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

11/28/12 N.Y. St. Reg. ENV-47-11-00012-A

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 48

November 28, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

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

Filing No. 1132

Filing Date. Nov. 13, 2012

Effective Date. Apr. 01, 2013

Water Withdrawal Permit, Reporting and Registration Program

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

Action taken:

Repeal of Parts 601 and 675; addition of a 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), 70-0107; art. 15, titles 15, 16 and 33; art. 21, title 10; art. 70 and SAPA art. 2

Subject:

Water withdrawal permit, reporting and registration program.

Purpose:

Implement amendments to ECL art. 15 title 15, key provisions of ECL art. 15 title 16, 6 NYCRR 675 and ECL art. 15 title 33.

Substance of final rule:

6 NYCRR Parts 601 and 675 are repealed and a new Part 601 is adopted to read as follows:

Part 601: Water Withdrawal Permitting, Reporting and Registration (Exclusive of Long Island Wells regulated under Part 602)

(Statutory authority: Environmental Conservation Law § 3-0301(2)(m), article 15 titles 15, 16 and 33, title 10 of article 21)

Contents:

Sec.

601.1 Purpose

601.2 Definitions

601.3 Applicability

601.4 Prohibitions

601.5 Annual reporting

601.6 Water withdrawal permits

601.7 Initial permits

601.8 Consolidation of existing public water supply permits

601.9 Permit exemptions

601.10 Application for a permit; Renewal of an Existing Permit

601.11 Action on permit applications

601.12 General provisions of a water withdrawal permit

601.13 Approval of plans by the Department of Health

601.14 Approval of completed works

601.15 Modification of water withdrawal permits

601.16 Denial, suspension or revocation of permits

601.17 Registration of water withdrawals for agricultural purposes

601.18 Registration of interbasin diversions; prohibitions

601.19 Monitoring Requirements

601.20 Routine Monitoring, Recording, and Reporting

601.21 Inspection and Entry

601.22 Signature of forms

601.23 Severability

601.24 References

Chapter 401, Laws of 2011, amended ECL article 15 titles 15, 16 and 33, and article 71 section 71-1127 authorize the New York State Department of Environmental Conservation (DEC) to implement an expanded permitting, reporting and registration program for water withdrawals and to adopt regulations to implement the expanded program. These statutory amendments expanded the permit program to include withdrawals for purposes beyond public water supply, such as commercial, manufacturing, industrial, oil and gas development, and other purposes. However, the amendments also limited the permit program to only address withdrawal systems with a capacity that meets or exceeds 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.

The adopted rule repeals 6 NYCRR Parts 601 and 675 and adopts a new Part 601 and a revised Part 621. The rule also carries out New York’s commitment under the Great Lakes-St. Lawrence River Basin Water Resources Compact to create a regulatory program for water withdrawals in the Great Lakes Basin. The Department is repealing Part 675 because its enabling statute, ECL article 16, was repealed by the legislature and its salient provisions included in ECL article 15 title 15 and Part 601. Lastly, this rule making revises some subparts in the uniform procedures regulations in Part 621 such that applications for “initial permits” (concerns already-existing withdrawals) are “minor” actions.

The rule has been clarified in numerous respects, but the clarifications are non-substantive. For example, due to their substantially similar nature, the rule now explicitly clarifies that agricultural withdrawals and interbasin diversions need not be registered under Part 601 if the withdrawals are already operating pursuant to a Delaware or Susquehanna River Basin Commission approval. The Department also corrected typographical errors, re-ordered certain sub-provisions for the sake of clarity, and specified an effective date of Monday, April 1, 2013. The Department updated the submission deadlines for initial permit applications from February 15, 2013 to June 1, 2013, accordingly. The first submission date for annual reports under the final rule was not changed because it is statutory. It remains Sunday, March 31, 2013.

One new permit exemption appears in the final rule to help resolve some confusion on the part of the regulated community. Temporary withdrawals for construction, dewatering, hydrostatic testing, or aquifer testing purposes, any of which withdrawals is less than an average of 100,000 gallons per day in any thirty day consecutive period (3 million gallons during a 30 day period), are now explicitly exempt. Such short term or one-time withdrawals do not require a permit, however, the outer limits of the definition of “temporary” are left to Staff’s best professional judgment as each project, withdrawal and water source is unique. The definition of “threshold volume” has been slightly expanded to simply clarify that for public water supply systems under the threshold volume that are required by the Department of Health to have back-up or “redundant” water supply wells, “threshold volume” is not calculated to include the redundant well capacity so long as actual withdrawals remain under the threshold. Redundant wells may not be operated to withdraw additional water which, in combination with the existing public water supply system, exceeds the size threshold unless the facility first obtains a water withdrawal permit. Lastly, a few phrases have been added to make the water withdrawal permit renewal process easier to understand.

