Matter of Sierra Club v. Martens

*1APPEAL by the petitioners, in a proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Environmental Conservation dated November 15, 2013, as amended March 7, 2014, which granted the application of the respondent Trans Canada Ravenswood, LLC, for a water withdrawal permit pursuant to Environmental Conservation Law §15-1501(9), from a judgment of the Supreme Court (Robert J. McDonald, J.), entered December 10, 2014, in Queens County, which, upon decisions of the same court dated October 1, 2014, and October 2, 2014, respectively, denied the petition and dismissed the proceeding*2

OPINION & ORDERWe hold that the issuance of an “initial permit” for making water withdrawals pursuant to Environmental Conservation Law §15-1501(9) is not a ministerial act that is excluded from the definition of “action” under the State Environmental Quality Review Act (hereinafter SEQRA; see ECL 8-0105[5][ii]).IThe respondent Trans Canada Ravenswood, LLC (hereinafter TC Ravenswood), operates the Ravenswood thermoelectric generating station (hereinafter Ravenswood Station or the station) in Long Island City, Queens, which produces energy for the City of New York. In connection with electrical generation by three of the station’s four steam generators, Ravenswood Station withdraws large amounts of water from the East River to cool the station’s boiler equipment, turbines, and auxiliary equipment. The water is used only once and then discharged back into the East River. This “once-through cooling” system is the original cooling system that has been used by Ravenswood Station since it began operating in 1963. The station’s fourth generator uses a multi-celled air-cooled condenser system that does not require the withdrawal of water from the river. When operating at full load, the station has a maximum withdrawal capacity of 1.5 billion gallons of water per day, although the actual amount of water used to operate the station is typically less, and varies depending upon the station’s operating needs. This sizable water withdrawal has environmental consequences, most