October 21, 2014
July 15, 2013
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
|June 1, 2013||Systems that withdraw or are designed to withdraw a volume of 100 million gallons per day (mgd) or more|
|Feb. 15, 2014||Systems that withdraw or are designed to withdraw a volume equal to or greater than 10 mgd but less than 100 mgd|
|Feb. 15, 2015||Systems that withdraw or are designed to withdraw a volume equal to or greater than 2 mgd but less than 10 mgd|
|Feb. 15, 2016||Systems that withdraw or are designed to withdraw a volume equal to or greater than 0.5 mgd but less than 2 mgd|
|Feb. 15, 2017||Systems that withdraw or are designed to withdraw a volume equal to or greater than 0.1 but less than 0.5 mgd|
May 9, 2013
PowerPoint presentation to Gas Drilling Awareness for Cortland County, May 5, 2017 by Todd Miller, Ph.D., USGS emeritus
March 25, 2013
Judge Fisher has issued his opinion. Richard has read the case and reports that we have won pretty much across the board. An injunction has been issued to stop the water withdrawals until a proper SEQRA review is completed and the water sale agreement and the lease have been voided. The judge agreed with us that a water sale is not a Type II action under SEQRA and that respondents improperly segmented their review. On standing, he found that only John Marvin had standing so we are lucky that John joined our case. Since he found that John did have standing, he said that he would regard all the petitioners as having standing.
We should talk about next steps–press release and possible press conference.
TENTATIVE PRECEDENT. S.
March 26, 2013
Judge Enjoins Painted Post Water Sales
As the Corning Leader reports this morning, Judge Kenneth Fisher issued his rulling yesterday in Sierra Club v. Painted Post, Index No. 2012-0810, a legal challenge to the agreement made by the Village of Painted Post in Steuben County, New York to sell water to SWEPI, LP (an affiliate of Shell Oil Company) for gas drilling in Pennsylvania. I worked with attorney Richard J. Lippes from Buffalo to represent the petitioners in the case.
Petitioners are gratified that the relief they sought has been granted. In a learned and scholarly opinion, the court determined:
“In sum, the Village Board acted arbitrarily and capriciously when it classified the Surplus Water Sale Agreement as a Type II action and failed to apply the criteria set out in the regulations to determine whether an EIS should issue, and when 11 it improperly segmented the SEQRA review of the Lease from the Surplus Water Sale Agreement. . . . Accordingly, searching the record, summary judgment is granted to petitioners as follows: The Village resolutions designating the Surplus Water Agreement as a Type II action is annulled. Similarly, the Negative Declaration as to the Lease Agreement must be annulled, as in reaching the decision as to a negative declaration, the Village Board improperly segmented its review of the Lease from the Surplus Water Sale Agreement.
Petitioners also seek the annulment of the Village approvals of the Surplus Water Sale agreement and the Lease. . . . [H]ere . . . the Village short circuited the SEQRA process as to the Surplus Water Sale Agreement by an improper Type II designation and failed to consider the Surplus Water Sale Agreement when issuing its negative determination as to the Lease due to improper segmentation. Accordingly, the Village Board resolutions approving the Surplus Water Sale Agreement and Lease agreement of February 23, 2012, are annulled.
Petitioners are granted an injunction enjoining further water withdrawals pursuant to the Surplus Water Sale Agreement pending the Village respondent’s compliance with SEQRA.
In reaching its decision, the court noted that “it is not necessary to decide, and the court does not reach, the parties’ arguments related to SRBC except to hold that compliance with SEQRA is not excused by the fact that the Susquehanna River Basin Commission must issue a permit for the subsequent water withdrawal. Neither the Susquehanna River Basin Compact (ECL 21-1301) or its regulations (21 NYCRR §1806-8) provide for preemption of SEQRA.”
The court noted also that it did not “address whether compliance with SEQRA in this case means that the kind of comprehensive ‘cumulative impact study’ proposed by petitioners is necessary.” A copy of the judge’s decision and the other papers filed in the case are posted on my law office website.
Posted by Rachel Treichler at 03/26/13 4:00 PM