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Saratoga County Water Authority - Commissioner Ruling, September 11, 1995

Commissioner Ruling, September 11, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

- of -

the Application of SARATOGA COUNTY WATER AUTHORITY for a Water Supply Permit
pursuant to Environmental Conservation Law (ECL) Article 15, Title 15 and Title 6 of the
Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Part 601

File No. 5-4100-22-1
Water Supply Application No. 8858

RULING OF THE COMMISSIONER ON MOTION OF SARATOGA WATER AUTHORITY
FOR LEAVE TO APPEAL PURSUANT TO 6NYCRR 624.8(d)

September 11, 1995

RULING OF THE COMMISSIONER

Saratoga County Water Authority's Motion for Leave to Appeal from prior rulings (made in February, 1995) of the Department is hereby denied and the matter is remanded to ALJ Montecalvo for an adjudicatory hearing on the issues of public necessity and provision of payment for legal damages.

The Authority's June 5, 1995 motion for leave to appeal under 6 NYCRR 624.8(d), essentially, asks for summary judgment, asserting that in light of discovery and information furnished by the Authority and the Companies, no issues remain for adjudication. The information elicited includes:

  1. the Authority's updated Master Plan; and
  2. facts showing that certain funding has become available to the Authority.

Based on the new information, DEC Staff, changing its prior position, concludes that the Authority is now able to show that the project meets the public necessity test under 15-1503(2) of the ECL. Staff also maintains that adequate provision for damages either exists or can be assured by appropriate permit conditions.

However, the Companies dispute that the Authority's proposal satisfies the "public necessity" test and that adequate provision for damages has been made.

Under 624.8(d)(2) an expedited appeal may be made with respect to a ruling to include or exclude an issue for adjudication, or a legal issue made as part of an issues ruling (among other matters not germane). If such an appeal is made, other rulings may also be considered to avoid undue prejudice. All such appeals are discretionary. In essence, the Authority has moved for summary judgment under 624.8(d)(2).

The motion must be denied because there are disputed factual issues.

In support of its motion, the Applicant has submitted an "Updated Master Plan" dated May 5, 1995, prepared by Clough, Harbor & Associates. The master plan is a description of the Applicant's program to regionalize water supply in the County, including implementation and enforcement procedures, effectiveness to date, and any planned modifications in the future.

The Applicant and Staff argue that inclusion of the Updated Master Plan resolves any outstanding issues regarding public necessity as certified for adjudication by the February 23, 1995 Interim Decision. In the Staff's view, the supplemental information contained in the updated plan is sufficient to conclude that if implemented, the Applicant would benefit users by increasing system reliability, provide for greater operational flexibility, and greater water rate stability.

The Companies contend, however, that the master plan contains information that is not correct, that the existing source of supply will be more intensively used, and since the Applicant is regionalizing the supply, it needs to determine the adequacy of the water resource and whether or not alternative supplies might be available to the Applicant to serve the needs noted in the Updated Master Plan.

The Applicant's water supply application as initially submitted proposed only to take over the existing Companies' water supply system. The Applicant now relies on the asserted benefits of regionalizing its water system to include the system owned by the Companies in concluding public necessity exists. According to the Applicant, regionalization involves the acquisition of not only the Companies system, but the Saratoga Glen Hollow Water Supply Corporation in the Town of Stillwater, and interconnecting these systems. See, Updated Master Plan, p. 14.

The question of "public necessity" under 15-1503(2) of the ECL is intended to take into account the proposed use of the water supply resource. Here, the question of "public necessity" should evaluate the use of the resources currently used by the Companies, for the Authority's proposed utilization, including incorporation of the resource into the Authority's plans. The Companies assert, among other things, that reliability of supply to its existing customers will be adversely affected. To this extent, for example, an issue for hearing on the issue of "public necessity" remains open.

Accordingly, the Authority's motion is denied, and the matter is remanded to ALJ Montecalvo to convene a hearing to consider the issues of public necessity and provision for payment of damages. The factual matters raised in the Authority's motion, which contribute importantly to the record in this proceeding, should be taken into account at the hearing.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Ruling to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this day of September, 1995.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
_____________/s/_____________
MICHAEL D. ZAGATA, COMMISSIONER

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