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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."

The article notes that when DEC began issuing water withdrawal permits without an environmental review, Sierra Club and Hudson River Fisherman's Association sued, arguing that DEC's claim that permits issued to existing users are exempt from such reviews is based on a misreading of the law. The article points out that In 2014, Judge Robert McDonald of state Supreme Court in Queens County agreed with DEC, and that the environmental groups have appealed. See Appeal of Queens County Water Permit Decision Filed.

See No Review for IBM Application to Take 86 MGD from Hudson River for my review of Ferro's first article.

Posted by Rachel Treichler 12/10/16, 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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