Jeff Gratz
New York City Watershed Team
U.S. Environmental Protection Agency
290 Broadway, 28th Floor
New York, N.Y. 10007

Re: EPA Review of New York City’s Filtration Avoidance Determination

Dear Mr. Gratz:

In May 1997, the U.S. Environmental Protection Agency (EPA) conditionally exempted New York City from federal requirements to filter the Catskill/Delaware system –a Filtration Avoidance Determination (FAD). In April 2002, the EPA will evaluate whether New York City can continue to avoid filtering drinking water from its Catskill/Delaware water supply– the source of almost 90% of its drinking water. As EPA noted in its mid-course review, "the primary focus has been on developing and implementing watershed protection and remediation programs. As these programs move from the planning to the implementation phase, it becomes imperative that resources be targeted to program evaluation and to program enhancement." NYPIRG would like to take this opportunity to provide comment on improvements to the 2002 FAD.

NYPIRG is New York State’s largest student-directed research and advocacy organization, focusing on consumer protection, government reform and environmental preservation. We have long been active in supporting New York City Watershed protection and one of five environmental organizations that is a signatory in the 1997 Watershed Memorandum of Agreement (MOA), which was designed to carry out many of the FAD requirements, and a member of the Watershed Protection and Partnership Council.

Background

The New York City Watershed, extending 125 miles north and west of the City, is comprised of two distinctive sections: West of Hudson (WOH) and East of Hudson (EOH). The WOH Catskill/Delaware Watershed covers about 1,900 square miles and consists of the Askokan, Schoharie, Rondout, Neversink, Pepacton and Cannonsville reservoirs, that supply approximately 90% of the City’s potable water to more than 9 million consumers in New York City, as well as parts of Westchester, Putnam, Orange and Ulster Counties. By contrast, EOH, or the Croton Watershed located entirely east of the Hudson River, covers an area of about 375 square miles and consists of 10 smaller reservoirs and 3 controlled lakes that supply about 10% of the City’s water supply. The combined systems have a delivery capacity of 1.3 billion gallons of water daily.

The federal Safe Drinking Water Act (SDWA) requires that all drinking water taken from surface water sources, such as lakes, streams and reservoirs, be filtered to remove microbial contaminants. However, if the water supplier can demonstrate it meets strict water quality, operational and watershed control criteria, the SDWA allows EPA to grant a filtration waiver.

National Research Council Study

In 1997, the National Research Council (NRC) whose members were drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine, under the auspices of the Water Science and Technology Board (WSTB), established a Committee to Review the New York City Watershed Management Strategy. The Committee’s study, which we cite in our comments, "Watershed Management for Potable Water Supply" outlines specific steps for the City to take to protect water quality. As the Committee noted, "Although watershed management is important for any surface water supply, it is critical for an unfiltered supply."

FAD 2002 IMPROVEMENTS

Land Acquisition and Stewardship Program

Under the MOA, the Land Acquisition Program’s purpose is to enable the City to assemble sufficient "buffer" lands around the reservoirs, their tributaries and other important land features in order to protect water quality. The program, based on offering fair market prices on a "willing seller/willing buyer basis," required the City to solicit owners of 355,050 acres of eligible land and commit $250 million, with the possibility of adding another $50 million, to acquire property and conservation easements in the Catskill and Delaware Watershed. While not a FAD requirement, under the MOA, the City was to spend $10 million and New York State $7.5 million to acquire land in the Croton System.

Eligible lands within the watershed were categorized according to their level of importance–Priority Area 1A being the most critical, Priority Area 1B, Priority Area 2, Priority Area 3 and Priority Area 4–each with specific acreage milestones.

As of March 31, 2001, the City actually purchased just 14, 575.45 acres. Only 12% (1737.73 acres) were in the critical Priority Area 1A; 40% (5889.41 acres) were in Priority Area 1B; 26% (3812.39 acres) in Priority Area 2; 5% (701.43 acres) in Priority Area 3, and 17% (2434.49 acres) in Priority Area 4.

NYPIRG is concerned about the progress of the acquisition rate in the Kensico Reservoir basin, a Priority Area 1A. The Kensico Reservoir is a terminal reservoir: it is the last stop for approximately 1.3 billion gallons of water before heading to the Hillview Reservoir in Yonkers for distribution. Located in central Westchester County, it receives most of its water from two aqueducts coming from the Catskill/Delaware system watersheds. Unfortunately, the Kensico watershed is already the most densely populated watershed in the Catskill/Delaware system and despite this reservoir being the linchpin of the New York City Watershed system; the land acquisition rate has been dismal. While the acquisition program has been in place for a number of years, according to the New York City Department of Environmental Protection’s (NYCDEP) status report, the total amount of land acquired in the Kensico has been 16.7 acres (this number may have recently increased to 35 acres) out of a possible eligible 950 acres.