As stated in the Notice of Adoption, non-substantive changes were made to subsections 601.2-601.3, 601.5-601.12, 601.14, 601.17-601.20, and 601.24. The following summarizes changes that were made primarily to reflect the effective date and make the requirements clearer without creating any substantial changes in the meaning.

Subpart § 601.3 (Applicability) clarifies that a permit is required only for systems in excess of the threshold volume with respect to the taking, condemnation or acquisition of land for the development or protection of sources of public water supply. In § 601.5 (Annual Reporting), the due dates in paragraph (c) for annual reports have been clarified during the transition period between the effective date of the statutory amendments on February 15, 2012 and the effective date of re-issued Part 601 on April 1, 2012. In § 601.7 (Initial Permits), the deadline in sub-paragraph (b)(2) for submitting an initial permit application was updated from February 15, 2013 to June 1, 2013, which is 60 days after the effective date of April 1, 2013 for this Part. The deadline for submitting initial permit applications for withdrawals that are also regulated under SPDES permits as of February 15, 2012, in sub-paragraph (b)(3), has been changed from 180 days before the existing SPDES permit is scheduled to expire absent renewal to a deadline that consists of either the same 180-day deadline or June 1, 2013, whichever occurs later. This clarifies the deadline for those with SPDES permits that have expiration dates that fall earlier than June 1, 2013.

In § 601.9 (Permit Exemptions), exemption (o) was added to clarify that temporary water withdrawals for construction or aquifer testing purposes where, the water withdrawn is less than an average of the threshold volume in any consecutive thirty-day period, do not need a permit. In § 601.11 (Action on Permit applications), paragraph (h) was added to reiterate the Department’s coordination of water withdrawal application reviews with other Department permit programs, as applicable, including the SPDES program. In § 601.12 (General Provisions of a Water Withdrawal Permit), language was added to the introductory phrase to clarify that § 601.12 applies to both new water withdrawal permits that are issued after the effective date of this Part and to existing public water supply permits.

In § 601.17 (Registration of Water Withdrawals for Agricultural Purposes), paragraph (b) clarifies that the March 31 reporting deadline applies in 2013 because the deadline is statutory and became effective in 2011. Paragraph (f) clarifies that, per the statute, a registration is not required if an agricultural withdrawal is operating pursuant to a DRBC or SRBC Docket (permit). In § 601.18 (Registration of Interbasin Diversions; Prohibitions), Paragraph (a) eliminates the wording, ‘of an average’ in order to correct an error and Paragraph (b) clarifies that a registration is not required if an interbasin diversion is operating pursuant to a DRBC or SRBC Docket (permit). In § 601.19 (Monitoring Requirements), paragraph (f) replaces “the effective date of this Part” with “April 1, 2013.” In § 601.20 (Routine Monitoring, Recording, and Reporting), sub-paragraph (a)(2) further clarifies the reporting requirements for monitoring malfunctions and repairs. In § 601.24 (References), revisions to the HUC codes were included in a map published by the Department, which made incorporation by reference unnecessary.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 601.2-601.3, 601.5-601.12, 601.14, 601.17-601.20 and 601.24.

Text of 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]

Summary of Revised Regulatory Impact Statement

1. 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 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 regulations, which largely mirror the statutory amendments, by: the repeal of 6 NYCRR part 601, Water Withdrawal Regulations, and part 675, Great Lakes Water Withdrawal Registration Regulations; the adoption of a new part 601; and the 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 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 part 601 reflects and carries out each of these aspects of the legislative amendments.

The 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 601 includes the requirements of part 675 as necessary.

4. ‘Costs.’

‘(a) Costs for initially complying and continuing to comply with the 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 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 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 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 § 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 § 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 regulations become effective April 1, 2013 and the relevant 2013 permit application deadlines falls on June 1. The 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 regulations should be consulted for a fuller understanding of the time frames.

Summary of Revised Regulatory Flexibility Analysis

1. ‘Effect of Rule.’ 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 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 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 adopted regulations, which become effective April 1 2013, 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 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 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 15, 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 June 1, 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 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 ‘Costs’ section in the RIS summarizes the requirements.

