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Subpart 672-1: Reservoir Releases Regulations - General

(Statutory authority: Environmental Conservation Law, §§ I-O101,3-0301,15-0805)

Contents:

Sec.

§672-1.1 Purpose and structure of this Part.

(a) It is the general purpose of this Part to implement the policy of the State with regard to the release of waters from certain reservoirs, as set forth in title 8 of article 15 of the Environmental Conservation Law. The purpose of regulating such releases of water is to protect and enhance the recreational use of the rivers and streams affected by those releases, while ensuring, and without impairing, an adequate supply of water for power production or for any municipality which uses water from such reservoirs for drinking and other purposes.

(b) (1) Except for releases from Cannonsville, Pepacton and Neversink reservoirs and diversions from Schoharie reservoir through the Shandaken tunnel to Esopus Creek, this Part applies to releases from all reservoirs regulated by title 8 of article 15 of the Environmental Conservation Law. The reservoirs covered by this Part are as follows:

(i) Subpart672-2-Ashokan, Kensico, Rondout and Schoharie reservoirs;

(ii) Subpart 672-3-Croton System reservoirs- Boyds Corner, West Branch, Bog Brook, East Branch, Middle Branch, Croton Falls, Cross River, Titicus, Amawalk, Muscoot and New Croton reservoirs;

(iii) Subpart 672-4-Mongaup System reservoirs-Toronto, Cliff Lake, Swinging Bridge and Rio reservoirs; and

(iv) Subpart672-5-East Sidney Lake, Sleepy Hollow Lake, Cooper Lake and Sturgeon Pool.

(2) Releases from Cannonsville, Pepacton and Neversink reservoirs are regulated by Part 671 of this Title. Diversions from Schoharie reservoir through the Shandaken tunnel regulated by Part 670 of this Title.

(c) The provisions of this Subpart are applicable to all reservoirs regulated by this Part. Each of the remaining Subparts of this Part is applicable to a group of reservoirs regulated by this Part. The provisions of each of the remaining Subparts of this Part shall be construed in a manner consistent with this Subpart, except where otherwise specified. Where any provision of one of the remaining Subparts specifies that it is not to be construed in a manner consistent with this Subpart, such provision shall supersede the provisions of this Subpart.

Historical Note

Sec. filed May 2, 1980 eff. 30 days after filing.

§672-1.2 Definitions.

As used in this Part, the following words and terms shall have the meaning ascribed to them, unless the context requires otherwise:

(a) Agency shall mean any municipality, government agency, corporation or any other entity that operates a reservoir regulated by this Part. With respect to each of the remaining Subparts of this Part, said term also shall have the specific meaning set forth therein.

(b) Agency reservoir releases manager shall mean the person designated by the chief executive of the agency to fulfill the responsibilities of the agency reservoir releases manager set forth in this Part, which designation shall be on file in the office of the department reservoir releases manager. Each agency reservoir releases manager shall have major responsibilities for operation and maintenance of the agency's reservoir or reservoirs regulated by this Part. With respect to each of the remaining Subparts of this Part, said term also shall have the specific meaning provided therein.

(c) Cfs shall mean cubic feet per second.

(d) Commissioner shall mean the commissioner of the Department of Environmental Conservation.

(e) Department shall mean the Department of Environmental Conservation.

(f) Department reservoir releases manager shall mean an employee of the department formally designated by the commissioner to fulfill the responsibilities of the department reservoir releases manager set forth in this Part, which designation shall be on file in the office of each agency reservoir releases manager. The department reservoir releases manager shall be qualified through training and experience to understand hydrologic and engineering aspects and environmental consequences of reservoir operations.

(g) Diversion shall mean the withdrawal of water from a reservoir into a tunnel, man-made channel or other conduit used to transmit water from the reservoir to any place other than a river or stream downstream of such reservoir.

(h) Mgd shall mean million gallons per day.

(i) Release shall mean the discharge of water through the outlet works of a dam containing a reservoir or reservoirs to the river, stream or reservoir downstream of such dam. Release shall also mean the discharge of water from a reservoir through the power generating facilities of a hydroelectric generating plant where such water will be returned to the affected river or stream downstream of the dam containing the subject reservoir. Release shall not include any water which spills from a reservoir or any diversion.

(j) Spill or spilling shall mean the flow of water over the spillway of a dam which contains a reservoir or reservoirs.

