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Shandaken Tunnel

March 2, 2005

NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF HEARING

Applicant: New York City Department of Environmental Protection
465 Columbus Avenue
Valhalla, NY 10595-1336
Michael Principe, Ph.D., Deputy Commissioner
(914) 742-2008

DEC Project Number: 3-5150-00420/00001

Project Description: The New York City Department of Environmental Protection (DEP) seeks a State Pollutant Discharge Elimination System (SPDES) permit from the New York State Department of Environmental Conservation (DEC or Department) to discharge water from the outfall at the 18-mile long conduit, the Shandaken Tunnel in Ulster County, to the Esopus Creek a Class A(T) stream and Ashokan Reservoir - also in Ulster County. Since 1924, New York City has operated the Schoharie Dam and Reservoir as part of its water supply to the residents of the City. The City diverts water from the Schoharie Reservoir through the Shandaken Tunnel where it is released into the Esopus Creek, which empties into the Ashokan Reservoir.

In March 2000, a number of environmental organizations filed a lawsuit against the City and DEP alleging that these unpermitted releases were in violation of the Clean Water Act. By decision dated October 23, 2001, the U.S. Court of Appeals for the Second Circuit reinstated the plaintiffs' lawsuit after its dismissal by the U.S. District Court by determining that a SPDES permit was necessary for this point source discharge and remanding the matter back to the lower court for further proceedings. See, Catskill Mountains Chapter of Trout Unlimited v. City of New York, 273 F.3d 481 (2d Cir. 2001).

On remand, the U.S. District Court issued an order requiring DEC to make a determination on DEP's application for a SPDES permit within 18 months. See, Catskill Mountains Chapter of Trout Unlimited v. City of New York, 244 F. Supp. 2d 41 (NDNY 2003). Pursuant to that order, on February 18, 2004, DEC issued a draft SPDES permit to DEP. The City published a notice regarding this issuance of the draft permit in the February 18, 2004 Environmental Notice Bulletin (ENB). Based on the comments received, Uniform Procedures Act (UPA) timeframes were suspended and the Department staff developed a new draft permit. Notice of issuance of this draft permit was published in the August 4, 2004 ENB.

By letter dated September 3, 2004, the City requested an adjudicatory hearing based upon its disagreement with a number of the conditions contained in the permit. Plaintiffs in the federal court litigation also requested an adjudicatory hearing as part of their written comments on the proposed draft permit (Trout Unlimited, Theodore Gordon Flyfishers, Federated Sportsmen's Clubs of Ulster Co., Delaware Natural Water Alliance, and the Riverkeeper). In addition, a number of organizations and other interested members of the public submitted responsive comments (the Coalition of Watershed Towns, the Greene County Soil and Water Conservation District, and the Town Tinker Tube Rental). Accordingly, the Department is holding a public hearing on the draft permit.

DEC Staff's Position: Based upon the original comments received after the February 2004 notice, Department staff revised the first draft permit and supports the revised version.

Applicable Law and Regulation: The SPDES permit is proposed pursuant to Environmental Conservation Law (ECL) article 3, title 3 (General Functions), article 17 (Protection of Waters), and article 70 (Uniform Procedures) and parts 621 (Uniform Procedures), 624 (Permit Hearing Procedures), 670 (Reservoir Release Regulations: Schoharie Reservoir - Shandaken Tunnel - Esopus Creek), 700 (Water Quality) and 750 (State Pollutant Discharge Elimination System) of title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), and the federal Clean Water Act, 33 USC 1251, et seq.

SEQRA Status: Because the New York State Conservation Commission, a predecessor agency to this Department, approved the Schoharie Reservoir and the Shandaken Tunnel as Water Supply Application 166 on October 21, 1914, Department staff have determined that this project is grandfathered and, therefore, exempt from the State Environmental Quality Review Act. See, ECL 8-0111(5)(a) and 6 NYCRR 617.5(c)(34). The tunnel commenced operation in February 1924 and is governed by 6 NYCRR part 670, which was adopted in 1977.