5. ‘Economic and Technical 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 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 15, 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 15, 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 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 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 33 are deemed sufficient under the regulations until those statutory provisions sunset on December 31, 2013.

As stated above, under the amended statute and these 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 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 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 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. The Department also met with the Independent Power Producers of New York, Inc. After consideration of the concerns raised, the Department committed to ensuring Department’s water withdrawal regulations would not impose requirements duplicative of federal requirements and would require the Department to coordinate its review of water withdrawal permits with State Pollutant Discharge Elimination System (SPDES) permits, and any other applicable DEC permits which may already include conditions related to water withdrawals. These regulations, therefore, exempt withdrawals that are regulated by FERC from the regulations’ permit requirements. In addition, these regulations expressly require that the Department review a water withdrawal permit application in coordination with the SPDES permit or other permit program.

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 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 fifteen separate water withdrawal permit exemptions in § 601.9, which includes nine 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 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 of registering or reporting prior to February 15, 2012.

Revised Rural Area Flexibility Analysis

1. ‘Types and Estimated Numbers of Rural Areas.’ Prior to its amendment in 2011, Environmental Conservation Law (ECL) article 15 title 15 required permits solely for public water supplies with five or more service connections, regardless of the volume of water withdrawn. The statutory amendments (Chapter 401 of the 2011 Laws of New York) both expanded and limited this water withdrawal permit program. The amendments expanded 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 limited 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 repeal and replacement of 6 NYCRR part 601, the revision of 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 regulation.

2. ‘Reporting, Recordkeeping and Other Compliance Requirements, and Professional Services.’ The 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 were registered in accordance with 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 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 existed as of February 15, 2012; it is over the size threshold; it was 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 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 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 June 1, 2013 for withdrawals equal to or greater than 100 mgd.

3. ‘Costs.’ The cost to comply with the 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, agricultural withdrawals that were 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 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 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. The Department also met with the Independent Power Producers of New York, Inc. After consideration of the concerns raised, the Department committed to ensuring Department’s water withdrawal regulations would not impose requirements duplicative of federal requirements and would require the Department to coordinate its review of water withdrawal permits with State Pollutant Discharge Elimination System (SPDES) permits, and any other applicable DEC permits which may already include conditions related to water withdrawals. These regulations, therefore, exempt withdrawals that are regulated by FERC from the regulations’ permit requirements. In addition, these regulations expressly require that the Department review a water withdrawal permit application in coordination with the SPDES permit or other permit program.

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.

Revised 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.

Assessment of Public Comment

Comments were received from a variety of sources through regular and electronic mail: 186 submissions comprising over 650 individual comments. NYSDEC appreciates the public input and thoroughly considered each comment. Changes were made to the regulations to reiterate or further clarify the original meaning for the benefit of the public and take questions into account. As stated in the Notice of Adoption, non-substantive changes were made to subsections 601.2-601.3, 601.5-601.12, 601.14, 601.17-601.20, and 601.24. The Assessment of Public Comment (APC) presents and responds to all of the comments that were received during the public comment period. A revised or new rule making is not required. The effective date of the regulations is April 1, 2013 and the first due date for permit applications is June 1, 2013.

This summary condenses the comments that were frequently posed and NYSDEC’s responses from the APC. Frequent Comment 1 concerned the schedule for “initial permit” applications in 601.7(b)(2). Diverse views were received. Response. Initial Permits are only available for already-existing withdrawals above the threshold volume that were properly reported before February 15, 2012 and not exempt. Pursuant to ECL 15-1501(9), NYSDEC is to issue initial permits for these existing withdrawals for the maximum capacity reported as of February 15, 2012. The statute does not include a deadline for NYSDEC.

Since 2010, water withdrawal systems with the capacity to withdraw more than 100,000 gallons per day have been required to report water use data per ECL article 15 title 33. Of these reporting systems, more than 600 that will need initial permits. Through the 601.7 initial permit schedule, NYSDEC will evaluate the largest already-existing systems first as they are likely to have the greatest impact on the State’s water resources. This will bring them under regulation and subject them to the new ten-year permit renewal process sooner than the remaining initial permitees. Pursuant to 601.5(a), the remaining already-existing withdrawals that require initial permits must be reported annually even though permits are not required yet.