Historical Note

Sec. filed May 2, 1980 eff. 30 days after filing.

§672-1.3 Operation of reservoirs.

(a) Specific regulations pertaining to the operation of individual reservoirs or reservoir systems are set forth in the remaining Subparts of this part.

(b) Due to the technical limitations of operating water regulating devices and measuring flows, any rate of flow stated, required or allowed pursuant to this Part shall be deemed to include a rate of flow 10 percent lower than the stated, required or allowed rate of flow where that rate is a minimum allowable rate and shall be deemed to include a rate of flow 10 percent higher than the stated, required or allowed rate of flow where the rate is a maximum allowable rate.

(c) The provisions of this Part shall not be deemed to require an agency to monitor the flow in a particular river or stream more than once during any 24-hour period, or, accordingly, to adjust releases or diversions of water from a particular reservoir more than once during any 24-hour period; provided that an agency shall be responsible for monitoring flows and making any necessary corresponding adjustments at least once during every 24-hour period; and further provided that any such monitoring of the flow in a river or stream shall be binding on the agency with respect to compliance with the provisions of this Part until the next such monitoring is made.

(d) The provisions of this Part shall not be interpreted as requiring any adjustment of releases or diversions from a particular reservoir regulated by this Part in response to a hydrologic event of short duration which may cause any flow maximum established by this Part to be exceeded for a short duration (e.g., a summer rainstorm of three hours).

(e) An agency may propose and take an action with regard to the operation of a reservoir and its appurtenant facilities which does not meet the requirements of this Part if it obtains the department's approval of such action in accordance with this subdivision. Such department approval must be obtained prior to the commencement of any action pursuant to this subdivision. The department may approve an action proposed pursuant. to this subdivision if it fmds such action is reasonable and consistent with the purposes of this Part.

(1) The agency reservoir releases manager shall submit a written proposal for such action to the department reservoir releases manager. Such proposal shall specify the dates and times of the proposed action, the amount of water to be released, the rate at which the water is to be released, the duration of the action, and the purpose of the action. Such written proposal shall be received in the office of the department reservoir releases manager not less than 24 hours prior to the commencement of the first proposed action.

(2) Within 24 hours of his receipt of the written proposal by the agency reservoir releases manager, or as soon thereafter as practical, the department reservoir releases manager shall notify the agency reservoir releases manager by telephone whether the department has approved, approved with modifications, or disapproved the proposed action. In the event of an approval or approval with modifications, the department reservoir releases manager shall specify the dates and times of the authorized action, the amount of water to be released, the rate at which water is to be released, the duration of the approved action, and any conditions pertaining to the implementation or termination of the approved action.

(3) As soon as practicable after notifying the agency reservoir releases manager by telephone, as provided in paragraph (2) of this subdivision, the department reservoir releases manager shall mail a letter to the agency reservoir releases manager stating the decision of the department with regard to the proposal involved. In the event the department has approved the agency's proposal or approved it with modifications, said letter shall specify the dates and times of the approved action, the amount of water to be released, the rate at which water is to be released, the duration of the approved action, and any conditions pertaining to the implementation or termination of the approved action. In the event the department has disapproved the agency's proposal or approved it with modifications, said letter shall specify the reasons for such disapproval or modifications.

(4) When the agency is not able to provide a written proposal to the department as specified in paragraph (1) of this subdivision at least 24 hours prior to the commencement of the first proposed action, the agency reservoir releases manager may submit a proposal for such an action by telephone to the department reservoir releases manager, which telephone proposal shall be made not less than 24 hours prior to the first proposed action. Such proposal shall specify all the information required for a written proposal under paragraph (1) of this subdivision. Immediately following such telephone proposal, the agency reservoir releases manager shall mail to the department reservoir releases manager a written proposal stating those matters covered by the telephone proposal. Within 24 hours of his receipt of such a proposal by telephone, or as soon as practical thereafter, the department reservoir releases manager shall notify the agency reservoir releases manager as to the department's decision regarding such proposal in the manner specified in paragraphs (2) and (3) of this subdivision.

(5) The telephone approval by the department provided in paragraphs (2) and (4) of this subdivision shall constitute the authorization for the agency to proceed with an action approved by the department pursuant to this subdivision. No action shall be taken by the agency pursuant to this subdivision until such telephone approval has been received, and then only in accordance with such telephone approval.

