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DEC proposes regulations implementing new water withdrawal law

By: Michael Lesser

On November 23, 2011, the New York Department of Environmental Conservation (“DEC”) proposed regulations implementing the Water Resources Protection Act, a new law requiring a DEC permit for water withdrawals exceeding 100,000 gallons per day.  In addition to setting forth permitting procedures, the regulations contain additional exceptions and critical deadlines for incorporating existing water usage requirements into the new regulatory scheme.   

Under existing state requirements, agricultural, commercial and industrial facilities that withdraw more than 100,000 gallons per day or surface or groundwater must file annual reports with DEC, but those facililties had not previously been required to apply for a withdrawal permit.  To ease the transition into the new permitting program, parties who have reported their water withdrawals to DEC by February 15, 2012 would qualify for an “initial permit” under the proposed rules, streamlining the permitting process and incorporating their maximum reported withdrawal capacity.  Initial permits would also be considered “minor projects” under the Environmental Conservation Law, so they are less likely to require permit hearings or to trigger review under the State Environmental Quality Review Act (“SEQRA”).

DEC also proposed new exemptions to the permitting requirements.  The Water Resources Protection Act contains six statutory exemptions, including groundwater pumping at certain contaminated sites, and closed loop, standing column, or other non-extractive geothermal heat pumps.  DEC’s regulations would add eight more exemptions, such as withdrawals from the Atlantic Ocean or Long Island Sound, ballast water necessary for lawful vessel activity, and certain construction and maintenance activities that do not impact the capacity of a water withdrawal system.

Notably, while the statute authorizes DEC to establish “quantitative standards that maintain stream flows protective of aquatic life,” DEC has not chosen to propose such standards at this time.  However, DEC will consider “significant individual or cumulative adverse impacts” on aquatic life in its water withdrawal permitting decisions.

DEC has estimated that approximately 400 industrial, commercial, and agricultural users would be covered by the new permitting requirements, including high volume hydraulic fracturing operations, which can require millions of gallons of water at a single well.  DEC is accepting public comment on the proposed regulations until January 22, 2012.

For more information on water issues or the proposed withdrawal permitting scheme, contact Michael Bogan or Michael Lesser.

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