Regulatory Impact Statement for Parts 601 & 621
Regulatory Impact Statement
1. 'Statutory Authority.'
New York's water supply law, as found primarily in ECL article 15 titles 15, 16 and 33, was amended on August 16, 2011 (Laws of New York, Chapter 401). Most of the statutory amendments became effective February 15, 2012. Statutory authority for this rule making lies primarily in the amended ECL article 15 title 15 and in article 3. First, there is a statutory requirement that the Department promulgate rules to implement the amended water withdrawal permitting program. ECL § 15-1501.2 requires the Department to issue regulations before the newly-expanded permitting program set forth in ECL § 15-1501.1 may be applied to water withdrawals for any purpose other than public water supplies: "Until the department promulgates regulations pursuant to subdivision four of this section, nothing contained in subdivision one of this section concerning permits from the department shall be applicable to water withdrawals other than for a public water supply system." In other words, allowing the statute to speak for itself is not enough. Second, the statutory authority to issue regulations for this permitting program is broad. As amended, ECL § 15-1501.4 provides the Department "shall promulgate regulations to implement a permitting program for water withdrawals equal to or greater than a specified threshold volume consistent with the requirements of this section... Such regulations may establish...any other conditions, limitations and restrictions... to ensure the proper management of the waters of the state."
In addition, ECL § 15-1501.4 mandates specific elements of the Department's permit rule making while leaving other subject matter discretionary, as evidenced by the Legislature's use of the words "shall" and "may," as follows: "The department shall promulgate regulations to implement a permitting program for water withdrawals equal to or greater than the threshold volume [see below, Item 2 herein, as to threshold volume] consistent with the requirements of this section which shall establish: (a) minimum standards for operation and new construction of water withdrawal systems; (b) monitoring, reporting and recordkeeping requirements; and (c) protections for present and future needs for sources of potable water supply. Such regulations may establish quantitative standards that maintain stream flows protective of aquatic life, consistent with the policy objectives of this article and any other conditions, limitations and restrictions that the department, in consultation with the department of health, determines are necessary to protect the environment and the public health, safety and welfare and to ensure the proper management of the waters of the state. The regulations may establish exemptions from permitting requirements in addition to those exemptions specified in this section."
Turning to article 3, ECL § 3-0301(2)(m) more broadly authorizes the Department to "[a]dopt such rules, regulations and procedures as may be necessary, convenient or desirable to effectuate the purposes of [the ECL]." Lastly, statutory authority is provided in the Great Lakes-St. Lawrence River Basin Water Resources Compact. This Compact is an interstate agreement that was enacted by New York in ECL article 21 title 10. In section 1.4 of title 10, the parties to the Compact commit to develop a strategy that "strengthen[s] the scientific basis for sound Water management decision making..." The strategy includes the collection of data by Compact parties to support an improved understanding of the "individual and Cumulative Impacts of Withdrawals from various locations and Water sources on the Basin Ecosystem ...; the periodic assessment of "cumulative impacts of withdrawals, diversion and consumptive uses," an "improved understanding of the Waters of the Basin," and an "improved understanding of the role of groundwater in Basin Water resources management..." Section 3.3 in the Compact authorizes the member parties to "adopt and enforce rules and regulations to implement and enforce this Compact..." Section 4 of the Compact calls for "environmentally sound and economically feasible water conservation measures;" the regulation of increased withdrawals, consumptive uses and diversions; and the requirement of applications.
The Department's repeal and reissuance of 6 NYCRR Part 601 implements the new statutorily- mandated water withdrawal permitting program as well as other requirements of the amendments. The regulations also update provisions in the existing water supply regulations in line with current industry practices and implement the commitments made in the Compact.
The statutory amendments also authorize the modifications to Part 621 (permit procedures). As stated above, the August 2011 Chapter 401 amendments require permits not only for new water withdrawals but also for certain already-existing water withdrawals above the size threshold. Specified categories of pre-existing withdrawals are, however, to be issued permits more quickly and spared of the full cost and expense of permit hearings. The legislature accomplished this by providing for something called an "initial permit". The Department carries out this construct by a modification to its permit procedures in 6 NYCRR Part 621. Specifically, the Department proposes to modify 6 NYCRR §621.4 to include such "initial permit" applications among its designated "minor [permitting] actions."
The initial permits section in the August 2011 amendments to ECL § 15-1501.9 provides, "[t]he department shall issue an initial permit subject to appropriate terms and conditions as required under this article... for the maximum water withdrawal capacity reported to the department... on or before February 15, 2012." The general rule-making authority in ECL §§ 3-0301(2)(m), cited above, allows the Department to revise its rules in order to correct nomenclature and keep the scope of its regulations congruent with changing legislation. ECL article 70 governs permit procedures, defines "minor action" (see, ECL 70-0105), and requires the Department to issue regulations implementing the permit procedures, including the designation of minor actions. Within the Department's permitting regulations, 6 NYCRR § Part 621.4(b) identifies or lists "minor" permitting actions. Under 6 NYCRR § 621.8(e), minor actions generally do not require permit hearings ("[t]he Department normally does not require public hearings in connection with applications for minor projects, as identified in ...621.4 of this Part..."). In this way, the Department has the authority to require pre-existing water withdrawals to satisfy the new water withdrawal permit requirements but, as "minor" projects, the Department provides the slightly more expedited and less costly permit process.
