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July 10, 2016

Second Water Permit Challenge to be Heard Aug. 31 in Manhattan

Oral arguments in the second suit filed by Sierra Club and Hudson River Fisherman’s Association challenging DEC's procedures in issuing water withdrawal permits under New York's new permitting law will be heard Wed., August 31, 2016 in New York County Supreme Court in Manhattan.

The case, Sierra Club and HRFA v. Martens II, Index No. 100524/2015, 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 hearing will be before Justice Alice Schlesinger at 2:30 pm in Part 16, 60 Centre Street, Room 222, Manhattan. Attorney Richard Lippes from Buffalo will do the oral argument for the petitioners. Members of the public are welcome to attend. For more information about the case, see Second Suit Filed Challenging DEC on Water Withdrawal Permits.

Posted by Rachel Treichler on 07/10/16.

July 10, 2016

Water Law Seminar Aug. 23, White Plains

Half Moon Seminars is offering an all-day seminar on Water Laws and Regulations, Tuesday, August 23, 2015, at the Crown Plaza in White Plains. The program will address the development of water laws: quantity, quality and usage, complying with water quality laws and regulations, water utility regulation, the reach of water and wetlands regulations and water use in natural gas and petroleum production. I will give the opening presentation on the development of water laws. CLE credit for attorneys and engineers is available. For more information, visit the seminar website.

Posted by Rachel Treichler 07/10/16.

June 26, 2016

Waukesha Pipeline Sets Great Lakes Compact Precedent

On June 21, 2016, representatives from New York and seven other Great Lakes states unanimously approved a measure allowing Waukesha, Wisconsin a municipality located outside the Great Lakes watershed to divert water from Lake Michigan for use in its community. Waukesha's application required approval from the governors of each member state in the Great Lakes Compact. Continue reading . . .

Posted by Rachel Treichler 06/26/16.

June 8, 2016

Closed Cycle Cooling at Athens Requires 1/1,000 of Water Required by Ravenswood to Generate Half the Power

The June 1, 2016 notice that the New Athens Generating Company has applied for a water withdrawal permit for its Athens Generation Station in Athens, New York provides a stunning illustration of the benefits of closed cycle cooling. The notice by the New York State Department of Environmental Conservation (DEC) states that the Athens Generating Station is applying to take "1.5 million gallons of water per day from the Hudson River for the facility's air-cooled condensers."

A comparison of the 1.5 million GPD permit amount requested by Athens with the over 1.5 billion GPD amount permitted to TransCanada's Ravenswood Generating Station in Queens, shows that New Athens is requesting 1/1,000 or 0.001% of the amount of water permitted to TransCanada. Yet the generating capacity of the Athens station is almost half that of Ravenswood. According to Wikipedia, the generating capacity of the Athens station is 1,138 MW and the generating capacity of Ravenswood station is 2,410 MW. This indicates that the Athens plant is 500 times as efficient in its use of cooling water as the Ravenswood plant. Continue reading . . .

Posted by Rachel Treichler on 06/08/16, updated 08/16/16.

March 5, 2016

Assembly Sponsor Says Water Withdrawal Law Ripe for Revisiting

In a stunning revelation, John Ferro reports in the Poughkeepsie Journal this week that a key state legislator at the time New York's new water withdrawal permitting law was passed in 2011 is not in agreement with DEC's interpretation of the law. See DEC's handling off water regs criticized.

The article reports that Ferro interviewed the assembly sponsor of the legislation, former Assembly Environmental Conservation Committee Chair, Robert Sweeney of Long Island. Sweeney's sponsorship and support as Assembly EnCon chair was critical to passage of the legislation in 2011. Sweeney retired in 2014.

After Sweeney and Ferro discussed DEC’s position that the law compels them to issue the permits without any environmental review, Sweeney told Ferro that DEC’s handling of water withdrawal permit applications is not “in keeping with the letter and spirit of the legislation.” Sweeney said, “if it was clear to us at that time that they were going to take the position that they eventually took, we would have objected.”

Sweeney told Ferro the legislation was meant to provide information to help guide future decisions and legislation. “But you certainly can’t determine what the impacts of water usage and water withdrawals are without having information,” he said. If he was still in the Assembly, Sweeney said the DEC's handling of the law would be “ripe for revisiting.” Continue reading . . .

Posted by Rachel Treichler on 03/05/16, updated 06/05/16.

February 28, 2016

Evaluating Impacts of Bulk Water Sales on the Corning Aquifer

A forum on evaluating impacts of bulk water sales on the Corning aquifer, a primary acquifer that provides drinking water to the Corning region, was held February 27, 2016 at the Southeast Steuben County Library in Corning. The program featured retired hydrologist Todd Miller. Prior to his retirement from the U.S. Geological Survey in 2013, Miller was the main author of ten USGS reports on the aquifers in the Finger Lakes and Southern Tier regions, including the primary aquifers in Corning and Elmira.

