JUDICIAL DEVELOPMENTS

March 2009

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State Court Finds N.Y. DEC Has Jurisdiction to Issue Water Quality Permit Despite Preemption for Hydroelectric Dams Operated under FERC
Chasm Hydro, Inc. v. New York State Department of Environmental Conservation

The owners and operators of Chasm Hydroelectric Dam on the Chateaugay River in Franklin County, New York needed to engage in dam repairs and other maintenance. Because of the size and nature of the repairs, Chasm Hydro retained a contractor, which contacted the New York State Department of Environmental Conservation (NYSDEC) to inquire whether it was necessary to obtain a stream disturbance permit under the Clean Water Act. NYSDEC advised Chasm Hydro that a permit was necessary but shortly thereafter the Federal Energy Regulatory Commission (FERC) advised that a permit was not required because FERC had jurisdiction. The issue here was whether the New York state courts would recognize preemption by FERC and the answer was that water quality standards are not preempted and therefore a New York state permit was appropriate.