Frequent Comment 2 – Fees on usage, applications and annual reporting 601.5(c). Diverse views were expressed and a question was raised as to whether there was a new permit fee structure. Response. To the extent a fee structure does not exist under an existing statute, this comment is outside the scope of this rule making as it recommends legislation. Absent such legislation, NYSDEC does not have authority to impose application or usage fees on withdrawals or system capacities. As to the $50 or $200 annual reporting fees in ECL article 15 titles 16 and 33, these provisions were repealed and no replacement fee was legislated in the 2011 statutory amendments to title 15.

Frequent Comment 3 – Ten-year Term of Permits 601.7 (e), 601.11 (b). Diverse views were expressed. Response. ECL 15-1503(6) requires water withdrawal permits with maximum term of ten years. While NYSDEC anticipates that most water withdrawal permits will have this ten year term, shorter time frames may be used on a case by case basis when appropriate. In addition, NYSDEC’s review of Annual Reports may identify scenarios that may trigger the need for a permit modification or indicate possible permit violations. One scenario is systems that are approaching their permitted withdrawal limits.

Frequent Comment 4 – water conservation measures that are “environmentally sound and economically feasible” 601.2(g), 601.7(e), 601.10(f), 601.10(k)(4), 601.11(c)(7). There was inquiry as to the meaning of this phrase. Response. These terms are used in the Great Lakes - St. Lawrence River Basin Water Resources Compact and are defined in ECL 15-1502 as well as the regulations in 601.2 (g). NYSDEC currently has a manual (Water Conservation Manual for Development of a Water Conservation Plan”) and Water Conservation Program Form that are used for public water supply, both of which are available on DEC’s website at www.dec.ny.gov/lands/39346.html. The forms and manual are being updated to address non-potable withdrawals. The annual reports required of each permitted withdrawal will include an update on the progress and effectiveness of ongoing water conservation measures.

Frequent Comment 5 –Smaller withdrawals and high volume hydraulic fracturing (HVHF). The regulations do not adequately consider water withdrawals, including those below the 100,000 gallon per day threshold volume, which may be used by the natural gas industry for HVHF or other purposes. Response. All proposed water withdrawals above the threshold volume, no matter the intended purpose or usage, unless exempt, will be evaluated under Part 601 based upon the ability of the source to supply the proposed withdrawal demand while taking into account the cumulative impacts of multiple withdrawals on the source. A single water withdrawal facility will need a permit for its multiple sources of supply that cumulatively equal or exceed 100,000 gallons per day. Multiple facilities on the same source will be evaluated jointly for possible cumulative impacts when evaluating an application to modify or renew a water withdrawal permit or for a new permit to withdraw from the same source. If New York decides to allow HVHF, then it is anticipated that all water withdrawn or purchased for HVHF, regardless of the volume, would be required to be obtained from sources that are either permitted pursuant to these Part 601 regulations or approved by the Susquehanna River Basin Commission (SRBC) or Delaware River Basin Commission (DRBC).

Frequent Comment 6 – Withdrawal data, monitoring data. The withdrawal data required in annual reports and all required water monitoring data should be available to the public in a uniform manner via NYSDEC’s website. Response. NYSDEC maintains as much data as possible electronically. The annual report form on NYSDEC’s website may be submitted electronically, which is encouraged. The annual reports will be expanded to include updates on water conservation measures. The goal is to make as much of this data as possible publicly available on NYSDEC’s website. Under Part 601, any records required to be kept by the permittee are to be made available to NYSDEC upon request, including monitoring data. Information verifying the accuracy of equipment is also to be made available to NYSDEC upon request. Some water withdrawal permits may require, as a condition, the submission of monitoring data to NYSDEC on a periodic basis, rather than on request.

Frequent Comment 7 – Stream flows, flow standards. NYSDEC should specify how minimum stream flows (aka flow standard) that will be protective of aquatic life will be determined and enforced. Response. NYSDEC is developing a technical guidance for use in determining minimum (passby) flows. The guidance document will include methods to be used to monitor stream flows and ensure compliance with permit conditions.