Recommendations

The implementation of sound land-use policies must be a major component of any serious efforts to protect New York City’s water supply. Permanently securing buffer zones around water supply areas has proven to be a lasting and fiscally prudent measure in preventing water quality degradation in many regions across the nation. As long as land remains on the market, it is a prime target for development. The best way to prevent development is to purchase the land or enter into conservation easements. However, we believe the present Land Acquisition Program is inadequately funded, not pursued aggressively enough and does not include new land areas that are sensitive.

DEP land acquisition benchmarks should not be based on acreage solicited, but rather on acreage actually acquired or under conservation easements. Since the City may acquire parcels of any size in the critical Kensico Reservoir drainage basin, the City should provide EPA with a detailed "action plan" to acquire land there. The City should appropriate the additional $50 million to this program so that more land can be protected and given the limited resources it should be done according to priority.

All of the solicitation milestones outlined in the MOA in Priority Areas 1 and 2 have been met and DEP does not have to re-solicit landowners in these two areas until 2007. We believe this undermines the purpose of the Land Acquisition Program, to protect water quality. Instead, DEP should re-solicit these landowners, be more responsive to offers or inquiries from landowners and be more diligent in following through in a reasonable timeframe. They should also streamline the acquisition process and offer conservation easements as an inducement for landowners who are reluctant to sell their properties. In addition, DEP should utilize the expertise of land trust organizations such as the Trust for Public Land and the Open Space Institute, both signatories to the Watershed Agreement, which have the staff and knowledge to facilitate acquisitions. DEP should be urged to take advantage of this valuable resource.

The water supply permit for the City’s land acquisition program should be revised to allow for inclusion in the program certain lands that previously were not eligible because they did not conform to the Natural Features Criteria. Presently, only land that meets any one of the following land features criteria may be acquired: lands within 300 feet of a stream, within 1000 feet of a reservoir, containing wetlands, floodplains, and slopes greater than 15%. In addition, only vacant parcels (i.e., free of habitable structures) will be considered for acquisition, however, conservation easements may be acquired on working landscapes, such as farms, and in villages and hamlets.

The Land Acquisition Program eligible area should be expanded to include the Croton Watershed. The Croton system supplies about 10% of New York City’s water supply and up to 30% in times of drought and high turbidity levels during the spring runoff. In the event any part of the Catskill/Delaware System is taken off line for repair, the Croton system will be relied upon even more. Therefore, the Cross River and Croton Falls Watershed, both Priority Areas A, should be included in the land acquisition program. While the EPA has previously expressed reluctance to include these two important watersheds, we believe their inclusion is imperative.

DEP should also simplify the hiking permit for the acquired lands to allow for greater public access as long as it does not impinge on water quality. This permit allows such activities as, bird watching, nature observation and photography, snowshoeing, cross-country skiing, walking as well as fishing on the streams and ponds (special fishing permits are required at the reservoirs). Allowing access without a cumbersome application will enhance good relations with the upstate communities, which are stewards of our water supply

Non-Point Sources of Pollution

EPA, in its mid-course review of the 1997 FAD, recommended that DEP develop a detailed strategy to address non-point sources of pollution in the Catskill/Delaware basins located EOH. They recommended that this strategy focus on key non-point sources of pollution such as stormwater runoff, failing septics and streambank erosion.

Stormwater Runoff and Impervious Surfaces

Growth pressures are increasing in the Watershed, especially East of Hudson. According to the U.S. Census Bureau, Putnam County is the third fastest growing county in the U.S. with a population increase of 14.1% in the last ten years. This increase translates into demand for new water supplies, construction of on-site septic systems or use of wastewater treatment plants, the conversion of natural vegetative land into impervious surfaces and an influx of chemically maintained landscapes.

According to the Center for Watershed Protection, impervious coverage is the biggest problem facing urban watersheds and streams. Impervious surfaces are mainly constructed surfaces–rooftops, sidewalks, roads and parking lots–covered by impenetrable materials such as asphalt, concrete and stone. Studies indicate the impervious surfaces are nearly 100% hydrologically active–meaning they generate surface runoff–and high percentages of such surfaces occur within urbanized areas containing commercial, industrial, transportation and medium to high-density residential uses. The environmental impacts of impervious surfaces are not limited to increases in stormwater quantity. Instead, these impervious surfaces usually involve permanent impacts to the land that result in the land not being able to be returned to its natural state. Once an impervious surface is constructed, it will affect the quantity, velocity and quality of stormwater resulting in impacts to nearby waterbodies.

