April 4, 2015
Second Suit Filed Challenging DEC on Water Withdrawal
Last week Sierra Club and Hudson River Fisherman’s
Association (HRFA) filed a second suit challenging the procedures
being followed by the NYS Department of Environmental Conservation
(DEC) in issuing water withdrawal permits. The Article 78 proceeding, Sierra Club and HRFA v. Martens II, was filed in New York County Supreme Court, Index No. 100524-2015, on March
Martens II challenges
DEC's issuance of a water withdrawal permit to Consolidated Edison
for its East River generating station to take up to 373 million
gallons of water per day from the East River in the Hudson River
estuary. The suit asserts that DEC's issuance of the permit violated
the the Water Resources Law (WRL), New York's water withdrawal
permitting law, the State Environmental Quality Review Act (SEQRA),
state and city coastal zone laws and DEC's public trust
responsibilities, and that these violations occurred because DEC
failed to consider the impacts on other users and the estuary of
the huge withdrawals authorized by the permit and failed to include
necessary water conservation conditions in the permit.
The case turns on the interpretation of the section
of the WRL that specifies the requirements that apply to permits
issued to existing water users, i.e. users already taking water
from New York's rivers, lakes, streams and aquifers. (Permits issued
to existing users are termed "initial" permits in the WRL.) ECL § 15-1501(9) provides that DEC "shall issue an initial permit, subject to appropriate terms and conditions as
required under this article, to any person not exempt from the
permitting requirements of this section, for the maximum water
withdrawal capacity reported to the department [emphasis added]."
Petitioners assert that DEC failed to set appropriate
terms and conditions in the Con Ed permit.
section 15-1501(9) gives it no discretion but to issue permits
to existing users and that this exempts DEC from requiring
that apply to other users. Because DEC argues that it has no discretion
in issuing permits to existing users under the WRL, DEC argues
that the issuance of such permits is exempt from SEQRA. The
SEQRA regulations specify that purely ministerial actions are exempt
from SEQRA review. Because DEC claims that the issuance of water
withdrawal permits to existing users is exempt from SEQRA, DEC
issuance of such permits is also exempt from review under
state and city coastal zone laws, which reviews only apply
to actions subject to SEQRA review. Petitioners assert that DEC does
have discretion in setting the terms and conditions in permits
issued to existing users and that issuance of such permits is not
exempt from review under SEQRA or the state and city coastal
Sierra Club and HRFA made the same legal arguments
in their first suit challenging DEC's issuance of a water withdrawal
permit. The first suit challenged the issuance of a permit
to TransCanada for its Ravenswood Generating Station in Queens
take over 1.5
billion gallons per day from the East River. The Ravenswood permit
is the first permit issued to a non-public user under the WRL.
The case, Sierra Club and HRFA v. Martens I, filed February 2014 in Queens County Supreme Court, Index No. 2949-14, was
decided against the petitioners in October 2014 and is being appealed to the Appellate Division, Second Department.
See Appeal of Queens County Water Permit Decision Filed.
Both lawsuits assert that DEC's decision to exempt
existing users from the requirements of the water withdrawal permitting
law enacted by the New York legislature in 2011 is contrary to
the clear wording of the law and to the clear wording of DEC's
implementing regulations which became effective in 2013.
The Sierra Club press release on the Martens II suit is posted
The petition is posted here. I am working with attorney Richard J. Lippes from Buffalo to represent the
petitioners in both suits, along with attorneys Gary Abraham
and Jonathan Geballe in Martens I.
Posted by Rachel Treichler on 04/04/15, updated