Year end summary Water Dependency under New York Law Public Trust Doctrine in the Great Lakes
Water Dependency • Under NY law, the term water dependent is used in several statutes related to offshore wind. • Public Lands Law: leasing of submerged lands. • Land could likely be leased without meeting water dependent test. • Type of use not contemplated in statute. • Coastal Management Program • May affect siting if deemed non water dependent.
Uncertainty • New York’s Current Definition: “an activity which can only be conducted on, in, over or adjacent to a water body because such activity requires direct access to that water body, and which involves, as an integral part of such activity, the use of the water.” • A Better Definition: “An activity that must physically be located in, on, over, or adjacent to water in order to conduct its primary purpose and which, therefore, cannot be located inland.” • Best solution may be to enact legislation specifically tailored to offshore uses.
Public Trust Doctrine • If NY or another state through executive/legislative branch allows permitting to go through, how will judiciary react? • PTD is a common law judicial doctrine affecting all states, acts as a check on self-serving, shortsighted legislative/executive.
Alienation of Trust Lands • Illinois Central R.R. : Landmark U.S. Supreme Court case held that legislative grant of land to private entity was invalid; State holds title to land in trust for benefit of public. • Not necessarily anti-development. State must retain title to land in most cases.
Public Purpose • Any grant of rights in trust lands must have a public purpose • E.g., a water filtration plant, an exposition hall • But not a steel plant. Economic benefit not enough. • Public purpose of offshore wind? • Promoting renewable energy • Local environmental effects(e.g., less coal emissions) • Climate Change • Studies have shown detriment to Great Lakes • Not merely an economic benefit.
Courts vs. Legislature • Legislative Declaration: Not necessarily enough. • Evidence that the courts will give some deference to legislature. • Open, recorded process. • All policy considerations taken into account. • Public uses cannot be impaired • Traditional uses: navigation, fishing, commerce. • Modern uses: includes ecological, environmental aspects.
Conlusion • GLWC may wish to suggest each state enact a comprehensive legislative scheme for leasing lands for offshore wind projects to ensure states comply with both public trust obligations and alleviate uncertainty w/ water dependency requirements.