Miller explained how the Corning aquifer works and what hydrogeologic data is needed to determine how much water can be withdrawn and exported from an aquifer before there may be adverse impacts on the environment and on the quality of local drinking-water supplies. He discussed methods that can be used to track contaminants in aquifers and how the movement of contaminants may be affected by large pumping rates.

Additional speakers at the program included renowned environmental author Sandra Steingraber, activist Mary Finneran, and Bill Mattingly and Henry Faryna from the Painted Post Water Sentinels. I spoke about legal issues with bulk water sales. Continue reading . . .

Posted by Rachel Treichler on 02/28/16, updated 04/05/16.

February 17, 2016

Nestlé Pumps Millions of Gallons for Free while Flint Residents Pay Highest Fees in Country for Poisoned Water

Amy Goodman asks tough questions today on Democracy Now about who pays for water in Michicgan. See Michigan's Water Wars: Nestlé Pumps Millions of Gallons for Free While Flint Pays for Poisoned Water.

Her guests on the program are residents of Mecosta County, Michigan, who have engaged in a decade-long legal battle challenging permits issued to Nestlé, the largest water bottling company in the world, by the Michigan Department of Environmental Quality (DEQ). The permits authorize Nestlé to take water from groundwater wells drawing on aquifers that feed Lake Michigan.

According to the program, DEQ issued permits in 2001 and 2002 to Nestlé to pump up to 400 gallons of water per minute (575,886 gallons of water per day) from its wells. Nestlé is not required to pay any fees to extract water from the Mecosta County aquifers besides a small permit processing fee and the cost of leases to a private landowner. Not only is it receiving the water for free, Nestlé received $13 million in tax breaks from the state to locate a water bottling plant in Michigan.

In contrast to the free water received by Nestlé, residents of Flint, Michigan pay so the highest fees in the country to use poisoned water from the Flint water system. Continue reading . . .

Posted by Rachel Treichler on 02/17/16, updated 04/29/16.

February 17, 2016

US Supreme Court to Hear First Interstate Groundwater Case

The US Supreme Court has granted leave to the State of Mississippi to file a bill of complaint against the State of Tennessee, the City of Memphis, and Memphis Light, Gas & Water for wrongfully converting groundwater from the interstate Sparta-Memphis Aquifer. The dispute arises from the pumping of groundwater in Tennessee by the City of Memphis. Mississippi alleges that this pumping has lowered water tables in Mississippi. This case will be the first time the Court has addressed the question of what legal doctrine applies to transboundary interstate groundwater resources. Continue reading . . .

Posted by Rachel Treichler on 02/16/16, updated 04/05/16.

January 3, 2016

Appeals Court Finds Painted Post Water Sales Are Subject to SEQRA Review

On New Year's Eve, the Appellate Division, Fourth Department in Rochester decided in favor of the petitioners in the long-drawn out lawsuit challenging a bulk water sale agreement entered into by the Village of Painted Post.

The case, Sierra Club v. Village of Painted Post, 134 A.D.3d 1475 (4th Dep't 2015), involved a challenge by Sierra Club, People for a Healthy Environment, Inc., Coalition to Protect New York and five local residents to the decision of the Village to sell up to 1.5 million gallons of water per day from its municipal water system to SWEPI, LP, a subsidiary of Shell Oil Company. I worked with attorney Richard J. Lippes from Buffalo to represent the petitioners.

On remittitur from the court of appeals, the Fourth Department affirmed the decision of the trial court. The ruling of the appeals court was significant in three respects. First, the court ruled that the bulk water sale agreement was invalid because the Village failed to conduct a review of the impacts of the sales under the State Environmental Quality Review Act (SEQRA). The court rejected respondents' contention that the withdrawal and sale of surplus water from a municipal water supply is not an "action" for SEQRA purposes. Second, the Court invalidated the accompanying lease of Village land for construction of a rail-loading facility to ship water to Pennsylvania. The court invalidated the lease even though the Village had conducted an environmental review of the lease because the Village's review of the lease was segmented from its review of the bulk water sale agreement, and such segmentation is not allowed under SEQRA. Finally, the court ruled that the Susquehanna River Basin Compact does not pre-empt New York's SEQRA law and that the Susquehanna River Basin Commission was not a necessary party to the proceeding. Continue reading . . .

Posted by Rachel Treichler on 01/03/16, updated 06/29/16.

December 10, 2015

Former State Legislator Disputes DEC Interpretation of Water Permitting Law

In a follow-up to his November 29 article about the handing of water withdrawal permits by the New York State Department of Environmental Conservation (DEC), Poughkeepsie Journal reporter John Ferro interviewed Dutchess County Executive Marc Molinaro. See Molinaro questions DEC's execution of water law, John Ferro, Poughkeepsie Journal, December 8, 2015. The article reports that Molinaro, who voted for the new water permitting legislation in 2011 as a state assemblyman, disputes DEC's recent claims that the legislation exempts water withdrawal permits issued to existing users from reviw under the State Environmental Quality Review Act (SEQRA).

