New Water Withdrawal Law Goes into Effect

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What it means for the protection of NY’s water bodies from fracking and other high-water usage activities

Last summer, Gov. Andrew Cuomo signed New York’s first-ever uniform water use management legislation, closing the loophole that long allowed high-volume water withdrawers to pump large amounts of water out of New York’s water bodies without regard for protections to natural resources and aquatic life. The new law, which took effect Feb. 15, 2012, mandates that operators of oil and gas production facilities, power plants, golf courses, snow-making facilities, mining operations, 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 (DEC) permit. Existing water withdrawers will be entitled to an initial permit, for a limited term.

Since high-volume hydraulic fracturing (or fracking) associated with natural gas production requires millions of gallons of water per well, fracking and water withdrawal issues are inextricably related. This legislation should provide crucial protections to the state’s water bodies and aquatic life, which are currently under threat from the prospect of fracking moving forward in New York.

To implement this law, DEC proposed draft regulations that would establish the water withdrawal permitting program on Nov. 23, 2011. Riverkeeper filed comments on these draft regulations on Feb. 6 aimed at fully protecting our water bodies from the threat of fracking and other high-volume water uses. Our comments emphasize that while the draft regulations go far to establish a solid program to oversee large-scale water withdrawals, there are a number of significant changes that must be made before they can be considered adequately protective of the environment and sustainable in the long-term. Riverkeeper urged DEC to make several changes to the regulations; our top five include:

• DEC’s proposed scheduling for issuing permits to existing water withdrawals is unacceptable. The draft regulations would allow some existing water withdrawals to withdraw water for five years at existing levels before obtaining a permit. Riverkeeper has recommended an aggressive schedule, which would require all water withdrawers to submit permit applications in the next 15 months.
• DEC should impose permit fees and fees based on consumptive use. The draft regulations fail to propose any permit application fee or fees for water usage, despite the known need for funds to implement the program.
• DEC should impose a water conservation and efficiency program. The water withdrawal legislation mandates that DEC establish a conservation and efficiency program, but the regulations fail to do so. DEC should set statewide goals for water conservation and efficiency.
• DEC should mandate water conservation. The draft regulations require each permit applicant to submit a “water conservation plan,” but the regulations are unclear as to whether water withdrawers are then required to implement that plan.
• Monitoring records should be kept with DEC, not the water withdrawer, and made available to the public upon request. The draft regulations require the water withdrawer to self-monitor and retain records of all monitoring information. By failing to require that DEC maintain its own copy of records, the draft regulations render such documents publicly inaccessible. Water withdrawers should be required to submit all monitoring records on a monthly basis to DEC and DEC should make such records easily available to the public.

Permitting of water withdrawals will only begin once DEC finalizes the regulations, so Riverkeeper has urged DEC to act swiftly to implement stringent regulations incorporating the changes identified above, in addition to the other significant deficiencies we identified in our comments.