ENV-47-11-00012-P Water Withdrawal Permit, Reporting and Registration Program

11/23/11 N.Y. St. Reg. ENV-47-11-00012-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 47

November 23, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-47-11-00012-P

Water Withdrawal Permit, Reporting and Registration Program

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Repeal of Parts 601 and 675; addition of new Part 601; and amendment of section 621.4 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 3-0301(1)(f), (2)(m), 3-0306(4), 8-0113(2) and 70-0107; art. 15, titles 15, 16 and 33; art. 21, title 10; and art. 70

Subject:

Water withdrawal permit, reporting and registration program.

Purpose:

Implement amendments to Environmental Conservation Law (ECL) article 15, title 15, key provisions of ECL article 15 title 16, 6 NYCRR 675 and ECL article 15 title 33.

Substance of proposed rule (Full text is posted at the following State website:http://www.dec.ny.gov/65.html):

This document summarizes the proposed water withdrawal regulations. Most subparts are condensed. Two provisions are presented verbatim. Subparts 15, 16, 19, 20, 21, 22, and 23 are similar to provisions in the part 750 SPDES regulations and are not summarized here. The Express Terms of proposed Part 601 control should a conflict exist between this summary document and the Express Terms.

§ 601.1 Purpose

The purpose of part 601 is to regulate the use of NY's water resources pursuant to ECL article 15 title 15 by implementing a permitting, registration and reporting program for water withdrawals equaling or exceeding a threshold volume. This Part also implements New York's commitment under the Great Lakes-St. Lawrence River Basin Water Resources (GLSLRBWR) Compact to create a regulatory program for water withdrawals in the Great Lakes Basin.

§ 601.2 Definitions

Subpart § 601.2 provides definitions of terms. One of the numerous definitions is included here. The term threshold volume means "the withdrawal of water of a volume of one hundred thousand gallons or more per day, determined by the limiting maximum capacity of the water withdrawal system; except that for withdrawals for agricultural purposes the threshold volume shall mean the withdrawal of water of a volume in excess of an average of one hundred thousand gpd in any consecutive thirty-day period."

§ 601.3 Applicability

"[Part 601] applies to any person who is engaged in, or proposes to engage in, the construction, operation or maintenance of a water withdrawal system that withdraws water of a volume equal to or greater than the threshold volume; the taking, condemnation or acquisition of land for the development or protection of sources of public water supply; the extension of a water service area associated with a water withdrawal system that withdraws water of a volume equal to or greater than the threshold volume; and the interbasin diversion of water or wastewater. This Part also applies to any person who proposes to transport or carry waters of the state to any location outside the state, or to transport or carry by vessel more than ten thousand gallons in any one day of the waters of the state. All valid public water supply permits and approvals issued by DEC or its predecessors that are in effect as of February 15, 2012 shall remain in effect for the purpose of satisfying the [part 601] permit requirements..., except that DEC may seek modification of such a permit in accordance with this Part."

§ 601.4 Prohibitions

Any water withdrawal is prohibited if it is subject to and not in compliance with the GLSLRBWR Compact, will result in an interbasin diversion prohibited by § 601.18, or is otherwise subject to and not in compliance with this part, a compact basin commission, or any other law.

§ 601.5 Annual Reporting

Submit an annual water withdrawal report if you are subject to the permit requirements of §§ 601.6 or 601.7, the agricultural registration requirements of § 601.17, or the interbasin registration requirements of § 601.18; or you are a hydropower operator under a Federal Energy Regulating Commission license; and are not otherwise exempt under § 601.9.

Complete the annual reports on DEC forms, submit the first one on or before March 31, 2013, and then submit another by March 31 every year thereafter. Annual reports include withdrawals for the previous calendar year and a specific list of elements, including volume withdrawn, the volume, locations and methods of any water returns; volumes and rates of water lost or consumptively used; and water conservation and efficiency measures taken. Exempt withdrawals include those for fire suppression or public emergency, under Long Island water well permits, for non-extractive geothermal heat pumps, and for reuse of reclaimed wastewater.

These annual reports satisfy the registration and annual reporting provisions of ECL article 15 titles 16 and 33 until the effective date of their repeal, December 31, 2013. However, the two-year registration fee of two hundred dollars ($200) or the annual report fee of fifty dollars ($50) pursuant to ECL article 15 title 16 or title 33 remain due until their repeal, except for agricultural withdrawals registered under § 601.17.

§ 601.6 Water Withdrawal Permit

This subpart lists the actions that may not be undertaken without a water withdrawal permit under Part 601. There are eleven listed actions that require a permit. The core actions are the construction, operation or maintenance of a water withdrawal system with a capacity at or above the threshold volume. Additional listed actions include those that extend, alter or change an existing water withdrawal system such that the system capacity increases to meet or exceed the threshold volume, or exceed the threshold volume more than it did previously. The transport of any amount of NY fresh surface or groundwater to any location outside NY through pipes, conduits, ditches or canals requires a permit as does the transport by vessel (floating craft) of more than ten thousand gpd of NY surface water. For a public water supply system with a capacity at or above the threshold volume, no agreement for the bulk sale of water for commercial, industrial, oil and gas well development outside of the public water supply system's approved water service area may be entered into without a permit.