2. 'Legislative Objectives.'
The statutory amendments (the 2011 Laws of New York, Chapter 401) constitute a comprehensive overhaul of New York's water withdrawal law, and have a wide array of legislative objectives that are carried out in the adopted 6 NYCRR part 601. In this portion of the Regulatory Impact Statement, the statutory provisions that are implemented in this rule making are addressed below, mostly in order, along with an explanation of how and why the regulations were included in this rule making proposal. The intent is to provide a road map as to why the regulations are necessary and consistent with the legislative objectives.
At its outset, ECL § 15-1501.1 prohibits water withdrawals that meet or exceed a threshold volume unless a water withdrawal permit is obtained, as follows: "Except as otherwise provided in this title, no person who is engaged in, or proposing to engage in, the operation of a water withdrawal system with a capacity of greater than or equal to the threshold volume, shall have any power to do the following until such person has first obtained a permit or permit modification from the department pursuant to this title..." The definitions in ECL §15-1502 provide the threshold volume is 100,000 gallons or more per day, or in the case of agricultural withdrawals, the threshold volume is a monthly average of over 100,000 gallons per day, as follows: "'Threshold volume' shall mean the withdrawal of water of a volume of one hundred thousand gallons or more per day...; provided that for agricultural purposes the threshold volume shall mean a withdrawal of water of a volume in excess of an average of one hundred thousand gallons per day in any consecutive thirty-day period." ECL § 15-1501.1, subsections (a) - (e) specify five actions that require a permit by those engaging or proposing to engage in the operation of a water withdrawal system with a capacity equal to or greater than the threshold volume. The five actions include the withdrawal from a new or existing source of water or an increase in the volume withdrawn from an existing permitted source, the taking or condemning lands for the protection of public water supplies, the construction of any water withdrawal works, the extension of supply or distribution mains into a new water service area, or a change in the use of water withdrawn pursuant to an existing permit.
Adopted 6 NYCRR §§ 601.3 (applicability), 601.2(o) ('threshold volume' definition), and 601.6 (actions that require water withdrawal permits), specifically, subsections (a) through (i), without limitation, carry out these legislative objectives by either restating the statutory language or breaking the actions down into their component parts for the sake of clarification. This list maintains the notion in the existing regulations that a change in a water withdrawal system that increases its capacity, design, or reach can trigger a permit. These regulatory provisions carry out the legislative objectives of both expanding the permit program to include withdrawals for purposes other than just public water supplies, and limiting the permitting program to withdrawals that meet or exceed a threshold volume, and they provide specific triggers for water withdrawal permits based on the five above-referenced legislated actions.
ECL §15-1501.2 clarifies that existing water supply permits for public water supplies remain in effect and satisfy the new statutory permit requirements, as follows: "All valid public water supply permits and approvals issued by the department or its predecessors shall remain in full force and effect for the purpose of satisfying the permit requirements of subdivision one of this section [ECL § 15-1501.1] for existing water withdrawals from a source and in an amount authorized by such permit or approval." This objective is implemented almost verbatim in 6 NYCRR §601.3 (applicability), except that it does clarify that the Department may seek the modification of such permits under the new regulations to address specified changed circumstances (see adopted § 601.15 (permit modifications)).
As stated in the Statutory Authority portion of this Regulatory Impact Statement, ECL § 15-1501.2 also requires the Department to issue regulations before the newly-expanded permitting program set forth in ECL § 15-1501.1 will be applicable to water withdrawals for any purpose other than public water supplies. The reissuance of Parts 601 in the manner described herein and the modification of Part 621, see above, carry out this statutory requirement and objective.
ECL § 15-1501.3 confirms the authority of the Department of Health to approve "drinking water supplies, including public water supply systems and bottled water facilities in effect on February 15, 2012" under the State Sanitary Code, and clarifies that plans and specifications must be submitted directly to the Department of Health, rather than to DEC. This requirement is implemented in subsections (d), (i) and (j) of 6 NYCRR § 601.10 (application for a permit) and in § 601.13 (Approval of Plans by the Department of Health), which reflects that contract plans and specifications for public water supplies, or changes thereto, "are subject to review and approval by the Department of Health prior to the commencement of construction." This direct approach with the Department of Health enhances the applicant's input and communication with the Department of Health and takes the Department out of an intermediary role that has no statutory backing.
