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Response to Proposed Listings to the 2012 Section 303(d) List

NYSDEC received a number of petitions advocating for the inclusion of specific waters as impaired in response to the data solicitation for the development 2012 NYS Section 303(d) List of Impaired/TMDL Waters. All of these petitions provide ample documentation of water quality issues that NYSDEC agrees warrant some level of attention. However the guidance and established practices used in considering waters for inclusion on the List are very specific and reflect a fairly high bar when determining whether the impacts to a waterbody meet the threshold of having impaired uses. In addition, there are a number of nuances in the Section 303(d) regulations regarding listing that result in waters that are impaired not being included on the 303(d) List. For example, impaired waters for which a TMDL has been complete, or where other required regulatory controls outside of a TMDL will address the impairment, are appropriate to exclude from the List.

Some of the petitions cite the need to protect a waterbody from becoming impaired as a justification for a listing. Past petitions have also noted that a listing would increase attention or opportunities for restoration funding for a specific waterbody. However, while these interpretations are not without merit, these reasons alone do not meet the threshold for listing. The 303(d) List is reserved for those specific waterbodies where NYS water quality standards are currently being exceeded and/or where uses are not being supported. Note that NYSDEC's water quality assessment program does includes additional categories - such as Stressed and Threatened - that go beyond the 303(d) List designation of Impaired, and that are often more appropriate representations of a waterbody condition.

A discussion of some of the specific suggested additions to the Section 303(d) List received during the data solicitation is presented below.

Carmans River proposed for Nutrients

(submitted by Baykeeper, et al)
NYSDEC believes there is not sufficient evidence that water quality conditions in the Carmans River reach the threshold of impaired and that it is not appropriate to add the river to the 303(d) List. The petition cites the need to protect the waterbody, and while we do not disagree about that need, it is not sufficient justification for listing. NYSDEC acknowledges significant invasive weed issues that impair uses in Lower Lake, but these are appropriately designated as a habitat (invasives) problem rather than a nutrient issue and, as such, would be more appropriately assigned to Category 4c as an impaired water, but one for which a TMDL is not appropriate. That being said, nutrient loadings from the Carmans River may very well be considered in the development of a TMDL for Great South Bay, which is included on the 303(d) List, and its watershed which includes the Carmans River.

Lower Esopus Creek proposed for Silt/Sediment, Turbidity

(submitted by Pace Environ Law)
NYSDEC believes that impairment of the creek is evident; in aftermath of the September 2011 flooding events, in particular, conditions in the creek have been poor for an extended period of time. However it is NYSDEC's opinion that it is more appropriate to categorize this waterbody as a 4b water, where a TMDL (and 303(d) Listing) is not necessary due to other required control measures. In this case, the department is pursuing enforcement actions against New York City, with an eventual Consent Order to include penalties, outline operating procedures, and fully address the impairment.

Discrepancies between 303d List and MS4 Permit, Apdx 2

(submitted by Super Law Group)
That the the proposed 303(d) List and the list of waters included in the MS4 Permit appendix differ is due to the fact that neither is a complete list of all impaired waters in the state. As noted above the 303(d) List does not include every impaired water; for example, it does not include impaired waters for which there is a TMDL in place, or where an alternative means to address an impairment already exist (such waters may be included in the MS4 Appendix). As for the MS4 Permit Appendix 2, this list is limited to waters that are impaired by specific pollutants related to stormwater.

Newbridge Pond proposed for PAHs

(submitted by Super Law Group)
The suggestion to list this waterbody is the result of a USGS study that is based on sediment monitoring data collected in the pond in 1997. Subsequent to that time, the pond was dredged to remove contaminated sediments. The Nassau County Department of Public Works has indicated that additional dredging is planned. Given the age of the original data and the likelihood that - due to the subsequent dredging efforts - the data does not represent the current conditions in the pond, it is not appropriate to include this waterbody on the 2012 List. It is appropriate to include this information in an updated assessment of the waterbody and recommend follow-up monitoring to verify current conditions.

Additional Metals and PAH Monitoring is Requested

(submitted by Super Law Group)
This comment did not include any specific request for additional listings.

Bathing and Aquatic Life Impacts on Lake Erie Beaches

(submitted by Alliance for the Great Lakes)
The pathogen results submitted related to this issue are consistent with other previously available data and information on these beaches and are reflected in Lake Erie Shoreline listings for pathogens in the 2010 303(d) List. These listings will be continued in the 2012 List. Regarding the finding of dead fish on the beach during some site visits, this does not necessarily translate into an impairment of aquatic life but DEC will continue to monitor aquatic life support in the lake.

Ocean Coastlines proposed for pH

(submitted by Center for Biological Diversity)
This proposal is largely unchanged from what the Center submitted for the 2010 List and our response largely still applies. Although EPA has since indicated that states can consider listing ocean waters where there is available data, the data submitted is not specific to New York nor does it show a specific impairment to New York waters. As noted in our previous respose, "While not diminishing the threat of climate change or carbon dioxide pollution and the need for action, we do not believe water quality standards are being exceeded within New York State...[N]or do we believe that the development of a state TMDL would be an appropriate or more effective means of addressing the problem." The 2010 response also noted actions that the department were taking - and that continue - to address sources of ocean acidity.

Oyster Bay and Tribs, Cold Spring Harbor

(submitted by Friends of Oyster Bay)
NYSDEC notes that the information in the petitions for most of these waters is consistent with current DEC assessments and listings. Oyster Bay, Mill Neck Creek and Cold Spring Harbor are considered impaired due to pathogens; however, they are not included on the Section 303(d) List due to the completion of pathogens TMDL in 2003 (and the assignment of these waters to Category 4a in 2004). The petition regarding Beaver Lake is also largely consistent with the most recent DEC reassessment (2011) of this waterbody and the Lake is proposed for addition to the 2012 List for nutrients. The Friends of Oyster Bay petition cites silt/sediment as being a concern as well, however our assessment of available information indicate that the appropriate pollutant to be listed for this waterbody is phosphorus. The petition also notes some occurrences low dissolved oxygen in estuary waters, but it does not appear that these represent a violation of marine water standards.

Little Fresh Pond

(submitted by Land Marks)
This submittal was more a request for information, rather than a petition for listing. However the most recent NYSDEC assessment (2011) suggests a listing for this waterbody due to phosphorus may be appropriate. The water is proposed to be added to Part 3a.

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