§ 601.7 Initial Permits

A person must apply for an 'initial permit' with respect to a water withdrawal system, other than public water supply, that has a capacity at or above the threshold volume as of February 15, 2012. Such persons must also have properly reported their withdrawals to DEC pursuant to ECL article 15 title 16 or 33 as of February 15, 2012 and must not be exempt under § 601.9. Persons subject to this subpart who failed to report existing withdrawals as of February 15, 2012 must submit a standard permit application under § 601.6 by February 15, 2013.

Persons who qualify for the initial permit process must apply for an initial permit. To do so, complete an initial permit application on DEC forms and submit it to DEC by the following deadlines: February 15, 2013 for systems designed to withdraw 100 million gallons per day (mgd) or more; February 15, 2014 for systems with a capacity of 10 or more but less than 100 mgd; February 15, 2015 for capacities of 2 or more but less than 10 mgd; February 15, 2016 for systems capacities of 0.5 or more but less than 2 mgd; February 15, 2017 for systems capacities of 0.1 or more but less than 0.5 mgd. For withdrawals that are specifically regulated as of February 15, 2012 under a SPDES permit or a permit issued under ECL article 15 (other than title 15), an initial permit application must be submitted within 180 days before the existing permit is scheduled to expire absent renewal.

Initial permits are issued for the capacities previously reported on or before February 15, 2012, are issued for a fixed terms of up to ten years, include the terms of a standard water withdrawal permit, including water conservation measures, and are subject to modification, suspension and revocation under this Part.

§ 601.8 Consolidation of Existing Public Water Supply Permits. 'Please see Express Terms.'

§ 601.9 Permit Exemptions

There are fourteen listed actions that are exempt from the water withdrawal permit requirements. They are quite specific and the reader is referred to the Express Terms. Among the exempt actions are the following: agricultural withdrawals registered or reported pursuant to ECL article 15 title 16 or title 33 by February 15, 2012 (such withdrawals are still subject to § 601.5 and/or § 601.17); withdrawals approved by the DRBC or SRBC; withdrawals of hydropower facilities under a FERC license; withdrawals from the NYS Canal System by the NYS Canal Corporation; non-extractive geothermal systems; Long Island wells with Part 602 permits; on-site water withdrawals for approved inactive hazardous waste remedial site programs; fire suppression or public emergency withdrawals; withdrawals from the Atlantic Ocean or Long Island Sound; water main extensions in an approved water service area, reconstruction of existing water withdrawal facilities, or construction of filtration or treatment facilities, where there is no change in capacity; ballast water withdrawals necessary for normal and lawful vessel activity; and withdrawals related to routine maintenance and emergency repairs of dams.

§ 601.10 Application for a Permit. Please see Express Terms.

§ 601.11 Action on Permit Applications

DEC may grant or deny a water withdrawal permit, or grant the permit with conditions. Permit terms are up to ten years. In making the permit decisions, DEC will examine whether, for example, other sources were considered, the quantity is adequate and necessary for the proposed use, the project is equitable to affected municipalities, the withdrawal can be avoided or lessened through conservation, there will be significant adverse impacts to the quantity or quality of the source and water dependent natural resources, including aquatic life, and water conservation measures are incorporated. DEC may impose special permit conditions on public water supplies in, adjacent to, or serving an agricultural district.

§ 601.12 General Provisions of a Water Withdrawal Permit

The general provisions in § 601.12 that are fairly standard to DEC permits do not appear in this summary. The permit provisions that are more tailored to water withdrawals are: withdrawal systems must not exceed design capacity without approval; intake structures must sustain any passby flow requirement in the permit; withdrawals in a compact basin commission must comply with those requirements; and if operation pursuant to the permit causes or contributes to a contravention of State water quality standards, or if a permit modification is needed to prevent impairment of the best use of the waters, DEC may require a permit modification, abatement of the contravention or impairment, and may prohibit operation pending the modification.

§ 601.13 Approval of Plans by the Department of Health. "Applies to public water supply systems."

§ 601.14 Approval of Completed Works

Construction must be under the supervision of a professional engineer and cannot be operated until certified that it was completed in accordance with the issued permit. Public water supply permittees may start operation upon submission of an Approval of Completed Works letter issued by the Department of Health.

§ 601.17 Registration of Water Withdrawals for Agricultural Purposes

This subpart applies to persons who operate a water withdrawal system for agricultural purposes above the threshold volume on February 15, 2012 or the effective date of this Part, and who registered or reported, prior to February 15, 2012, their annual water usage pursuant to ECL article 15 title 16 or 33. Such persons must submit a request to register agricultural withdrawals by March 31st of each year. Requests shall include a completed form, a general map showing specified information, and the annual report for the previous year under § 601.5.