ECL § 15-1501.4 requires that certain specified regulations be promulgated by the Department, and allows the issuance of other provisions in the Department's discretion. This statutory subsection is fully set forth above in Item 1 herein, entitled Statutory Authority.
Specifically, the department must promulgate regulations that include (a) minimum standards for operation and new construction of water withdrawal systems, (b) monitoring, reporting and recordkeeping requirements; and (c) protections for present and future needs for sources of potable water supply. The regulations include the required minimum standards for operation and construction, which are not so much numerical standards as they are requirements for practices and engineering analyses.
The operation and construction elements are primarily included in §§ 601.10, 601.12, and 601.14. § 601.10 addresses the application for a permit and includes, for example, maps, contract plans, an Engineering Report, water conservation program, and project justification. The Engineer's Report must include a description of the system, its engineering features, the water sources to be used, an alternatives analysis, the design features for controlling, diverting and regulating works, rates of withdrawal, pump test data, stream flows and classifications, and for public water supplies there are requirements for information on the land, population to be served, and treatment facilities. An Engineer's Report has been required for the water withdrawals of public water supplies under existing Part 601 since at least 1996, and the elements of the Engineer's Report have not changed substantially from what has been previously required.
§ 601.12 addresses the general provisions of a water withdrawal permit and includes requirements for proper operation and maintenance of the water withdrawal system, including the intake structure for surface water withdrawals such that passby flow requirements are met, and a prohibition of supplying a volume in excess of design capacity. § 601.14, for new construction, requires a professional engineer who has supervised construction to certify his or her approval of completed water withdrawal works. The requirement of an Engineer's certificate is consistent with a related legislative objective in amendments to ECL § 15-1529, which states, "The construction of any new or modified water withdrawal system authorized under this title shall be under the general supervision of a person or firm licensed to practice professional engineering in the state. Upon completion of construction, such person or firm shall certify to the department that the water withdrawal system has been fully completed in accordance with the approved engineering report, plans and specifications, and the permit issued by the department pursuant to this title." Pre-operational testing and an Approval of Completed Works from the Department of Health (for public water supply systems only) are also required, which similarly meets the further requirement in ECL § 15-1529, which states, "The owner shall not commence operation of the new or modified water withdrawal system prior to the department receiving such certificate and prior to approval of the system by the department of health or its designee as may be required by the state sanitary code."
The regulations must also include minimum standards for monitoring, reporting and recordkeeping, pursuant to ECL § 15-1501.4 subitem (b), cited above . The standards are primarily found in §§ 601.19 and 601.20. The monitoring requirements in §601.19 require flow meters, water level meters, the monitoring of intakes and withdrawal rates, and the installation of water meters for public water supply systems placed in operation after the effective date of the regulations (with a discretionary requirement for water meters in existing public water supply systems). The "routine monitoring recording and reporting" provisions in §601.20 require documentation of periodic calibration and maintenance procedures to ensure the accuracy of measurements, notification of inoperable instrumentation, and the retention for at least five years of the monitoring records and reports required by the permit.
Lastly, the regulations, pursuant to --and mandated by -- ECL § 15-1501.4, subitem (c), include protections for present and future needs for sources of potable water supply. These are primarily found in the same monitoring, recording and reporting provisions of § 601.19 and § 601.20 as well as in the permit application requirements in § 601.10, particularly the Engineering Report, and in the Annual Reporting requirements in §601.5. In order for the Department to protect present and future needs for sources of potable water supply, the Department must, at a minimum, have access to baseline and periodic data that shed light on the demands being placed on the individual water sources and watersheds in the state. The Department meets the legislative objective of protecting present and future needs for sources of potable water supply statewide, in part, and at a minimum, by requiring data on flows, water levels, and withdrawal rates from water withdrawal permittees. Based on the data, permits may be modified under § 601.15 in the event that, for example, satisfaction of the permit terms has not achieved the expressed objectives of the permit, or to prevent over- allocation or use of a water source to protect the environment and health, safety and welfare of the public. These regulatory provisions are also instrumental in carrying out New York's Compact commitments summarized in Item 1, herein, entitled Statutory Authority.
ECL § 15-1501.4, as amended, also provides authority to the Department to issue regulations for two additional purposes. First, the Department's regulations "may" establish "quantitative standards that maintain stream flows protective of aquatic life, consistent with the policy objectives of this article." Regulations including such quantitative standards are not required and are not a part of the regulations. However, the regulations do require the Department to base its decision to grant or deny a permit (or to grant a permit with conditions), on several factors, among them is a determination as to whether the withdrawal will be "implemented in a manner to ensure it will result in no significant individual or cumulative adverse impacts on the quantity or quality of the water source and water dependent natural resources, including aquatic life..." § 601.11(c)(6).
