ENV-48-14-00005-P Water Quality Standards for Class I and Class SD Waters in New York City and Suffolk County

12/3/14 N.Y. St. Reg. ENV-48-14-00005-P

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 48

December 03, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. ENV-48-14-00005-P

Water Quality Standards for Class I and Class SD Waters in New York City and Suffolk County

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

Proposed Action:

Amendment of Parts 701 and 703 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, arts. 3, 15 and 17

Subject:

Water quality standards for Class I and Class SD waters in New York City and Suffolk County.

Purpose:

To amend New York's water quality standards for Class I and Class SD waters to meet the “swimmable” goal of the Clean Water Act.

Public hearing(s) will be held at:

12:00 p.m., January 27, 2015 at Environmental Protection Agency Region 2 office, 290 Broadway, Rm. 27A, New York, NY 10007.*

*In addition, a Public Information Meeting where the Department will present an overview of the proposed rulemaking will be held. No public comment will be accepted at this Information Meeting on January 6, 2014 from 11:00 a.m. – 2:00 p.m. at U.S. Environmental Protection Agency Region 2 office, 290 Broadway, Rm. 27A, New York, NY 10007.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Text of proposed rule:

Section 701.13 is amended to read as follows:

§ 701.13 Class I saline surface waters.

The best usages of Class I waters are secondary contact recreation and fishing. These waters shall be suitable for fish, shellfish, and wildlife propagation and survival. In addition, the water quality shall be suitable for primary contact recreation, although other factors may limit the use for this purpose.

Section 701.14 is amended to read as follows:

§ 701.14 Class SD saline surface waters.

The best usage of Class SD waters is fishing. These waters shall be suitable for fish, shellfish, and wildlife survival. In addition, the water quality shall be suitable for primary and secondary contact recreation, although other factors may limit the use for these purposes. This classification may be given to those waters that, because of natural or man-made conditions, cannot meet the requirements for [primary and secondary contact recreation and] fish propagation.

6 NYCRR Part 703, entitled “Surface Water and Groundwater Quality Standards and Groundwater Effluent Limitations,” is amended as follows:

Subdivisions (a) and (b) of section 703.4 are amended to read as follows:

(a) Total coliforms (number per 100 ml).

Classes	Standard
AA	The monthly median value and more than 20 percent of the samples, from a minimum of five examinations, shall not exceed 50 and 240, respectively.
A, B, C, D, SB, SC, I, SD	The monthly median value and more than 20 percent of the samples, from a minimum of five examinations, shall not exceed 2,400 and 5,000, respectively.
SA	The median most probable number (MPN) value in any series of representative samples shall not be in excess of 70.
[I]	[The monthly geometric mean, from a minimum of five examinations, shall not exceed 10,000.]
A-Special	The geometric mean, of not less than five samples, taken over not more than a 30-day period shall not exceed 1,000.
GA	The maximum allowable limit is 50.

(b) Fecal coliforms (number per 100 ml).

Classes	Standard
A, B, C, D, SB, SC, I, SD	The monthly geometric mean, from a minimum of five examinations, shall not exceed 200.
[I]	[The monthly geometric mean, from a minimum of five examinations, shall not exceed 2,000.]
A-Special	The geometric mean, of not less than five samples, taken over not more than a 30-day period shall not exceed 200.

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

Robert Simson, New York State Department of Environmental Conservation, Division of Water, 625 Broadway, 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:

Five days after the last scheduled public hearing.

Additional matter required by statute:

The Department has completed a Negative Declaration for this rulemaking to comply with the State Environmental Quality Review Act.

Summary of Regulatory Impact Statement

Note: A copy of the full Regulatory Impact Statement can be viewed at: http://www.dec.ny.gov/regulations/propregulations.html

The waters of New York State (both freshwater and saline) are grouped into classes with uses designated for each class, along with standards to protect their uses. There are five classes of saline waters defined in Title 6 of the New York Codes, Rules, and Regulations (NYCRR) Part 701 (Part 701): SA, SB, SC, I, and SD. The purpose of this rulemaking is to amend Part 701 to require that the quality of Class I and Class SD waters be suitable for “primary contact recreation,” and to adopt corresponding total and fecal coliform standards in 6 NYCRR Part 703 (Part 703). Primary contact recreation refers to activities which involve direct, intentional human contact with water, such as swimming and water skiing. This rulemaking is needed to ensure that Class I and Class SD waters meet the “swimmable” goal of the federal Clean Water Act. The proposed revisions would impact limited waters in the State; the majority of Class I and Class SD waters are located in New York City, with a few waters located in Suffolk County.

