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DeRham v. Diamond

Citation: 2 ELR 20499
No. No. 18798, 333 N.Y.S.2d 771/39 App. Div. 2d 302, (N.Y. App. Div., 06/29/1972) Rev'd

In an order reversing the lower court (see Scenic Hudson Preservation Conference v. Diamond, 2 ELR 20207, for the lower court opinion), the appellate court held that the State Commissioner of Environmental Conservation could issue a certificate required by Section 21(b) of the Federal Water Pollution Control Act (33 U.S.C. § 1171(b)) where there was a reasonable basis for his findings that water quality would not be significantly adversely affected by the construction and operation of a pumped storage hydroelectric plant at Storm King Mountain near Cornwall, N.Y. While the burden of showing a reasonable assurance that there would be no ill effects on water quality rests on the licensee, the failure of the opponents of the project to show the extent and the probability of adverse effects on water quality lends support to the Commissioner's action. New York City's fears that the project might harm its Catskill Aqueduct are irrelevant in this proceeding which may consider only effects on water quality.

Counsel for Petitions
Winer, Neuburger & Sive
425 Park Avenue
New York, N.Y. 10022

Counsel for Respondent
Louis J. Lefkowitz Attorney General
Ruth Kessler Toch
Stanley Fishman
Julius Feinstein
Joseph F. Gibbons
The Capitol
Albany, N.Y. 12224

Counsel for Consolidated Edison, Intervenor:
Carl D. Hobelman
G. S. Peter Bergen
LeBoeuf, Lamb, Leiby & MacRae
1 Chase Manhattan Plaza
New York, N.Y. 10005