Water Rustlers Beware: Gov. Cuomo Signs Legislation to Help Safeguard NYS Rivers, Lakes, Streams and Aquifers

Governor Andrew Cuomo closed a glaring loophole in New York State water law yesterday by signing legislation requiring companies that seek to withdraw large volumes of water from state water bodies to first obtain a permit. The newly enacted statute was championed in bipartisan fashion by Assemblyman Bob Sweeney and Senator Mark Grisanti, with critical support from Speaker Sheldon Silver and Senate Majority Leader Dean Skelos.

Under existing law, most high-volume water users in New York have been able to pump water from the state’s rivers, lakes, streams and aquifers, largely unregulated and without regard to the ecological and hydrological impacts of such activities.  

The new law (Chapters 400-402, Laws of 2011) mandates that operators of power plants, golf courses, snow-making facilities, mining operations, oil and gas production facilities, water bottlers and other commercial and industrial entities seeking to withdraw more than 100,000 gallons-a-day must first secure a Department of Environmental Conservation permit.

Existing water users above the 100,000 gallon-a-day threshold will be entitled to an initial permit, which will be valid for up to ten years.  But all new applicants for large-volume water withdrawals and all renewal applicants will be required to meet comprehensive regulatory requirements before their permits may be issued.

Forthcoming DEC regulations must require applicants to demonstrate that their proposed withdrawal will not result in significant adverse impacts on the quantity or quality of the water source or on water-dependent natural resources.  Applicants will also need to show that they have put in place comprehensive water conservation and efficiency measures.

Although the statute was not drafted specifically to block gas drilling proposals that employ the controversial hydraulic fracturing (“fracking”) technique in the upstate Marcellus Shale, such operations do in fact require millions of gallons of water for each separate well drill.  Accordingly, persons or companies seeking to withdraw New York State waters for fracking operations will be subject to the new water withdrawal permit requirements.

In the Governor’s official press release, DEC Commissioner Joe Martens noted that the new law “will enable DEC to do its part to protect the valuable resources of the Great Lakes while also enhancing the state’s ability to manage water resources in response to climate change, droughts and future demands.”  (The Great Lakes collectively contain more than 20 percent of the world’s fresh surface water; and regulating large-volume water withdrawals from the Great Lakes watershed, as the new law also does, will be essential to protecting this world-class water resource.)

The critical next step for the Commissioner Martens and his staff will be to adopt comprehensive rules that set forth the substantive details of the new permitting program and outline the process for water withdrawal permit applications and reviews.

If strong new rules are adopted and aggressively enforced by DEC, the new statute will rightly be viewed as one Albany’s most significant environmental advances in 2011.

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