According to the article, Molinaro says that when state legislators unanimously approved the new water withdrawal permitting law in 2011 (see New York Water Legislation Signed by Governor), at least one block of lawmakers expected there would be some evaluation of the impacts by DEC. He told the Journal the legislation was meant to ensure that large, existing withdrawals would require permits for the first time, and that "through rules promulgated by the DEC, there would be a degree of oversight with consideration of impact."

In 2011 Molinaro served as the third-ranking member of the state Assembly's Republican Conference. "My job," Molinaro says in the article, "was to read these things and then advise, with counsel, other members in the Assembly Republican Conference what is in the bill." Molinaro said the Republican Conference's bill memo specifically states there would be criteria the DEC would use in issuing the permit. The bill memo was a written analysis of the water bill distributed to Republican members of the state legislature in the spring of 2011. "What, you just have to make sure you spell your name right?" Molinaro asked rhetorically.

The state, Molinaro says, requires even the smallest of developments, through zoning laws and SEQR, "to consider and prove their impact is not going to negatively effect the health and well-being of someone else." The same, he says, should be expected of the largest water withdrawals.

"We have a very sensitive ecosystem," he says in the article. "We have a limited supply of potable and usable water. Any withdrawal of any kind has an impact on the environment and human considerations. In my estimation, the law is — and was — intended to ensure there was some agency overseeing withdrawals and, at the end of the day, some consideration of impact." Continue reading . . .

Posted by Rachel Treichler 12/10/16, updated 04/29/16.

November 30, 2015

No Review for IBM Application to Take 86 MGD from Hudson River

Yesterday's Poughkeepsie Journal describes how DEC is handling IBM's application to take up to 86.4 million gallons of water a day from the Hudson River for operation of its Town of Poughkeepsie plant. See Millions of gallons taken from river—no state OK needed, John Ferro, Poughkeepsie Journal, November 29, 2015. DEC gave notice of IBM's application on October 28, 2015 and accepted comments through November 12, 2016.

The article addresses DEC's position that New York's new water withdrawal permitting law exempts its staff from conducting even the most basic environmental review of applications by existing users, and notes the concerns some environmental groups have with DEC's handling of such applications. Continue reading . . .

Posted by Rachel Treichler 11/30/15, updated 03/10/16.

November 21, 2015

Court of Appeals Finds Petitioners Have Standing in Painted Post Case

On November 19, 2015, the New York Court of Appeals ruled that Petitioner John Marvin had standing in the case of Sierra Club v. Painted Post, 26 N.Y.3d 301 (2015). The decision overturned the ruling of the Appellate Division, Fourth Department, which had dismissed the case on the ground that none of the petitioners had standing. The case now goes back to the Fourth Department to decide the substantive issues in the case regarding Painted Post's bulk water sales to a subsidiary of Shell Oil Company.

The Court of Appeals found that the Appellate Division's standing analysis "applied an overly restrictive analysis of the requirement to show harm 'different from that of the public at large.'" The Court of Appeals stated that an injury to a petitioner, while having to be different than the public at large, "need not be unique." Continue reading . . .

Posted by Rachel Treichler on 11/21/15, updated 04/06/16.

August 14, 2015

No Review for Shuttered Plant's Application to Withdraw 160 MGD from Seneca Lake

The NYS Department of Environmental Conservation (DEC) announced this week that Greenidge Generation LLC qualifies for "initial" permit status for its application for a water withdrawal permit for its shuttered Greenidge Generating Station in Dresden, New York. Greenidge, a subsidiary of Atlas Holdings, is seeking a permit to take up to 159,897,000 gallons of water a day from Seneca Lake. That is more than is used by all the other users of the lake combined. Comments on the Greenidge application are due September 11, 2015.

Although the DEC notice recognizes that the facility was "was placed in protective lay-up status in 2011" and that the Applicant “is now proposing to re-activate Unit 4 of the facility,” nevertheless, the notice states that the Department has determined that the facility is eligible for a type of permit, an "initial" permit, that is limited to existing water withdrawals. Continue reading.

Posted by Rachel Treichler on 08/14/15. Updated 04/29/16.

August 1, 2015

Appeal of Queens County Water Permit Decision Filed

On July 27, Sierra Club and Hudson River Fisherman’s Association (HRFA) perfected their appeal of the decision of the Queens County Supreme Court in Sierra Club and HRFA v. Martens, Index No. 2949-14, to the Appellate Division, Second Department, Docket No. 2015-02317. The suit challenges 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 over 1.5 billion gallons per day from the East River in the Hudson River estuary. The Ravenswood permit is the first permit issued by DEC under New York's new water permitting law and new regulations. Continue reading . . .

