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Cuomo Signs Law Requiring Permits for Commercial and Agricultural Water Withdrawal

By: Maggie Macdonald

On August 16, Governor Andrew Cuomo signed a law requiring state permits for water withdrawal systems with the capacity to withdraw 100,000 gallons or more of surface and groundwater per day.  The law amends the Environmental Conservation Law (“ECL”) § 15-1501, which had previously excluded industrial and agricultural users from permitting requirements.  The new permitting requirements are intended to bring New York into compliance with commitments under the Great Lakes Compact, a regional water conservation program that has been plagued by delays.

Under the new law, which takes effect April 1, 2012, the New York State Department of Environmental Conservation (“DEC”) is directed to promulgate regulations establishing a permitting system with: minimum standards for operation and new construction of water withdrawal systems; monitoring, reporting and recordkeeping requirements; and protections for sources of potable water. The law further provides DEC with discretion to impose additional requirements and carve out additional exceptions.

DEC estimates that the new law will require more than 400 industrial, commercial and agricultural users to obtain state permits for major water withdrawals for the first time. For reference, the DEC also provided the following examples of the types of facilities that would require permits: a 925-room hotel, a 6,500-student day school, and a dairy farm housing 2,000 cows.  The statute also exempts certain withdrawal activities, including withdrawals at remediation sites conducted pursuant to a federal or state court order or agency agreement

In evaluating each permit application, DEC is required to make eight determinations, including whether the supply will be adequate for the proposed use, whether the need for the withdrawal can be reasonably avoided, and whether the quantity of the withdrawal is considered reasonable. Once a permit application is approved, the water withdrawal permit will be valid for up to ten years.

All entities required to obtain a permit under the new law will also be required to submit annual reports including information relating to water usage and water conservation measures. Entities that currently withdraw more than 100,000 gallons of water per day are already required to file annual reports with the DEC pursuant to ECL § 15-3301.  These entities will receive initial permits based on their maximum previously reported capacity.

Proponents of the new law view it as an important step toward responsible water use and conservation in New York, especially in light of the impending licensing process for hydraulic fracturing, likely to begin next year.  Impacts of the new permitting system are yet unknown, but will become more clear when DEC promulgates implementing regulations.

 

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