Natural Resources

Fall 2011 Natural Resources Law Class at UB

Regulated riparianism for New York? November 14, 2011

Filed under: Uncategorized — domesticatedfoxes @ 1:38 pm

Does Sw. Fla. Water Mgmt. Dist. v. Charlotte County provide a glimpse into the future of water law in New York?

I ended my previous post with a brief discussion of looming changes to Environmental Conservation Law § 15-1501 et seq. Under the new law, effective February 15, 2012, DEC is required to establish permitting regulations for all water withdrawals greater than 100,000 gallons per day. The regulations shall “provide protections for present and future needs for sources of potable water supply.” DEC may impose “any other conditions . . . [it] determines are necessary to protect the environment and the public health,” including minimum flow requirements “protective of acquatic life.” The new permitting requirement will apply to all water withdrawals over the threshold limit “for any purpose from the waters of the state”—but no permits will be issued or required until such time as DEC promulgates new permitting rules.

Section § 1503(2) describes the permit approval process in slightly greater detail. Interestingly, DEC may take into account issues of environmental justice in determining whether to grant a permit. Applicants will also need to prove to DEC they are incorporating “environmentally sound and economically feasible water conservation measures” before a permit will be granted. The law defines “environmentally sound and economically feasible conservation measures” as measures that: (1) are environmentally sound (thanks!); (2) reflect best practices; (3) are technically feasible and available; (4) are economically feasible “based on an analysis that considers direct and avoided economic and environmental costs”; and (5) take into account, among other factors, the environmental impact of the withdrawal. Maximum permit periods will not exceed ten years.

At first glance, it looks like DEC will have wide-ranging authority to impose water conservation requirements on all large-scale water withdrawal permit applicants in New York. It’ll be interesting to see what the regulations look like when they’re issued, whenever that is.

The current law and the proposed changes are available through DEC’s website:

For an interesting discussion of water rights, “security” of water resources, and permitting, see below:


Water to burn . . .

Filed under: Uncategorized — domesticatedfoxes @ 3:18 am

Whether or not you think unconventional natural gas exploration makes for good public policy, one thing’s for certain: fracing is a thirsty industry!

According to the EPA, unconventional natural gas wells in the Marcellus Shale (that’s the shale layer under much of New York and Pennsylvania) typically consume nearly four million gallons of water per “frac.” See EPA, Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources, 22 (November, 2011). Imagine flushing your toilet something like, say, two million times in a row. Whoosh.

Of course all that water has to come from somewhere. In some areas of intensive drilling activity, groundwater withdrawal is common; in other areas—including the Marcellus—surface water sources provide much of the water used in the drilling process. See id. at 24. Regardless of the source, most of the water pumped underground stays underground (“What happens in Vegas . . . “)—the EPA estimates somewhere between ten and thirty percent of the fracing fluid injected into each well is typically recovered in the Marcellus. See id. at 25, 42. Depending on your level of affinity for slightly radioactive water mixed with benzene and antifreeze and lots of corrosive salts, not getting it back might seem like a relative blessing. Still, unrecovered water is more or less permanently removed from the hydrologic cycle. What does that mean for a “humid” state like New York?

According to the EPA, large-scale water withdrawal—whether from surface streams and ponds or from underground wells—may substantially affect the quality of our drinking water. The EPA links high-volume groundwater withdrawal to lowered aquifer levels, increased or changing mineral solubility, increased salinity, and bacterial contamination. See id. at 25. Drawing water out of local lakes and rivers isn’t much healthier: the EPA claims substantial surface water withdrawals can harm aquatic ecosystems by changing water temperature, flow rate, and depth. See id. Contaminant concentrations may increase. See id. Needless to say, any of these eventualities may result in somewhat less potable water. See id.

In other news, New York’s Environmental Conservation Law will require—as of February 15, 2012—that anyone seeking to withdraw more than 100,000 gallons of water per day apply to the DEC for a withdrawal permit. See Dep’t of Envtl. Conservation, Water Supply & Conservation (last visited November 13, 2011). Strangely, the new law exempts all non-public entities from compliance with the permitting requirement until DEC issues regulations to guide the permitting process. See id. For the time being, DEC seems to have its hands full with its draft Supplemental Generic Environmental Impact Statement and newly-minted drilling regulations. Call me crazy, but shouldn’t we have the water rules in place before we start issuing drilling permits? /upload/ht_study_plan_110211_fina_508.pdf.