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In re Sierra Club

Supreme Court of New York, Second Department

January 10, 2018

In the Matter of Sierra Club, et al., appellants,
v.
Joseph Martens, Commissioner, New York State Department of Environmental Conservation, et al., respondents.

         APPEAL 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 & 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).

          Eric T. Schneiderman, Attorney General, New York, NY (Anisha S. Dasgupta and Bethany A. Davis Noll of counsel), for respondent Joseph Martens, Commissioner, New York State Department of Environmental Conservation.

          Barclay Damon, LLP, Albany, NY (Yvonne E. Hennessey, Danielle E. Mettler-LaFeir, and Laura L. Mona of counsel), for respondent Trans Canada Ravenswood, LLC.

          L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, FRANCESCA E. CONNOLLY, JJ.

          OPINION & ORDER

          CONNOLLY, J.

         We hold 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[5][ii]).

I

         The 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 entrainment.

         II

         Since 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]).

         While 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[16]). 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 regulate[d] industrial, commercial and agricultural water withdrawals" (id.; see Conn Gen Stat §§ 22a-365 to 22a-379; N.J. Stat § 58:1A-1 et seq.; RI Gen Laws tit 46, ch 15.7; Mass. Gen Laws ch 21G).

         Accordingly, in 2011, the State Legislature amended ECL article 15 by enacting the Water Resources Protection Act (see ECL 15-1501 et seq. [hereinafter the WRPA]), which directed the DEC to implement a water withdrawal permitting program to regulate the use of the state's water resources. Pursuant to the WRPA, all commercial and industrial operators of water withdrawal systems with a capacity to withdraw more than 100, 000 gallons per day are required to obtain a water withdrawal permit (see ECL 15-1501[1]; 15-1502[14]). Applicants for water withdrawal permits are required to submit a "proposed near term and long range water conservation program that incorporates environmentally sound and economically feasible water conservation measures" (ECL 15-1503[1][f]). The DEC has the power to grant or deny a permit, or to grant a permit with conditions, and in doing so, must consider a number of statutory factors, including whether "the proposed water withdrawal will be implemented in a manner to ensure it will result in no significant individual or cumulative adverse impacts on the quantity or quality of the water source and water dependent natural resources, " and whether "the proposed water withdrawal will be implemented in a manner that incorporates environmentally sound and economically feasible water conservation measures" (ECL 15-1503[2][f], [g]).

         As pertinent to this appeal, with respect to existing operators of water withdrawal systems, the WRPA provides for the issuance of an "initial permit" based upon an operator's self-reported "maximum water withdrawal capacity" prior to the statute's effective date (ECL 15-1501[9]). Specifically, the statute states: "[the DEC] shall issue an initial permit, subject to appropriate terms and conditions as required under this article, to any person not exempt from the permitting requirements of this section, for the maximum water withdrawal capacity reported to [the DEC]... on or before February [15, 2012]" (ECL 15-1501[9] [emphasis added]; see 6 NYCRR 601.7[d]). The DEC's regulations implementing the WRPA state that an "initial permit... includes all terms and conditions of a water withdrawal permit, including ...


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