(6) The agency reservoir releases manager and the department reservoir releases manager shall each maintain a complete and accurate log of all telephone conversations made pursuant to this subdivision.

(7) With respect to any action proposed by an agency pursuant to this subdivision which relates to any inspection, maintenance or repair to any reservoir or any appurtenant structures or facilities, the approval, approval with modifications, or disapproval of the department under this subdivision shall be made only with respect to the time and duration of the proposed action and the effect of such proposed action on rivers and streams impacted thereby, and shall not be made with respect to the substantive details of the inspection, repair or maintenance activity. The department shall not unreasonably delay any inspection, maintenance or repair activity which the agency wishes to undertake with the regard to said facilities.

(f) Both the agency reservoir releases manager and the department reservoir releases manager may designate one or more persons to take all actions under this section in the place of and on behalf of such manager; provided that each such designation shall be in writing and shall be on file in the respective office of each manager and provided further that any such designation shall authorize such designee to act in all respects under this section for the respective manager.

(g) (1) The department may request an agency to take an action with respect to the release of water from any reservoir regulated pursuant to this Part in a manner that does or does not comply with any or all of the provisions of this Part relating specifically to the release of water from a reservoir for the purpose of field monitoring, testing, or research; protecting the fishery, water quality, or other natural resources of any river or stream affected by such releases; protecting the fishery, water quality or other natural resources of any reservoir from which releases are made for the benefit of existing recreational uses of such reservoir; or special recreational events on a river or stream affected by water releases.

(2) Such request by the department shall be submitted in writing by the department reservoir releases manager to the agency reservoir releases manager and shall be received by the agency reservoir releases manager at least 24 hours prior to the first requested action. Said request by the department shall be consistent with the purposes of this Part and shall specify the dates and times of the requested action, the amount of water to be released, the rate at which water is to be released, the duration of the requested action, the specific purpose of the requested action and any conditions governing implementation and termination of the re- quested action. If the department reservoir releases manager is not able to provide a written request to the agency reservoir releases manager at least 24 hours prior to the commencement of the first requested action, the department reservoir releases manager shall submit such request by telephone at least 24 hours prior to the commencement of the first requested action. Such telephone request shall contain all of the information required of a written request. Immediately following such telephone request, the department reservoir releases manager shall submit the required written request, as described herein, to the agency reservoir release manager.

(3) The degree to which a request by the department under this subdivision shall be binding on a particular agency shall be as set forth in the Subpart of this Part that applies to the reservoir in question.

(4) The agency's receipt of the department's written or telephone request shall constitute the department's direction for the agency to proceed with an action requested by the department pursuant to this subdivision. No action shall be taken by the agency pursuant to this subdivision until such written or telephone request has been received, and any such action shall be undertaken in accordance with such request.

(5) The department reservoir releases manager and the agency reservoir releases manager shall each maintain a complete and accurate log of all telephone conversations made pursuant to this subdivision.

(h) The department reservoir releases manager and the applicable agency reservoir releases manager shall provide the necessary telephone arrangements to fulfill the provisions of this section.

(i) All telephone logs and written communications made pursuant to this section shall be considered matters of public record.

Historical Note

Sec. filed May 2, 1980 eff. 30 days after filing.

§672-1.4 Monitoring

(a) The department reservoir releases manager shall be responsible for monitoring on a continuous basis all rivers and streams affected by releases regulated by this Part in order to determine whether any significant adverse environmental impacts, including, but not limited to, fish kills and water quality degradation incidents, occur as a result of the operation of any reservoir pursuant to this Part. The department reservoir releases manager shall promptly investigate any such incidents which may occur and report the results of such investigations to the appropriate agency reservoir releases manager.

(b) The department reservoir releases manager shall be responsible for conducting studies in order to provide a technical data base for resolving problems and issues associated with the release or diversion of water from any reservoir regulated by this Part as may be identified. Such studies shall include, but not be limited to, the technical and financial feasibility, desirability and possible means of:

(1) establishing reservoir release works that are adequate and appropriate to fulfill the purposes of this Part for certain reservoirs that do not now contain such release works; and

(2) modifying existing release works at certain reservoirs in order to allow water releases that will more adequately fulfill the purposes of this Part than do the releases presently provided herein. The department reservoir releases manager shall consult with the applicable agency reservoir releases manager regarding such studies.