1) Statutory Authority

The statutory authority for adoption of water quality regulations and standards is found in the Environmental Conservation Law (ECL) Articles 3, 15 and 17. ECL Article 3 provides that the Commissioner of the Department of Environmental Conservation (Department) may adopt regulations to carry out the purposes of the ECL in general. ECL Articles 15 and 17 direct the Department to classify the waters of the state in accordance with best usage in the interest of the public and “maintain reasonable standards of purity of the waters of the state consistent with public health and public enjoyment thereof. . . .” Specifically, Section 17-0301 provides that the Department “shall group the designated waters of the state into classes. Such classification shall be made in accordance with considerations of best usage in the interest of the public” and further that the Department “shall adopt and assign standards of quality and purity for each such classification necessary for the public use or benefit contemplated by such classification.”

2) Legislative Objectives

The legislative objectives of the statutory authority discussed above are to “conserve, improve and protect [the State’s] natural resources and environment and to prevent, abate and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well being” and to guarantee that the “widest range of beneficial uses of the environment is attained without risk to health or safety, unnecessary degradation or other undesirable or unintended consequences.” The proposed amendments to Parts 701 and 703 would help the State to achieve these objectives and would also contribute to achieving the federal mandate “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” and the national goal, wherever attainable, of water quality which “provides for recreation in and on the water,” commonly referred to as the swimmable goal.

3) Needs and Benefits

This proposed action is needed to protect and preserve saline surface water resources for primary contact recreation uses, such as swimming, surfing, and water skiing, in accordance with the Clean Water Act regulatory requirements. The saline surface waters that would be affected by this rulemaking are all of the Class I and Class SD waters in New York State.

A) Class I and Class SD Waterbodies

A limited number of waterbodies in New York State are currently classified as Class I or Class SD. Almost all of these waterbodies are located within the bounds of New York City, and the remainder are in Suffolk County.

B) The Clean Water Act

The proposed regulatory changes are needed to ensure that Class I and Class SD waters meet the swimmable goal of the Clean Water Act. The Clean Water Act is the federal statute governing water pollution throughout the nation. In the Act, Congress set a general objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To achieve that objective, Congress set a national goal that, “wherever attainable,” water quality that “provides for recreation in and on the water” would be achieved by 1983. This provision, set out in section 101(a)(2) of the Act, is often referred to as the Clean Water Act’s swimmable goal.

Consistent with the general objective stated above, Congress required that each state set water quality standards for all surface waters in the state. Water quality standards include two components—designated uses and water quality criteria—that operate in tandem. Designated uses are the best uses assigned to a particular waterbody, such as a source of public drinking water or a location for swimming or fishing. The water quality criteria are the specific technical standards needed to protect particular designated uses.

C) The Swimmable Goal

Since 1975, New York State has been authorized by the United States Environmental Protection Agency (EPA) to regulate point source discharges to the waters of the state in accordance with the National Pollutant Discharge Elimination System and adopt water quality regulations to achieve the swimmable goal of the Clean Water Act. In Part 701, the Department has established surface water classifications that delineate best usages and requirements for water quality for different classes of waters. All of the surface water classifications (freshwater and saline), except those for Class I and Class SD, designate primary contact recreation as a best usage or require that the water quality be suitable for primary contact recreation. Accordingly, Class I and Class SD waters are the only surface waters within the State that are not required by Department regulation to meet the swimmable goal of the Clean Water Act. The proposed rulemaking would require that the quality of Class I and Class SD waters be suitable for primary contact recreation, and meet corresponding total and fecal coliform standards.

If the Department does not adopt regulations to achieve the swimmable goal for Class I and Class SD waters, the EPA has the authority to impose the swimmable goal for New York waters through federal regulations. The implications of the EPA taking such action are discussed further under Section 8 of this statement.

4) Costs

This rulemaking, which requires that the quality of Class I and Class SD waters be suitable for primary contact recreation, would affect waterbodies within New York City and Suffolk County.

