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: