In response to a lawsuit by Riverkeeper and our partners and following 20 years of delay, New York State has proposed the first of two new rules that are meant to update Water Quality Standards for waters around New York City. Water Quality Standards are a foundation for the Clean Water Act, defining the pollution limits for individual waterbodies. The critical test for New York State is whether it will comply with the requirements of the Clean Water Act to meet the goal of “swimmable” waters around our nation’s largest city. How the state writes the standards will determine the extent to which New York City addresses the 418 sewer overflow outfalls that discharge roughly 21 billion gallons per year of raw sewage and polluted stormwater when it rains.

The state will update two parts of its water quality standards for saline waters around New York City, as well as up the Hudson to the Bear Mountain Bridge. The first state rule will define how much contamination is allowable in waters used for swimming, kayaking or fishing, as determined by concentration of bacteria. The public had until June 20 to comment on this proposal to establish new water quality criteria, or pollution limits, for New York State’s saline waters. The DEC expects to publish the second rule for public comments late in 2024. The second rule will define which waterways should meet those criteria.

While the state’s proposal would improve conditions in some ways, if critical details aren’t strengthened, it will reinforce the status quo, allowing for billions of gallons of raw sewage to pollute New York City waters in some cases for another 25 years. Fifty years after the Clean Water Act set the goal of making the nation’s waters safe for swimming, that is unacceptable. The standards established today will influence decisions for a generation. We need the state to aim high.

In short, what is at stake is whether New Yorkers will be able to swim and otherwise safely use its waters for recreation in the foreseeable future. As of now, New York State has not set the goal of meeting safe swimming criteria in many New York City waterways, including the Hudson River near Manhattan, the Bronx, East and Harlem Rivers; Coney Island, Flushing, Newtown and Westchester Creeks; the Arthur Kill and Kill Van Kull. Further, Riverkeeper is arguing for stronger criteria to define “how clean is clean” in these waters.

While New York City has made progress and touts the results of its sewer and green infrastructure investments, it is lagging other cities in the United States and around the world in reducing combined sewer overflows. Other U.S. cities are making larger per capita investments, and reducing and eliminating sewer overflows faster and more thoroughly than New York City is under the requirements of the Combined Sewer Overflow (CSO) Long Term Control Plans that are required under the Clean Water Act to define infrastructure improvements that reduce sewer overflows. Kingston, N.Y., for instance, is going beyond its Long Term Control Plan requirements in order to eliminate sewer overflows, and in Paris, France, the city will open 26 new pools in the Seine after investing to eliminate sewer overflows. As New Yorkers, we know New York City is the greatest city in the United States, but when it comes to the quality of its waterways, New York City is among the worst nationally.

In the meantime, New Yorkers are showing how the city can embrace its waterways. The New York City Triathlon, the 8 Bridges Hudson River Swim and other public swim events introduce thousands of New Yorkers and tourists annually to the awe-inspiring experience of swimming in the shadow of the city’s famous skyline. +Pool is working to establish a public pool in the East River. The New York Times has called for a “beach for Manhattan.” Dragon boats, rowing skulls and kayaks fill the waters of Flushing Bay, the Harlem River and other waterways. Advocates have developed community visions for public use, wildlife habitat and sustainable development built around the promise of cleaner water in even the city’s most polluted waterways, like Gowanus Canal and Newtown Creek. In April 2023, New York City published PlaNYC and committed the city to eliminating raw sewage discharges by 2060.

New York State must support this vision by establishing strong water quality standards that protect swimming in New York City’s waters.

Each year, New York City discharges more than 21 billion gallons of raw sewage into local waterways. That’s enough to fill the Empire State Building 72 times! These “combined sewer overflow,” or “CSO,” discharges occur because roughly 60% of the city is served by a combined sewer system. Stormwater runoff that collects pollutants from industrial sites, sidewalks, and streets mixes with sewage from homes and businesses and causes the system to overflow, dumping untreated sewage into waterways surrounding the city. There are 418 discharge outfalls throughout the city, some as big as two-car garages.

New York City is completing the last of 11 CSO Long Term Control Plans that New York State must approve under the Clean Water Act. These plans will prompt $2.3 billion through 2042 in investments to reduce sewer overflows. New York City’s plan is significantly less aggressive than many other U.S. cities. For instance, Cleveland, Ohio, will invest $3 billion to reduce CSOs affecting Lake Erie. Its population is 367,000 – less than Staten Island’s. Closer to home, the City of Kingston, N.Y., is going over and above state or federal requirements to separate sewers so sewage and stormwater flow in separate pipes, in order to eliminate – not just reduce – sewer overflows. Riverkeeper has been critical of each of NYC’s plans as it was approved, because each could and should have gone further to reduce and eliminate sewer overflows. Each plan omitted significant infrastructure investments that could have delivered cleaner water faster.

In some waters, like the Bronx River and Hutchinson River, watershed management in Westchester County where those rivers originate will also be needed. Stormwater management, including by implementing green infrastructure, will also be important. But the elephant in the room is the annual discharge of 21 billion gallons of raw sewage from the city’s 418 CSO outfalls.

Updating water quality standards could and should prompt the state and city to update these CSO Long Term Control Plans to further reduce overflows. This is particularly important in light of New York City’s new commitment to eliminating its sewage overflows by 2060. New York State must set protective water quality standards for New York City waters – and then New York City must make the infrastructure upgrades to meet those standards.

