NYS Proposed Water Withdrawal Legislation Mar. 2011

water withdrawal legislation A5318A-S3798

Dear Colleagues,

The Sierra Club Atlantic Chapter has serious concerns that, with little public debate, major changes to New York’s water laws are being proposed.

Water Withdrawal Permitting bills A5318A and S3798 do not address key issues relating to high-volume hydraulic fracturing or how to equitably allocate water among competing water users.

We are calling for hearings on the proposed legislation to address these and other issues.

The bill is on the agenda for this Tuesday’s (3/15/11) Assembly Environmental Conservation Committee meeting, so urgent action is needed to help distribute this advisory now and outreach to Albany legislators on Monday (3/14/11) to prevent the bill from moving out of committee before hearings are held.

Calls to Albany legislators should be made on Monday, March 14th.

Our priority is to reach out to Assembly EnCon members (including Barbara Lifton and Gary Finch) expressing the need for a hearing to address our questions and concerns. Please find below:

• Please call members of the Assembly EnCon committee  (attached list) today (3/14/11) and ask for public hearings on Water Withdrawal Legislation A5318A and S3798.
• Environmental Conservation Committee Members: Chair, Robert Sweeney

Members: Thomas Abinanti,William Barclay, Daniel Burling, Robert Castelli, John Ceretto, William Colton, Jane Corwin, Marcos Crespo, Steven Cymbrowitz, Gary Finch, Deborah Glick, Aileen Gunther, Sean Hanna, Ellen Jaffee, Brian Kavanagh, George Latimer, Barbara Lifton, Peter Lopez, Donna Lupardo, Daniel O’Donnell, Crystal Peoples-Stokes, Joseph Saladino, Teresa Sayward, Michelle Schimel
http://assembly.state.ny.us/comm/?sec=mem&id=15 (click on this link and enter the name of the assembly member and click on “contact”  Phone numbers are in the attachment below.

• Read the longer list of concerns (also Atlantic Chapter brochure attached)
• We suggest you also request an in-district appointment with Assembly members for either Thursday or Friday and
• follow up with phone calls.Thanks for helping to protect the precious waters New York State.Best regards,
  Gusti Bogok, Co-chair
  Sierra Club Atlantic Chapter Gas Drilling Task Force

HEARINGS NEEDED ON PROPOSED WATER WITHDRAWAL LEGISLATION

• The New York State legislature is considering significant changes to New York’s water laws.
• These changes need public debate as they do not address the vast amounts of water used in high-volume hydraulic fracturing or how to equitably allocate water among competing water users.
• For these reasons and others, the Sierra Club is calling on the NYS legislature to hold hearings on the proposed water withdrawal legislation, A5318A and S3798.

More Background:

Sierra Club, Atlantic Chapter Flyer on Water Withdrawal Legislation

The following are among the issues we would like our legislators to address:

1. The current usage of large private users needs to be known. Since 2010, large water users have been required to file water withdrawal reports and the DEC has been required to disclose the reports pursuant to §15-3301 of the Environmental Conservation Law.  The DEC has not disclosed whether any entities have made the required filings and has not made the reports available.  Legislators need this information in order to properly evaluate the Legislation.
2. An analysis of projected aquifer usage needs to be made with particular attention to the projected demands of high volume, hydraulic fracturing. Should permits issued be tied to a percentage of an aquifer’s capacity rather than a flat amount?
3. An analysis of whether the proposed legislation will facilitate inter-basin transfers of waste water, including fracking flowback.
4. An analysis of the impact permitting will have on the rights of non-permitted water users.  The proposed legislation will change New York’s water laws from a riparian rights to a regulated riparian system.  It needs to be understood whether the issuance of permits to large water users could hinder non-permitted users from having
   sufficient access to water in times of water scarcity. Will the issuance of water withdrawal permits restrict the DEC’s powers to address harmful water withdrawals?
5. The need to allow private enforcement of permit conditions by parties harmed by the failure of a permit holder to comply with its permit conditions.
6. The potential for abuse of eminent domain if municipalities are allowed to deplete potable water sources through sale of water to commercial buyers, and then use eminent domain to enlarge their water sources to compensate for those losses.
7. The fiscal and public trust implications of whether or not fees are charged for permitting and for water usage.
8. The DEC’s projections as to how many permits will be required and the additional staffing necessary to issue and provide oversight of the proposed permits.
9. The need for more defined standards for the regulatory program in the proposed legislation. For example, §15-0503 of the Environmental Conservation Law relating to the issuance of permits for structures in water (dams and docks) included in the bill, contains much more specific standards for the issuance of permits.
10. The environmental health and environmental justice consequences of issuing water withdrawal permits to large water users.
11. The need to include language affirming the riparian rights in the bill. Language affirming riparian rights is contained in the Delaware River Basin Compact, the Susquehanna River Basin Compact and the Great Lakes/St. Lawrence River Basin Water Resources Compact.
12. The need to more clearly define the state’s public trust obligations to hold the waters of the state in trust for all the residents of the state.

The bill will not allow drillers open access to water – that is the situation that currently exists in NY and what the bill will rectify. The bill will set up a regulatory system by which any large user would have to apply for a permit, comply with water conservation and efficiency standards, and be subjected to DEC oversight with public scrutiny and input.

Currently, those impacted by other users have to wait until harm can be proven – after the damage is done. This program allows for preemptive action so that we can actually protect rather than remediate.

Members of the Assembly Environmental Conservation Committee