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June 5, 2011

NY AG Sues for Full Environmental Review of Gas Drilling in Delaware River Basin

New York Attorney General Eric Schneiderman filed suit May 31, 2011, 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 Basin includes a portion of the New York City watershed and parts of Broome, Chenango, Delaware, Schoharie, Green, Ulster, Orange and Sullivan Counties.

The complaint, which is posted on the AG's website, seeks various forms of relief, including an injunction ordering the Defendants to comply with the National Environmental Policy Act (NEPA) by promptly preparing a draft EIS subject to public comment, which shall include consideration as an alternative to the proposed DRBC regulations a prohibition on natural gas development within the New York City Watershed within the Basin, and which shall also include an analysis of reasonable measures to mitigate all potentially significant adverse environmental impacts. The suit was filed in U.S. District Court in Brooklyn, New York where the Army Corps office is located. Continue reading . . .

Posted by Rachel Treichler at 06/05/11 10:00 AM

May 5, 2011

Suit Challenges Hydrofracking in New York State Forests

The Croton Watershed Clean Water Coalition (CWCWC) has filed suit against the New York State Department of Environmental Conservation (DEC) challenging the failure of the DEC's final Strategic Plan for State Forest Management (SPSFM) issued on December 29, 2010 to prohibit High Volume Horizontal Hydraulic Fracturing (HVHHF) in New York State Forests. I am one of several individuals living adjacent to state forests who are named plaintiffs in the lawsuit.

The complaint, filed on April 28, 2011, in Ulster County Supreme Court, Case No. 11-1833, seeks judgment to void the SPSFM and its accompanying Final Generic Environmental Impact Statement for the DEC's failure to take a hard look at the environmental impacts related to the action as required by the New York State Environmental Quality Review Act (SEQRA). The complaint also seeks a determination that industrializing State Forests with the newly proposed natural gas extraction process known as High Volume Horizontal Hydraulic Fracturing (HVHHF) is contrary to the enabling legislation authorizing the purchase of lands for State Forests and is inconsistent with the responsible stewardship of State Forests, sustainability and policies of New York State as set forth in the State Constitution, Environmental Conservation Law (ECL), and the Common Law Public Trust Doctrine. The plaintiffs are represented in the suit by Attorney James Bacon from New Paltz.

For an independent analysis of the biological impacts of HVHHF in the State Forests, CWCWC retained Hudsonia, a nonprofit, non-advocacy institute that conducts research and provides information for land use planning and environmental management. Hudsonia and Hickory Creek Consulting prepared a report analyzing a number of potential impacts to biological resources, particularly including the toxicity of spilled or leaked wastewater affecting streams and wetlands, and the fragmentation of forests by drilling pads, access roads, and pipelines. An affidavit of Erik Kiviat, Executive Director of Hudsonia, outlining Hudsonia's research has been filed with the complaint.

Posted by Rachel Treichler at 05/05/11 9:50 PM

April 28, 2011

What Protections Are Offered by NY's Pending Water Withdrawal Bills?

It is urgent to understand the ongoing debate among environmental activists about the merits of two companion water withdrawal bills on the floor of the New York legislature, A5318A/S3798, because both bills are scheduled for a vote on Monday, May 2nd according to an April 22nd article in the Binghamton Press and Sun Bulletin.

Will the bills protect New York's waters or not? A simple way to address that question is to compare the permitting system proposed by the legislation with the permitting system currently in place in the Susquehanna River Basin (SRB). Permits issued by the SRB Commission offer better protection than proposed in the bills in three key ways:

  1. The SRB Compact states that nothing in the compact, i.e. the issuance of permits, affects riparian rights. The proposed legislation does not contain a comparable provision preserving riparian rights. This is important because riparian rights prevent users from harming other users in the watershed and provide that all users have equal rights.
  2. The SRB Commission charges fees for permitted water usage. The proposed legislation does not provide for fees to be charged for water usage authorized by a permit.
  3. The SRB Commission requires permits for any amount used for the consumptive use of gas drilling. The proposed legislation does not give the DEC authority to require permits for any amount of water withdrawn for use in gas drilling. The DEC is limited by the proposed legislation to permitting persons withdrawing 100,000 gallons or more per day without regard to use or to the amount used by the end user. Under the proposed legislation, independent haulers withdrawing less than 100,000 per day for gas drilling purposes will not be subject to permitting requirements.