Here are several ways that Riverkeeper and our partners at NRDC and Save the Sound are urging DEC to improve the first of its two proposed water quality standards rules:

1. Hold the Lower Hudson and its tributaries to higher standards. Modern criteria will be applied to protect swimming and similar recreation in many tributaries of the Hudson River, like the tidal portions of the Croton River and Pocantico River and hundreds of other Class SC waters. Roughly 20 sewage treatment plants along the Hudson River in Westchester and Rockland counties will be upgraded or managed to improve water quality. Further, additional criteria (called a “statistical threshold value” or STV) will be applied in most waters to better protect recreational users from occasional instances of high contamination, typically caused by runoff or sewage overflows. Finally, the method the state used to determine criteria for protecting paddlers (its secondary contact criteria) is based on the use of a formula recommended by Riverkeeper and our partners. Tell New York State you support these improvements to its water quality standards.

2. Set protective standards to protect recreation. The EPA defines swimming and other activities that result in ingestion of, or full immersion in, water as “primary contact recreation.” Recreational water quality criteria are based on the concentration of fecal indicator bacteria in the water. These bacteria are used to determine water quality because if they are present, pathogens that may make swimmers sick are also likely to be present. The EPA gives states two options for setting primary contact criteria, one more protective of swimmers by allowing less fecal contamination, and one less protective by allowing more fecal contamination. New York State is proposing to implement the weaker, less protective of these options, even though it had just a few years ago planned to implement the more protective. This choice will also influence the criteria established to protect kayaking, rowing, dragon boating and other “secondary contact” recreational activities. Tell New York State to set strong standards for New York’s saline waters by choosing the most protective primary and secondary contact recreation criteria.

3. Set the goal of safe swimming in all saline waters. The DEC is proposing to roll back a 2015 rule that designated all saline waterways around New York City for primary contact recreation like swimming. The state is now proposing that the many waters with Class I designation should meet only secondary contact criteria, allowing for more fecal contamination and a higher risk of illness if people ingest or are fully immersed in the water. These Class I waters include the Hudson River along the Manhattan shoreline, the East River, the Harlem River and many others. In other waters designated Class SD, DEC is proposing to forego modern criteria completely and allow still more fecal contamination, without providing justification. Recreational uses will therefore be left unprotected in Class SD waters, including Newtown Creek, Gowanus Canal, Flushing Creek and others. Further, in an unspecified number of waterways that would otherwise meet safe-swimming criteria, the DEC is proposing “wet weather” exemptions to allow continued discharges of raw sewage from CSOs, accepting that they will be unsafe after rain. These wet weather exemptions to meeting standards should only be allowed if they are paired with explicit aggressive procedures for improving infrastructure to reduce overflows. Setting these low bars will allow for continued raw sewage overflows, reinforcing the status quo rather than raising the bar and aiming for cleaner water. Tell the DEC that the Clean Water Act demands that all waters should have the goal of being safe for swimming by establishing primary contact criteria for Class I and Class SD waters, and by specifying how it will ensure any wet weather exemptions lead to faster and more aggressive sewage overflow reductions.

4. If waterways can’t be made safe for swimming, prove it. Only after thorough analysis of alternatives for improving water quality does the Clean Water Act allow for states to establish standards that fail to reach for the goal of making water safe for swimming. In this case, DEC must prove that feasible infrastructure investments can’t achieve “swimmable water” in waters it proposes to hold to secondary contact recreation (proposed Class I) or fish survival (Class SD) standards, or waters that would be given a wet-weather exemption from meeting standards. The Clean Water Act allows these lower standards only if the state receives EPA approval for a use attainability analysis (UAA). That analysis should engage the public, which will help ensure the greatest possible water quality improvements. Tell the DEC that all waters that will be protected for anything less than primary contact recreation (Class SD, Class I or wet weather designations) must be subjected to EPA-approved UAAs, and that the public should be robustly involved in the process, before it finalizes new water quality standards.

5. Don’t delay water quality improvements. The DEC has proposed waiting 25 years in some cases for these newly proposed standards to have any effect on upgrading sewer systems to reduce sewer overflows in NYC, and indicated that no improvements would be made to reduce sewer overflows into the Hudson River from Westchester County. DEC has already indicated that Alley Creek, Bronx River, Coney Island Creek, Flushing Creek, Hutchinson River, tributaries of Jamaica Bay and Westchester Creek will not meet their proposed water quality criteria. Despite this, DEC would wait for NYC’s existing CSO Long Term Control Plans to be fully implemented, including water quality monitoring required after the last project is completed, before any additional upgrades would be contemplated. Instead of waiting 25 years, DEC should revisit the Long Term Control Plans for NYC and Westchester County at five-year intervals when it considers other pollution discharge permit modifications, and order new infrastructure upgrades that were identified but not required by those plans. These upgrades should be made concurrently to those infrastructure upgrades that are already planned, to achieve cleaner water faster. Tell DEC that setting new water quality standards should mean cleaner water faster. Nothing else is acceptable.

6. Protect people who are using the water now. The DEC has proposed in many cases to set criteria that will not protect people who are currently swimming or paddling in many waters. For instance, DEC is proposing criteria for the Hudson River, East River and Harlem Rivers that wouldn’t match safe-swimming criteria, despite these waters being used by thousands in open water swim events annually, including the New York City Triathlon and the swim around Manhattan that is part of the Triple Crown of Open Water Swimming. For other waters, DEC is proposing criteria that would not protect kayaking, such as occurs now in the Gowanus Canal, Newtown Creek, the Arthur Kill and elsewhere. We're urging DEC to ensure that it sets criteria to protect past, present and reasonably anticipated future uses of the water.