Water Sales On Hold In Painted Post

Court Halts Sale to Fracking Company

NEW YORK (18 NEWS) - People for a Healthy Environment is celebrating their victory in a unanimous New Year’s Eve ruling from the Appellate Division Fourth Department in Rochester against the Painted Post water withdrawal project in Steuben County. That project, which supported hydraulic fracturing in Pennsylvania, sold up to one million gallons per day of municipal water from the Corning aquifer to Shell Oil subsidiary, SWEPI LP for use in drilling and fracking operations in Tioga County, Pennsylvania. The Village of Painted Post had classified the water, which was transported out of state by rail, as “surplus property.” Those sales are now halted via injunction.

In a case brought by People for a Healthy Environment, Inc.—along with Coalition to Protect New York, the national Sierra Club and five local residents—petitioners claimed the combined impacts of the project had not been properly considered, as is required under the State Environmental Quality Review Act (SEQRA). The Appellate Division Fourth Department ruling upheld their argument.

Ruth Young, resident of Horseheads and president of People for a Healthy Environment at the time the case was first filed in 2012, said she was delighted by the court’s decision. “Selling our drinking water for out-of-state fracking operations is like selling blood plasma to support a drug habit. Fracking destroys water in order to blast more climate-damaging fossil fuels out of the ground at time when we are all supposed to be working to get off of carbon altogether. The New Year’s Eve ruling strikes a blow for public health and sanity in the Southern Tier.”

Young continued, “Water connects us all. This is why PSE joined the case. The majority of our members live immediately downriver from the Corning Aquifer. Damage to this aquifer may damage our own drinking water supplies, potentially affecting our health and the value of our property.”

Frank Potter, current acting PHE president, noted that the water-filling station and the water-filled rail cars that rattled through the village had created additional impacts that needed to be considered together with the impact of the water withdrawals. The court agreed. “We are very pleased that the court acknowledged what is so obvious to us—that the Village did not follow procedures under SEQRA and that the people who live near the railroad tracks have legal standing in the courts. This water grab by Shell threatens our quality of life through multiple pathways, including noise and light pollution, and all of these impacts need to be considered together.”

Attorney Rachel Treichler of Hammondsport, who represented the petitioners, said she anticipates further involvement in the issue. “This ruling affirms the trial court’s injunction on bulk water sales for fracking, but we assume the Village will go ahead and do the review again. If so, we plan to be deeply involved in that new review process. This is a great opportunity for us to present the facts to the public about how the Corning aquifer works. This is a highly stressed aquifer. Withdrawals in one place could potentially impact the quality of drinking water to people in seven municipalities.”

Background on PSE:

People for a Healthy Environment is a grassroots organization based in Chemung County, New York, dedicated to informing and inspiring fellow citizens to safeguard our air, water, soil and to maintain the health and natural beauty of our environment. The majority of members live immediately downriver from the Corning Aquifer.

Background on the legal case:

On New Year’s Eve, the Appellate Division Fourth Department unanimously affirmed the decision of the trial court in the case of Sierra Club v. Painted Post, 202/14, CA 13-015582015. The case involved a challenge by three environmental organizations and five individuals to the decision of the Village of Painted Post to sell water from its municipal water system for drilling and fracking operations in Pennsylvania without conducting a review of the environmental impacts of the water sale agreement under SEQRA. The court concluded that the water sale agreement was not an exempt action under SEQRA as the Village had claimed and it further determined, on the issue of segmentation, that the Village was required to conduct a consolidated review of both the water sale agreement and the lease agreement for the water-loading facility.

“On the merits, we agree with petitioners that the Village’s determination that the Water Agreement was a Type II action and not subject to SEQRA review was arbitrary and capricious. First, we reject respondents’ contention that the withdrawal and sale of surplus water from a municipal water supply is not an “action” for SEQRA purposes (see 6 NYCRR 617.2 [b] [1]). Second, we conclude that the Water Agreement constitutes either a Type I or an Unlisted action.”

“[S]egmentation, i.e., the division of environmental review for different sections or stages of a project (see 6 NYCRR 617.2 [ag]), is generally disfavored (see Matter of Forman v Trustees of State Univ. of N.Y., 303 AD2d 1019, 1019). We thus conclude that the court properly determined, on the merits of the first cause of action, that all of respondent Village’s resolutions should be annulled and that a consolidated SEQRA review of both agreements was required.”

Petitioners Sierra Club, People for a Healthy Environment, Inc., Coalition to Protect New York, and five local residents were represented in the suit by attorneys Richard Lippes and Rachel Treichler.  More details on the case can be found here.

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