Memorandum in Opposition - S.4162 (Harckham) / A.66.52 (Englebright)
S.4162 (Harckham) / A.6652 (Englebright) - AN ACT to amend the environmental conservation law, in relation to the protection of certain streams
The Independent Power Producers of New York, Inc. (IPPNY) is a trade association representing companies involved in the competitive power supply industry in New York State and in the development of electric generating facilities, the generation, sale, and marketing of electric power, and the development of natural gas transmission facilities. IPPNY Member companies produce the majority of New York's electricity, utilizing hydro, nuclear, wind, natural gas, solar, energy storage, biomass, oil, and waste-to-energy.
IPPNY opposes S.4162 (Harckham) / A.6652 (Englebright). This legislation is identical to the bill that was rejected by Veto #60 of 2020, due to “tremendous fiscal impact to state and local governments.” The bill would lead to delays that would jeopardize the thorough and necessary review of projects because of the doubling of the New York State Department of Environmental Conservation’s (DEC) workload to review, issue and enforce permits. The Veto Message also states that oversight over the involved streams already is being done by the State’s Soil and Water Conservation Districts, who will continue to ensure adequate environmental controls for these streams.
To address the substance of Veto #60 of 2020, IPPNY has provided an amendment to have the DEC conduct a study to prioritize the need for additional stream protections, but the bill has not been changed to include our recommendation. The study would identify the need for additional protections for ephemeral streams, which only contain water in direct response to rainfall and flow only after rain or during snowmelt.
The DEC has an established, robust, scientific, and public participation process to evaluate and classify streams for the appropriate protection. The DEC has expertise to identify which waterbodies should receive additional protection, without the assumption that all Class "C" waterways need it and without duplicating federal efforts.
As written, the bill would create a duplication of federal dredge and fill permitting and an unnecessary burden on the regulated public and state environmental permitting resources. Many Class “C” waterways are already protected by the U.S. Army Corps of Engineers (USACE) or the DEC. Class “C” waterways under federal jurisdiction have protection under the Clean Water Act, and their “C” designation allows project proponents to apply for reporting and non-reporting Nationwide Permits 3, 12, 13 (and others) accordingly from the USACE. These Nationwide Permits are periodically reviewed by the DEC to ensure that the permitting and mitigation requirements are consistent with New York’s water quality standards. Further, any proposed impacts to “C” waterways with certain protective designations (e.g. Trout “T” designation) are protected through the DEC’s permit process.
Under the study proposed by our amendment, the DEC would assess which water bodies already are subject to federal dredge and fill permitting. The Department would ensure that any additional protection that may be required is not duplicative.
We recommend that the DEC be allowed to follow its process to study and then recommend reclassification of waterways to fit the DEC’s protection priorities. This approach will allow the State to make an informed decision about whether any increased oversight over these streams is warranted, given that, for any reclassified waterway, an additional six-month approval process is expected to be needed for infrastructure maintenance and construction activities. In a state where there is snow on the ground for a significant portion of the year, the maintenance window already is very short.
For the reasons stated above, IPPNY opposes S.4162 (Harckham) / A.6652 (Englebright).