Second, ECL §15-1501.4, as amended, provides authority to the Department to promulgate additional exemptions to the new and broader permitting program. Specifically, ECL § 15-1501.7 provides six water withdrawal exemptions to which the Department has the authority to add others. The Department has included these six exemptions in is regulations at § 601.9 and adds nine more, which may be explained as follows.
Five of the six water withdrawal permit exemptions that are listed in ECL § 15-1501.7 apply to current and future withdrawals alike. They are set forth in ECL §15-1501.7(a) through (d) and (f) and cover, respectively: withdrawals for fire suppression or public emergencies; withdrawals approved by a compact basin commission, a term that is defined in ECL §15-1502; closed loop, standing column or other non-extractive geothermal heat pumps; groundwater withdrawals on Long Island that have permits under ECL §15-1527; and withdrawals at remediation sites conducted under court orders or agency agreements or orders. These exemptions, as statutorily required, are closely reflected in the § 601.9(b), (e), (f), (g) and (h). The wording is either identical to the statute or slightly modified in order to make it easier to understand.
The sixth statutory exemption in ECL § 15-1501.7 is very time-sensitive and specific. This exemption is for EXISTING withdrawals for AGRICULTURAL PURPOSES, a term that is defined in ECL §15-1502. This permit exemption only applies if such withdrawals are first REGISTERED OR REPORTED to the Department BY FEBRUARY 15, 2012 pursuant to ECL article 15 titles 16 and 33. Unless all of these criteria are met for an existing agricultural withdrawal above the threshold volume, the permit exemption will not apply to the withdrawal and a water withdrawal permit must instead be applied for and obtained. The regulations implement this exemption in the definition of agricultural purposes in § 601.2(a) and in the permit exemptions in § 601.9(a). The wording is either identical to the statute or slightly modified in order to make it easier to understand.
The regulations include nine additional water withdrawal permit exemptions in §601.9(c), (d), (i), (j), (k), (l), (m), (n), and (o). These additional exemptions cover six types of water withdrawals and three types of construction activities. The six types of exempt water withdrawals are those: for hydropower facilities under a valid FERC license; from the State Canal System pursuant to relevant law; from the Atlantic Ocean or Long Island Sound; for ballast water necessary for lawful and normal vessel activity; directly related to the maintenance and emergency repair of dams; and temporary construction-related withdrawals as well as aquifer pump testing. The exempt construction activities include the extension of supply or distribution mains within an approved water service area, reconstruction of water withdrawal system facility, and construction of water supply treatment facilities, none of which alter the capacity of the system. These exemptions clarify that permits are not needed for certain construction and maintenance activities that do not impact the capacity of the relevant water withdrawal system, and avoid duplication where a withdrawal is otherwise regulated.
ECL § 15-1501.5 allows the Department to consolidate existing water supply permits for a single public water supply system into a single permit, and may require submission of a permit application for such a permit. This legislative objective concerning the permit program, as required by the statute, is carried out in the § 601.8 (Consolidation of existing public water supply permits), which closely tracks the statutory language.
ECL § 15-1501.6 requires annual reports to be submitted by "each person who is required under this section [§ 15-1501] to obtain a permit." Annual reports are to be submitted on forms provided by the Department and are to include "all information" requested by the Department, "including but not limited to water usage and water conservation measures undertaken during the reporting period." The Department is required to post the water usage and water conservation measures on its website: "Information on water usage and water conservation measures shall be posted on the department's website." The Department carries out these objectives and requirements in § 601.5 (Annual Reporting). As part of the water usage and conservation measures to be reported, the regulation requires reporting on the location and capacity of the water source, the amounts to be returned to the source, if any, and the volume consumptively used or lost.
Under the authority of §§ 15-1501.6 and 15-1501.4 (See Item 1 herein, entitled Statutory Authority), the regulations in §601.5 require Annual Reports not only from those required to obtain water withdrawal permits but also from: those who are subject to the agricultural registration requirements of ECL §15-1504; hydropower facilities operating under a valid license from the Federal Energy Regulating Commission; and from those whose withdrawals are approved by the Delaware River Basin Commission or Susquehanna River Basin Commission. The regulations require annual reports from these entities as part of meeting the separate legislative objectives of the Compact and of protecting present and future needs for sources of potable water supply under ECL § 15-1501.4 and to carrying out the water conservation and efficiency program required under ECL § 15-1501.8 (see below herein).
In addition, the annual report requirements in ECL article 15 Title 33 (water withdrawal reporting) that are currently in effect apply broadly to water withdrawals at or above the size threshold, with few exceptions, whether or not a permit has been issued. The August 2011 Chapter 401 amendments included the annual reporting requirement of Title 33 in the amendments to the water withdrawal law and repealed Title 33, but the effective date of this repeal is December 31, 2013. To avoid duplication, the regulations at § 601.5(c) clarify that any person who submits an annual report pursuant to § 601.5 satisfies the annual reporting provisions of ECL article 15 title 33 until they sunset. The $50 or $200 fee requirement in title 33, however, is not supplanted by 601.5(c) and it continues to apply until Title 33 sunsets.