If the purpose of the legislation is to put protections in place in the Great Lakes basin so that waters in that basin are protected like waters in the Susquehanna River Basin and the Delaware River Basin, why put in place legislation that will not give comparable protections?

Posted by Rachel Treichler at 04/28/11 10:00 AM

March 11, 2011

Private Landowners Granted Right to Challenge EPA’s Clean Water Act “Impaired Waters” Listing Decisions

In a Marten Law briefing, Meline MacCurdy reports a recent Ninth Circuit holding that a “perceived” decrease in value of private property following EPA’s approval of a state’s “impaired waters” listing under Section 303 of the Clean Water Act (CWA) is sufficient to establish the standing of a private plaintiff to challenge the agency’s decision. The case of first impression, Barnum Timber Co. v. EPA, 2011 WL 383012 (9th Cir. Feb. 3, 2009), gives private property owners adjacent to creeks, rivers and other waterbodies in the West a seat at the table in CWA listing decisions, a step that often occurs long before affirmative obligations are imposed on uses of the private properties through the total maximum daily load (TMDL) program.

Posted by Rachel Treichler at 03/11/11 8:00 AM

March 10, 2011

Permit Systems Entrench Large Water Users

Dan Tarlock's paper on Water Law’s Climate Disruption Adaptation Potential, prepared for the upcoming Research Roundtable on Climate Change, Adaptation, and Environmental Law, at Northwestern Law's Searle Center, April 7, 2011—April 18, 2011, has just been posted online. The paper raises pertinent issues for the discussion going on in New York now about the proposed legislation to issue water withdrawal permits to large private water users. This legislation would move New York from a riparian rights system to a regulated riparian system of water rights law.

The paper points out that while permits in regulated riparian systems are not perpetual as they are under prior appropriation systems in the Western United States, they are still "hard to dislodge . . . even though the law permits the reassignment of rights." The paper describes the role permits played in Georgia’s law making responses to a severe drought and notes that, "[t]he reality is that the permit system entrenches large withdrawals."

The paper begins with a discussion of how Global Climate Change (GCC) will alter many of the fundamental hydrologic assumptions upon which water allocation, water pollution control and aquatic ecosystem conservation are based, and says this will stress both the laws of prior appropriation and riparian rights. Prof. Tarlock notes that the assumption that regional water balances will remain relatively constant or stationary over time is no longer viable, and says this will create conflicts between present right holders and future claimants and between consumptive and non-consumptive, especially environmental, uses. "The hard question," he says, "is how the law and those charged with applying it and managing water within its framework should react to this new, even more, uncertain world." Continue reading . . .

Posted by Rachel Treichler at 03/10/11 11:00 AM

March 9, 2011

New York Water Withdrawal Bills Advance

The water withdrawal legislation considered by the New York legislature in its 2009-2010 session has been reintroduced and is advancing. A5318 was introduced by the chair of the Assembly Environmental Conservation Committee, Robert Sweeney (D-Lindenhurst) on February 16, 2011. The wording of A5318 is identical to A11436B-2009 sponsored by Mr. Sweeney in the 2009-2010 legislative session. A companion bill to A5318, S3455 was introduced by the chair of the Senate Environmental Conservation Committee, Mark Grisanti (R-Buffalo) on Feb. 24th. On March 2nd, Mr. Grisanti introduced a similar bill, S3798, a Department of Environmental Conservation departmental bill, at the request of the DEC. S3798 has several relatively small differences from S3455. S3798 was voted out of the Senate En Con committee yesterday. Today, A5318A was amended to match S3798.