Impervious surfaces collect and accumulate pollutants deposited from the atmosphere, leaked from vehicles or derived from other sources. "[A] partial list of what may be expected on roads and bridges and thus also along the roadside shoulders and ditches include:
asbestos from brake linings and clutch linings; bacteria from animals and birds, soils, litter, livestock hauling, livestock waste hauling; bromide from auto exhaust; cadmium from tire fillers and insecticides; chloride from road salts; chromium from plating, moving engine parts and brake linings; copper from plating, bearing and bushing wear of moving engine parts; cyanide from deicing road salts; fungicides from roadside maintenance; herbicides from roadside maintenance; insecticides from roadside maintenance; iron from auto bodies, moving engine parts, bridges, guardrails, overpasses, lamp standards, etc. and other structures; lead from gasoline, tire fillers, lubricating oil and grease, bearing wear; manganese from moving engine parts and gasoline additives; nickel from diesel fuel, lubricating oil, bushing wear, brake linings, asphalt paving and metal plating; nitrogen from the atmosphere and from fertilizers; particulates from pavement wear, vehicles, the atmosphere and road maintenance; PCBs from pesticides, atmospheric deposition, tire catalyst; pesticides from roadside maintenance; petroleum from paving, fuels spills, engine blow-by, lubricant leaks, antifreeze and hydraulic fluids; phosphorus from the atmosphere and from fertilizers; potassium from the atmosphere and from fertilizers; rubber from tire wear; sulphate from roadbeds, road salts and fuels; zinc from tire fillers, motor oil additives and grease."

During rainstorms or snowmelts, these accumulated pollutants are then washed off and delivered to nearby water bodies.

Recommendations

DEP should conduct a comprehensive analysis of the amount of imperviousness in the watershed. Impervious cover is a very useful measure to predict current and future stream quality. A good model is the University of Connecticut’s Non-point Education for Municipal Officials (NEMO) Project, an educational program for local land use officials that addresses the relationship of land use to natural resource protection. NEMO assists communities in dealing with non-point pollution by utilizing Geographic Information System (GIS) mapping of basins and sub-basins to identify and measure imperviousness. The central tenets of their program are that water quality is a function of land use, that nearly all land-use decisions are local, and that local land-use decision-makers need understandable and useful tools to help them make informed decisions and to develop environmentally sound land-use plans.

Once DEP develops information on imperviousness, it should be made publicly available on the Internet to allow stakeholders access to this information. This way impacts from new developments can be evaluated more readily.

There should be limits to the amount of impervious surface in each watershed basin. Studies conducted in the Pacific Northwest indicate that urban stream stability exists at about 10% imperviousness, but that beyond that level resulted in unstable and eroding channels. In Central Florida, for example, many cities such as the City of Lake Mary have zoning ordinances that limit the percentage of impervious area on a site that can be developed.

Attention should be placed on minimizing parking areas. Studies show that parking is the largest component of impervious cover in commercial and industrial zones. Unfortunately, minimum parking requirements are often based on useable floor space of a building, and a variance is usually needed to reduce the number of parking spaces. To change this practice, zoning ordinances would need to be revamped. While this may not be well-received at first, incentives could be given to communities that restrict parking areas, especially those that eliminate or redesign with pervious cover or a mix, the overflow parking areas (i.e. holiday parking), which lay dormant for most of the year. New York State should work with local governments to limit the amount of impervious coverage by offering matching funds or tax incentives for green projects that use environmentally-friendly site design that establish water quality protections.

DEP should review all proposed projects within the watershed and compel developers to limit the amount of impervious coverage, and control sources of pollution with preventive measures.

Preventive measures, also called source controls, are some of the most effective methods of mitigating stormwater pollution. Preventing pollutants from entering stormwater at their sources is generally less expensive and more effective than trying to remove pollutants after stormwater has been contaminated.