ECL § 15-1501.8 requires the Department "shall establish" a water conservation and efficiency program with the five specific goals of: "(a) ensuring improvement of the waters and water dependent natural resources, (b) protecting and restoring the hydrologic and ecosystem integrity of watersheds throughout the state, (c) retaining the quantity of surface water and groundwater in the state, (d) ensuring sustainable use of state waters, and (e) promoting the efficiency of use and reducing losses and waste of water." The statutory requirement for a water conservation and efficiency program stems from the Compact. The Department's water conservation and efficiency program is established in almost every subsection of the modifications to Part 601. The following regulations establish the minimum water conservation program, without limitation: Prohibitions (§601.4); Annual Reporting (§ 601.5 generally as well as subsection (a)(6) (reporting on water conservation measures taken during the reporting period), specifically); Application for a Permit (§ 601.10 generally, and subsections (f) (water conservation program) and (k) (project justification), specifically); Action on Permit Applications (§ 601.11); Registration of Water Withdrawals for Agricultural Purposes (§ 601.17); Registration of Interbasin Diversions (§ 601.18); and Monitoring, Recording and Reporting (§§ 601.19 and 601.20); combined with the permit modification provisions (§ 601.15). Because the water conservation program requirements in a permit application (§ 601.10(f)) also stem from ECL § 15-1503, which governs permit applications, it is discussed below as part of the discussion of ECL § 15-1503.
ECL § 15-1503 has been and continues to be the permit provision in the water withdrawal statute. Amendments to this provision became effective February 15, 2012. The basic elements of an acceptable water withdrawal permit application are set forth in ECL §15-1503.1, and these were updated and somewhat simplified in the statutory amendments. The requirement of a water conservation program as part of a permit application is not new to ECL §15-1503.1, however, the amendments require such a program to incorporate "environmentally sound and economically feasible water conservation measures..." This term is defined in the statutory amendments to the definitions section in ECL §15-1502.9, stems from the Compact, and includes efficiency measures that are already available and not prohibitively expensive but that can nonetheless reduce water loss and waste or reduce a withdrawal or consumptive use. The definition reads: "'Environmentally sound and economically feasible water conservation measures' shall mean those measures, methods, technologies or practices for efficient water use and for reduction of water loss and waste or for reducing a withdrawal, consumptive use or diversion that: (i) are environmentally sound; (ii) reflect best practices applicable to the water use sector; (iii) are technically feasible and available; (iv) are economically feasible and cost effective based on an analysis that considers direct and avoided economic and environmental costs; and (v) consider the particular facilities and processes involved, taking into account the environmental impact, age of equipment and facilities involved, the processes employed, energy impacts and other appropriate factors."
The regulations in §§ 601.2(g) (Definitions) and 601.10 (Application for a Permit) carry out these legislated changes to the water withdrawal permit application process and implement other related updates congruent with current practices and the statutory authority in ECL §15-1501.4, discussed above. A water supply permit application has long required an Engineering Report. Under §601.10(e), the Engineering Report now expressly requires information such as instantaneous and maximum daily rates of withdrawal, the existing projected daily average, daily maximum, and 30-day maximum water demands of the water withdrawal system, and, for surface water sources, information on the classifications, contributing watershed size, location of the nearby USGS stream gauges, other upstream water withdrawals, safe yield analyses or passby flow calculations and withdrawal methods, including intake structure design and screening. The regulations at §601.10(f) must and do expressly require a permit application to include a water conservation program that uses environmentally sound and economically feasible measures and minimizes inefficiencies and water losses. The regulations at §601.10(k) (Project Justification) require a statement in the permit application as to why the quantity to be withdrawn is reasonable for the use, why the conservation measures are environmentally sound and economically feasible; whether the project is fair and equitable in regard to present and future needs for sources of potable water, and whether it will result in significant individual or cumulative adverse environmental impacts. The regulations at 601.2(g) incorporate the statutory definition of 'environmentally sound and economically feasible.'
The statutory amendments governing the Department's action on a permit application are in ECL §15-1503.2. The prior-existing statutory requirements have been updated and somewhat simplified. In addition, five new provisions were added at ECL §15-1503(d) through (h). To specify, in making a decision to grant or deny a water withdrawal permit, the Department must determine whether: efficiency and conservation measures can avoid the need for all or part of the withdrawal; the quantity is reasonable for the use; no significant individual or cumulative adverse impacts will result on the quantity or quality of the water source and water dependent natural resources; environmentally sound and economically feasible conservation measures will be incorporated; there is consistency with regional interstate and international agreements as well as applicable municipal, state and federal laws. Lastly, ECL §15-1503.6 limits the term of all water withdrawal permits to 10 years.