AVAILABILITY OF APPLICATION MATERIALS: The application materials are available for review at the following locations between 9:00 a.m. and 4:00 p.m., Monday through Friday:

(1) NYSDEC Office of Hearings and Mediation Services, 625 Broadway, 1st Floor, Albany, NY 12233-1550. Contact: Administrative Law Judge Helene G. Goldberger at (518) 402-9003;

(2) NYSDEC Region 3 Office, 21 S. Putt Corners Road, New Paltz, NY 12561. Contact: Carol Krebs, Assistant Regional Attorney in the Division of Legal Affairs at (845) 256-3038;

(3) Phoenicia Library Association, Main Street, Phoenicia, NY 12464 at (845) 688-7811.

Written Comments: All written comments about the draft permit must be received by April 13, 2005 and sent to Administrative Law Judge (ALJ) Helene G. Goldberger at: NYSDEC, 625 Broadway, Albany, NY 12233-1550.

Public Hearings Session

Legislative Public Hearing: A legislative hearing session to receive unsworn statements from the public on the application, described above, will be held before Administrative Law Judge Helene G. Goldberger at 7:00 p.m. on April 12, 2005 at the Onteora Central School, 4166 State Highway 28, Boiceville, NY. All persons, organizations, corporations, or government agencies which may be affected by the proposed amendment are invited to attend the hearing and to submit oral and written comments. It is not necessary to file in advance to speak at the legislative hearing. Lengthy statements should be in writing and summarized for oral presentation. Reasonable time limits may be set for each speaker to afford everyone an opportunity to be heard. Equal weight will be given to both oral and written statements. The hearing location is fully accessible to persons with a mobility impairment. Interpreter services shall be made available to deaf persons at no charge upon written request to the ALJ, identified above, at least 10 days prior to the hearing, pursuant to the State Administrative Procedures Act.

Issues Conference: A pre-adjudicatory hearing issues conference is scheduled to commence on April 13, 2005 at 10:00 a.m. at the Olive Library, 4033 Rt. 28-A, West Shokan, NY 12494. The conference will continue day to day until completed.

Participation at the issues conference will be limited to DEC staff, applicant and those persons requesting party status pursuant to 6 NYCRR 624.4 and 624.5 in advance of the issues conference.

Filing for Party Status and Proposed Issues: Persons and organizations other than DEC staff and applicant who wish to participate at the issues conference concerning the draft permit identified in this notice must file a written petition requesting party status pursuant to 6 NYCRR 624.4(c) and 624.5(b). Any petition must fully identify the proposed party and the name(s) of the person(s) who will act as the party's representative(s), the party's environmental interest, the statutory considerations relevant to the proposed permit application, whether the request is for full party status or amicus status, and the precise grounds for opposing or supporting the application. Mere opposition to the project is not a sufficient basis to be granted party status. The NYSDEC Permit Hearing Regulations, 6 NYCRR part 624, may be accessed via the NYSDEC/OHMS web page at http://www.dec.state.ny.us/ (click on "Office of Hearings and Mediation Services" under "Programs" and then click on "Guide to Permit Hearings").

For amicus status, the filing must identify the nature of the legal or policy issues to be briefed, and provide a statement explaining why the proposed amicus is in a special position with respect to those issues.

All petitions must be received by Tuesday, April 5, 2005. One copy of any petition requesting either full party status or amicus status must be served upon the following individuals:

(1) Administrative Law Judge Helene Goldberger, DEC Office of Hearings and Mediation Services at the above mentioned address,
(2) Carol Krebs, Assistant Regional Attorney, at the above mentioned address,
(3) William Plache, Esq., City of New York Law Department, 100 Church Street, New York, NY 10007-2601.

Service by fax is NOT authorized.

James T. McClymonds
Chief Administrative Law Judge

March 2, 2005

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