"Best management practices for urban areas, specific to source control, include such actions as: requiring the collection and removal of animal wastes from curbsides, yards, parks, roadways and other areas before the waste can be washed directly into receiving waters; requiring adequately sized secondary containment facilities to handle leaks, breakage, vandalism and other storage tank ruptures; installing sanitary sewers; requiring on-site waste treatment facilities; inspecting septic tank systems regularly and requiring regular pump-out; requiring qualified, licensed operators for sewage treatment facilities; removing and banning stormwater connections to sewer systems; banning sewer overflow events and requiring holding facilities; constructing runoff diversion works; leaving or establishing buffer zones; strips of vegetation, either natural or planted, around water bodies; such vegetated zones help reduce the impact of runoff by trapping sediment and sediment-bound pollutants, encouraging infiltration and by slowing and spreading stormwater flows over a wide area; providing setbacks which are restrictions on development activities within a specified distance of a stream bank or other water resource; they prevent or minimize erosion and gully formation, thus minimizing sedimentation and associated nutrient enrichment downstream; establishing or acquiring easements; "green belts" around water ways which can be used to protect the water and also provide parks and recreational areas for residents; they may be negotiated with landowners and passed on to future owners as part of the deed to the property or purchased outright; removing sections of existing curb and installing curb outlets at regular intervals or in appropriate areas to allow the stormwater to flow onto well-vegetated areas; requiring municipal maintenance programs and commercial and industrial stormwater permittees to clean inlets, catch basins, clean-out access points and outlets regularly; installing forebays where feasible, prior to entry into collection or settling ponds; implementing water pollution and source control education programs for everyone; avoiding release of exotic or native aquatic pets into local waters; giving unwanted aquatic pets to someone else or euthanizing them and burying them; composting unwanted aquatic plants from aquaria or garden pools; returning, where possible, unwanted organisms to the store for resale; taking, where possible, unwanted pets to the SPCA for adoption; moving materials indoors or removing materials, products, devices and outdoor manufacturing activities that contribute to stormwater pollution when exposed to the weather; carrying out an inventory of the items on commercial and industrial sites that are exposed to rain may provide useful information and a starting point for exposure-reduction activities; enclosing, partially or totally, stockpiled or stored material, loading and unloading areas or processing operations to reduce the amount of pollutant that finds its way into the stormwater; implementing just-in-time management of materials and finished products to minimize the amount of materials in the stockyard and at the loading dock; carrying out preventive site maintenance to reduce leaks, breakdowns, spills and accidents to reduce the amount of pollutants available to enter stormwater; cleaning and trash pick up of grounds, parking lots and road sweeping, and disposal of old, unused equipment to reduce the contamination of the stormwater; establishing training, spill prevention and response programs to prepare commercial and industrial employees-this will pay off with reduced contamination of the stormwater; sweeping streets before flushing hydrants to reduce the amount of pollutants available to enter stormwater; routing the discharge water from building sprinkler systems to the sanitary sewer when possible; when this is not feasible direct the water to a holding pond and subsequently a treatment lagoon, grassy swale or groundwater infiltration gallery; do not discharge directly to surface waters unless tests indicate adequate water quality; establishing regulations for business and industry to use native, hardy perennial species which require less fertilizer and water than common landscape varieties; requiring professional landscaping services to minimize fertilizer and pesticide use and restrict application to the growing season; encourage local governments to start programs for area-wide composting using yard wastes picked up at the curb; collecting and recycling community hazardous waste and waste oil at designated centers to remove some of the most polluting substances from places where the substances can enter stormwater runoff; connecting the drains from vehicle washing areas to the municipal sewer or sanitary sewer system to prevent discharge of the wash water into a nearby stream; using non-toxic or non-hazardous materials in place of hazardous materials, such as water-based degreasers and water-based inks to reduce the amount of solvents and chemicals that enter the environment; conducting regular sweeping of streets, sidewalks, access roads, parking lots, truck aprons and loading dock areas rather than washing; if washing becomes necessary, sweep first to remove most of the material and prevent it being washed into the storm drains."

Education of management and technical personnel on the importance of the redesign of structures to reduce the amounts of pollutants entering stormwater and accumulating on impervious surfaces is another important source control. Reducing the amount of imperviousness in the watershed and stopping pollution at the source should be the key defenses against non-point source pollution.

On sites already developed, Best Management Practices (BMPs) that are non-structural should be employed. Vegetative controls, such as grassed channels or swales designed to limit erosion and enhance the setting of suspended solids or filter strips of grass for sheet flow, which act to increase infiltration and filter pollutants from stormwater runoff.