(c) The department shall have authority, upon reasonable notice, to enter and inspect any property or premises for the purpose of investigating either actual, suspected or potential environ- mental degradation caused by actions regulated by this Part, ascertaining whether actions regulated by this Part comply with the provisions of this Part or monitoring any actions regulated by this Part.

Historical Note

Sec. filed May 2, 1980 eff. 30 days after filing.

§672-1.5 Report.

The department reservoir releases manager in cooperation with the agency reservoir releases manager shall prepare the following reports on the results of the regulation of reservoir releases in accordance with this Part:

(a) Interim reports. Interim reports shall be prepared by March 1, 1982 and March 1, 1983. Each interim report shall include a preliminary evaluation of the effect of the regulations on water supply and power production. The interim report shall also include review and analysis of the required minimum releases with respect to reservoir storage and stream flow conditions. where applicable.

(b) Special report. A special report shall be prepared by March 1, 1984. The special report shall include:

(1) an additional evaluation of the effect of regulations on water supply, power production water quality, recreation and aquatic ecosystems;

(2) an additional assessment of benefits and costs of required releases;

(3) results of any new operation studies based on additional hydrologic data and further analyses of down stream flow requirements;

(4) results of feasibility studies on establishing and modifying release works for certain reservoirs;

(5) further assessment of projected water demands on the New York City system in relation to the required releases; and

(6) recommendations for any changes in the regulations.

Historical Note

Sec. filed May2, 1980 eff. 30 days after filing.

§672-1.6 Recreational activities.

In order to assist persons wishing to undertake recreational activities on or along any river or stream affected by releases made pursuant to this Part, the department reservoir releases manager shall respond to all inquiries concerning the date, duration and nature of releases to be made or being made pursuant to this Part.

Historical Note

Sec. filed May 2, 1980 eff. 30 days after filing.

§672-1.7 Records.

An agency shall maintain detailed records regarding its operation of any reservoir regulate pursuant to this Part. Such records shall be maintained at the agency field offices at each such reservoir and at the office of the agency reservoir releases manager. At a minimum, such record shall specify the amount of water released daily from each such reservoir, the amount of water diverted daily from each such reservoir, and the amount of water contained daily in each such reservoir. Not later thart45 days following the end of any calendar month, the agency reservoir releases manager shall provide to the department reservoir releases manager a summary of such records for that calendar month. Such monthly summary shall be in sufficient detail for the department to determine whether the agency's operation of each such reservoir during the preceding month complied with the provisions of this Part. The department shall have the opportunity, after reasonable notice, to inspect such detailed records of the agency.

Historical Note

Sec. filed May2, 1980 eff. 30 days after filing.

§672-1.8 Emergency situations.

Except for the provisions of this section, the provisions of this Part shall not be applicable to any action taken by an agency with regard to the operation of a reservoir in any emergency situation when:

(a) there is a threat to the continued existence or safe operation of such reservoir or its darn, any tunnel serving such reservoir, any structure appurtenant to such reservoir or to the public health or safety;

(b) such threat cannot be averted by any action taken in compliance with the provisions of this Part (other than this section); and

(c) such threat can only be averted by an action of the agency that is not in compliance with the provisions of this Part (other than this section). Any action taken pursuant to this section shall continue only for such time as is necessary to avert the threat involved. The agency reservoir releases manager shall provide immediate telephone notice to the department reservoir releases manager regarding any action taken by the agency pursuant to this subdivision. The agency reservoir releases manager shall provide written notice to the department reservoir releases manager with in five working days of any action taken. By the agency pursuant to this section, which notice shall specify the action taken and set forth the reasons for the agency reservoir releases manager's decision pursuant to subdivisions(a), (b)and(c)of this section.

Historical Note

Sec. filed May 2, 1980 eff. 30 days after filing.

§672-1.9 Enforcement.

(a) The attorney general, on his own initiative or at the request of the commissioner, or the corporation counsel at the request of the city of New York, may bring an action to restrain or enjoin any violation of any provisions of this Part. The commissioner shall furnish the Attorney General or the Corporation Counsel of the city of New York with such material, evidentiary matter or proof as may be requested by either of them in connection with such action.

(b) Not with standing the provisions of any law, the venue of any action commenced or proceeding brought pursuant to this Part maybe in the county of Albany.

Historical Note

Sec. filed May 2, 1980 eff. 30 days after filing.