Posted by Rachel Treichler on 08/01/15. Updated 04/06/16.

April 4, 2015

Draft Hudson River Action Agenda Calls for Reduction of Power Plant Fish Kills

In an ironic coincidence, the NYS Department of Environmental Conservation (DEC) released its Draft Hudson River Estuary Action Agenda 2015-2020 on April 1, 2015, just a week after the Sierra Club and Hudson River Fisherman’s Association (HRFA) filed their second suit challenging a water withdrawal permit issued by DEC to a power plant drawing water from the estuary. Issuance of the action agenda is mandated by the Hudson River Estuary Management Act, Environmental Conservation Law § 11-0306. Target 4 of the draft action agenda calls for the reduction of fish kills at the "four remaining steam electric power plants that use once-through cooling systems" in the estuary. Yet, at the same time DEC was drafting the action agenda, DEC pushed three of these plants to the head of the line for permits under New York's new water withdrawal permitting law. Continue reading . . .

Posted by Rachel Treichler on 04/04/15, updated 04/29/16.

April 4, 2015

Second Suit Filed Challenging DEC on Water Withdrawal Permits

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 23, 2015.

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 New York's water withdrawal permitting law, the State Environmental Quality Review Act (SEQRA), New York's 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. Continue reading . . .

Posted by Rachel Treichler on 04/02/15. Updated 04/29/16.

April 2, 2015

DEC Speeds Up Water Permit Giveaway

The NYS Department of Environmental Conservation (DEC) is pushing forward to process water withdrawal permit applications under our states's new water permitting law without requiring compliance with the water conservation standards contained in the new law or conducting environmental reviews of the permit applications. The permits are being issued gratis without the payment of water usage fees or application processing fees.

As of April 1, 2015, notice of 125 water withdrawal permit applications has been given in the weekly Environmental Notice Bulletin (ENB) published by DEC. The pace of processing is picking up. Notice of 75 applications has been given since January 1st (three/fifths of all applications noticed to date). Continue reading . . .

Posted by Rachel Treichler at 04/02/15 1:40 PM.

October 27, 2014

Painted Post Case to be Heard by Court of Appeals

On October 23, New York's highest court granted Petitioners' motion for leave to appeal the case of Sierra Club v. Village of Painted Post. In their motion for leave to appeal, Petitioners urged the Court of Appeals to clarify the confusing array of standing decisions in cases involving adverse environmental consequences affecting a large number of people and to address the application of SEQRA to municipal bulk water sales. Continue reading . . .

Posted by Rachel Treichler at 10/27/14 11:40 AM.

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.

Continue reading . . .

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

April 21, 2014

DEC Continues to Rubber Stamp Water Withdrawal Permit Applications as Objections Mount

The NYS Department of Environmental Conservation (DEC) has given notice of 13 water withdrawal permit applications under New York's new water withdrawal permitting law and regulations to date. See Table 1 below. Despite the clear wording of the new law, as pointed out in comments filed on a number of the applications and in a lawsuit filed by the Sierra Club and the Hudson River Fishermen's Association, the DEC continues to rubber stamp the water withdrawal permit applications it has been receiving and refuses to conduct the reviews required under the state environmental quality review act (SEQRA) and the state's coastal zone management laws. (I am one of the attorneys for the petitioners in the Sierra Club suit.) Continue reading . . .

Posted by Rachel Treichler at 04/21/14 11:40 AM.

April 2, 2014

Appeals Court Rules Against Petitioners in Painted Post Bulk Water Sale Case

The decision of the Appellate Division Fourth Department in Sierra Club v. Painted Post, Index No. 2012-0810, was issued in Friday, March 28, 2014. Unlike the trial court, the appeals court determined that Petitioner John Marvin did not have standing. The court said “Marvin will not suffer noise impacts ‘different in kind or degree from the public at large.” The court also determined that the organizational petitioners did not have standing, stating “Here, . . . , because 'none of the individual petitioners alleges a unique, direct environmental injury,' none of the organizational petitioners can be found to have standing.” Having determined that none of petitioners had standing, the appeals court reversed the judgment of the trial court, and granted the motion of respondents Village of Painted Post, Painted Post Development, LLC, and SWEPI, LP to dismiss the petition. Continue reading . . .

Posted by Rachel Treichler at 04/02/14 11:40 AM.

February 20, 2014

Sierra Club and HRFA Challenge DEC on First Water Withdrawal Permit

The Sierra Club and the Hudson River Fishermen’s Association filed suit December 6, 2013, in New York State Supreme Court in Queens County against the New York State Department of Environmental Conservation and TransCanada Ravenswood LLC. The suit is an Article 78 proceeding challenging the DEC's failure to conduct an environmental review under the State Environmental Quality Review Act (SEQRA) as part of the process in issuing a water withdrawal permit to the Ravenswood Generating Station. Ravenswood has applied for a permit to withdraw 1.5 billion gallons of water per day from the East River in New York Harbor. The Ravenswood water withdrawal application is the first application to be considered by the DEC under the state’s new water withdrawal permitting law and regulations. In addition to violations of SEQRA, the suit asserts that the DEC has failed to comply with the requirements of the state’s Water Resources Protection Act, the public trust doctrine, the federal Coastal Zone Management Act, the NYS Waterfront Revitalization of Coastal Areas and Inland Waterways Act, the New York State Coastal Management Plan and the New York City Waterfront Revitalization Program. Continue reading . . .

