- February 6, 2017.
by the petitioners, in a proceeding pursuant to CPLR article
78 to review a determination of the New York State Department
of Environmental Conservation dated November 15, 2013, as
amended March 7, 2014, which granted the application of the
respondent Trans Canada Ravenswood, LLC, for a water
withdrawal permit pursuant to Environmental Conservation Law
§ 15-1501(9), from a judgment of the Supreme Court
(Robert J. McDonald, J.), entered December 10, 2014, in
Queens County, which, upon decisions of the same court dated
October 1, 2014, and October 2, 2014, respectively, denied
the petition and dismissed the proceeding
& Lippes, Buffalo, NY (Richard J. Lippes of counsel),
Rachel Treichler, Hammondsport, NY, Gary Abraham, Allegany,
NY, and Jonathan L. Geballe, New York, NY, for appellants
(one brief filed).
T. Schneiderman, Attorney General, New York, NY (Anisha S.
Dasgupta and Bethany A. Davis Noll ofcounsel), for respondent
Joseph Martens, Commissioner, New York State Department of
Barclay Damon, LLP, Albany, NY (Yvonne E. Hennessey, Danielle
E. Mettler-LaFeir, and Laura L. Mona ofcounsel), for
respondent Trans Canada Ravenswood, LLC.
PRISCILLA HALL, J.P. LEONARD B. AUSTIN SANDRA L. SGROI
FRANCESCA E. CONNOLLY, JJ.
OPINION & ORDER
that the issuance of an "initial permit" for making
water withdrawals pursuant to Environmental Conservation Law
§ 15-1501(9) is not a ministerial act that is excluded
from the definition of "action" under the State
Environmental Quality Review Act (hereinafter SEQRA;
see ECL 8-0105[ii]).
respondent Trans Canada Ravenswood, LLC (hereinafter TC
Ravenswood), operates the Ravenswood thermoelectric
generating station (hereinafter Ravenswood Station or the
station) in Long Island City, Queens, which produces energy
for the City of New York. In connection with electrical
generation by three of the station's four steam
generators, Ravenswood Station withdraws large amounts of
water from the East River to cool the station's boiler
equipment, turbines, and auxiliary equipment. The water is
used only once and then discharged back into the East River.
This "once-through cooling" system is the original
cooling system that has been used by Ravenswood Station since
it began operating in 1963. The station's fourth
generator uses a multi-celled air-cooled condenser system
that does not require the withdrawal of water from the river.
When operating at full load, the station has a maximum
withdrawal capacity of 1.5 billion gallons of water per day,
although the actual amount of water used to operate the
station is typically less, and varies depending upon the
station's operating needs. This sizable water withdrawal
has environmental consequences, most notably to fish and
other local aquatic life. When the cooling water is drawn in,
larger fish are killed when they become "impinged"
on the screens that cover the intake structures to prevent
debris in the water from entering. Juvenile fish, larvae, and
eggs that are small enough to pass through the intake screens
are killed when they become "entrained" in the
cooling system. Additionally, the discharge of heated water
back into the East River also has an impact on the aquatic
environment. In the early 1990s, studies by ConEdison, the
station's prior owner, demonstrated that, each year,
approximately 83, 000 fish became impinged and an average of
220 million eggs, larvae, and juvenile fish became entrained
by the station's cooling system. Technology installed at
the station in 2005 reduced annual impingement to
approximately 25, 000 fish and entrainment to 150 million
organisms and eggs. Additional measures implemented in 2012
resulted in further reductions in impingement and
the 1970s, Ravenswood Station has been regulated by the
Federal Clean Water Act (see 33 USC § 1251
et seq.), and required to maintain a State Pollutant
Discharge Elimination System (hereinafter SPDES) discharge
permit (see ECL 17-0801 et seq.; see also 33 USC
§ 1342[b]). The SPDES permitting system, which the New
York State Department of Environmental Conservation
(hereinafter the DEC) administers at the state level,
regulates the discharge of pollutants from point sources (see
33 USC § 1311[a]). With respect to cooling water intake
structures, the Clean Water Act provides that effluent
standards for discharges "shall require that the
location, design, construction, and capacity of cooling water
intake structures reflect the best technology
available for minimizing adverse environmental
impact" (33 USC § 1326[b] [emphasis added]).
"Best technology available, " or "BTA, "
is a standard of performance established through detailed
regulations promulgated by the United States Environmental
Protection Agency (40 CFR 125.94[a]; see Entergy Corp. v
Riverkeeper, Inc., 556 U.S. 208). The Clean Water Act
expressly provides that states may adopt and enforce more
stringent effluent limitations or standards of performance
than required by federal law (see 33 USC § 1370;
Islander E. Pipeline Co., LLC v Connecticut Dept. of
Envtl. Protection, 482 F.3d 79, 90 n 9 [2d Cir]).
the SPDES permitting system generally authorized the DEC to
regulate entities that discharge into water, under
prior law (see former ECL 15-1501), the DEC also had separate
authority to regulate withdrawals of water, i.e.,
the removal or taking of water from the waters of the state,
but only with respect to withdrawals made by public water
suppliers (see Assembly Sponsor's Mem in Support, Bill
Jacket, L 2011, ch 401; see also ECL 15-1502).
However, the " consumptive uses of water for
agricultural, commercial, and industrial purposes remain[ed]
largely unregulated" (Assembly Sponsor's Mem in
Support, Bill Jacket, L 2011, ch 401 [emphasis added]).
Neighboring states, including "Connecticut, New Jersey,
Rhode Island, and Massachusetts all ha[d] programs that