To reclassify certain surface waters in Lake Champlain Drainage Basin, in Clinton, Essex, Franklin, Warren, Washington counties.
Public hearing(s) will be held at:
11:00 a.m., November 2, 2016 at Plattsburgh Town Hall, Town Office Meeting Rm., 151 Banker Rd., Plattsburgh, NY.
Two public information Meetings will be held on October 13, 2016, to provide background information on the proposed rule making. Comments regarding the proposed regulations will not be taken during these information sessions. These meetings will be held at 2:00-4:00 p.m. and 6:00-8:00 p.m. at the Town of Plattsburgh, Town Office Meeting Room, 151 Banker Rd., Plattsburgh, NY.
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.
Substance of proposed rule (Full text is posted at the following State website:dec.ny.gov/regulations/39559.htm):
Reclassification of Certain Waters Within the Lake Champlain Drainage Basin Within Clinton, Essex, Franklin, Warren, and Washington Counties, New York
The waters within the Lake Champlain drainage basin are listed in Table I of 6 NYCRR Part 830 for purposes of classification. For ease of reference, each listing in the table has been assigned an “item number,” which can refer to a single waterbody, or multiple waterbodies, or a portion of a waterbody. DEC proposes to amend the classifications of 174 item numbers, adopt 39 new item numbers, and repeal 1 item number in Table I, to include:
1) reclassifying 123 item numbers from a classification of “D” to “C”;
2) reclassifying 8 item numbers from a classification of “D” to “C(T)”;
3) reclassifying 8 item numbers from a classification of “D” to “C(TS)”;
4) reclassifying 9 item numbers from a classification of “C” to “C(T)”;
5) reclassifying 3 item numbers from a classification of “C” to “C(TS)”;
6) reclassifying 3 item numbers from a classification of “C(T)” to “C(TS)”;
7) reclassifying 6 item numbers from a classification of “A” to “A(T)”;
8) reclassifying 9 item numbers from a classification of “AA” to “AA(T)”;
9) reclassifying 1 item number from a classification of “AA” to “AA(TS)”;
10) reclassifying 2 item numbers from a classification of “AA Special” to “AA Special(TS)”;
11) classifying 1 item number as “C” where classification is currently blank;
12) removing the D classification for 1 item number due to its location with the forest preserve;
13) adding 3 new item numbers having a classification of “C”;
14) adding 1 new item number having a classification of “C(T)”;
15) adding 35 new item numbers for waters being extracted from existing item numbers;
16) deleting 1 item number because the water is being incorporated into another item number.
No downgrading of classifications is proposed. Use Attainability Analyses have been completed for 28 waters to remain as Class D. A new section is proposed, titled “Designated waters.” A portion of the Definitions section would be modified and used to create a proposed new section called “Special conditions.” Several definitions are proposed to be clarified and rearranged. Seventeen quadrangle maps and one map showing the location of the Lake Champlain drainage basin are proposed to be replaced with new maps.
Text of proposed rule and any required statements and analyses may be obtained from:
Robert Simson, New York State Department of Environmental Conservation, 625 Broadway, 4th Floor, Albany, NY 12233-3500, (518) 402-8233, email: Part.830Reclass@dec.ny.gov
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.
Regulatory Impact Statement
1. Statutory Authority
Environmental Conservation Law (“ECL”) §§ 3-0301, 15-0313, and 17-0301 provide DEC with the authority to adopt regulations to classify the surface waters in New York, and authorize DEC to modify existing classifications.
2. Legislative Objectives
The reclassification of fresh surface waters proposed for the Lake Champlain drainage basin will contribute to the fulfillment of the legislative objective of the ECL to guarantee that the “widest range of beneficial uses of the environment is attained without risk to health or safety,” (ECL 1-0101[3][b]) and that the waters of the state are classified “in accordance with considerations of best usage in the interest of the public” (ECL 17-0301[2]).
