NYC requests longer period between water supply studies

Latest application limits reviews to every 10 years

A Sept. 5 deadline for comments about New York City’s management of its reservoirs in the Catskills is approaching, and the environmental watchdog group Riverkeeper is warning it could be the last chance for residents to raise concerns about impacts on the watershed region for another decade.

Riverkeeper attorney Michael Dulong said the draft application by the city for a permit to avoid filtration of its water would stretch the periodic review of its operations from five years to 10.

New York City is seeking continued permission not to filter its Catskill-sourced drinking water, thus avoiding new infrastructure costs. The cost of building filtration plants for the city’s Catskill/Delaware water has been estimated at up to $12 billion, with an additional annual operating cost of $350 million,

Upstate officials and watchdog groups have used review of the city’s permit to monitor and force changes in the city’s management of the system.

“When the (filtration avoidance determination) came out in 1997, it was a five-year (permit),” Dulong said. “It continued that way until 2007, (when) it was a 10-year (period) ... with a five-year review. There were a number of important changes in that five-year review and history has shown that every five years, this thing needs to be updated.”

Dulong said any interim reviews of the filtration avoidance determination, which is essentially a permit issued by the state Department of Health, would be at the discretion of the city under the proposed permit.

“It’s only if the (New York City) Department of Environmental Protection wants to make changes,” he said. “It’s not the state Health Department that regulates it. It’s the Department of Environmental Protection, the regulated entity, that gets to make the decision.”

From October 2010 through February 2011, and roughly the same period in 2011-12, the city agency released up to 600 million gallons per day of turbid water were made as part of its long-term management plan, with officials touting use of the “waste channel” connecting the Ashokan Reservoir and Lower Esopus Creek as a cost-saving method to dispose of the muddy water. By sending muddy water from the reservoirs, the city improved the quality of its drinking water, but fouled the Lower Esopus Creek. The state Department of Environmental Conservation in October 2012 levied a $2.74 million penalty against the city for making the turbid releases into the Lower Esopus without approval, although the fine largely consists of programs that the city would fund in the event an environmental review of the creek is conducted.

Planned studies are expected to assess the impact of muddy water discharges from the Ashokan Reservoir into the Lower Esopus Creek. Without a required five-year review, Mid-Hudson communities would be unable to use those findings to require changes in how the city is operating the system, Dulong argued.

“There’s going to be a lot of reports that come out before a five-year review would come up,” Dulong said. “In the (proposed permit) now, there is nothing but lip service for the Lower Esopus.”

References to the Lower Esopus Creek had not been part of filtration avoidance determination prior to the five-year review of the 2007 document. The current draft is the first time the document has referenced actions required as a result of “impacts to the Ashokan Reservoir, Lower Esopus Creek, and Kensico Reservoir,” saying the “city is required to ... analyze the potential environmental and socioeconomic impacts” of turbid water releases.

State Department of Health officials have been unavailable to discuss the document and a department employee assigned to answer questions from the public would only provide information if it were not used for publication.

Adam Bosch, a spokesman for the city Department of Environmental Protection, said Friday said there would be no comment on Riverkeeper’s concern about discontinuing midterm reviews. However, he said, references to the Lower Esopus Creek should not be considered part of the filtration avoidance determination.

“The Surface Water Treatment Rule, which is the federal rule that begets the filtration avoidance determination, sets forth that

the only things that can be in the (permit) are activities and programs that the water supplier must carry out, must fund, must oversee to meet the criteria in that rule that allow the water supply to remain unfiltered,” he said.

However, Dulong countered,

the Surface Water Treatment Rule cannot be used to violate state laws.

“A state agency or a federal agency would not be able to authorize something it knows is going to violate another law,” he said. “The Department of Health cannot say ‘you can do this even if it’s going to result in the burning down of a town.’ They wouldn’t have authority to do that.”

Dulong’s argument appears to be supported by the U.S. Department of Environmental Protection implementation guide for the surface water treatment rule.

“EPA and state decisionmakers retain the discretion to adopt approaches on a case-by-case basis that differ from this guidance where appropriate,” the federal agency said. “Any decisions regarding

a particular facility will be made based on the applicable statues and regulations. Therefore, interested parties are free to raise questions and objections ... and EPA will consider whether or not the recommendations or interpretation (are appropriate) based on the law and regulations.”

The federal guidance adds that a filtration avoidance determination must

consider environmental impacts.

“It is important for EPA to clearly communicate its position to state and to interpret the requirements for enforcement authority consistently,” the agency said. “Accordingly, these principles will be applied in reviewing whether enforcement authority is adequate under the ... national pollutant discharge elimination system, pretreatment and wetlands program under the Clean Water Act.”

Comments on the filtration avoidance determination can be submitted by email to fadcomments@ health.ny.gov or sent to NYC Watershed Section, Bureau of Water Supply Protection, NYS Department of Health, Corning Tower, Room 1110, Empire State Plaza, Albany, N.Y. 12237.