Other BMPs such as constructing and maintaining wetponds where the conditions are appropriate; using or rehabilitating and maintaining natural wetlands where the conditions are appropriate; constructing and maintaining sand filters where the conditions are appropriate; constructing and maintaining porous pavements where the soil characteristics are suitable; constructing and maintaining oil and grease traps; constructing stormwater first-flush pollution traps with a storm-event bypass to prevent collected pollutants from being flushed through the system during a later heavy flow; constructing and maintaining infiltration basins where the soil characteristics are suitable and constructing and maintaining suitably landscaped dry retention basins may be taken, in conjunction with preventive measures (source controls) and reduced impervious site design, to mitigate and reduce the amount of non-point pollution and stormwater flows.

Increased attention should also be placed on controlling construction runoff. As land becomes compacted during the construction phase due to the weight of heavy machinery, it performs like impervious surfaces by facilitating runoff. Stormwater Pollution Prevention Plans (SPPP) should be required during the design review stage, before construction begins, and include BMPs to stabilize the surface and control runoff. It is important that DEP monitor the BMPs for effectiveness throughout the construction phase and adjust accordingly.

As noted above, DEP should review all SPPPs at the design stage, before the plan has gone forward in the process. DEP should look at the viability of a BMP and require that developers be responsible by using measures that have a greater chance of success. For example, on a subdivision it may be cheaper for the developer to have small individual BMPs for storm runoff for each lot; however, absent on-going maintenance these BMPs are essentially useless. Homeowners may initially maintain the BMP but over time, and as the lot changes from one homeowner to the next, the likelihood of proper maintenance diminishes. Instead, DEP should require developers to put in the appropriate available BMP^, such as one wet pond for the subdivision that would mean maintenance of one large pond that is the responsibility of one entity instead of 50 individual ponds relying on 50 different people.

Presently, New York State is developing a new stormwater-permitting scheme. The State has hired the Center for Watershed Protection (CWP) to create an enhanced stormwater permit for the East of Hudson. EPA should monitor the development of the new general permit to ensure that it is effective and, given the intense development EOH, completed and ready to be used as soon as possible. The State should also develop a stormwater design and engineering manual that can offer guidance to watershed management planners.

Finally, for any BMP to be effective there needs to be an evaluation of the BMPs long-term performance and requisite scheduled maintenance. Studies show that maintenance practices play a key role in the longevity of a BMP and its ability to assimilate pollutants. Maintenance will be a driving factor in whether or not the stormwater quality effort will succeed or fail. DEC should provide a stormwater design and engineering manual with detailed performance criteria for individual BMPs used throughout the watershed.

Septic Systems

Septic systems, also called on-site sewage treatment and disposal systems (OSTDS), can act as sources of nitrogen, phosphorous, organic matter, and bacterial and viral pathogens for any of a number of reasons related to inadequate design, inappropriate installation, neglectful operation, or exhausted life expectancy.

There are some 30,000 septic systems West of Hudson, with an estimated 50% being substandard that could potentially be the sources of microbial pathogens and nutrients. The Septic System Rehabilitation and Replacement Program was to rehabilitate septic systems serving single or two family residences in the West of Hudson Watershed that are failing or reasonably likely to fail in the near future, and to replace or upgrade substandard systems that do not meet current State and local standards. The program administered by the Catskill Watershed Corporation (CWC) involved the inspection and pumping-out of septic systems to determine whether rehabilitation or replacement was appropriate. Because of insufficient funding for the program, the CWC limited replacements and rehabilitations of systems to within the 60-day travel time.

Recommendations

According to the National Research Council report, the technologies used throughout the Cat/Del are inadequate and do not represent best available control technologies. Instead, they recommend that aerobic treatment units, which could substantially reduce effluent concentrations of Giardia, Cryptosporidium, fecal coliforms and viruses, be mandated for new and replacement systems including obligatory annual inspections, especially in the critical Kensico watershed While the CWC began installing aerobic systems in the watershed on a limited basis, this needs to become the standard practice.

Failing septic systems need to be detected earlier, funding for the program needs to be increased significantly and the program should expand to include systems installed pre-1997, systems beyond the 60-day travel time and systems East of Hudson. For proper function, all systems should be suited for their site, be installed properly by a trained professional and be maintained on a regular basis.

Septic systems should not be sited on steep slopes. EPA recommended to the City in its Mid-Course review, "that NYCDEP (with the support of NYSDOH) enforce the plain and unambiguous reading of Appendix 75-A and not allow septic systems on slopes greater than 15% and not allow septic systems that need significant grading for the expressed purpose of reducing the slope to 15%." This restriction should be extended to commercial and industrial sites as well as residential.

