New Yorkers Must Have a Voice in Protecting Their Water Supply
August 23, 2017
Mike Dulong
Legal Program Director
State’s Filtration Decision Would Guarantee Backroom Deals for the Next Decade
Photo: Jeff Turner, CC/Flickr
The State Department of Health is now accepting public comments on the draft Filtration Avoidance Determination (or FAD) for New York City’s water supply. The FAD sets forth the water protection requirements the city Department of Environmental Protection must fulfill over the coming decade to continue providing 9 million New York City and Hudson Valley residents with unfiltered drinking water.
All New Yorkers have a stake in the FAD. If we allow our drinking water supply to deteriorate, residents would be on the hook to build a filtration plant costing over $10 billion. As for upstate residents, DEP would undoubtedly end programs that protect our water sources in the Catskill mountains and cease economic support for the region. These are some of the reasons that Riverkeeper, in partnership with Natural Resources Defense Council and Catskill Center, have advocated for strong water quality protections.
While the Health Department has proposed a number of positive revisions in the draft FAD, there are a number of concerning changes that could undermine the entire water supply protection effort. Most importantly unlike in the past, there will be no mandatory public mid-term review of the 10-year FAD. Instead, the State Health Department would give the city DEP—the regulated entity—discretion to choose whether to update the terms of its FAD.
In opposing a mid-term review, the DEP claims the FAD programs are “mature” and will not need public supervision. But in reality, the DEP is attempting to avoid future accountability and potentially costly updates. Instead of an all-encompassing public review, the proposed process would allow the city to cut backroom deals regarding the future of the water supply and the vast sums of money required to protect it.
A decade is a lifetime in the context of watershed protection. When the prior 2007 FAD was subject to a mid-term (five-year) review, the Health Department determined that a number of modifications were necessary “to enhance program effectiveness or to improve efficiency of implementation,” including:
- Creation of the City-Funded Flood Buy-Out and Local Flood Hazard Mitigation Programs in response to Hurricane Irene;
- Dedication of $10.1 million for the Stream Management Program to address Hurricane Irene-related impacts;
- Allocation of an extra $50 million for land acquisition;
- expansion of the Watershed Agricultural Program to small farms in the East-of Hudson;
- Addition of 60 farms to the Precision Feed Management Program; and
- Increase in funding for East-of- Hudson stormwater retrofits by $15.5 million.
These crucial modifications were completed in 2014. Now, just three years later, the Health Department is already reforming the FAD programs again. The current draft FAD, intended to cover the period from 2017 to 2027, has a number of important new provisions. For instance, it would expand the Small Business Septic System Program to aid septic repair at local municipal buildings and expand a pilot program for acquisition of sensitive streamside lands.
As the past has shown, the FAD almost certainly will require additional modifications again within the next five years. This time around, there is even more cause for a mid-term review than in 2007 thanks to a great deal of operational changes and new information that will become available during the first five years of the FAD term:
- Major Operational Changes
- The Watershed Rules and Regulations are expected to be modified;
- The Rondout-West Branch Tunnel is expected to be completed;
- Independent Operational and Environmental Reviews
- The National Academies of Sciences, Engineering, and Medicine (“NASEM”) will conduct an overarching review of “the City’s Long-Term Watershed Protection Plan, water quality and water quantity trends, and anticipated future activities that might adversely impact the City’s water supply;
- A NASEM expert panel will review the City’s use of its Operations Support Tool, which governs the high-volume discharges of turbid, muddy water to the Lower Esopus;
- The state Department of Environmental Conservation is expected to finalize an environmental impact statement on the modification of the Catalum SPDES permit, which will evaluate the impacts of turbid water discharges to the Lower Esopus;
- Results of Pilot Programs
- The DEP will evaluate the pilot Streamside Acquisition Program and make recommendations for improvements;
- The DEP will report on progress in extending the Conservation Reserve Enhancement Program through the Catskill Stream Buffer Initiative, including Delaware County pilot program, and submit recommendations for establishment of a permanent program;
- Workgroup Conclusions
- A workgroup will assess the feasibility of a program that will protect transitioning farms with best management practice investments;
- A workgroup will assess opportunities to use Land Acquisition Program-acquired lands to facilitate relocation of development out of the floodplain;
- A workgroup will devise a Watershed Emergency Stream Response and Recovery Plan;
- DEP Reports
- The DEP will continue to “develop future climate scenarios for use as inputs to the City’s Watershed and reservoir models”;
- The DEP will evaluate need, opportunities, and options for enhancing riparian buffer protection efforts in Kensico and East-of-Hudson Basins;
- The DEP will finalize town level assessments identifying the potential impact of additional land solicitation in those municipalities;
- The DEP will submit an updated Watershed Forest Management Plan;
- The DEP will submit an updated Wetlands Protection Strategy;
- The DEP will evaluate the Watershed Agricultural Council Forest; Conservation Easement Acquisition Program and NYC-Funded Flood Buyout Program;
- The DEP will submit an updated Invasive Species Implementation Strategy;
- The DEP will submit a Long-Term Land Acquisition Plan for the period 2023-2033; and
- The DEP will submit a Water Quality Monitoring Studies first five-year report.
It is certain that the results of these many efforts will necessitate changes in the FAD. The public must have an opportunity to give input on changes it deems necessary.
The five-year review should not be limited to only the changes desired by DEP. As the primary agency charged with issuing the FAD, DOH has authority to require the mid-term review. Ceding this authority to DEP would allow the DEP to undermine public oversight and accountability.
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