May 29, 2018
Court holds DEC violated SEQRA in issuing permit without evaluating environmental impacts
by Rachel Treichler and Irene Van Slyke
In a January 10, 2018 landmark decision interpreting New York’s 2011 water withdrawal permitting law, the Appellate Division Second Department in Brooklyn has annulled the first permit issued by the New York State Department of Environmental Conservation (DEC) to a non-public user—the permit was issued in 2013 to TransCanada for its Ravenswood power plant in Queens to take over 1.5 billion gallons per day (GPD) from the East River.
The decision calls into question the validity of the hundreds of water withdrawal permits DEC has issued to existing users under the new law without conducting environmental reviews of the withdrawal impacts.
The court rejected DEC’s contention that it had no discretion under the 2011 NYS law to set terms and conditions for water withdrawal permits issued to existing users. Because DEC has discretion in issuing permits to existing users, the court determined that permit applications from existing users are subject to review under the State Environmental Quality Review Act (SEQRA). Accordingly, the court annulled the TransCanada permit since no SEQRA review of the TransCanada permit application had been conducted.
Sierra Club and HRFA were represented by attorneys Richard Lippes, Gary Abraham, Jonathan Geballe and Rachel Treichler.
The decision provides strong support for the Sierra Club’s legal challenge to the water withdrawal permit issued to Atlas Partners’ Greenidge power plant in Dresden to take over 139 million gallons a day from Seneca Lake. The Greenidge case was filed by the Sierra Club, the Committee to Preserve the Finger Lakes, Coalition to Protect New York and Seneca Lake Guardian on November 8, 2017, in Yates County Supreme Court. Oral arguments are scheduled for May 22, 2018.
Sierra Club’s work on water withdrawal permitting is part of its long-standing efforts to work with the New York State Legislature to obtain greater protection for our precious water resources. The purpose of the 2011 water withdrawal permitting law is to promote water conservation, ecological health and equity among all users. Thermo-electric generating stations are our state’s largest water users. It’s vital that the impacts of their withdrawals be evaluated under the 2011 law and SEQRA. In 2011, Sierra Club released a report: “Giant Fish Blenders: How Power Plants Kill Fish and Damage Our Waterways (And What Can Be Done to Stop Them).”