The MOA called for a study on the effectiveness of using galley systems in treating sewage in the watershed or surface water supply system. In the event this study concluded this is not an effective treatment method, the City will propose appropriate revisions to the Watershed Regulations to the NYSDOH for approval and promulgation.

The study revealed that galley studies do not provide adequate treatment and pursuant to the MOA, in June of this year, the DOH sent a letter to DEP agreeing with the City’s proposal to amend the Watershed Rules and Regulations, "Mound systems, galley systems, intermittent sand filters and evapotranspiration/absorption systems are prohibited from use in the watersheds." DEP should ensure that these Regulations are released immediately to stop the damaging practice of using galley systems.

Streambank Erosion and Restoration

Streambank erosion occurs naturally over time in fluvial systems; however, human activity such as channel modification and land use changes can induce or exaggerate erosion. These streambanks can be restored or protected either by increasing resistance of the bank to erosion or by decreasing the energy of the water at the point of contact with the bank (i.e., deflecting or interrupting flows). Research indicates that management techniques, which emulate nature and work with natural stream processes, are successful and economical.

DEP's Stream Management Program goal was to integrate flood hazard mitigation, stormwater management, protection of drinking water supply and quality, and enhancement of fisheries habitat and riparian ecosystem function, using a watershed scale assessment of fluvial geomorphology and associated hydrology and hydraulics. The MOA called for a program of Stream Corridor Protection by developing sub-basin level Stream Corridor Management Plans (SCMP) that were to utilize "natural channel stability" concepts and restoration demonstration projects on priority streams. 

Recommendation

There should be in effect a multi-objective, watershed-scale, community-based stream management plan. Unfortunately, this is another DEP program that is under funded and inefficiently run. To be more effective, there needs to be increased funding and more responsiveness to watershed communities that notify DEP of stream erosion in their areas. For example, residents along Route 28 in Phoenicia who have property along the Esopus Creek, have informed NYPIRG that the level of erosion of the streambanks have been increasing at a rapid rate as evidenced by the continual loss of their backyards. While DEP appears to be addressing stream restoration upstream, they have overlooked the need to address the problem in its entirety. Mitigation measures to directly repair eroded streambanks, such as live stakes, fascines, cribwalls, gabions, and revetments, and a means of reducing any artificially heightened erosivity of stream flows at their source, such as routing runoff in grass swales, using detention ponds and providing discharge spreader swales, may have to be installed at some cost to the residents. However, it appears to be a preferable alternative to having their homes slip into the water.

According to the study conducted by the National Research Council, "Based on an analysis of travel times, existing literature, and a model analysis, many of the current setbacks are inadequate and should be revised. Also, because of their variable pollutant removal abilities, buffer zones should not be relied upon to provide the sole non-point source pollution controls and are instead best used when integrated with appropriate source controls on pollutant releases."

The setback distances should be extended and buffer zones should be protected from any disturbances, including installing BMPs, to conform to the recommendations of the National Research Council. These buffer zones should be considered untouchable and not offered up in ill-conceived roadway expansions or for use in a BMP mitigation scheme.

Wastewater Treatment Plant Upgrades

The Wastewater Treatment Plant (WWTP) Program of the Memorandum of Agreement required upgrades at wastewater treatment plants discharging directly into streams of the New York City watershed to remove 99.9% of disease-causing pathogens, Giardia cysts and Cryptosporidium oocysts, that are resistant to chlorination. In addition, the upgrades would remove phosphorous, which causes algae blooms in reservoir.

The objectives of the program were to ensure compliance with New York State Pollutant Discharge Elimination System (SPDES) permit requirements, and to reduce pollutant loading impacts from municipal and privately owned WWTPs operating in the New York City watershed.

According to a report by the New State Attorney General, the City is grossly behind in these upgrades and will not be able to comply with the 2002 deadline. The delays in the upgrades of these plants affected other pollution control measures as well, such as the creation of the new sewage infrastructure for seven problem communities.

Recommendations

Since the City has done such a poor job with this MOA requirement, the upgrade of these plants should be monitored very closely by both the State and EPA. Intervention should occur immediately if it is determined that there are any further unnecessary delays.

The upgraded SPDES permits were designed as interim controls until all of the WWTP within the watershed are upgraded. Given the delayed schedule of upgrading these plants, there needs to be a greater focus on enforcing the terms of the SPDES permits. According to compliance reports, there were a number of plants exceeding their permits and unless enforcement is strengthened to force violators into compliance, there will be continued excess discharges into waterbodies in the watershed.