Posted by Rachel Treichler 12/10/13, updated 02/20/14.

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 (MGD) 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. Continue reading . . .

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

August 8, 2013

DEC Gives Two Weeks to Comment on First Water Withdrawal Application for 1.5 Billion GPD

The first noticed application for a water withdrawal permit under New York's new water withdrawal laws and regulations, the application of the Ravenswood Generating Station in Queens, does not establish a comforting precedent for the handling of such applications by the New York State Department of Environmental Conservation (DEC). Notice of the Ravenswood application is given in the DEC's August 7, 2013, Environmental Notice Bulletin,

No hearings are scheduled on the application for a permit to withdraw approximately 1.5 billion gallons per day from the East River in New York City, and the DEC determined that the project is not subject to SEQRA because, according to the notice, "it is a Type II action." Comments are due on Aug 22, 2013. The entire comment period on this very first application by one of the state's largest water users is only two weeks long and is located in the middle of August, when summer vacations are often taken.

The categorization of the project as a Type II action is difficult to fathom because 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.

Although this is the first noticed application under the new water withdrawal regulations and as such can be expected to be the subject of considerable interest across the state, the filed application documents and DEC's draft permit are available for inspection only during normal business hours at the address of the DEC contact person in Albany. Members of the public who wish to comment on the application, but do not live in Albany, are likely to find that it takes most of the two week comment period just to obtain a copy of the application and draft permit. Continue reading . . .

Posted by Rachel Treichler at 08/08/13 10:30 PM

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. Continue reading . . .

Posted by Rachel Treichler at 04/07/13 2:00 PM

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 worked 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.

Continue reading . . .

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

March 16, 2013

Putting Local Aquifer Protections in Place

A USGS report released this week on the hydrogeology of the aquifer system in the Susquehanna River Valley in parts of Broome and Chenango Counties, New York highlights the role of aquifer protection in the context of gas drilling impacts. In the section, "Considerations for Aquifer Protection," the report states:

"Aquifer protection in the study area is a topic of public concern in relation to the potential for natural gas drilling in this part of New York. Aquifer protection efforts likely will focus on currently used resources. Information provided in this report may help managers prioritize protection of largely unused aquifers whose characteristics suggest that they are capable of providing large public or commercial water supplies." p. 17.

In the press release accompanying the report, the author of the report, USGS scientist Paul Heisig, states,"This study is intended to put basic facts into the hands of those tasked with making decisions on future groundwater use and protection. We have identified and mapped a variety of aquifer types and described their current use and their potential as groundwater sources."

Local officials and concerned citizens in the study area now have excellent information to assist efforts to put appropriate aquifer protections in place. Because the study area is located in an area that is likely to be the target of some of the first high volume horizontal hydrofracking (HVHF) activity in New York if HVHF is allowed to go forward in the state, if local aquifer protections are sought in the area, such efforts should be initiated quickly. Continue reading . . .

Posted by Rachel Treichler at 03/16/13 12:30 PM

March 7, 2013

Painted Post Water Export Suit Heard March 1

The first hearing in the lawsuit challenging water exports to a gas drilling company in Pennsylvania by the Village of Painted Post in Steuben County, NY, was held Friday, March 1, 2013, before Judge Kenneth R. Fisher in Rochester. Several environmental organizations in Rochester held a rally outside the courthouse before the hearing. See Rally opposes possible water sale deal, and Groups rally outside Hall of Justice over fracking lawsuit.

As previously reported, the Article 78 proceeding was filed on June 25, 2012, in Steuben County Supreme Court in Bath by the Sierra Club, the Coalition to Protect New York, People for a Healthy Environment and five individual petitioners against the Village of Painted Post, Painted Post Development LLC, SWEPI, LP (an affiliate of Shell Oil Company) and the Wellsboro & Corning Railroad. See Lawsuit Filed Against PP Bulk Water Sale Project. I am working with attorney Richard J. Lippes from Buffalo to represent the petitioners.

Posted by Rachel Treichler at 03/07/13 12:00 PM

November 28, 2012

Overview of New York's New Water Permitting Rules

In my post two days ago, I pointed out some of the problems with the new water withdrawal regulations released by the New York State Department of Environmental Conservation (DEC) on Nov. 21, 2012. In this post, I give a more detailed overview of the new requirements. Until the new permit conditions are made publicly available, it is not possible to fully evaluate the new requirements. The new regulations, prepared as amendments to 6 NYCRR Parts 601 and 621, are posted on the DEC website here and here. The regulations become effective April 1, 2013. Applications for systems withdrawing 100 million gpd or more are due June 1, 2013.

