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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 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. DEC asserts that section 15-1501(9) gives it no discretion but to issue permits to existing users and that this exempts DEC from requiring terms and conditions 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 asserts that 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 zone laws.

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 to 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 here. 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 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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