Water Resources Protection Act comments by Rachel Treichler, May 2011

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Response to Environmental Advocate's memo on the Water Resources Protection Act by attorney Rachel Treichler, May 1, 2011.
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  Response to EA’s Memo Fact vs. Fiction: Water Withdrawals Legislation  Departmental Bill #36(S3798-Grisanti/A5318-A-Sweeney et al.)  Below are my comments on points made in a memorandum prepared by Environmental  Advocates. The EA memorandum appears to be targeted to concerns I previously raised with thewater withdrawal bill. The points labeled Fact and Fiction in the srcinal EA memo are labeled “EA’s Fiction” and “EA’s Fact.” My comments are labeled “RT’s Comment.” — Rachel Treichler, May 1, 2011.   EA’s Fiction #1 : The bill facilitates high-volume hydraulic fracturing in New York State. EA’s Fact : The bill would require any person, including gas drilling operations, with a water withdrawal system with the capacity to withdraw equal to or more than 100,000 gallons per dayto first obtain a permit from the Department of Environmental Conservation (DEC). To theextent that a gas drilling company has in place a system with the capacity to withdraw 100,000gallons of water (surface water or groundwater) per day, the company would need to get a permit. As proposed, a water withdrawal system is defined broadly as any “equipment or infrastructure operated or maintained for the provision or withdrawal of water including but notlimited to, collection, pumping, treatment, transportation, transmission, storage and distribution.”This broad definition ensures that even one truck with the capacity to withdrawal the thresholdvolume in a given day would need a permit. RT’s Comment : The bill will facilitate high-volume hydraulic fracturing in New York State inat least three ways. First, it will facilitate it by changing New York’s water laws from a riparianto a regulated riparian system. Although New York has previously had permitting for publicwater systems and certain other uses, the proposed legislation will greatly broaden the scope of the permitting requirements to all withdrawals of water in the state. Permitting systems aregenerally favored over riparian systems by industrial users, including the gas drilling industry, because permits give more predictable and certain water rights than the rights granted by ariparian system which are subject to the needs of other users and are determined on a case bycase basis when water scarcity occurs. Various statements have been made by gas industryrepresentatives that indicate their preference for a permitting systems rather than a ripariansystem.A paper written in 2008 by R. Timothy Weston of the law firm of Kirkland & Lockhart PrestonGates Ellis LLC, titled Development of the Marcellus Shale–Water Resource Challenges, describes the riparian law system in New York and other states overlying the Marcellus Shale.In this paper, Mr. Weston observes that existing riparian laws could readily lead to broader exposure to claims [for gas developers] for interference with other water users than permittingsystems. Mr. Weston states, Although 'regulatory' [i.e. permitting] regimes governing water withdrawals pose an additional administrative step, they may in the long run serve to benefitmajor energy developments. These permit programs . . . provide a more predictable avenue bywhich such impacts can be assessed and mitigated through appropriate provision of replacementsupplies or compensation. See http://www.wvsoro.org/resources/marcellus/Weston.pdf   A second reason the legislation will facilitate high-volume hydraulic fracturing in New York State is that the proposed legislation mandates that the DEC “shall issue” permits to all existingwater users to their maximum withdrawal capacity. Many existing users have a maximumwithdrawal capacity that is considerably in excess of their actual usage. The issuance of permitsfor withdrawals by existing users in excess of their need makes it easy for them to sell their excess permitted capacity to gas drilling operations, as some towns and villages have begun todo.A third reason the legislation will facilitate high-volume hydraulic fracturing in New York Stateis that independent operators of water hauling trucks that provide water for gas drillingoperations will not be subject to the permitting requirements or to the water reportingrequirements contained in the bills because these requirements apply to the persons making thewater withdrawals and not to the end users of the waters withdrawn or to the uses to which thewaters will be put. Tanker trucks used for water hauling hold only hold 6,000 to 8,000 gallons,and even if they are able to carry 10 tanker loads a day to a drilling site, they would still be under the 100,000 per day threshold in the bill.The proposed legislation needs to include a provision like the rule adopted by the SusquehannaRiver Basin Commission which requires that permits be obtained for all consumptive uses of water for gas well development purposes. See 18 CRF Part 806. As the legislation is currentlydrafted, the DEC will be precluded from adopting a similar rule, because its authority to issue permits will be limited by the proposed legislation to permitting persons withdrawing 100,000gallons or more per day.If the purpose of the legislation is to put protections in place in the Great Lakes basin so thatwaters in that basin are protected like waters in the Susquehanna River Basin and the DelawareRiver Basin, we need to enact legislation that will allow comparable protections to be put in place. EA’s Fiction #2 : The proposed legislation does not address how to equitably allocate water among competing water users. EA’s Fact : Existing law (ECL Article 15) explains the policy objectives for equitably allocatingwater among users. The water withdrawal permitting program that would be established by this bill must be consistent with existing law. ECL §15-0105 sets forth eight public policies of thestate in recognition of the state’s duty to conserve and control its water resources for the benefitof all New Yorkers. RT’s Comment : The standards for the issuance of permits set forth in section 15-1503 of the proposed legislation do not include taking into consideration the needs of other users. There isno requirement in the proposed legislation that the DEC even estimate the cumulative usage of users who are individually under the 100,000 gallon per day threshold of the reportingrequirements in the legislation. If the DEC applies standards for the