The phosphorous offset program should be discontinued until these phosphorous limited basins are restored.

New Sewage Infrastructure

The MOA identified seven high priority communities, that are experiencing water quality problems due to failing septic systems in close proximity to streams and other water courses or where such failures are likely to occur in the future, to be the first participants in the new infrastructure program – Hunter, Prattsville and Windham/Hensonville in Greene County; Andes, Fleischmanns and Roxbury in Delaware County; and Phoenicia in Ulster County. While all seven communities have completed a study of wastewater flows, potential service areas, investigation of the feasibility of subsurface discharge, and for conceptual plans and are now entering the design phase, none have actually been constructed and, instead, the first of the new wastewater facilities is expected to be completed and in operation in 2003.

Recommendations

The $75 million allocated under the MOA to fund the New Sewage Treatment Infrastructure Program (NSTIP) was inadequate. Although not a FAD mandated program, the NSTIP addresses, in part, FAD goals. Additional funding is needed to address the failing septic systems in the remaining areas. Since the entire program has been proceeding at a dawdling pace, it needs an overhaul. We are approaching the end of the1997 FAD and yet not one new facility is constructed. Given this poor record, EPA should oversee the progress on all of the plants.

Monitoring

The effectiveness of the Watershed Rules and Regulations will be determined programmatically and through water quality monitoring and modeling. According to the National Research Council, water quality monitoring has four general objectives: compliance monitoring; operational monitoring; performance monitoring and monitoring for support models.

Recommendations

In the Mid-Course Review, EPA recommended that the City conduct a rigorous analysis of its current monitoring arrays to determine their adequacy to detect trends, and to measure pollutant reductions, within and across watershed programs, at the basin and sub-basin scales; that the City lay out a specific "roadmap" to show how it intends to utilize these data to measure program success, and that the City develop a comprehensive strategy to integrate, analyze and disseminate the date it collects from its watershed monitoring program and to facilitate this effort, the City should re-institute its Annual Water Quality Report.

NYPIRG noted in its comments to EPA’s mid-course review, "the State and City were repeatedly urged to integrate monitoring programs to evaluate whether initiatives were improving or maintaining water quality," however, the City did not comply then and still does not. Instead, while the City seems to be in a constant state of accumulating data, there is no analysis available that could be used to determine the effectiveness of water quality initiatives. DEP should analyze the valuable data collected and present it in a reasonable timeframe and in a readable format for use by watershed stakeholders. Reports should be released on a regular basis in both hardcopy form and on the Internet to allow for easy access. Additionally, if requested, DEC, DOH, and DEP, must make its data available to third parties–particularly existing computer data–for independent analysis. To achieve this effective monitoring level, EPA should oversee DEC’s, DOH’s and DEP’s compliance.

Enforcement

The MOA included the first revision of the City’s watershed regulations since 1953. The regulations serve as the first defense against pollution, and dramatically strengthen the City’s legal ability to protect water quality. The regulations establish standards for the design, construction and operation of wastewater treatment plants; set design standards and setback requirements for septic systems; and require stormwater control measures for commercial, residential, institutional and industrial projects. They also provide for City review and approval of a variety of types of activities that could harm water quality, with strict time frames for review and decision-making, expedited procedures in emergencies and rights of appeal.

Recommendations

EPA should take a critical look at the City’s implementation and enforcement of the New York City Watershed Rules and Regulations. DEP’s poor execution of the Waste Water Treatment Plant Upgrades illustrates the need for oversight from outside. DEP should be required to have in place methodology for determining the effectiveness of the Watershed Rules and Regulations and, if necessary, recommend specific evaluation procedures to achieve this end.

Watershed Education

Watershed education is a valuable tool to change practices throughout the watershed that are injurious to water quality. Adequate resources need to be allocated and various outreach methods employed to reach the greatest number of watershed residents. Involving stakeholders in the watershed protection process is valuable. Adopt-a-Stream programs across the country, such as those in Alabama, Georgia, Texas and California, have been successful in reducing streambank erosion and cleaning up stream banks.

Information for planners, policy-makers, elected officials, zoning boards, educators and the general public needs to be made available is a user-friendly format on progress of programs within the watershed.

Transfer of primacy

Although the EPA is slated to turn over state primacy of New York City’s water supply to the New York State Department of Health (NYSDOH) in 2007, we urge the EPA to reconsider. Given the State’s inadequate monitoring of MOA watershed protection programs, EPA must continue to retain primacy and oversee the City and State in their efforts to protect this important water supply.