This legislation would move New York from a riparian rights system to a regulated riparian system of water rights law. The bills would amend the permitting requirements for public drinking water supplies and certain other limited purposes contained in §§15-1501 et seq. of Title 5 of Article 15 of the Environmental Conservation Law (ECL) to allow the DEC to issue water withdrawal permit for withdrawals of 100,000 gallons or more per day by any user for any purpose from any of the state's waters, except that agricultural users are exempt from the permit requirements. The bills would remove the requirement that public drinking water supplies under the 100,000 gallons per day threshold be permitted. The bills provide that the new permitting requirements contained in the legislation do not become applicable until the department promulgates new regulations.

The switch from a from a riparian rights system to a regulated riparian system would have a profound impact on water rights in New York. The permits authorized by the legislation are available only to non-agricultural users of 100,000 gallons or more per day. The issuance of permits to certain users and not to other users may give permit holders an advantage over non-permit holders should a dispute over scarce water resources occur between them. Continue reading . . .

Posted by Rachel Treichler at 03/09/11 4:35 PM

January 12, 2011

WI Supreme Court to Address Public Trust Doctrine and Municipal Powers to Adopt Water Ordinances

The Wisconsin Bar Journal reports that the Wisconsin Supreme Court has accepted review of a dispute over the permitting of a high-capacity water well. Oral argument on the case is scheduled for March 9, 2011. Local conservation organizations had contested a permit issued for a high-capacity water well 1,400 feet from Lake Beulah in Walworth County, arguing that in issuing the permit the Department of Natural Resources (DNR) violated its obligation under the public trust doctrine to “protect navigable waters, groundwater and the environment as a whole.”

The conservancies lost at the administrative and circuit court levels, but the appeals court decided that the DNR may consider the public trust doctrine in deciding whether to grant applications for new wells. In Lake Beulah Management District et al. v. Wisconsin Department of Natural Resources, 2008AP3170, the appeals court ordered the DNR to reconsider the permit in light of scientific evidence that a high-capacity well would have adverse impacts.

After consideration of scientific evidence, the DNR reissued the well permit. Whereupon the Lake Beulah Management District–which operates with the powers of a municipal corporation–adopted an ordinance that prohibited ground and surface water transfers from the area that included the location of the disputed well.

The Village of East Troy then brought an action seeking a declaratory judgment that the ordinance was invalid and unenforceable. The appeals court ruled that the ordinance was preempted by state legislation, giving the DNR exclusive authority to regulate waters in the state.

Upon review, the supreme court is expected to decide the reach of the public trust doctrine. The supreme court will also decide whether a municipal ordinance governing groundwater transfers is preempted by state law and, therefore, invalid and unenforceable.

Posted by Rachel Treichler at 01/12/11 02:15 PM

MI Supreme Court Rules on Water Law and Standing Issues

Noah Hall has posted a detailed report of the decision in Anglers of the AuSable v. Michigan Department of Environmental Quality and Merit Energy Company, a signficant new decision of the Michigan Supreme Court addressing water law and standing issues on his Great Lakes Law blog.

Prof. Hall characterizes the majority’s decision in the case of as "a huge legal victory for Anglers of the AuSable and other environmental groups on several very important state law issues." He notes, however, that the decision was issued right before a major change in the Court’s balance and composition as a result of the 2010 elections, and that the dissenting justices have now regained a majority on the court.

In addition to issues in interpreting the ability of citizens to sue under the Michigan Environmental Protection Act (MEPA), the Court was faced with several legal issues under Michigan riparian water law. The Court was asked to rule on the appropriate legal test for discharge of polluted water and whether a proposed diversion of contaminated water from the Manistee River watershed into Kolke Creek and the AuSable River watershed was lawful. The Court declined to clarify the relevant legal test, concluding that the discharge, in the circumstances presented, was “manifestly unreasonable”.

The Court declined to address the issue of whether a riparian landowner (in this case the state) may convey riparian rights by easement to a non-riparian (in this case Merit Energy). According to the majority, that issue was not “outcome-determinative”.