§ 601.18 Registration of Interbasin Diversions; Prohibitions

Interbasin diversions of more than an average of 1 mgd must be registered, as must increases in volume that cause such diversions to exceed this threshold. Construction of facilities or use of equipment must await registration. However, interbasin diversions under a part 601 water withdrawal permit need not be registered.

Submit the registration by February 15, 2013 for the subject diversions that exist on February 15, 2012 or the effective date of these regulations. Submit registration renewals annually by March 31 and within 60 days of a transfer. A registration must include: a completed form; a general map with specified information; and the annual report under § 601.5 for the previous calendar year; a professional engineer's report covering specified topics. DEC's receipt of a registration is not an approval. A new or increased interbasin diversion must not cause a significant adverse impact on the source New York major drainage basin quantity. Diversions of any quantity the Great Lakes-St. Lawrence River Basin are prohibited by the GLSLRBWR Compact. Limited exceptions under article 21 for public water supply systems are considered by the GLSLRBWR Council and Regional Body if in compliance with that Compact.

Summary of Part 621

6 NYCRR §§ 621.1(b), 621.4(b), and 621.11(c)(2) are modified to replace the term "supply" with "withdrawals", and establish initial permits under ECL article 15 title 15 as minor projects under 601.7.

Text of proposed rule and any required statements and analyses may be obtained from:

Robert Simson, Division of Water, New York State Department of Environmental Conservation, 625 Broadway, 4th Floor, Albany, NY 12233-3500, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

Summary of Regulatory Impact Statement

1. Statutory Authority. Chapter 401, Laws of 2011, amended ECL article 15 titles 15, 16 and 33, and article 71 section 71-1127 to authorize the New York State Department of Environmental Conservation (DEC) to implement an expanded permitting, reporting and registration program for water withdrawals and adopt regulations to implement the expanded program.

2. Legislative Objectives. The statutory amendments have a broad array of legislative objectives, all of which are carried out in the proposed revisions to 6 NYCRR part 601. ECL article 15 title 15 originally required permits solely for public water supplies with five or more service connections, regardless of the volume of water withdrawn. The amendments expand the permit program to include withdrawals for purposes beyond public water supply, such as those for commercial, manufacturing, industrial, oil and gas development, and other purposes. However, the amendments also limit the permit program to only include withdrawals that meet or exceed a threshold volume of 100,000 gallons per day (gpd). The effect is to regulate more of the higher-volume withdrawals across the state while no longer issuing water withdrawal permits for lower-volume public water supplies. Withdrawals below the size threshold must still comply with water pollution control laws (ECL article 17), Department of Health regulations and state environmental quality review (SEQR) requirements, as applicable.

To summarize, the legislative objectives: add water conservation elements and encourage water efficiency and reuse consistent with the Great Lakes-St. Lawrence River Basin Water Resources Compact as set forth in ECL article 21 title 10 (Compact); implement key provisions in ECL article 15 title 16 for the registration of Great Lakes watershed withdrawals and in ECL article 15 title 33 for water withdrawal reporting, both of which are now consolidated into title 15 (ECL article 15 titles 16 and 33 are then repealed effective December 31, 2013); exempt agricultural withdrawals from the permit requirement so long as the withdrawals are registered in accordance with current law, including ECL article 15 titles 16 and/or 33, as of February 15, 2012 under the provisions of ECL § 15-1504 (any person withdrawing water for agricultural purposes that has not registered or reported to DEC by February 15, 2012 shall be required to apply for and obtain a water withdrawal permit); allow a more generous size threshold for agricultural withdrawal registrations (100,000 gpd in any consecutive 30-day period) consistent with title 16; provide additional exemptions to the permit requirement; prohibit new or increased interbasin diversions in excess of one million gpd unless it is registered with DEC; require that existing diversions in excess of one million gpd are registered with DEC by February 15, 2013, subject to limited exemptions; provide that the construction of any water withdrawal system must be supervised by a licensed professional engineer; and increase the maximum civil penalty for violations of ECL article 15 from $500 to $2,500 per violation and from $100 to $500 for each day during which the violation continues.

These legislative objectives are fulfilled (and often statutorily required) by the proposed regulations, which largely mirror the statutory amendments, by: the proposed repeal of 6 NYCRR part 601, Water Withdrawal Regulations, and part 675, Great Lakes Water Withdrawal Registration Regulations; the proposed adoption of a new part 601; and the proposed revision to part 621.4, Uniform Procedures.

3. Needs and Benefits. Pursuant to ECL article 15, DEC has been entrusted with the responsibility to conserve and manage New York State's water resources for the benefit of all the inhabitants of the State. Good policy and sound natural resource management practices are critical to assuring long-term supplies of water to meet these needs. In addition to these benefits, the amendments in Chapter 401 allow DEC to fully comply with commitments under the Compact: regulation of water withdrawals occurring in the New York portion of the Great Lakes Basin. The amendments also direct DEC to establish a water conservation and efficiency program, another key responsibility of New York State under the Compact. The proposed revisions to part 601 carry out this commitment and program.