A) Suffolk County

This rulemaking would not impose any costs on Suffolk County or any regulated persons or local governments within the County. There are no wastewater treatment plants or other regulated parties in Suffolk County that discharge into Class I or Class SD waters. Accordingly, this rulemaking would not impose any costs on regulated persons or local governments in the County because no treatment modifications or facility upgrades would be required.

B) New York City

In New York City, there are numerous municipal wastewater treatment plants and several other regulated parties that discharge into Class I or Class SD waters. Investments in water pollution abatement are necessary to bring New York City waters into compliance with the swimmable goal. However, for several reasons, New York City is already obligated to make those investments, and therefore, the proposed amendments would not impose any costs on regulated persons or local governments in New York City above and beyond costs that are currently required.

First, the Clean Water Act obligates New York City to take appropriate measures to ensure that the waters of New York City meet the swimmable goal. Second, in 1994, the EPA promulgated a Combined Sewer Overflow (CSO) Long Term Control Plan Policy (LTCP Policy) to address LTCPs. The LTCP Policy was drafted to provide guidance for EPA, states, and municipalities on the required elements of an approvable LTCP. In 2000, the LTCP Policy was codified into federal statute in Section 402(q) of the Clean Water Act. The LTCP Policy and Section 402(q) require that CSO’s meet the requirements of the Act, including the swimmable goal. Third, in 2012, DEC and New York City signed a Modified CSO Order (CSO Order) in which the City committed to attain water quality standards as well as comply with other Clean Water Act requirements “in furtherance of the water quality goals of the federal Clean Water Act.” Fourth, some of the Class I and Class SD waters within New York City are already designated for primary contact recreation under the regulations of the Interstate Environmental Commission (IEC). Therefore, this rulemaking will not impose any costs on regulated persons or state or local governments beyond those costs that are currently required.

C) Costs to the Department, the State, and local governments

This rulemaking would not impose any costs on the Department, the State or any of its agencies, or any local governments except as discussed above in relation to New York City.

5) Local Government Mandates

This rulemaking would not impose any mandates on local governments, except New York City, as a regulated party. As discussed in Section 4(B) of this statement, it would not impose any mandates that are not already required by the Clean Water Act, EPA’s CSO LTCP Policy, the CSO Order, or the IEC. This rulemaking would not impose any mandates on Suffolk County or any local governments within the County.

6) Paperwork

There would be no paperwork or reporting requirements as a result of this rulemaking.

7) Duplication

Although this rulemaking will result in some overlap of state and federal requirements, it is necessary to achieve consistency between the Clean Water Act and New York State regulations.

8) Alternatives

The only alternative considered was the “no action” alternative. Taking no action would not address the fact that Class I and Class SD waters currently do not comply with the swimmable goal of the Clean Water Act. If the water classifications remain unchanged, it is possible that the EPA could exercise its authority to promulgate regulations for New York State to bring the Class I and Class SD waters into compliance with the Clean Water Act. If the EPA were to take this action, the Department would lose some flexibility for setting water quality standards for the state waters. Moreover, a bifurcated regulatory program would be more complicated and confusing to the regulated community. The Department has rejected the no-action alternative.

9) Federal Standards

The proposed regulatory changes do not exceed any federal minimum standards. As discussed above in in Sections 3(B) and 7 of this statement, the proposed regulatory changes would bring New York State water quality classifications and requirements into compliance with the federal minimum standards, in particular the nationwide goal of achieving swimmable waters.

10) Compliance Schedule

The proposed regulatory changes would take effect on the day that the Notice of Adoption for these regulations is published in the New York State Register. The Department recognizes that it would be unreasonable, both physically and fiscally, to expect regulated parties to comply with the regulations immediately. However, the City is obligated under the CSO Order to comply with established waterbody-specific schedules for LTCPs and construction projects, and the Department fully expects the City to meet its’ obligations under the CSO Order. In addition, under 6 NYCRR section 702.17, the Department may grant a variance to water quality-based effluent limitations included in a SPDES permit under certain circumstances to provide temporary regulatory relief while measures are taken to achieve compliance.

Regulatory Flexibility Analysis

1. Effect of Rule:

The proposed rule would apply to any local governments or small businesses that have permitted discharges of treated sanitary sewage into Class I or Class SD waters. All of New York’s Class I and Class SD waters are located within New York City and Suffolk County.

Within Suffolk County, there are no wastewater treatment plants or other regulated parties that discharge into Class I or Class SD waters. Therefore, the proposed rule would not apply to any small businesses or local government within Suffolk County.