On the MEPA issues, the Court expressly overruled the Court’s 2004 decision in Preserve the Dunes, Inc v Department of Environmental Quality (684 NW2d 847) and held that state agencies can be sued under MEPA and held accountable for pollution that will result from issuing permits. Chief Justice Kelly, who dissented in Preserve the Dunes and joined the Anglers of the AuSable majority in overruling that prior decision, wrote a separate concurrence to justify the decision under the doctrine of stare decisis.

The Court in Anglers of the AuSable also overruled the restrictive standing test used in the Court’s 2007 decision in Michigan Citizens for Water Conservation v Nestlé Waters North America, Inc. (727 NW2d 447), and instead relied on its 2010 decision in Lansing Schools Education Association v Lansing Board of Education to apply MEPA’s express statutory language and allow any citizen to bring suit under the law.

Posted by Rachel Treichler at 01/12/11 02:15 PM

January 10, 2011

US Supreme Court to Hear Water Compact Arguments Today

In a case that may have implications for the interpretation of other interstate water compacts, the U.S. Supreme Court will hear oral arguments today on Montana’s claim that Wyoming is violating the provisions of the Yellowstone River Compact. Among the improper uses alleged by Montana is the permitting of more than 20,000 coal bed methane wells in the Powder River Basin and a smaller number in the Tongue River Basin.

Both parties rely on a plain reading of the relevant sections of the Compact but come to incompatible interpretations. Montana argues that the Compact’s stated purpose of preventing controversy is undermined if upstream appropriators can use more efficient irrigation methods to reduce return flows at the downstream appropriators’ expense. In response, Wyoming contends that its usage does not conflict with any limits set forth in the Compact, that Montana’s interpretation creates an amorphous and impractical limitation the drafters never intended, and that public policy supports a reading which allows Wyoming to reap the benefits of increased efficiency, especially in dry western regions. While currently the controversy only involves the Tongue and Powder Rivers, the Court’s decision here may impact other rivers regulated by this Compact.

The Compact has a three-tiered framework: The first tier adopts the doctrine of “prior appropriation,” which generally holds that the first people to put water to a beneficial use retain a continuing right to the water. The second tier of the Compact concerns the “unused and unapportioned” waters of interstate tributaries, and permits each state to divert amounts of water to supplement first-tier appropriation rights. Finally, the third tier of the Compact gives each state a specified percentage of any remaining “unused and unapportioned” water, the percentages to be calculated annually.

Cornell's Legal Information Institute reports that the Special Master appointed by the Court concluded that Montana has asserted valid claims, but has recommended that the Court deny Montana’s claim that Wyoming’s use of improved irrigation techniques violates the Compact, and has further recommended that Montana show that it lacks an intrastate remedy before calling on Wyoming to adjust usage.

Posted by Rachel Treichler at 01/10/11 09:52 AM

Final NY Forest Plan Allows Hydro-Fracking

The NYS DEC's environmental notice bulletin reported on Dec. 29, 2010, that the DEC, as lead agency, has accepted a Final Generic Environmental Impact Statement on the proposed Final Strategic Plan for State Forest Management. Copies of the Final Strategic Plan and Final GEIS are available online at: www.dec.ny.gov/lands/64567.html.

The final plan calls for permitting gas drilling using the techniques of horizontal drilling and high-volume hydraulic fracturing in the state forests. Many comments received on the draft plan issued Sept. 1, 2010, objected to this aspect of the plan. The comments filed by the Adirondack Mountain Club (ADK) assert that "the DEC is incorrect in concluding that high volume hydraulic fracturing or hydrofracking for natural gas drilling and deep water injection for fracking fluid is a consistent use for any state forest. Such uses would not only put the forests' health at risk, but could also compromise water supplies for many southern tier communities."