DEC worked extensively with stakeholders, including agriculture, industry and environmental advocates, to resolve their concerns during development of the legislation. As a result, existing agricultural withdrawals are exempt from the new permit requirement as long as these withdrawals are reported to DEC as of February 15, 2012 as is already required under existing law. In addition, other (non-agricultural) existing water withdrawals above the size threshold are entitled to an initial permit, subject to appropriate terms and conditions, based on the maximum water withdrawal capacity reported to DEC on or before February 15, 2012 pursuant to existing law. Chapter 401 also authorizes DEC to establish quantitative standards that maintain stream flows protective of aquatic life, consistent with the policy objectives of ECL article 15. Further, the criteria that DEC must consider in making its permit decisions are based on the decision-making standard in the Compact. The proposed part 601 reflects and carries out each of these aspects of the legislative amendments.

The proposed regulations implement a comprehensive statewide permitting program for significant water withdrawals, help ensure that water remains available for drinking water supply, agriculture, hydropower, manufacturing, aquatic habitat, navigation, water-based recreation, wetlands, and other uses, while allowing DEC to regulate withdrawals of water that are unregulated now, like water taken by bottled water companies, or large withdrawals of water anticipated for high-volume hydraulic fracturing. The regulations will help the Department to protect existing water users, especially for drinking water purposes, and help new businesses to know where to locate in New York, especially if the business is heavily water dependent.

Modifications to 6 NYCRR part 621.4, Uniform Procedures, are also included in this rule making for consistent use of terms and to expand the 'minor' project category to include water withdrawal initial permits.

The Repeal of 6 NYCRR part 675 is also included in this rulemaking as the proposed 601 includes the requirements of part 675 as necessary.

4. Costs.

(a) Costs for initially complying and continuing to comply with the proposed regulations: Such costs will vary depending upon the size, capacity and complexity of the water withdrawal system or interbasin diversion. Reporting costs should be minimized because withdrawal systems within the ambit of the proposed rule are already required to report their withdrawals annually under ECL article 15 title 33, and if they are not required to report under this ECL provision, then they are required to report under another program that requires similar reporting. The new one-time costs primarily consist of the Engineer's Report associated with the permit application process for previously-unregulated water withdrawal systems. For new projects, the cost of an Engineer's Report can range from $5,000 to $25,000, depending on the water withdrawal system. It bears mentioning that most persons who construct new or expanded water withdrawal systems of a size that meet or exceed the size threshold in these regulations still typically need to retain a professional engineer, regardless of the new regulations.

Other elements of the permit application process will typically include either a 72-hour pump test and analysis of groundwater withdrawals, or a safe yield analysis for surface water withdrawals. Either of these tests can cost between $10,000 and $30,000, with the cost of a safe yield analysis typically occupying the lower end of this range. Again, these tests are routinely pursued, regardless of these regulations, by most water withdrawal system proposals that are above the size threshold.

The preparation and submission of a Water Conservation Program is also required by the permitting provisions of these regulations as well as the preparation and analysis necessary to present the Project Justification. A Water Conservation Program does not need to be prepared by a Professional Engineer, and may typically cost between $500 and $5,000, depending on the size of the withdrawal.

The availability of an 'initial permit' for pre-existing water withdrawals will reduce the costs the permit application process for existing withdrawals through the avoidance of the time and costs associated with a public hearings while maintaining the public involvement through the written public comment process.

New, smaller public water supply systems - those that do not exceed the size threshold- are now spared of the costs of the permit application process; however it is expected that many such smaller systems will complete the same or similar elements as a means of good design, less costly asset management, and efficient business practices.

(b) Costs to DEC, the state, and local governments for the implementation and continued compliance with the rule: The greatest direct cost to DEC will occur in the Division of Water, and to a lesser extent, other units needed to support the program's work. DEC may conduct outreach and training, develop additional guidance documents, prepare notifications, develop a compliance database to track receipt of required reports, prepare case referrals to DEC's attorneys for enforcement, and face an increase in water withdrawal permit applications.

There are no significant costs anticipated for state or local governments except with respect to their roles as owners or operators of water withdrawal systems above the size threshold. Many local governments have previously-permitted public water supplies; there should be no significant additional costs for these local governments. Various state agencies may operate water withdrawal systems over the size threshold and unless exempt will be subject to the same costs as provided above for other owners of operators of water withdrawal systems. The regulations and Chapter 401 define "person" to include state agencies.

5. Local Government Mandates. There are no programs, services, duties, or responsibilities imposed by the rule upon any county, city, town, village, school district, fire district or other special district except with respect to their role as owners or operators of water withdrawal systems over the size threshold (unless exempt). New smaller public water supply systems are spared of the costs of the permit application process if the systems do not reach the size threshold.