Additional Recommendations: Addressing Sprawl in the Watershed

Sprawl-style development is one of the gravest threats to the water supply and to upstate communities, especially in development-heavy areas EOH. Among other things, sprawl causes the destruction of large tracts of irreplaceable areas of farmland and forests and creates impervious surfaces leading to the toxic runoff of pollutants into waterbodies.

New growth and development bring auto dependence, which brings traffic congestion that leads to poor air and water quality. These pollution impacts may not be readily lessened by available best management practices. Following the present course, city and state officials are risking critical and irreplaceable resources in the watershed. Some of the Sprawl-style developments within the watershed are as follows:

WESTCHESTER COUNTY AIRPORT: Given the importance of the Kensico Reservoir, the threat of the nearby Westchester County Airport should be of vital concern to the City, State and Federal governments. As Westchester County undergoes revisions to the airports’ 1986 Master Plan, considerations for possible uses are underway. To protect the Kensico, there should be no expansion of any kind in either the footprint or the usage at the Airport. While the County has proposed providing buffer lands, DEP, DEC and EPA should urge them to develop an even greater amount of buffer land including returning available land to a vegetative state. They should also press for the Federal Aviation Administration (FAA) to acknowledge and address the precarious siting of this airport and its subsequent threat to public health.

BELLEAYRE: While development pressure is very heavy EOH, the WHO Belleayre project is of a magnitude that it deserves special attention. The 500 acres development, located south of New York Route 28 on the slopes of Belleayre Mountain, calls for construction of a hotel and conference center, numerous residential units and an 18-hole golf course on two separate tracts. The project site contains many streams tributary to the Pepacton Reservoir and Ashokan Reservoir. EPA, DEC and DEP should closely monitor this project given the potential impact to the watershed.

Route 22 Expansion: The New York State Department of Transportation (NYSDOT) is proposing expanding of a three-mile section of Route 22, within the Town of Southeast, Putnam County. Portions of the existing Route 22 roadway border the Bog Brook and the East Branch Reservoirs, both classified as being within a phosphorous restricted basin. Recently, NYPIRG and many other organizations worked with NYSDOT to develop a sensible low-impact for another roadway expansion within the watershed: the Kensico Highway. Originally, this ill-conceived plan called for expanding the Kensico Highway to four-lanes, taking City buffer lands and destroying critical wetlands among other things. That plan would certainly have negatively impacted the Kensico Reservoir. EPA, DEC and DEP should use the low-impact plan suggested by the advocates and largely adopted by NYSDOT as a model for addressing roadway changes in the watershed, once the need for modifications has been clearly documented.

Conclusion

While New York City still has high-quality drinking water for its residents, it is apparent that strong leadership has been absent. Since the signing of the MOA, City officials have been remiss in adequately implementing and enforcing many of the programs designed to ensure continued safe drinking water. In their absence, watershed activists–local residents, environmental and public health organizations–have picked up the slack. For projects proposed throughout the watershed that threatened the integrity of the water supply, it was these concerned watershed activists that stepped forward in opposition rather than the elected officials who are charged with watershed protection.

NYCDEP was lackadaisical in its protection approach at times and put forth excuses rather than deliverables. In light of this, NYSDEC and NYSDOH need to intervene on behalf of downstate water consumers to ensure that deadlines are met, watershed violations addressed and data made available for evaluation. The Kensico Highway expansion is a good example of the "people" doing the job of government agencies. Another example is the poorly administered Waste Water Treatment Plant Upgrades that were finally focused on only after the New York State Attorney General’s Watershed Inspector General exposed the flagrant negligence in implementing this important MOA program.

The good news is New York City is about to elect a new Mayor. Recently, NYPIRG and the other members of the Clean Drinking Water Coalition–the five environmental organization that are signatories to the Agreement–submitted a watershed questionnaire to the leading Mayoral candidates and thereafter held a forum so watershed activists could hear first-hand from the candidates their position on watershed protection. The news is good. The candidates that participated in the questionnaire and forum have all expressed an understanding of the issue. We believe the FAD process should allow the next Mayor an opportunity to shape the City’s watershed protection program. The next Mayor’s first big issue should not be a fait accompli. While the FAD should be based on the failures of the old administration, the next administration should have the chance to make watershed protection an urgent priority.

Thank you for the opportunity to comment on the 2002 Filtration Avoidance Determination. Please feel free to call me at (212) 349-6460 if you have any questions.

Sincerely,

Cathleen Breen
Watershed Protection Coordinator

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