issuance for permits that arenot authorized by the legislation, a permit holder might challenge the imposition of suchstandards as beyond the authority of the DEC. Because the DEC currently has broad authority to  regulate the waters of the state, the limitations in the proposed legislation will serve to limit thecurrent scope of authority granted to the DEC by the Environmental Conservation Law. EA’s Fiction #3 : No hearings have been held that specifically address this proposed legislation. EA’s Fact : During the past few years, several legislative hearings have been held on NewYork’s water resources and the need for this bill and its provisions were discussed in great detail.On August 6, 2008, the Assembly Environmental Conservation Committee held a hearing on the protection of water quality and aquatic resources. At the hearing, many environmentalorganizations testified about the need to close this glaring loophole in the state’s water laws.Also, the DEC testified about New York’s fragmented and inconsistent regulatory structure for water withdrawals and the need for a statewide approach to ensure sustainable water supplies. In2009, the Senate Environmental Conservation Committee held two hearings on water quality. OnSeptember 29, 2009 and again on October 1, 2009, several environmental organizations testifiedin Buffalo and Albany, respectively, as well as the DEC and other organizations. RT’s Comment : I am not aware of hearing being held to address the provisions of thislegislation. Many of the issues regarding water rights, water commodification, permittingconditions and how to equitably allocate water usage in times of scarcity that have been raisedfollowing the introduction of the legislation in 2010 were not addressed in the hearings on water quality and aquatic resources held in 2008 and 2009 when the general public was not aware thatnew water permitting legislation was under consideration. EA’s Fiction #4 : Pursuant to ECL §15-3301 the DEC is required to disclose all water withdrawal reports and it has not made the reports available. EA’s Fact : ECL §15-3301, requires “any person who withdraws or is operating any system or method of withdrawal that has the capacity to withdraw more than 100,000 gallons of groundwater or surface water per day at a single tract of land, water source or place of business”to file a report with the DEC on or before February first of each year. ECL §15-3301 does notrequire DEC to post the reports on its website, however, this information is provided to the public upon request. RT’s Comment : It significantly diminishes the benefits of collecting this information if theinformation collected is not made easily accessible to the public. EA’s Fiction #5 : The proposed legislation will harm aquifers and streams based on the projected demands of high volume hydraulic fracturing. EA’s Fact : If enacted, this bill would require all newly proposed water withdrawals with acapacity to withdraw equal to or greater than 100,000 gallons per day to obtain a permit, as wellas conduct statistical analyses of stream flows and/or long term groundwater pumping tests todetermine what effects withdrawal would have on surrounding water resources. Currently, thereare no such requirements. The bill provides better protections for the state’s waters.  RT’s Comment : It is not better protection for the state's waters to give priority water rights tolarge water users by issuing water withdrawal permits to them. All water users are currently protected by the state's laws on riparian rights and the public trust doctrine. These laws limit thewithdrawals that may be made in times of water scarcity. The proposed legislation offers the potential for harm of the state’s streams and aquifers because the DEC is mandated to issue permits to all existing water users to their maximum withdrawal capacity. Many users have amaximum withdrawal capacity that is considerably in excess of their actual usage. Nomechanism is contained in the legislation for addressing the short-term and long-term needs of other users and the environment in the process of issuing these permits for maximum withdrawalcapacity. If existing users choose to sell their excess permitted capacity to gas drillingoperations, as some towns and villages have begun doing, the high demands of hydro-fracking,combined with the use of fresh water to dilute flowback fluids are likely to cause depletion of thestate’s aquifers and streams. EA’s Fiction #6 : The proposed legislation will facilitate inter-basin transfers of frackingflowback and waste water from drilling. EA’s Fact : This bill will not facilitate any interbasin transfers of fracking waste water.Hydrofracking waste water that is the result of drilling activities is currently regulated under theState Pollutant Discharge Elimination System (SPDES) (ECL Article 17 Title 8). A SPDES permit is required for any discharge of waste water to the waters of the state. RT’s Comment : We need to understand why the definition of “interbasin diversion” in Section15-1502.10 of the proposed legislation includes the transfer of “waste water” within thedefinition, and to consider if this could facilitate the interbasin transfer of waste water. This isone of the many issues that requires additional time for consideration and debate. EA’s Fiction #7 : The proposed legislation will facilitate inter-basin transfers of water. EA’s Fact : New York Law currently does not have a mechanism to track diversions of water todetermine whether they would have an adverse impact upon water quantity. This bill wouldrequire the registration of all new or increased interbasin diversions in excess of one milliongallons per day. As proposed, the bill would prohibit any person from making a new or increasedinterbasin diversion which results in a significant adverse impact on the water quantity of thesource basin. Diversions from the Great Lakes-St. Lawrence River Basin are prohibited by theGreat Lakes-St. Lawrence River Basin Water Resources Compact. RT’s Comment : Under existing New York case law on water rights, it is unlawful to transfer water away from a watershed. This legislation would override these common law limitationsand facilitate the export of New York’s water resources. EA’s Fiction #8 : The proposed legislation will change New York's water laws from a riparianrights system to a regulated riparian system. EA’s Fact : New York State has long been a regulated riparian system. DEC permits are alreadyrequired for public water supplies under ECL §15-1501 and for groundwater withdrawals in
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