New York's new water withdrawal regulations implement the Water Resources Protection Act of 2011. The Act amended the law previously requiring permits for public drinking water suppliers and certain other users to require that all persons withdrawing 100,000 gallons or more per day from any of the state's waters obtain a permit, except for certain exempt users. The new permitting requirements contained in the legislation did not become applicable until the DEC promulgated new regulations. Continue reading . . .

Posted by Rachel Treichler at 11/24/12 4:05 PM, updated 11/28/12 11:10 AM

November 22, 2012

Cuomo's Gift to the Gas Industry: New York's Water Withdrawal Regulations Issued

Governor Cuomo announced a delay in issuing the state's proposed gas drilling regulations on Tuesday, but yesterday his Department of Environmental Conservation (DEC) went ahead and issued the state's new water withdrawal permitting regulations. The gas industry and other large water users in the state have a generous gift to be thankful for this Thanksgiving Day.

Despite the widely noted inadequacies of the proposed regulations released a year ago on Nov. 23, 2011, the final regulations are virtually unchanged, as a comparison of the two documents shows. The regulations, prepared as amendments to 6 NYCRR Parts 601 and 621, are posted on the DEC website at http://www.dec.ny.gov/regulations/78258.html.

So what are the problems? As noted in our post on the proposed regulations:

  1. No water usage or application fees are imposed
  2. A staggered schedule is being used to issue permits with the largest permits being issued first, thereby prioritizing the state's largest water users
  3. The new permit language has not been made available for review
  4. The regulations do not require permits for all withdrawals for the consumptive use of gas drilling and because of the thresholds will not cover most withdrawals for this purpose
  5. There has been no cumulative impact analysis of water usage in the state to provide a basis for determining permitted capacity
  6. No public hearings are required before permits are issued

Many of these deficiencies will not apply in the Delaware and Susquehanna River Basins because withdrawals in those watersheds are subject to regulatory commissions whose water withdrawal regulations are more sufficient. Continue reading . . .

Posted by Rachel Treichler at 11/22/12 8:05 AM

Tuesday, September 25, 2012

Federal Judge Dismisses Lawsuit for Full Environmental Review of Gas Drilling in Delaware River Basin

Reuters reported yesterday that U.S. District Judge Nicholas Garaufis in Brooklyn dismissed a lawsuit seeking environmental studies to determine the effect of gas drilling on the Delaware River Basin. See Judge dismisses New York's anti-drilling lawsuit by Jessica Dye. The suit was filed May 31, 2011, by New York Attorney General Eric Schneiderman on behalf of the citizens of New York and was joined in by several environmental groups. We previously reported on the suit here and here. The Delaware River and its tributaries supply water to about 15 million people, including 9 million New Yorkers.

Judge Garaufis dismissed the suit on procedural grounds, saying there was no basis for the lawsuit since the regulations it sought to halt had not yet been finalized. "The court concludes that this dispute is not currently fit for judicial review," Garaufis wrote. "The harms that plaintiffs ultimately are concerned about are speculative, and rely on a chain of inferences that may never come to pass."

The suit was filed against the U.S. Army Corps of Engineers, the National Park Service, the U.S. Fish and Wildlife Service and the Environmental Protection Agency for their failure to commit to a full environmental review of proposed regulations by the Delaware River Basin Commission (DRBC) that would allow natural gas drilling in the Delaware River Basin. The complaint, which is posted on the AG's website, sought an injunction ordering the Defendants to comply with the National Environmental Policy Act (NEPA) by preparing a draft EIS. The complaint was subsequently amended to add the DRBC as a defendant.

The DRBC issued draft regulations in 2010 and revised draft regulations in 2011 that would govern natural gas exploration and extraction in the Delaware River basin. The proposed regulations would allow as many as 18,000 gas wells in the basin. The regulations have not been finalized.

According to Reuters, a spokesman for the New York attorney general's office declined to comment on the dismissal.

Posted by Rachel Treichler at 09/25/12 12:25 PM

July 9, 2012

Lawsuit Filed against Painted Post Bulk Water Sales for Gas Drilling

The Corning Leader reported Friday on a lawsuit challenging the plans of the Village of Painted Post to engage in bulk water sales for gas drilling in Pennsylvania. The suit was filed in Steuben County Supreme Court in Bath by the Sierra Club, the Coalition to Protect New York, People for a Healthy Environment and five individual petitioners against the Village of Painted Post, Painted Post Development LLC, SWEPI and the Wellsboro & Corning Railroad on June 25, 2012. See Lawsuit Filed Against PP Bulk Water Sale Project by Derrick Ek. I am working with attorney Richard J. Lippes from Buffalo to represent the petitioners.

