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Appealing Bad East RiverWater Withdrawal Decision

Sierra Club and Hudson Fishermen Appeal First Court Decision Interpreting New Water Withdrawal Permitting Law

The Sierra Club and Hudson River Fishermen’s Association (HRFA) filed notice of appeal last week to challenge the decision by a Queens County Supreme Court judge that the first permit issued pursuant to the 2011 expansion of New York’s water withdrawal permitting laws was not subject to review under the State Environmental Quality Review Act (“SEQRA”) or the State and New York City waterfront laws. The decision is a disappointment to those who were looking to the new water permitting law to provide protections from indiscriminate usage of New York’s water resources.  “The decision sets an unfortunate precedent for the handling of subsequent permit applications,” said Roger Downs, Conservation Director of the Sierra Club Atlantic Chapter. “We don’t want to let this decision stand. The Ravenswood application is the first of more than a thousand applications expected to be received by the DEC for water withdrawal permits under the new law.  The total reported capacity of these users is many times New York’s total freshwater usage, and the DEC is issuing permits based on reported capacity, which is substantially greater than usage in many cases.”

“For the DEC to be allowed to pass on these permits with no scrutiny of their impacts on other users and the environment may have devastating consequences as we enter an era of increasing water supply uncertainty,” said Gil Hawkins, president of HRFA, also a petitioner in the case.  “The impacts of the withdrawals must be considered and mitigation measures required before permits are granted.” “We believe we have good grounds for appeal,” said Irene Van Slyke, chair of the Sierra Club New York City Group’s water withdrawal committee and the lead volunteer on the case.

Petition Denied

The October 1, 2014 decision by Justice Robert McDonald denied the Article 78 petition brought by Sierra Club and HRFA.  The petition asserted that issuance of a permit to Trans Canada Ravenswood LLC to take up to 1.5 billion gallons of water per day from the East River for operation of its Ravenswood power plant was invalid because the DEC had failed to conduct the required reviews of adverse impacts pursuant to SEQRA and the State and New York City waterfront laws. The Ravenswood permit was the first permit issued to a non-public user under the 2011 Water Resources Protection Act and the implementing regulations adopted in 2013. The petitioners were represented by attorneys Richard Lippes, Gary Abraham, Rachel Treichler and Jonathan Geballe.

The court did not accept petitioners’ claims.  “The issuance of an initial permit is a ministerial act not subject to review under either SEQRA or the Waterfront Act,” the opinion stated, “While ECL §15-1501(9) does state that DEC ‘shall issue an initial permit, subject to appropriate terms and conditions as required under this article,’ the statute does not give the agency the type and breadth of discretion which would allow permit grant or denial to be based on environmental concerns detailed in an EIS.”  Rather, the court said, “The statute left DEC with only one course of action regarding Ravenswood — the issuance of a permit allowing the facility to withdraw water from the East River at existing volumes.”  “Whatever information DEC could have obtained from conducting an environmental review,” the court said, “could not have affected its decision to issue or deny an initial permit to TC Ravenswood. . . .  The DEC had to issue the initial permit to TC Ravenswood on the basis of statutory specifications regardless of environmental concerns.”

DEC Discretion of Setting Conditions

Petitioners had argued that even though DEC was required to issue a permit for Ravenswood’s reported capacity, it was mandated by the new law to exercise discretion in setting permit conditions to ensure that withdrawals pursuant to the permit “will result in no significant individual or cumulative adverse impacts on the quantity or quality of the water source and water dependent natural resources,” and will incorporate “environmentally sound and economically feasible water conservation measures.” ECL §15-1503.2 (f) and (g).  It appeared to Petitioners that the inquiry DEC was mandated to conduct under the 2011 permitting law would have been substantially aided by an environmental review.

Closed-cycle cooling was one of the water conservation measures petitioners claimed DEC should have considered in setting the conditions for the Ravenswood permit.  Although the court said that “The [water withdrawal permitting] statute does not vest DEC with the discretion to in effect compel TC Ravenswood to switch to a closed cycle cooling system using lower water volumes because of information contained in an EIS,” the decision did not explain why the water conservation requirements of ECL §15-1503.2 (g) do not give exactly this discretion.

Nor did the court explain why the statutory mandate to issue water withdrawal permits to existing users in ECL §15-1501(9) precludes environmental review, while a similar statutory mandate contained in ECL § 23-0503 requiring the issuance of a gas drilling permit if the proposed spacing unit conforms to statewide spacing requirements does allow environmental review.

The petition also claimed that the conditions in the permit failed to meet the water conservation requirements of the 2011 law and that DEC’s failure to impose permit conditions to protect aquatic life in the East River violated the agency’s public trust obligations.  These claims were not addressed by the court.  A separate ruling by Justice McDonald dated October 2, 2014, granted Ravenswood’s motion to dismiss and for summary judgment.  The decisions are posted here [on the Atlantic Chapter website].

What You Can Do

To make a donation in support of our appeal, please send a check payable to “The Sierra Club Foundation.” Write on the memo line: “Atlantic Chapter: FC0241.” Please include a note with the check that this is to help with the Ravenswood lawsuit. Send your contribution to: The Sierra Club Atlantic Chapter, PO Box 38225, Albany, NY 12203. If you’d like to donate via credit card, please call Caitlin Pixley at our Albany office: 518-426-9144.