Frequent Comment 8 – Withdrawals already regulated by SPDES permits. Regulating such withdrawals under two permits would be burdensome. Response. NYSDEC will coordinate the review of Part 601 permit applications with the SPDES permit process. This is reflected in 601.7 and 601.11(h) whereby the timing and review of initial and standard withdrawal permit applications is coordinated with SPDES permit renewals. The deadline in 601.7(b)(2) requires facilities with SPDES permits that control water withdrawals to apply for an initial water withdrawal permit 180 days prior to the expiration of their SPDES permits. The Department acknowledges this may not be possible for facilities with SPDES permits that are expiring in 2012 and administratively extended. The deadline has been clarified as follows such that it is the later of the 180 period or June 1, 2013. Further, the Part 601 applicant will be able to develop documents that satisfy both permitting programs (e.g. Engineering Report), to the extent appropriate.

Frequent Comment 9 – Evaluation of cumulative impacts. Diverse statements were received, such as, NYSDEC is required to assess the cumulative impacts posed by existing withdrawals (including impacts due to consumptive use) before proceeding with this rule making; NYSDEC is required to assess cumulative impacts as part of the water withdrawal permitting process under these regulations; and the definition of ‘significant individual or cumulative adverse impacts’ should be defined. Response. The short environmental assessment form for this rule making explains the basis for the negative declaration for this rule making. The expansion of the water withdrawal permitting program to cover non-potable withdrawals (e.g., in addition to public water supplies) does not allow a new activity to be undertaken. Rather, it regulates an already-existing activity (non-potable withdrawals above the threshold volume).

Since 1989, non-potable withdrawals over 100,000 gpd in the Great Lakes basin have been required to be registered and reported to NYSDEC on an annual basis. Under the Great Lakes Compact, NYSDEC compiled baseline data of permitted, registered facilities withdrawing 100,000 gpd or more in the Great Lakes Basin. The water withdrawal reporting requirement was extended statewide in 2009 by article 15 title 33. Through the 2011 statutory amendments to article 15 title 15, these three programs have been consolidated into one. The data NYSDEC has gathered so far has provided comprehensive information on the water resources in the state of New York, the reported withdrawals, and the overall impacts of these withdrawals.

The potable water use remains the paramount use of water under ECL article 15, and the water withdrawal permit application review process takes that into account. Sub-section 601.11(c)(6), in conjunction with sub-sections (c)(3) and (c)(8), and the over-arching statutory authority, without limitation, allow for the consideration of consumptive use in the permitting process. Concerning whether to define, ‘significant individual or cumulative adverse impacts,’ each water withdrawal system and source are unique and vary widely. The evaluation of significant individual or cumulative adverse impacts is undertaken in the best professional judgment of Department staff. Specific projected impacts may be very significant in one instance but insignificant in a different water withdrawal system relative to its source. Uniform application of a single definition would diminish NYSDEC's broad statutory authority to regulate water withdrawals. However, it is anticipated that guidance may be developed to better illustrate various impacts in relation to sources.

Frequent Comment 10 -- An exemption for dewatering and emergency situations should be included in the regulations. Response. The regulations have been clarified by specifically addressing temporary water withdrawals for construction, dewatering, or for hydrostatic or aquifer testing purposes less than an average of 100,000 gallons per day in any thirty day consecutive period (3 million gallons during a 30 day period). Such withdrawals are not designed as permanent systems of water allocation and do not require a permit based on a single, rare or truly short-term withdrawal above the threshold within a given month that may occur for testing or construction dewatering purposes. This exemption would not apply to water withdrawals intended for HVHF. If New York decides to allow HVHF, then it is anticipated that all water withdrawn or purchased for HVHF, regardless of the quantity, would be required to be obtained from sources that are either permitted pursuant Part 601 or approved by SRBC or DRBC.

Frequent Comment 11 – Forms to be used for permit applications, annual reports, and inter-basin diversions. Response. NYSDEC is updating the forms. They are administrative in nature, will reflect the statutory and regulatory requirements, and cannot be finalized until the regulations are finalized. NYSDEC is authorized to require information necessary to make a determination on the requirements in the regulations. The information requested of the applicant will be similar to existing forms. No permit applications under adopted Part 601 are due until June 1, 2013. NYSDEC anticipates having all necessary forms available in advance of that date.

Frequent Comment 12 – Inquiries were received about the public comment process. Response. The notice of proposed rule making was published in the State Register and the Environmental News Bulletin (ENB) on November 23, 2011. Public hearings were not required. However, Staff provided three public information meetings regarding the proposed rule making on December 6, 8 and 12, 2012, in New Paltz, West Henrietta and Albany, respectively. The public comment period for the proposed rulemaking was longer than is required under the State Administrative Procedures Act, was scheduled to close on January 22, 2012, but was further extended to February 6, 2012, as published.