Matter of Sierra Club v. Martens, 2018 NY Slip Op 153

TC Ravenswood operates the Ravenswood thermoelectric station in Queens, using once-through cooling that withdraws up to ~1.5 billion gallons/day from the East River, causing significant impingement and entrainment of aquatic life.
New York enacted the Water Resources Protection Act (WRPA) in 2011, requiring permits for commercial/industrial withdrawals >100,000 gpd and directing DEC to issue an "initial permit" to existing operators based on self‑reported pre‑statute maximum withdrawal capacity.
WRPA gives DEC authority to grant, deny, or grant with conditions and requires consideration of factors including environmental impacts and water conservation measures.
DEC issued TC Ravenswood an initial permit in 2013 (later amended) authorizing ~1.39–1.5 billion gpd and treated the issuance as ministerial and not subject to SEQRA review.
Sierra Club and other petitioners challenged the DEC’s non‑SEQRA classification in a CPLR article 78 proceeding; Supreme Court denied the petition. Appellate Division reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether issuance of an "initial permit" under ECL 15-1501(9) is exempt from SEQRA as a ministerial act	The statute’s requirement to include "appropriate terms and conditions" and DEC’s authority to impose conservation/other conditions make the permit discretionary and thus an "action" under SEQRA requiring review	"Shall issue" language makes issuance mandatory for existing operators based on reported capacity, so it is ministerial and outside SEQRA	The court held the permit issuance is not ministerial; DEC has discretion to impose appropriate terms/conditions and must comply with SEQRA

Entergy Corp. v. Riverkeeper, 556 U.S. 208 (U.S. 2009) (federal BTA standard for cooling water intake structures under Clean Water Act)
Incorporated Village of Atlantic Beach v. Gavalas, 81 N.Y.2d 322 (N.Y. 1993) (SEQRA defines "action" to include permits; guidance on when agency discretion affects SEQRA applicability)
Matter of Coca‑Cola Bottling Co. of N.Y. v. Board of Estimate of City of N.Y., 72 N.Y.2d 674 (N.Y. 1988) (SEQRA requires environmental impact statements for actions that may significantly affect environment)
New York Civil Liberties Union v. State of New York, 4 N.Y.3d 175 (N.Y. 2005) (agency expertise and judgment indicate nonministerial decisions)
Tango v. Tulevech, 61 N.Y.2d 34 (N.Y. 1984) (distinction between ministerial and discretionary acts)
Tarter v. State of New York, 68 N.Y.2d 511 (N.Y. 1986) (agency determinations involving application of law and judgment are nonministerial)