Posted by Rachel Treichler at 01/10/11 09:52 AM

Seminar on Natural Resource Damages, Jan. 20-21, Miami

Law Seminars International is offering a seminar on litigating Natural Resource Damages: The Ground, Groundwater and the Gulf: New Developments and Best Strategies, January 20 & 21, 2011, Hotel InterContinental Miami in Miami, FL. Seminar presenters will address handling natural resource damages administrative claims and lawsuits. Presenters include knowledgeable NRD lawyers at the Justice Department and the Department of Interior as well as a geographically diverse group of skilled NRD practitioners and experts.

Posted by Rachel Treichler at 01/10/11 09:52 AM

NY Village of Owego Puts Wastewater Sale on Hold

Responding to public concern, the Board of the Village of Owego, New York, near Binghamton, decided at their meeting on Dec. 20, 2010, to conduct an environmental assessment before voting on a proposed wastewater sale to Inflection Energy. The citizens of Owego complained before the meeting about not having been able to review the terms of proposed sale. The village had denied all FOIL requests for documents related to the sale. Read Sue Heavenrich's article about the meeting in her Marcellus Effect Blog.

Posted by Rachel Treichler at 01/10/11 09:52 AM

PA Decision on Hydraulic Fracturing and Strict Liability

Alex Basilevsky offers this update in his Water Law blog: "[F]oes of hydraulic fracturing have won a minor victory in a recent federal court decision coming out of the Middle District of Pennsylvania. In Fiorentino v. Cabot Oil & Gas Corp., No. 09-cv-2284 (M.D. Pa., Nov. 15, 2010), Judge John Jones refused to dismiss a suit against Cabot arising out of allegations that Cabot's hydraulic fracturing operations contaminated the plaintiffs’ property and water with methane, natural gas, and other toxins. The decision is significant because one of the questions before the court was whether a claim of strict liability can be brought against a hydraulic fracturing operation."

Posted by Rachel Treichler at 01/10/11 09:52 AM

NY Water Law Blog Launched

I have started this website and blog as a resource for citizens and lawyers studying water law issues in New York. Greater understanding of New York's laws governing water usage and protection from water contamination is needed as we evaluate the water impacts that may result from increased gas drilling activities in New York and adjacent states.

The scope and adequacy of New York's existing water laws are under debate. Proposed regulatory changes currently under consideration by the NYS Department of Enviornmental Conservation (DEC) would permit gas well drilling companies to use the techniques of horizontal drilling and high-volume hydraulic fracturing to increase gas production. See Draft Supplemental Generic Environmental Impact Statement on the Oil, Gas and Solution Mining Regulatory Program, Well Permit Issuance for Horizontal Drilling And High-Volume Hydraulic Fracturing to Develop the Marcellus Shale and Other Low-Permeability Gas Reservoirs. If these techniques are permitted, billions of gallons of the state's fresh water will be used by gas drilling companies for hydraulic fracturing (hydro-fracking) of gas wells at a time when fresh water is becoming an increasingly scarce commodity in the United States and the world.

Gas drilling is certainly not the only source of demand for New York's water. According to the DEC website, more than 15 billion gallons of water are withdrawn each day from the lakes, rivers, streams, estuaries and groundwaters of New York for uses that include domestic consumption, industrial use, irrigation and livestock watering, mining and thermoelectric power generation. Thermoelectric power is by far the most significant of all water use categories in the state, accounting for nearly 80% of total water withdrawn. Public water supply accounts for nearly 17%. About two-thirds of the total water withdrawn is fresh water. The other third is taken from saline waters and is used primarily for thermoelectric power generation. Surface water withdrawals account for nearly 94% of all freshwater withdrawals in New York State, the remaining 6% of withdrawals are taken from groundwater sources. See the DEC webpage on Water Use in New York.

In the 2010 legislative session, Governor Patterson offered Governor's Program Bill #51 to require large water users to obtain permits from the DEC. The bill was introduced in the the New York senate as S8280 and passed in 2010. The companion bill, A11436B, in the assembly did not come to the floor for a vote. Similar legislation is expected to be introduced in 2011.

Posted by Rachel Treichler at 01/10/11 09:52 AM

 

 

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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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