The suit alleges that the Village should have conducted a full environmental review of the impacts of the proposed water sales and the proposed rail-loading facility for the water shipments before signing a bulk water sale agreement and entering into a lease of Village land for the rail-loading facility.

The papers filed in the case are posted on my law office website.

Posted by Rachel Treichler at 07/09/12 12:00 PM

May 7, 2012

SRBC Should Put Water Withdrawals for Gas Drilling on Hold

Two New York water withdrawal applications and a number of Pennsylvania applications are on the agenda for the May 10, 2012 public hearing of the Susquehanna River Basin Commission (SRBC) in Harrisburg, PA and are scheduled for action by SRBC at its June 7, 2012 business meeting in Binghamton, NY. Both New York projects are to withdraw water from the Elmira-Horseheads-Big Flats Aquifer on the Chemung River. The Elmira-Horseheads-Big Flats Aquifer is one of only 14 primary aquifers in New York state.

It was reported in December that the Delaware River Basin Commission (DRBC) adopted a resolution at its meeting on December 8, 2011, postponing action on any applications for water withdrawals for natural gas drilling in New York state until the New York State Department of Environmental Conservation (DEC) has completed its environmental review of hydraulic fracturing, and that the decision was made at the request of DEC Commissioner Joe Martens. Three water withdrawal applications in Broome County were postponed by the DRBC's decision. The SRBC should be urged to do likewise and put all water withdrawals in New York on hold, including these renewal applications.

But putting withdrawals in New York on hold is not enough: the SRBC must put all withdrawals in the Susquehanna River Basin on hold until it conducts a basin-wide cumulative impact study of the impacts of gas drilling on water resources in the basin. On November 9, 2011, 44 organizations in the Susquehanna River Basin called on the SRBC "to exercise its Compact powers to: (1) disclose the science behind this rulemaking [granting water withdrawal permits for the consumptive use of gas drilling]; [and] (2) conduct a Basin-wide study analyzing the impacts of unconventional shale gas development on water resources and water resources management; . . ." Continue reading . . .

Posted by Rachel Treichler at 05/07/12 09:45 AM

March 20, 2012

Municipal Water Exports for Gas Drilling

On March 7, I spoke at a forum in Bath, NY about legal issues presented by municipal water exports to Pennsylvania. The forum was sponsored by the Bath Peace and Justice Group and the Steuben County League of Women Voters. An overview of the issues discussed at the forum is contained in an op-ed piece, Municipal water export: Whose water? Whose rights? I wrote with Bath attorney Mark Schlechter that appeared in the Steuben Courier Advocate on March 17, 2012.

Posted by Rachel Treichler at 03/20/12 12:40 PM

February 11, 2012

Court Finds New York's MS4 General Permit Violates the Clean Water Act

A state court in Westchester County has annulled the general permit issued by the New York State Department of Environmental Conservation (DEC) for Stormwater Discharges from Municipal Separate Storm Sewer Systems (the MS4 General Permit) on the ground that it fails to comply with the federal Clean Water Act and the provisions of New York law that implement it. Two key reasons for the ruling were that the general permit process allowed municipalities to self-certify compliance without oversight by the DEC and that the process did not provide for hearings on individual applications. The decision may have repercussions for other general permits issued by the DEC, including the General Permit for Discharges from Construction Activity, the Multi-Sector General Permit, the General Permit for Concentrated Animal Feeding Operations, and the proposed General Permit for Stormwater Discharges from High Volume Hydraulic Fracturing.

Judge Joan Lefkowitz of the Westchester County Supreme Court ruled against the MS4 General Permit on January 10, 2012, in a lawsuit brought by NRDC, Riverkeeper, Waterkeeper Alliance, Soundkeeper, Save the Sound, Peconic Baykeeper, NY/NJ Baykeeper, and Hackensack Riverkeeper. The decision, NRDC v. NYS DEC, can be downloaded here.

As noted by Larry Levine in his blog at NRDC Switchboard, Court Finds New York State's Program to Stem Biggest Source of Water Pollution Too Lax, the basic principles in the MS4 permit case—that municipalities cannot self-certify compliance without oversight by environmental regulators, and that the public has important rights to participate in decisionmaking on these matters—should be uncontroversial. In issuing her ruling, Judge Lefkowitz followed the ruling of a federal appeals court, EDC v. US EPA, 344 F.3d 832 (9th Cir. 2003) cert. denied 541 U.S. 1085 (2004), that rejected portions of EPA’s stormwater regulations for having precisely the same flaws as the MS4 General Permit. Mr. Levine is the lead attorney for the plaintiffs. The case is also discussed in a post by Vicki Shiah on the Sive, Paget & Riesel Environmental Law Blog. Continue reading . . .