Under the federal Clean Water Act (“CWA”), the reclassification will contribute to achieving the federal mandate “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” (33 USC § 1251[a]) and the national goal, wherever attainable, of “water quality which provides for the protection and propagation of fish, shellfish, and wildlife” (33 USC § 1251[a][2]), commonly known as the “fishable” goal. In addition, CWA § 303(c) requires the states to review their water quality classifications and standards at least once every three years and to modify them as appropriate.
3. Needs and Benefits
CWA § 303(c) requires the states, every three years, to “hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards” (33 USC § 1313[c]). CWA § 101(a)(2) states that “it is the national interim goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983” (33 USC § 1251[a][2]). CWA § 303(c)(2)(A) requires water quality standards to “protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter” (33 USC § 1313[c][2][A]). The U.S. Environmental Protection Agency’s (“EPA’s”) regulations in the Code of Federal Regulations (“CFR”), Title 40, Part 131, interpret and implement these provisions through a requirement that water quality standards protect CWA § 101(a)(2) uses unless those uses have been shown to be unattainable, effectively creating a rebuttable presumption of attainability (see 48 Fed Reg 51405 [1983], codified at 40 CFR 131 et seq.). In addition, ECL § 17-0301(2) requires the DEC to “group the waters of the state into classes.”
The proposed amendments to surface water classifications are the result of petitions submitted to DEC pursuant to 6 NYCRR Part 609. A copy of any of the petitions may be obtained by emailing your request to DEC at Part.830Reclass@dec.ny.gov. The “D” classification protects fish life (i.e. fish survival) but not fish propagation. Protection for fish propagation is necessary to achieve the fishable goal of the CWA, as expressed in § 101(a)(2). Petitions to amend the classification of waters from Class “D” to Class “C,” protecting fishing and fish propagation, resulted from analyses performed as specified in “Water Quality Standards Attainability Strategy,” NYSDEC, dated June 6, 1985. A copy of this document may be obtained by emailing your request to DEC at Part.830Reclass@dec.ny.gov.
Factors that may limit a water’s ability to achieve a best usage of fishing (fish propagation) were evaluated through a Use Attainability Analysis (“UAA”). Pursuant to 40 CFR Part 131.3 (g), a UAA is a structured scientific assessment of the factors affecting the attainment of the use which may include physical, chemical, biological, and economic factors as described in § 131.10(g).
The purpose of a UAA is to determine the highest attainable use for a waterbody and provide the supporting documentation when a state refines its designated uses. A UAA must be conducted when designating uses that do not include the uses specified in CWA § 101(a)(2), such as in those cases where a waterbody is proposed to remain class “D.” For existing “D” waters, a decision not to upgrade must be supported by a UAA to comply with federal regulations pursuant to the CWA. Where a state believes that a use specified in § 101(a)(2) is not attainable and wishes to remove or subcategorize this use, the state is required to demonstrate that the use is not attainable based on one or more of the factors included in 40 CFR Part 131.10 (g) through the completion and submission of a UAA to the EPA. In addition, the state must show that the change in use will not result in removing an existing use. If the analysis leads to a recommendation of a classification below “C,” the state must provide appropriate justification as described above.
In Table I of 6 NYCRR Part 830, the waters within the Lake Champlain drainage basin are listed for purposes of classification. For ease of reference, each listing in the table is assigned an “item number,” which can refer to a single waterbody, or multiple waterbodies, or a portion of a waterbody. Twenty eight item numbers currently classified “D” cannot sustain a classification of “C”; UAAs were completed for these item numbers. A copy of any of the UAAs may be obtained by emailing your request to DEC at Part.830Reclass@dec.ny.gov.
Proposed changes designating waters for trout (T) or trout spawning (TS) were based on field surveys where trout were captured or the habitat was evaluated and determined to be suitable to support the proposed use. Those proposals were documented by petitions and supporting information prepared by staff from DEC’s Division of Fish and Wildlife.