6. Paperwork. The proposed regulations require water withdrawal permittees to prepare and maintain documents about the water withdrawal system. Annual Reports or Registrations are periodic submissions but the predominant obligation to prepare and submit documents occurs once during the permit application process.

7. Duplication. For most water withdrawal systems, there are no relevant rules or other legal requirements of the state and federal governments that duplicate, overlap or conflict with the rule. The full text of the RIS provides additional clarification and answers frequent questions concerning potential duplication.

8. Alternatives. The Department considered proposing regulations without the monitoring, recording and recordkeeping provisions (§§ 601.19 and 601.20), the permit denial, suspension and revocation provisions (§ 601.16), the inspection and entry provisions (§ 601.21), the signature of forms provision (§ 601.22), and the references provision (§ 601.24), respectively. However, it was determined that the legislative objectives of the Chapter 401 amendments and the Compact cannot be met without the monitoring, recording and recordkeeping provisions. The Department adapted the proposed regulations in §§ 601.19 and 601.20 from existing SPDES regulations because they are already well-known to and implemented by those who use withdrawn water for purposes that generate waste water discharges. The permit denial, suspension and revocation provision in proposed § 601.16 appears in substantially similar form in the SPDES regulations, and is necessary to put permittees on notice of the circumstances that can lead to rejection of a water withdrawal proposal or suspension or revocation of a permit. The same is true for proposed § 601.22 and 601.24.

9. Federal Standards. The state's water withdrawal law does not derive its authority from federal laws or regulations. The regulations exempt withdrawals that are regulated by FERC from the permit requirements.

10. Compliance Schedule. The proposed regulations provide time to enable regulated persons to achieve compliance with the rule. A table summarizing the applicable time frames is provided in the full text of the Regulatory Impact Statement; however, the proposed regulations should be consulted for a fuller understanding of the time frames.

Summary of Regulatory Flexibility Analysis

1. Effect of Rule. Recent statutory amendments to Environmental Conservation Law (ECL) article 15, title 15 (Chapter 401 of the 2011 Laws of New York) both expand and limit this water withdrawal permit program. The amendments expand the permit program to include withdrawals for purposes beyond public water supply, such as those for commercial, manufacturing, industrial, oil and gas development, and other purposes. The amendments generally limit the permit program to withdrawals that meet or exceed a threshold volume (of 100,000 gallons per day (gpd)). The effect is to regulate far more of the higher-volume withdrawals across the state while exempting from permitting requirements withdrawals associated with lower-volume public water supply systems (PWSS). The proposed amendments to 6 NYCRR part 601 and subpart 621.4, and the consolidation of part 675 (Great Lakes water withdrawal registration) into part 601, implement this permitting program. The types of water withdrawal systems that are subject to the permit program are located in all areas of the state; so small businesses and local governments that undertake water withdrawals for purposes other than PWSS will be impacted by the proposed regulations, although the impact will be offset by the 100,000 gpd threshold, other exemptions, the availability of an 'initial permit,' and the staggered or delayed implementation schedule.

2. Compliance Requirements. The proposed regulations do not distinguish between water withdrawal systems operated by small businesses and those operated by local governments. Existing agricultural withdrawals of any volume are exempt from the permit requirement altogether so long as these existing withdrawals are registered in accordance with current law (including ECL article 15 titles 16 and/or 33) as of February 15, 2012. Moreover, the registration requirement for agricultural withdrawals is subject to an even more generous size threshold of an average of 100,000 gpd in any consecutive 30-day period. New agricultural withdrawals above the size threshold will require permits. The proposed new part 601 implements other statutory exemptions to the water withdrawal permit requirement, including fire suppression withdrawals and withdrawals approved by the Delaware River Basin Commission or Susquehanna River Basin Commission. Small businesses and local governments may benefit from these provisions.

Initial Permits. An 'initial permit' includes all of the terms and conditions of a water withdrawal permit, but is a 'minor action' under the proposed revision to subpart 621.4 that results in a slightly abbreviated permitting process. A water withdrawal system qualifies for an initial permit under the following circumstances: the withdrawal exists as of February 12, 2012; it is over the size threshold; it is properly reported to DEC by February 15, 2012 under existing law; it is not a public water supply; and the withdrawal is not otherwise exempt. The slightly simpler administrative process for initial permits eases the compliance requirements for existing and previously-unregulated water withdrawals that are not exempt.

In addition, the 'initial permit' application deadline for existing water withdrawals above the size threshold depends on the amount of water withdrawn. Specifically, applications for initial permits are not due until: February 15, 2017 for withdrawals equal to or greater than 0.1 but less than 0.5 million gallons per day (mgd); February 15, 2016 for withdrawals equal to or greater than 0.5 mgd but less than 2 mgd; February 15, 2015 for withdrawals equal to or greater than 2 mgd but less than 10 mgd; February 15, 2014 for withdrawals equal to or greater than 10 mgd but less than 100 mgd; and February 15, 2013 for withdrawals equal to or greater than 100 mgd. These rolling deadlines will benefit small businesses and local governments that withdraw lesser amounts of water.

