October 11, 2018
By Rachel Treichler, Finger Lakes Group
Nine months after a state appeals court in Brooklyn invalidated the water withdrawal permit issued to a subsidiary of Helix Partners for operation of the Ravenswood electric generating station in Queens, the New York State Department of Environmental Conservation (“DEC”) announced its plans to reissue exactly the same permit. The permit authorizes Ravenswood to take up to 1,500,000,000 gallons per day from the East River in the Hudson River estuary.
The fact that DEC plans to reissue exactly the same permit is not made clear in the announcement of the Ravenswood permit application in DEC’s Environmental Notice Bulletin on October 3, 2018. When a representative of the Sierra Club contacted DEC for a copy of the draft permit, however, she was told that “the Department is not proposing changes to the previously issued permit.”
Reissuance of the same permit directly contradicts the ruling of the Appellate Division Second Department in Sierra Club v. Martens, 158 A.D.3d 169 (2nd Dep’t 2018) on January 10, 2018. In that decision, the court annulled the permit issued for Ravenswood in 2014, which was a modification of permit issued in 2013. The 2013 Ravenswood permit was the first permit issued to a non-public user under the New York’s 2011 Water Withdrawal Protection Act (“WRPA”) mandating the licensing of non-public water users taking over 100,000 gallons per day from the surface and groundwater sources in New York State.
The appeals court annulled the 2014 Ravenswood permit on the ground that DEC was incorrect in classifying its action in issuing the permit as a Type II action under the State Environmental Quality Review Act (“SEQRA”). DEC based its claim that issuance of the permit was a Type II action, and thus exempt from review under SEQRA. on its claim that under WRPA DEC did not have any discretion in setting the terms and conditions of an initial water withdrawal permit to an existing water user. The court determined that issuance of an initial water withdrawal permit to an existing water user is not a Type II action because DEC does in fact have discretion under the provisions of the WRPA in setting the terms and conditions of an initial water withdrawal permit. The court stated that whether ‘the proposed water withdrawal will be implemented in a manner that incorporates environmentally sound and economically feasible water conservation measures’ (ECL15-1503[2][g]) will almost certainly vary from operator to operator, or from water source to water source. . . . Whether a condition is ‘appropriate’ for a given operator is a matter that falls within the DEC’s expertise and involves the exercise of judgment, and, therefore, implicates matters of discretion.”
It was demonstrated during the court proceeding that DEC failed to make the determinations required by WRPA regarding the impacts of issuing a permit for Ravenswood or in placing any condition tailored to Ravenswood’s operations in the permit. In reissuing the 2014 permit without making the necessary determinations regarding Ravenswood’s operations or adding appropriate conditions to address those determinations, DEC appears to be deliberately flouting the ruling of the Second Department.
DEC’s environmental review of the reissued permit is also defective. Although DEC now classifies its action in proposing to issue a permit to take 1,500,000,000 gallons per day from the East River as a Type I action under SEQRA, it determines that the withdrawal will have no significant environmental impact and therefore will not require a full SEQRA review. The three paragraphs of reasons supporting the negative declaration issued on September 25, 2018 for reissuance of the 2104 water withdrawal permit reiterate the conclusions stated in a negative declaration issued for the Ravenswood State Pollution Discharge Elimination System (“SPDES”) permit by DEC in 2006, without any evaluation of whether and to what extent the modifications required in 2006 actually resulted in reduced fish kill impacts at the generating station or any consideration of whether implementation of closed cycle cooling at the plant would provide better protections against fish kill impacts in the East River, a major fish migration pathway, and the entire Hudson River estuary.
The negative declaration fails to consider the cumulative impacts of the operation of the Ravenswood plant and the other generating stations located on the East River and the Hudson River estuary on fish populations in the estuary. The cumulative impacts of the Ravenswood Generating Station, the Consolidated Edison East River Generating Station, the Astoria Generating Station, and the Arthur Kill Generating Station are required to be considered by both the water withdrawal permitting law and SEQRA.
Target 4 of DEC’s Draft Hudson River Estuary Action Agenda 2015-2020 calls for the reduction of fish kills at the “four remaining steam electric power plants that use once-through cooling systems” in the estuary. Yet three years after the issuance of this draft action agenda, DEC plans to reissue a permit to the largest generating station in the estuary that allows Ravenswood to keep operating its once-through cooling system without any evaluation or reduction of its fish kill impacts in violation of the Hudson River Estuary Management Act.
Comments on the proposed reissuance of the Ravenswood permit are due by Saturday, November 17, 2018. Comments may be mailed to Kent P Sanders, DEC Headquarters, 625 Broadway, Albany, NY 12233, (518) 402-9167 or emailed to DEPPermitting@dec.ny.gov. The ENB notice is posted at https://www.dec.ny.gov/enb/20181003_reg2.html#263040002400056. and the notice of extension is posted at https://www.dec.ny.gov/enb/20181017_not2.html. Click here to take action quickly.