Posted by Rachel Treichler at 02/11/12 02:45 PM

January 30, 2012

SRBC Modifies Public Participation Process and Will Reconsider December Actions

The Susquehanna River Basin Commission (SRBC) has announced changes to its public participation process. It will now conduct a public hearing on project applications one month before the Commission acts on the projects. In accordance with these changes, the SRBC will conduct a public hearing on February 16 to accept public comments on water withdrawal and consumptive use project applications scheduled for action by SRBC at its next business meeting in mid-March. The SRBC will accept written comments on the project applications until February 27.

The project applications scheduled for the February 16 hearing include those that were approved at SRBC’s December 15, 2011 hearing in Wilkes-Barre. Pa. “The Commission has decided to reconsider its December action on those project applications because the disruptive behavior of certain individuals prevented interested persons from offering testimony at the time,” SRBC Executive Director Paul Swartz said in the January 23, 2012, press release announcing the changes. “We are committed to preserving the due process rights of all citizens so they can provide constructive and meaningful comments on proposed projects.”

“Conducting a public hearing on project applications one month before the Commission acts on the projects is a new procedure and represents an improvement over our past practice,” said Swartz. “This change will give the public ample opportunities for commenting and will give the commissioners more time to review and consider comments before voting on proposed projects.”

The change is one of a several procedural changes recently adopted by the SRBC to its public participation process. Other changes include not accepting comments at its business meetings on project applications or other actions scheduled for vote, having the commission's business meetings streamed live via webcast and requiring that all persons attending the hearing must sign-in and show photo identification. Signage, posters, banners or other display media will be permitted only in designated areas. The press will be permitted to set up and use video and recording devices. The public will be permitted to use small, hand-held devices in a non-disruptive manner. The full set of procedures is available on SRBC’s web site at www.srbc.net/pubinfo/publicparticipation.htm.

The announcement of the new procedures comes following a letter to the SRBC submitted on December 22, 2011, by a group of environmental organizations. The letter pointed out that the Commission’s approval of water withdrawal applications at its December 15, 2011, meeting may not have been legally effective because the approvals occurred after the meeting was adjourned. The letter pointed out that by adjourning the meeting prematurely, the SRBC prevented the testimony of non-protesting members of the public who wished to testify on individual water withdrawal applications. The letter asserted that by not allowing public testimony and approving water permits off-the-record, the SRBC penalized the entire public and violated its own rules and procedures. Continue reading . .

Posted by Rachel Treichler at 01/30/12 12:25 PM

January 20, 2012

Public Comment Period Extended 15 Days for New York's Proposed Water Withdrawal Regulations

The New York State Department of Environmental Conservation (DEC) has extended the public comment period for the department's proposed water withdrawal regulations discussed on our post earlier this week by 15 days. The new deadline for comments is 5:00 PM on Monday, February 6, 2012. For more information about the proposed regulations and how to submit comments, visit the DEC website at http://www.dec.ny.gov/regulations/78258.html.

Posted by Rachel Treichler at 01/20/12 04:45 PM

January 16, 2012

New York's Proposed Water Withdrawal Regulations: Unequal Treatment for the Great Lakes Basin

My initial review of the proposed water withdrawal regulations published by the New York State Department of Environmental Conservation (DEC) in the New York State Register on November 23, 2011, discloses six preliminary areas of concern:

  1. The proposed regulations are being issued without a cumulative impact analysis of water usage in the state, including water usage for hydrofracking
  2. The proposed regulations are being issued without the revised permit language being available for review.
  3. The proposed withdrawal regulations do not address the consumptive use of water for gas drilling and will not cover most withdrawals for this purpose, leaving the Great Lakes Basin less protected than the Delaware and Susquehanna River Basins
  4. A staggered schedule of implementation is proposed, with the largest permits being issued first, thereby prioritizing the state's largest water users
  5. No public hearings are required before permits are issued, leaving residents of the Great Lakes Basin with fewer rights than residents of the Delaware and Susquehanna River Basins
  6. No water usage fees are imposed for withdrawals in the Great Lakes Basin although fees are imposed by the DRBC and the SRBC for withdrawals in the Delaware and Susquehanna River Basins

I urge the DEC to withdraw the proposed regulations and offer new regulations for comment that address these concerns. Continue reading . . .

Posted by Rachel Treichler at 01/16/12 09:05 AM

January 14, 2012

New York Water Law Seminar, Feb. 29, 2012, NYC

Half Moon Seminars is offering an all-day seminar on New York Water Law, Wed., Feb. 29, 2012, at NYC Seminar and Conference Center, 71 West 23d Street, in New York City. The program will address federal, state and local regulation of New York waters and water supplies, water use in natural gas and petroleum production, clean up of polluted water resources, complying with water quality laws and regulations and water utility regulation. I will give the opening presentation on the Development of New York Water Laws. CLE credit for attorneys and engineers is available. For more information, visit the seminar website or download the brochure.

Posted by Rachel Treichler at 01/14/12 9:45 PM
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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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