– JULY 14, 2013POSTED IN: ARTICLES, DATA AND ANALYSIS

By Karen Edelstein, NY Program Coordinator, FracTracker Alliance

As of April 1, 2013, new regulations 6 NYCRR Parts 601 and 621 in New York State have been in effect that require users of large quantities of water to apply for withdrawal permits. The largest users of water—those with withdrawals of more than 100 million gallons per day—are the first group required to apply. The permit system then adds users on a yearly basis, targeting systems with decreasingly need. In 2014, the target group is users of 10-100 million gallons/day; in 2015, it is 2-10 million gallons/day, and so on. The full schedule is in Table 1, below. There are no fees associated with this permitting process.

In order to assess the geographic impacts of these varying uses, attorney Rachel Treichler submitted a Freedom of Information Law (FOIL) request to the New York State Department of Environmental Conservation. FracTracker Alliance assisted her in this effort by visualizing the data. Treichler believes that the new regulations make it virtually impossible for DEC to balance competing needs between large and small users.

In this interactive map, larger dots signify larger withdrawal. Click on each dot in the map to get more information.

Yellow: 0.0001-0.5 million gal/day
Light green: 0.5001-2 million gal/day
Dark green: 2.001-10 million gal/day
Medium blue: 10.001-100 million gal/day
Dark blue: >100 million gal/day

Until the adoption of these permitting requirements, water withdrawals in New York were governed by riparian rights determined by case law. Riparian rights are correlative–they fluctuate depending on the needs of other users and the amount of water available. Although the new regulations affirm that riparian rights will not be affected by the granting of permits, there is concern that users granted permits for stated amounts of water usage may be reluctant to adjust to the needs of other users in times of water scarcity. In New York State, both the Susquehanna River Basin Commission (SRBC) and the Delaware River Basin Commission (DRBC) have strong regulatory authority over withdrawals, and the new New York regulations provide that withdrawals subject to permitting by these commissions are exempt from the permitting requirements of the regulations. Comparable commissions with authority to regulate water withdrawals do not exist in the Great Lakes watershed, which includes the Finger Lakes Region, or in the other watersheds in the state, and in these watersheds, the permitting requirements of the regulations are the only generally-applicable water permitting requirements.

Currently, New York State has an abundance of water—there is certainly enough to go around to meet domestic and commercial uses. However, with climate change, continued population growth, and the potential for an uptick in hydrofracking throughout the Marcellus and Utica Shale region, the possibility for New York State being asked to sell or export our water increases considerably.

Under the current system, even by 2017, withdrawal permits will not be required for daily use under 100,000 gallons. While cumbersome, it would not be difficult for a typical hydrofracked site to sidestep any withdrawal permitting process if the water were removed over the course of several days by several different private haulers, particularly if the water were hauled any distance. It is conceivable that the gas drilling industry could readily exploit this loophole in the regulations.

Table 1. Dates by which Application for Initial Permit Must Be Completed