Within New York City, the rule would apply to the municipality of New York City and several small businesses that have permitted discharges of treated sanitary sewage. The small businesses are already required to meet the swimmable goal of the federal Clean Water Act because their State Pollutant Elimination Discharge System (SPDES) permits contain conditions that ensure they meet Class SC water quality standards. As discussed in the Regulatory Impact Statement (RIS) for this rulemaking, New York City is also already obligated to bring New York City waters into compliance with the swimmable goal. Therefore, this rulemaking would not impose any costs on regulated persons or local governments beyond those costs that are currently required.

2. Compliance Requirements:

New York City would likely need to plan, design, and/or construct pollution abatement facilities in order for Class SD and Class I waters to meet the swimmable goal of the Clean Water Act. This process generally commences with the issuance or renewal of a SPDES permit or Long-Term Control Plan and continues through a construction compliance period. The Department requires permittees to submit a report describing their chosen pollution abatement plan, including a schedule of construction. The Department must review and approve the report before construction may commence.

New York City would be required to monitor for both fecal coliform and total coliform in Class SD waters. The City currently monitors for fecal coliform in Class SD waters as part of its Sentinel Monitoring Program required under its SPDES permits and Post-Construction Compliance Monitoring Program required under its CSO Order, as discussed in the RIS. Sampling results are reported in an annual report required under the SPDES permit and CSO Order. There would be no increase in paperwork as a result of this rulemaking because the City already annually reports its water quality data, and it may report data on total coliform at the same time.

3. Professional Services:

Professional services of consulting engineers would likely be needed for the design and construction management of new pollution abatement facilities. Consulting engineers would provide the sampling and analysis, modeling, engineering, facilities planning, project development and management expertise to assist New York City in implementation of future projects. However, the projects that necessitate these services are already required, as fully discussed in the RIS.

4. Compliance Costs:

The RIS discusses the costs of complying with the proposed rule. However, as discussed above and in the RIS, there are no new costs to regulated parties, small businesses, or local and state governments associated with this rulemaking because regulated parties are currently required to comply with the standards proposed in this rulemaking.

5. Economic and Technological Feasibility:

Various technologies exist that can be used for pollution abatement to comply with the proposed Class I and Class SD water quality standards.

6. Minimizing Adverse Impact:

This rulemaking does not impose any new costs on regulated parties. As explained above and in the RIS, New York City is already obligated to bring New York City waters into compliance with the swimmable goal. The Department’s water quality regulations have provisions, however, that can potentially mitigate economic impacts associated with meeting the swimmable goal. Under 6 NYCRR Section 702.17, the Department may grant a variance to effluent limitations under certain circumstances to provide temporary regulatory relief to a permittee while measures are taken to achieve compliance.

The planning, design, and/or construction of pollution abatement facilities generally commence with the issuance or renewal of a SPDES permit or Long-Term Control Plan and continue through a construction compliance period. The Department requires permittees to submit a report describing their chosen pollution abatement plan, including a schedule of construction. The Department must review and approve the report before construction may commence.

7. Small Business and Local Government Participation:

The Department will hold a public hearing on this rulemaking to receive comments from stakeholders on the proposed regulations. In addition, the Department will hold a public information meeting, in advance of the public hearing, to present an overview of the proposed rulemaking.

8. Cure Period:

The proposed revisions in this rulemaking do not require the inclusion of a cure period, pursuant to Chapter 524 of the Laws of 2011, because there are no changes to any existing violations or penalties, and no new violations or penalties are established.

Rural Area Flexibility Analysis

This rulemaking does not impact any rural areas as defined in New York State Administrative Procedure Act section 102(10). The rule only applies to Class I and Class SD waters located in Suffolk County and New York City. There are no designated rural areas in Suffolk County or in New York City. Therefore, the Department has determined that a Rural Area Flexibility Analysis is not required.

Job Impact Statement

A job impact statement is not required for this rulemaking because the proposed rule will not have a substantial adverse impact on jobs and employment opportunities. The proposed regulatory changes are needed to ensure that Class I and Class SD waters meet the swimmable goal of the Clean Water Act. It is evident from the subject matter of this rule that it could only have a positive impact or no impact on jobs or employment opportunities. This rulemaking will not result in the loss of any jobs in New York State. Therefore, the Department has determined that a Job Impact Statement is not required.