Court case could set precedent for sales of public water
by David Beavers
The natural gas industry in Pennsylvania has turned its eyes to New York’s rich water resources. Just ask residents of Painted Post.
The Steuben County village entered into a contract with SWEPI, a Royal Dutch Shell affiliate, in 2011 to send up to 1.5 million gallons of water per day to Tioga County, Pa. SWEPI intended to use the water in its fracking operations there.
As part of the deal, the village also leased the site of the former Inger-soll Rand foundry to the Wellsboro & Corning Railroad. A loading facility was built on the site last summer to ship water across the Pennsylvania border to Wellsboro.
Locals took notice. Residents complained about noise from the late- night shipments. Others worried that rail car vibrations would cause contaminants from the old industrial site to leach into groundwater drawn by a nearby potable well.
Most critical, though, were concerns raised over the impact the additional withdrawals would have on the health of the Corning aquifer. The aquifer, shallow and rain-dependent, serves as the drinking water source for a population of over 31,000 in the Corning area. A 2005 Susquehanna River Basin Commission (SRBC) study named Corning as New York’s most “potentially stressed area” in the basin due to low water levels and increasing demand.
Citing these and other concerns, a group of petitioners challenged the village’s actions. The group, which included five individual petitioners, the Sierra Club, and two grassroots organizations (Coalition to Protect New York and People for a Healthy Environment, Inc.) said that the village had failed to conduct the reviews required by the New York State Environmental Quality Review Act (SEQRA).
New York State Supreme Court Judge Kenneth R. Fisher agreed. In a March 25 ruling on Sierra Club et al. v. Painted Post et al., Judge Fisher invalidated the contract between Painted Post and SWEPI and annulled the lease of the Ingersoll Rand site.
“[A] large-volume daily withdrawal of a resource vital to the well- being of our state is not a mere surplus sale of village property akin to selling a bus or fire engine no longer needed by the village,” declared Judge Fisher.
Locals hailed the court’s decision as a victory, but the victory may be short-lived. The village has filed an appeal, believing the trial court erroneously interpreted the SEQRA mandates. The village’s attorneys are also calling for the case to be dismissed on the grounds that the petitioners do not have standing, a claim the trial court firmly denied.
With a February date set for the argument on the appeal, all eyes will be turned to the appellate court. The case has implications that extend far beyond Painted Post. In the words of Kate Bartholomew, resident of Montour Falls and chair of the Atlantic Chapter Finger Lakes Group: “The decision puts other New York municipalities on notice that bulk water sales are not exempt from review under SEQRA.”
If the decision is overturned, industries from natural gas drilling to water bottling will have more freedom to pursue wholesale water contracts.
Excess water sales are already a significant source of revenue for many of New York’s 1,515 municipally-owned water systems, asserted the New York State Conference of Mayors and Municipal Officials in its motion to file an amicus brief. The financially struggling town of Painted Post had hoped to earn up to $4 million annually from its contracts.
Though New York’s water resources have long been used by various industries, the growth of natural gas drilling in Pennsylvania has increased demands. According to SRBC, Pennsylvania well sites consume 30 million gallons of water daily. That’s equivalent to the daily use of 75,000 four-person households.
The industry is talking further expansion to the tune of 400,000 wells in the Marcellus Shale region. Quenching the thirst of that many wells would demand approximately 1.5 times the yearly flow of the entire Susquehanna River, which provides drinking water to 6 million people, according to a 2011 American Rivers report that named the river America’s most endangered.
This huge demand is impacting the health of water supplies in Pennsylvania. Near Wellsboro, the borough of Mansfield declared it was “out of water” in fall 2012, according to a December, 2012, report in the Williamsport Sun-Gazette.
In that article, Brian Auman, a landscape architect in a Williamsport, Pa., firm, reflects on the comprehensive plan conducted in 2005 to predict future water demand in Mansfield:
“The assumptions of growth and development were completely different then than they are now, because of the natural gas industry’s presence in the region … The 2005 data is out the window because of the gas industry and the changes it is bringing.”
The legal and environmental implications of Sierra Club et al. v. Painted Post et al.’s appeal are real and tangible. The case’s symbolic implications may be just as powerful. Michael Finneran, a Painted Post resident and one of the individual petitioners, aptly stated: “This decision shows that citizens can make a difference if we are willing to speak out … I hope our success in this case inspires citizens in other communities to take action to protect their water supplies and stand up for what they think is right.”
With threats to drinking water in New York’s Southern Tier looming, citizens across the region are making their voices heard. These voices are perhaps loudest of all in Painted Post. Sierra Club et al. v. Painted Post et al. is a bold sign that citizens can force compliance with state statutes — and this case may just be a blueprint for further activism.
David Beavers is a graduate student at Cornell University, where he is a leader of a climate justice organization.