3. Professional Services. Small business owners and local governments that own or operate water withdrawal systems are subject to the same requirements as other owners of water withdrawal systems, and would be required to retain the same level of professional services to comply with the regulations. The requirements are described in the 'Costs' section of the Regulatory Impact Statement (RIS). A small business or local government who has a professional engineer with relevant experience on staff may use its engineer to produce the documents required in the proposed regulations.

4. Compliance Costs. Small business owners and local governments that operate water withdrawal systems are subject to the same requirements as others, and will likely incur similar costs as other withdrawal operators. The requirements are summarized in the 'Costs' section in the RIS.

5. Economic and Technological Feasibility. Small businesses and local governments who operate existing, currently-unregulated water withdrawal systems above the size threshold will need to meet the 'initial permit' requirements of the proposed regulations, unless exempt. Applying for an 'initial permit' is quicker and less costly because it usually avoids the need for a permit hearing (as described in the RIS). While public notice and comment on the 'initial permit' application must occur, a permit hearing on top of that would generally not be necessary.

It is important to understand that the economic burden related to the 'initial permit' process would be greater if the applicant has not or does not report or register their withdrawals under ECL article 15 titles 16 or 33 by February 12, 2012, as is discussed in the RIS. The water withdrawal reporting requirements in ECL article 15 title 33 are statutory and compliance is a pre-condition to eligibility to apply for an 'initial permit'. The same is true for the Great Lakes Basin registrations requirements of ECL article 15 title 16. If such existing withdrawals at or above the size threshold are not reported or registered under titles 16 or 33, as applicable, by February 12, 2012, the small business owner or municipal entity will not be eligible to apply for the quicker and less costly 'initial permit' and will instead be required to apply for and obtain a standard water withdrawal permit under its more time consuming and more costly process. The costs associated with applying for an 'initial permit' for existing water withdrawals should be substantially less as most engineering, testing, environmental and alternative analyses costs would have already been incurred when the project was initially constructed.

In addition to creating a more flexible permit application process for existing withdrawals above the size threshold, through the 'initial permit,' the proposed regulations also afford flexibility and enhance the feasibility by providing additional time, up to five years depending on the capacity of the water withdrawal system, to submit the 'initial permit' application to the Department.

6. Minimizing Adverse Impacts. In terms of additional measures taken to minimize potential adverse impacts of complying with the proposed regulations, we note that water hydropower withdrawals that are federally regulated through a FERC (Federal Energy Regulating Commission) license are exempt from the water withdrawal permit requirement. To avoid potential duplication in the annual reporting obligation, and as is further discussed in the RIS, annual reports or registrations of water withdrawals that are submitted under ECL article 15 titles 16 or 33are deemed sufficient under the proposed regulations until those statutory provisions sunset on December 31, 2013.

As stated above, under the amended statute and these proposed regulations, new public water supply systems below the volume threshold, regardless of the number of service connections, are no longer required to apply for water withdrawal permits. Similarly, existing agricultural withdrawals that are registered or reported to DEC under ECL article 15 titles 16 or 33 on or before February 15, 2012 are exempt altogether from the water withdrawal permit requirement and the registration requirement for agricultural withdrawals is subject to a more generous size threshold.

For water withdrawal systems that are not exempt and that are above the size threshold as of February 15, 2012, the 'initial permit' process is somewhat less costly and time consuming than the standard permit process and provides additional time to comply depending on the capacity of the water withdrawal system.

7. Small Business and Local Government Participation. The public outreach that occurred during the development of the statutory amendments was of significant and material assistance in drafting these proposed regulations. DEC played a role in drafting the legislation underlying this rulemaking. In that process, DEC sought and received input from many stakeholders, including representatives of small businesses and local governments. The discussions were about how regulated entities would be subject to the law, and the discussions resulted in legislative changes to address concerns that are now also carried out in these proposed regulations.

In response to discussions with the New York Farm Bureau, DEC modified the statutory definition of threshold volume for agricultural withdrawals, and made other changes applicable to agricultural withdrawals. During the legislative process, DEC also met with the Business Council and the New York State Chemical Alliance to address concerns of New York's businesses. These groups explained that it would be burdensome for such groups to apply for permits for withdrawals that have already existed. To address this concern, the amended legislation includes provisions allowing existing systems to utilize the more efficient and less costly "initial permit" process. DEC also met with and had discussions with representatives of the New York State Association of Town Superintendents of Highways, Inc.; Ski Areas of New York, Inc. and representatives of the state's ski areas; persons representing the interests of golf courses and installers of irrigation systems; and several local governments. These, either individually or collectively, resulted in changes to the draft statutory amendments prior to their passage and thereby also to these proposed regulations. The regulatory provisions that reflect a direct response to the public outreach include, without limitation, the following: the definitions in § 601.2 ('environmentally sound and economically feasible,' establishment of the 'threshold volume' at a level as high as 100,000 gallons per day, with a more generous interpretation for farm withdrawals, and 'vessel' is defined such that it does not include tanker trucks); the annual reporting in § 601.5 (potential duplication with reporting under ECL article 15 titles 16 and 33 eliminated, the list of over seven exemptions from annual reporting); the 'initial permit' provisions in § 601.7, in their entirety; the provision of fourteen separate water withdrawal permit exemptions in § 601.9, which includes eight more than are in the amended statute, particularly the permit exemption for all withdrawals for agricultural purposes that are properly registered or reported by February 15, 2012; inclusion of "economically feasible" in the water conservation program that is required under the permit application provisions in § 601.10; and the allowance for the water conservation programs to be developed without the services of a professional engineer.