DEC proposes to amend the classifications of 174 item numbers (as summarized in Table A below), adopt 39 new item numbers, and repeal 1 item number in Table I of Part 830. The benefit of the proposed action is that it would provide a current basis for protection of the basin’s waters, ensuring they are classified consistently with their best usage, and that the applicable water quality standards for each water’s classification will protect its best usage. In the long term, it will lead to improved water quality because of the generally increased protection provided. The proposed action would continue the state’s compliance with federal requirements to maintain an appropriate review process for waterbody classifications and water quality standards. This process also continues to maintain the eligibility of municipalities throughout the state to receive assistance for the construction of publicly owned wastewater treatment works. There are loans available from the New York State Environmental Facilities Corporation, and grants are periodically available from DEC.
4. Costs
Reclassification of a waterbody results in the application of different ambient water quality standards, which must be considered when writing wastewater discharge permits. For example, if a waterbody is reclassified from “D” to “C,” additional and more stringent standards would apply to protect the water quality for fish propagation. As an example, for cyanide in Class D waters, the aquatic life standard is 22 micrograms per liter (μg/L) to protect fish survival, but Class C waters have a more restrictive aquatic life standard of 5.2 μg/L to protect fish propagation. Thus, a classification change could lead to additional capital construction and/or operation and maintenance costs for individual permitees if their current permit limits and level of wastewater treatment would not meet the newly applied standards.
Adoption of the proposed classifications would not immediately change the limits in existing permits. Permits are reviewed according to their priority under the “Environmental Benefit Permit Strategy” and are drafted consistent with standards in place and information available at that time. This discussion of costs reflects an assessment made with current knowledge of water quality data and treatment plant effluent constituents.
All wastewater treatment plants are required by the CWA to meet minimum standards—both in treatment methodologies and effluent quality—based on the type of facility. For example, municipal treatment plants must provide a minimum amount of secondary treatment, and industrial and commercial facilities have equivalent minimum requirements based on the type of industry and the processes used. Reclassification could cause a facility’s permit limits to change, but if it is currently operating in a manner that would meet the more stringent permit limits, there would be no cost impact from the new limits.
All facilities having a State Pollutant Discharge Elimination System (“SPDES”) permit and currently discharging to waters proposed for reclassification have had their present permit effluent limits reassessed to determine whether more stringent water quality standards or guidance values would result in more stringent effluent limits. The review of the SPDES permit involves a calculation of projected effluent limits for each discharger where more stringent water quality standards or guidance values would result from the proposed classification when compared to the current classification. All SPDES permits which potentially could be affected were reviewed to determine if their specified discharge limits would change and if there would be any associated costs. The review of permit limits and operational data from facilities discharging to waters proposed for reclassification indicated there would be no cost impact to SPDES-permitted facilities.
The following statements are the result of evaluations of financial impact of this proposal on potentially affected entities:
(a) Costs to State Government
No costs are projected for state government because no state owned facility discharge would be affected by this proposal.
(b) Costs to Local Governments
No costs are projected for local governments because no local government owned facility discharge would be affected by this proposal.
(c) Costs to Private Regulated Parties
No costs are projected for private regulated parties because no privately owned facility discharge would be affected by this proposal.
(d) Costs to the Regulating Agency
New costs to DEC associated with this rulemaking are limited to the costs of advertising and conducting the public hearing.
5. Local Government Mandates
This proposal would not impose any program, service, duty, or responsibility upon any local government entity.
6. Paperwork
There would be no new reporting requirements, including forms or other paperwork, associated with the proposed reclassifications.
7. Duplication
There is no duplication. DEC is proposing these amendments to Part 830 in order to comply with the requirements of the CWA.
8. Alternatives
An alternative to pursuing the proposed rulemaking is to take no action. “No action” would fail to provide the desired water quality protection that would result from the upgraded classifications. The “no action” alternative would fail to ensure that New York State regulations are consistent with federal requirements. The “no action” alternative was rejected because it would not result in the needed upgrades as described above.
9. Federal Standards
The proposed rule complies with federal standards for the classification of waters.