In the regulations in §601.11(c), the five new legislated requirements on the Department's action concerning a water withdrawal permit application are carried out almost verbatim. §601.11(b) provides the maximum ten-year term limit for water withdrawal permits.
The August 2011 legislative amendments add a new subsection, ECL §15-1504. Only this provision in the statutory amendments became effective immediately on August 16, 2011. It requires annual reporting or registration of agricultural water withdrawals by March 31 of each year. ECL § 15-1501.6 also addresses Annual Reports, as stated above, but that subsection only applies to those required to obtain water withdrawal permits. Because existing agricultural withdrawals that are registered or reported before February 15, 2012 are exempt from the permit requirement under ECL § 15-1501.7, the annual reporting of agricultural withdrawals is not addressed under § 15-1501.6 but instead in this separate subsection § 15-1504.
Under this subsection, existing agricultural withdrawals that are properly registered or reported under article 15 title 16 (registration of withdrawals from Great Lakes Basin) or title 33 (water withdrawal reporting) will satisfy the reporting requirements of ECL § 15-1504 until those titles sunset on December 31, 2013. New agricultural withdrawals that arise after the sunset date of titles 15 and 33 will register solely under ECL § 15-1504.
The § 601.17 carries out these statutory requirements, and lists the required information for satisfactory reporting. Perhaps most significantly, however, the distinction between "registration" under title 16 and "reporting" under title 33 is eliminated. This is to make the reporting obligation easier to understand and simpler while still providing the statutory elements.
ECL § 15-1505 has, since 1979, prohibited the transportation or carrying any amount of fresh surface water or any ground water from within New York State to a location outside New York state through pipes, ditches, canals, and the like without a water withdrawal permit. This provision (ECL § 15-1505.1) was kept intact in the Chapter 401 amendments. The amendments did add subprovisions to ECL § 15-1505 (subsections 2 through 6) that mimic the interbasin diversion registration requirements of ECL article 15 title 16 in advance of their sunset on December 31, 2013. Further, whereas title 16 only applies to Great Lakes waters, the amendments to ECL § 15-1505 apply to any interbasin diversion statewide. The term 'interbasin diversion' is now more broadly defined as "the transfer of water or wastewater from one New York major drainage basin to another drainage basin." ECL § 15-1502.10. The interbasin diversions that must be registered with the Department are those that are "in excess of one million gallons per day." ECL § 15-1505.2. A year is provided before the first registrations under this provision for existing interbasin diversions are due. Diversions that exist as of February 15, 2012 must be registered no later than February 15, 2013. New or increased interbasin diversions must occur in advance of the construction of facilities for the diversion and in advance of the diversion itself. Under these amendments, interbasin diversions need not be separately registered if a permit has been obtained for the diversion. ECL § 15-1505.3.
Accordingly, § 601.6(j) requires a water withdrawal permit for conveyances of water outside New York in line with ECL § 15-1505.1. This is the only permit requirement in the water withdrawal statute and regulations that is not pegged to a volume.
As to the registration requirement for interbasin diversions (a separate matter that may occur entirely within New York state), § 601.18 meets the legislative objectives of ECL § 15-1505 as well as that of ensuring the proper management of the waters of the state under ECL 15-1504. § 601.18 also replaces 6 NYCRR Part 675, which is repealed as part of this rule making, as those regulations interpret title 16 which sunsets on December 31, 2013. § 601.2(i) defines 'interbasin diversion' according to the statute, and § 601.2(j) defines 'New York major drainage basin' for the sake of convenience and certainty in the regulated community.
'New York major drainage basin' is defined to mean one of the 17 watersheds in New York State, which are identified by USGS eight-digit Hydrologic Codes of (HUCs) that are already in use in the Department and are explained the Department's 1989 Water Conservation Manual, which is available on its website. The references subpart 601.24 further explains that the HUCs were updated by United States Department of Interior- USGS, the United States Department of Agriculture-Natural Resources Conservation Service (NRCS), and the United States Environmental Protection Agency. The resulting Watershed Boundary Dataset (WBD) has been made available from the NRCS Data Gateway by free download (as of November 2012 at the following web address: http://datagateway.nrcs.usda.gov/). The Department downloaded the WBD from the NRCS Data Gateway on June 17, 2011 and utilized the data to prepare a map displaying the New York State major drainage basins and their respective HUCs. The Department's map, entitled 'NYS Major Drainage Basins" and dated October 2012, is available from and published by the New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233 and is on file at the New York State Department of Environmental Conservation Central Office and all regional offices and sub-offices. It is also available on the Department's website (as of November 2012 at the following web address: http://www.dec.ny.gov/lands/56800.html). § 601.24.
