Division of Water
Albany, NY 12233-3500
February 6, 2012
Dear Mr. Simson,
The undersigned signatories, representing tens of thousands New Yorkers and hundreds of thousands concerned citizens throughout the Great Lakes Basin, submit the following as comment on the New York State Department of Environmental Conservation’s (DEC) proposed water withdrawal regulations (Parts 6 NYCRR 601 and 6 NYCRR 623). These proposed regulations, when finalized and enacted, will close a long-standing gap in New York’s water protections.
While the drafts go far to establish a solid program for overseeing large-scale water withdrawals, there are changes to be made before the proposed program can be considered protective and rigorous or to fully implement the Great Lakes – St. Lawrence River Basin Water Resources Compact (the Compact). Given the deficiencies in the draft regulations, we call on DEC to revise the proposals and issue a new draft for public comment once changes have been incorporated.
To that end, DEC must:
• Propose permit fees adequate to cover agency investments in the program. As the regulations are drafted, there are no fees for permits. Given the agency’s already resourcestrapped situation, a new permitting program without any revenue to fund the program is unsustainable and irresponsible. DEC must implement a permit fee structure, and the fees generated should be used to fund the Division of Water.
• Define “significant individual or cumulative adverse impacts on the quantity or quality of the water source and water dependent natural resources, including aquatic life.” While we support the program’s aims to prevent cumulative adverse impacts to wildlife, without a definition to explain how DEC will determine if or when adverse impacts occur it is impossible to know at what point DEC will act to enforce a permit. The Department should use the authority granted it by the governing statute to “establish quantitative standards that maintain stream flows protective of aquatic life.”
• Make permitting criteria mandatory, not discretionary. The draft regulations include a list of criteria that DEC must consider before granting a permit, granting a permit with conditions, or denying a permit. We support these criteria, but it should be incumbent upon DEC to ensure that each of the criteria are met prior to granting a permit. If the criteria are not met, a permit should be denied.
• Ensure that all elements of the minimum decision-making standard in the Compact are met before granting a permit to proposed withdrawals in the Great Lakes Basin. The permitting criteria in the regulations do not incorporate two necessary elements:
(1) all withdrawn water must be returned to the source watershed, less an allowance for consumptive use, and (2) the proposed use must be reasonable. While the regulations provide that Great Lakes Basin withdrawals must comply with the Compact, this blanket statement does not ensure that these requirements are sufficiently addressed by the applicant or DEC during the permitting process.
• Clarify that the Compact limits transfers between Great Lake watersheds, not just transfers out of the Great Lakes Basin. As drafted, the regulations fail to acknowledge that “interbasin diversions” from a Great Lake major drainage basin to another Great Lake major drainage basin would be subject to limitations under the Compact. It also fails to acknowledge that these “interbasin diversions” are not limited to public water supply. The drafts must be amended to address these issues.
• Provide a process by which the Department will review a proposal for a diversion exception subject to the Compact. The draft regulations do not provide a process for reviewing proposals for diversion exceptions subject to the Compact, a problem that must be remedied before the draft regulations are finalized.
• Propose a water conservation and efficiency program in compliance with ECL § 15-1501. The law calls on DEC to establish a conservation and efficiency program with the goals of:
(a) ensuring improvement of the waters and water dependent natural resources, (b) protecting and restoring the hydrologic and ecosystem integrity of watersheds throughout the state, (c) retaining the quantity of surface water and groundwater in the state, (d) ensuring sustainable use of state waters, and (e) promoting the efficiency of use and reducing losses and waste of water.
This section seems aimed at satisfying a Compact requirement and making it a statewide program, something we wholeheartedly support. This program should be based on a set of statewide goals for water conservation and efficiency, embodied in the regulations, and be able to adjust to cumulative impacts and climate change. It should also, at a minimum, address the Compact regional objectives of minimizing water use, developing science, technology, research, education programs, and information sharing for all water users.
While draft regulations require permit applicants to include a ‘water conservation program’ (proposed 601.10 (f)) as part of their application, this alone does not achieve the goal embodied in environmental conservation law.
• Significantly shorten the phase-in timeline for permitting. While our organizations understand that staff and resource needs are great at DEC, a five-year phase-in before permitting for all users is overly long and needs to be shortened significantly. Especially in light of the potential for existing water hauling companies to work at capacity if drilling in the state’s shale formations is greenlighted, the state must get individual permits out for all users in order to prevent cumulative and adverse impacts to the state’s resources.
• Keep monitoring records with the department, not with the permittee. As proposed, all ongoing compliance documents will be housed with the permittee making them publically inaccessible. To ensure that the public can play its rightful and meaningful role in protecting the state’s waters, all documents should be regularly submitted to DEC and available on the department’s website.
• Establish five-year permits. A waterbody can change a lot in ten years, especially with multiple users withdrawing water. To protect the integrity and quality of New York’s rivers, streams, and lakes, permit terms should be no longer than five years.
Thank you for considering our comments. We look forward to working with DEC to implement a robust water withdrawal program, and know that by amending the draft regulations to address the concerns outlined above we can better protect New York’s precious natural resources.
Water Policy Advocate
Alliance for the Great Lakes
Senior Director, River Restoration Program
Director of Government Relations
Audubon New York
Loren H. Smith, Ph.D.
Buffalo Audubon Society
Jill Spisiak Jedlicka
Director of Ecological Programs
Buffalo Niagara RIVERKEEPER
Coordinator and Researcher
Canadian Environmental Law Association
Legislative & Policy Director
Citizens Campaign for the Environment
Clean Water Action
Flow for Water Great Lakes Coalition
Great Lakes United
Bush Lake Chapter – Izaak Walton League
Chair, Great Lakes Committee
Izaak Walton League of America
National Director, New York State Division
Izaac Walton League of America
Lake Ontario Trout & Salmon Association
Michigan League of Conservation Voters
Jodi Habush Sinykin
Senior Staff Attorney
Midwest Environmental Advocates
Minnesota Center for Environmental Advocacy
Director of Agricultural & Clean Water Programs
Ohio Environmental Council
Niagara Watershed Alliance
Watershed Protection Coordinator
New York Public Interest Research Group
Prairie Rivers Network
Save the Dunes
Michigan City, Indiana
Save Lake Superior Association
Jennifer J. Caddick
Save The River
Wayne Howard, Chair
Sierra Club Atlantic Chapter Great Lakes Committee
Grenetta Thomassey, PhD
Tip of the Mitt Watershed Council
Town and Country Resource Conservation and Development
Wisconsin Wildlife Federation