10. Compliance Schedule
Existing wastewater treatment facilities can currently meet the water quality requirements of the proposed classifications. No further action is required by these facilities to achieve compliance.
TABLE A
Proposed Reclassifications
Existing Classifi- cation
No. of Item Numbers
C
C(T)
C(TS)
A(T)
AA(T)
AA(TS)
AA Special (TS)
None ***
AA-Special
2
2
AA
10
9
1
A
6
6
C(T)
3
3
C
12
9
3
D*
140
123
8
8
1
None**
1
1
TOTAL
174
124
8
8
0
0
0
0
1
* Twenty-eight (28) item numbers currently classified “D” were determined to be inappropriate for reclassification. Supporting UAA forms are on file.
** None; “Class” column entry in Table I of Part 830 is blank
*** None; water is in forest preserve
Regulatory Flexibility Analysis
1. Effect of Rule
The proposed rule would apply to any small businesses or local governments that have permitted discharges of treated sanitary wastewater into surface waters within the Lake Champlain drainage basin. The small businesses and local governments that have discharges to waters proposed to be reclassified currently have wastewater treatment systems which would meet the water quality requirements of the proposed classifications so there would be no associated costs.
2. Compliance Requirements
This rulemaking will not impose any reporting, record keeping, or other compliance requirements on small businesses or local governments or their permitted facilities.
3. Professional Services
Professional services of consulting engineers will not be needed for the design and construction management of new pollution abatement facilities because existing wastewater treatment facilities can currently meet the water quality requirements of the proposed classifications.
4. Compliance Costs
The RIS discusses the costs of complying with the proposed rule. As discussed in Section 1 and in the RIS, there would be no costs to small businesses or local governments’ permitted facilities associated with this rulemaking because existing wastewater treatment facilities can currently meet the water quality requirements of the proposed classifications.
5. Economic and Technological Feasibility
The consideration of pollution abatement technologies does not apply since existing wastewater treatment facilities can currently meet the water quality requirements of the proposed classifications.
6. Minimizing Adverse Impact
This rulemaking does not impose any costs on regulated parties.
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.
Rural Area Flexibility Analysis
1. Types and Estimated Numbers of Rural Areas
The rule would apply to all towns and villages in rural areas of Clinton, Essex, Franklin, Warren, and Washington Counties, New York that have municipal wastewater treatment plants (“WWTPs”) or businesses that discharge treated sanitary wastewater to waterbodies proposed for upgrade in classification.
2. Reporting, Recordkeeping and Other Compliance Requirements, and Professional Services
Within the rural areas of the Lake Champlain drainage basin, the wastewater treatment facilities that discharge to waters proposed to be reclassified can currently meet the water quality requirements of the proposed classifications. Therefore, there are no reporting, recordkeeping or other compliance requirements, or professional services needed for such facilities.
3. Costs
There are no new costs to dischargers located in rural areas associated with this rulemaking because existing wastewater treatment facilities can currently meet the water quality requirements of the proposed classifications.
4. Minimizing Adverse Impact
There is no adverse impact from this rule; therefore, there is no adverse impact that needs to be minimized.
5. Rural Area Participation
DEC will comply with the State Administrative Procedure Act § 202-bb (7) by providing the public in rural areas with the opportunity to participate in the rulemaking process. The Department will inform the public about the proposed rule through the DEC website, letters to dischargers and municipalities, and notices in the Environmental Notice Bulletin and the State Register. DEC will hold both a public information meeting and a public hearing within the Lake Champlain drainage basin. The public will have the opportunity to comment on the proposed rule by attending the public hearing or by submitting written comments to the Department.
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 only businesses that could potentially be adversely impacted by changes to water quality standards are those that hold SPDES permits for the affected waterbodies. However, this rule does not impose any increased requirements for permitted dischargers. The proposed regulatory changes are needed to upgrade the classification of waters to meet the “fishable” goal of the federal Clean Water Act. These reclassifications will not result in any increased requirements for permitted dischargers and thus will not lead to any 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.