In line with the statute, the registration requirement in the regulations is limited to interbasin diversions in excess of one million gallons per day. As is indicated in the statute, registrations are good for one year and must be renewed annually by March 31 or within 60 days of a transfer. The statute allows the Department to determine the elements of an interbasin diversion registration, and § 601.18 requires four, including information requested in the Department's form, a general map, an Engineer's Report, and the Annual Report for the previous calendar year. The Engineer's Report is to describe the engineering features of the diversion, list related permits, describe the amounts of water diverted, and assess the impact of the diversion on the quantity of water in the New York major drainage basin that is the source of the diversion. These items derive from the provisions of title 16 and serve to carry out Compact commitments.
ECL § 15-1506 requires a water withdrawal permit for the transportation by vessel (as distinguished from conveyances via ditch or pipeline) of more than 10,000 gallons in any one day of New York fresh surface water. Such water withdrawal and transport permits must be annually renewed. This provision has not changed since its enactment in 1985 and was not amended in Chapter 401. ECL § 15-1506 provides a permit exemption for lawful ballast water withdrawals for normal vessel activity, and does not authorize such permits if they conflict with an interstate compact, commission or charter to which New York is a signatory and relate to the allocation of water resources. The Department is to issue such permits if it finds the transport is "reasonable and not contrary to the conservation of the natural resources of the state or to other uses of the water, including health, safety and welfare of the people of the state,...subject to reasonable conditions on the withdrawal and transport." ECL § 15-1506.2.
For ease and greater certainty on the part of the regulated community, the Department defines "vessel" in § 601.2(q) to mean "any floating craft which is propelled in whole or in part by mechanical power and is used or operated on the navigable waters of the state." Tanker trucks, in other words, are not included. The permit requirement for vessel transport must be and is in the regulations, pursuant to ECL § 15-1501.1, as discussed above, and it is located in § 601.6(k).
3. 'Needs and Benefits.'
The need for the regulations is addressed in Item 2 (Legislative Objectives). This rule making follows the August 2011 passage of comprehensive statutory amendments to New York's water withdrawal law. The statutory amendments apply the permitting program to water withdrawals beyond those associated with public water supplies (potable drinking water providers) while also limiting the program to withdrawals over a threshold volume. The amendments require the Department to issue regulations to implement the expanded permit program before the program may be applied to withdrawals used for purposes other than public water supplies. There is a need, therefore, to implement the permitting amendments through regulations, and the legislation makes is incumbent upon the Department to do so promptly. Other provisions in the statutory amendments require the Department to issue regulations as well, also resulting in the need for these regulations. (Please see Item 2, above, entitled Legislative Objectives, which focuses more on the "why" and "how" of the regulations.)
In addition, there is a need to clarify and better explain or more simply present the statutory amendments so that persons may have greater certainty in knowing how to comply. New York's water withdrawal law currently spans several separate titles in ECL article 15, including titles 15, 16 and 33, and several bodies of regulations, including 6 NYCRR Parts 601 and 675. In as much as the statutory amendments consolidate titles 15, 16 and 33 into 15, there is a need to consolidate and more simply lay out the regulations associated with these three titles in Part 601 such that more compliance questions may be answered in a single body of regulations. In other words, there is a need to integrate the requirements of titles 15, 16 and 33, as amended, throughout Part 601 such that it logically lays out the permitting program, each of the other required deliverables concerning water withdrawals, and the elements of each. The regulations meet this need by breaking out individual subsections to correspond with the respective deliverables that are to be submitted, the recordkeeping, monitoring and reporting elements of the program, and by using subheadings that can guide the reader through the various elements of the program.
The regulations also benefit the state by implementing the amendments in Chapter 401 that comply with commitments under the Great Lakes-St. Lawrence River Basin Water Resources Compact as set forth in ECL article 21 title 10 (Compact) relating to water withdrawals in the New York portion of the Great Lakes Basin. Briefly, the statutory amendments direct the Department to establish a water conservation and efficiency program, a key responsibility of New York State under the Compact. Chapter 401 also requires DEC, in making its permit decisions, to consider the decision-making standard in the Compact. A primary benefit of the regulations is the implementation of Compact commitments as a means of safeguarding the quantity and quality of the Great Lakes-St.Lawrence River Basin. This vast watershed provides an enormous and unique asset to the state, its environment, its businesses, and the health and welfare of its inhabitants. Another of the benefits of the regulations, as drafted, is the required water conservation program is interspersed throughout subsections of Part 601, such that the subsections concerning permit applications, actions by the Department on permit applications, annual reporting, and annual registrations, for example, each include the relevant elements of the water conservation program, and there is no need to cross-reference a separate water conservation section. This streamlines the regulations, makes them simpler, and helps avoid overlapping or duplicative regulations.
The regulations implement a comprehensive statewide permitting program for significant water withdrawals, help ensure that water remains available for drinking water supply, agriculture, hydropower, manufacturing, aquatic habitat, navigation, water-based recreation, wetlands, and other uses, while allowing the Department to regulate withdrawals of water that are unregulated now, like water taken by bottled water companies, or large withdrawals of water anticipated for high-volume hydraulic fracturing (HVHF). The regulations will help the Department to protect existing water users, especially for drinking water purposes, and help new businesses to know where to locate in New York, especially if the business is heavily water dependent.
