asserted that the inquiry DEC was mandated to conduct under the permitting law would have been substantially aided by an environmental review. These claims were not addressed by the court.

Closed-cycle cooling was one of the water conservation measures petitioners claimed DEC should have considered in setting the conditions for the Ravenswood permit. Although the court said that “The [water withdrawal permitting] statute does not vest DEC with the discretion to in effect compel TC Ravenswood to switch to a closed cycle cooling system using lower water volumes because of information contained in an EIS,” the decision does not explain why the water conservation requirements of ECL §15-1503.2 (g) do not give exactly this discretion to DEC.

The petition also claimed that DEC's failure to impose permit conditions to protect aquatic life in the East River and the Hudson River estuary violated the agency’s public trust obligations. Petitioners' public trust claims were not addressed by the court.

On November 25, 2014 judgment was entered on the October 1, 2014 decision and the October 2, 2014 order.

I am working with attorneys Richard J. Lippes, Gary Abraham and Jonathan Geballe to represent the petitioners in the case. The papers in the case are posted on my law office website.

Posted by Rachel Treichler 10/10/14, updated 04/29/16.



Copyright 2016, Rachel Treichler



About NY Water Law

New York Water Law covers legal developments relating to water usage 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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