DEC has also undertaken outreach in an effort to ensure that all affected entities were made aware of the water withdrawal reporting requirements of ECL article 15, title 33 that became effective April 1, 2009. DEC posted information about the new reporting requirement on its webpage at http://www.dec.ny.gov/lands/55509.html. In 2009, DEC sent letters to thousands of persons potentially subject to the new reporting requirement as well as to organizations representing those persons, including the Association of Towns of the State of New York, public water suppliers, State Pollutant Discharge Elimination System permittees, and Concentrated Animal Feeding Operations. In 2010, DEC contacted the same list of persons via e-mail. In August 2011, DEC met with the New York Farm Bureau to discuss further outreach to alert farmers to the benefits to them of registering or reporting prior to February 15, 2012.

Rural Area Flexibility Analysis

1. Types and Estimated Numbers of Rural Areas. Environmental Conservation Law (ECL) article 15 title 15 originally required permits solely for public water supplies with five or more service connections, regardless of the volume of water withdrawn. Recent statutory amendments (Chapter 401 of the 2011 Laws of New York) both expand and limit this water withdrawal permit program. The amendments expand the permit program to include withdrawals for purposes beyond public water supply, such as those for commercial, manufacturing, industrial, oil and gas development, and other purposes. The amendments generally limit the permit program to withdrawals that meet or exceed a threshold volume (of 100,000 gallons per day (gpd)). The effect is to regulate far more of the higher-volume withdrawals across the state while no longer issuing water withdrawal permits for lower-volume public water system withdrawals. Withdrawals below the size threshold must still comply with water pollution control laws (ECL article 17), Department of Health regulations, as applicable, and state environmental quality review (SEQR) requirements. The amended law also authorizes the Department of Environmental Conservation (DEC) to establish quantitative standards to maintain stream flows protective of aquatic life, consistent with the policy objectives in ECL article 15 of assuring drinking water supplies, aquatic habitat, and recreational uses. The proposed amendments to 6 NYCRR part 601 and subpart 621.4, and the consolidation of part 675 (Great Lakes water withdrawal registration) into part 601, implement this expanded permitting program and the authorized exemptions thereto. The types of water withdrawal systems that are subject to the expanded permit program are located in all areas of the state, including rural areas. Therefore, all rural areas may be impacted by the proposed regulation.

2. Reporting, Recordkeeping and Other Compliance Requirements, and Professional Services. The proposed regulations are the same for water withdrawal systems located in rural areas. However, to the extent that water withdrawal systems in rural areas are less likely to exceed the above-stated size threshold, they are less likely to be subject to the water withdrawal permit requirement. Agricultural withdrawals of any volume are exempt from the permit requirement altogether so long as the withdrawals are registered in accordance with current law (including ECL article 15 titles 16 and/or 33) as of February 15, 2012. Moreover, the registration requirement for agricultural withdrawals is subject to an even more generous size threshold of an average of 100,000 gpd in any consecutive 30-day period. The new part 601 implements other statutory exemptions to the water withdrawal permit requirement, such as those for fire suppression withdrawals and withdrawals approved by the Delaware River Basin Commission or Susquehanna River Basin Commission.

Initial Permits. An "initial permit" includes all of the terms and conditions of a standard water withdrawal permit, but is a 'minor action' under the proposed modification to subpart 621.4 4 that results in a slightly abbreviated permitting process. In the absence of a timely application for an initial permit, a standard water withdrawal permit must be applied for and approved under the full permit process. A water withdrawal system qualifies for an initial permit under the following circumstances: the withdrawal exists as of February 12, 2012; it is over the size threshold; it is properly reported to DEC by February 15, 2012 under existing law; it is not a public water supply; and the withdrawal is not otherwise exempt. Existing public water supplies with water supply permits need do nothing different. The slightly simpler administrative process for initial permits eases the compliance requirements for existing and previously-unregulated water withdrawals that are not exempt.

In addition, among water withdrawal systems above the size threshold that qualify for initial permits, the proposed regulations in part 601 provide more time for operators of smaller water withdrawal systems to apply for initial permits. This is more likely to be a benefit in rural areas. Specifically, under the provisions of proposed part 601.7, initial permit applications are not due until February 15, 2017 for withdrawals equal to or greater than 0.1 but less than 0.5 million gallons per day (mgd); February 15, 2016 for withdrawals equal to or greater than 0.5 mgd but less than 2 mgd; February 15, 2015 for withdrawals equal to or greater than 2 mgd but less than 10 mgd; February 15, 2014 for withdrawals equal to or greater than 10 mgd but less than 100 mgd; and February 15, 2013 for withdrawals equal to or greater than 100 mgd.

3. Costs. The cost to comply with the proposed regulations will depend on the size, purpose and complexity of the water withdrawal system. Other than the factors mentioned above, it is not expected that there will be any variation in the compliance costs based upon rural area status.

4. Minimizing Adverse Impacts. Please see Items 1 and 2, above. As stated, public water supply systems below the size threshold, which are more likely to be located in rural areas, are no longer required to have water withdrawal permits. As further stated above, existing agricultural withdrawals that are registered or reported to DEC under ECL article 15 titles 16 or 33 on or before February 15, 2012 are exempt from the water withdrawal permit requirement under the amended law and the proposed part 601 amendments (although such withdrawals must continue to be registered). The registration requirement for agricultural withdrawals is subject to a more generous size threshold.

For water withdrawal systems that are not exempt and that are above the size threshold as of February 15, 2012, the initial permit process is somewhat less costly and time consuming than the standard permit process. Initial permit applications are due last for the smallest withdrawal systems above the size threshold. Existing public water supplies with water supply permits need do nothing different.

5. Rural Area Participation. DEC sought and received input from many stakeholders in the development of the amendments enacted in Chapter 401, which included representatives of farmers as well as business interests which may have some facilities located in rural areas. In 2010 DEC had several discussions with the New York Farm Bureau and modified the proposed statutory amendments to add ECL § 15-1504 (specific to agricultural withdrawals), change the definition of threshold volume for agricultural withdrawals, and make other changes applicable to agricultural withdrawals to address concerns of New York's farmers. DEC also met with the Business Council and the New York State Chemical Alliance in 2010 to address concerns of New York's businesses and significant amendments were made to the proposed law to address their concerns, including the addition of the "initial permit" provisions. In March, April and May 2011 DEC had a meeting and several discussions with persons representing the interests of the New York State Association of Town Superintendents of Highways, Inc. to discuss potential permit requirements for water pumping equipment at mines owned and operated by towns. In April 2011, DEC met with Ski Areas of New York, Inc. and representatives of the state's ski areas to address concerns related to the impacts the proposed statutory amendments and implementing regulations might have on New York's ski areas. DEC also discussed the proposed amendments with persons representing the interests of golf courses and installers of irrigation systems. In addition, DEC undertook outreach in an effort to ensure that all affected entities were made aware of the water withdrawal reporting requirements of ECL article 15, title 33 that became effective April 1, 2009. DEC posted information about this reporting requirement on its webpage at http://www.dec.ny.gov/lands/55509.html. In 2009, DEC sent letters to thousands of persons potentially subject to the new reporting requirement as well as to organizations representing those persons, including the Association of Towns of the State of New York, public water suppliers, State Pollutant Discharge Elimination System permittees, and Concentrated Animal Feeding Operations. In 2010, DEC contacted the same list of persons via e-mail. In August 2011, DEC met with the New York Farm Bureau to discuss further outreach to alert farmers to the benefits to them of registering or reporting prior to February 15, 2012.

Job Impact Statement

1. Nature of impact. The proposed revision to the water withdrawal regulations may create high-paying technical jobs in engineering and training.

2. Categories and numbers affected. Under the proposed revisions to 6 NYCRR Part 601, operators of previously-unregulated water withdrawal systems must submit several technical documents, such as annual reports as well as various parts of a permit application, including an engineer's report, pump tests and analyses for groundwater withdrawals, safe yield analyses for surface water withdrawals, water conservation programs, and the analysis of alternatives sufficient to complete a project justification. It is expected that the proposed regulatory revisions will generate high-paying engineering jobs, as well as technical jobs that do not require the services of a professional engineer. The field of water withdrawal planning, monitoring and reporting includes specialized areas of expertise: civil/structural engineering and hydrologic/hydraulic analysis, with some utilizing computer modeling. There will be a need for engineers and other professionals to have additional training in water withdrawal and the proposed water conservation programs. Therefore, there will be an opportunity for companies and colleges to develop training programs and offer specialized training in New York. This would create job opportunities for trainers as well as support staff opportunities. The Department has no way of determining the number of engineering or construction jobs or training opportunities.

3. Regions of adverse impact. There are no adverse job impacts expected.

4. Minimizing adverse impacts. There are no adverse job impacts expected.

5. Self-employment opportunities. The proposed regulations will create an environment favorable for experienced engineers, licensed surveyors, computer modelers, and water conservation planners specializing in hydrology and hydraulic analysis to start their own businesses. Self-employment opportunities also will likely exist for experienced engineers to conduct training and inspections, and to prepare engineering reports, and for experienced individuals in the additional trades indicated above.