'(a) Costs for initially complying and continuing to comply with the regulations:' Such costs will vary depending upon the size, capacity and complexity of the water withdrawal system or interbasin diversion. Reporting costs should be minimized because withdrawal systems within the ambit of the rule are already required to report their withdrawals annually under ECL article 15 title 33 or another program.
New one-time costs under the regulations primarily consist of the Engineer's Report associated with the permit application process for previously-unregulated water withdrawal systems. For new projects, the cost of an Engineer's Report can range from $5,000 to $25,000, depending on the water withdrawal system, based on current industry practices and rates. It bears mentioning that many who construct new or expanded water withdrawal systems of a size that meet or exceed the size threshold in these regulations tend to retain the services of a professional engineer, irrespective of the new regulations, because such withdrawals tend to require engineering designs in order to perform reliably.
Other elements of the permit application process will typically include either a 72-hour pump test and analysis of groundwater withdrawals, or a safe yield analysis for surface water withdrawals. Either of these tests can cost between $10,000 and $30,000, based on a general estimate stemming from basic knowledge of current industry practices and rates, with the cost of a safe yield analysis typically occupying the lower end of this range. Again, these tests represent current water withdrawal industry practices, regardless of these regulations, are important to confirm the capacity of a or modified system, and are only imposed on systems that are to have a capacity above the size threshold.
The preparation and submission of a Water Conservation Program is also required by the permitting provisions of these regulations as well as the preparation and analysis necessary to present the Project Justification. A Water Conservation Program does not need to be prepared by a Professional Engineer, and may cost between $500 and $5,000, depending on the size of the withdrawal. This is a very general estimate based on a very basic understanding of industry rates, with the understanding that systems differ widely.
The availability of an 'initial permit' for pre-existing water withdrawals will reduce the costs the permit application process for existing withdrawals through the avoidance of the time and costs associated with a public hearings while maintaining the public involvement through the written public comment process.
Under the regulations, smaller public water supply systems - those that do not exceed the size threshold- are now spared altogether of the costs and time associated with the permit application process. Such smaller systems may elect to complete many or all of the substantive elements of a permit application as a means of good design, cost-effective asset management, and efficient business practices.
'b) Costs to DEC, the state, and local governments for the implementation and continued compliance with the rule:' The greatest direct cost to the Department will occur in the Division of Water and the Division of Environmental Permits, and to a lesser extent, other units needed to support the program's work. In order to implement the regulations successfully, the Department will need to conduct outreach to regulated persons, provide training to Department staff, develop additional guidance documents, prepare permit and other notifications, develop a compliance database to track receipt of required reports, prepare case referrals to DEC's attorneys for enforcement, as needed, and will face a significant if unknown increase in water withdrawal permit applications. The increase is the result of expanding the permitting program from withdrawals solely for public water supplies of drinking water to withdrawals for a host of other uses, including manufacturing, business and industrial uses.
There are no costs anticipated for other state or local governments with respect to the new permit requirements. Nevertheless, the regulations, like Chapter 401, define "person" to include state agencies and municipalities. Thus, to extent that state agencies or municipal entities own or operate water withdrawal systems above the size threshold, they too will be regulated under the permitting requirements. Of note, many local governments have previously-permitted public water supplies that are regulated under the existing water withdrawal requirements. There would be no additional costs associated with such water supplies.
5. 'Local Government Mandates.'
There are no programs, services, duties, or responsibilities imposed by the rule upon any county, city, town, village, school district, fire district or other special district except with respect to their role as owners or operators of water withdrawal systems over the size threshold (unless exempt). Under the regulations, new smaller public water supply systems - those that do not exceed the size threshold - would be exempted from the requirement to apply for and obtain a water withdrawal permit.
The regulations require that the water withdrawal permittee prepare and/or maintain documents about the water withdrawal system. Annual Reports or Registrations are required as periodic submissions but the predominant obligation to prepare and submit documents occurs once during the permit application process. The regulations fit within the existing permit process of the Department.
For most water withdrawal systems, there are no relevant rules or other legal requirements of the state and federal governments that duplicate, overlap or conflict with the rule. Water withdrawal systems that are regulated by the Federal Energy Regulatory Commission (FERC) are exempt from the permitting requirements of the rule; however, not from the annual reporting requirement. In the cases of existing River Basin Commissions, specifically the Susquehanna River Basin Commission (SRBC) or the Delaware River Basin Commission (DRBC), the Department, as a voting member, is integrally involved with their water withdrawal approval processes. If a water withdrawal occurs in the jurisdiction of either the DRBC or SRBC and the water withdrawal is approved by SRBC or DRBC, as applicable, then the water withdrawal is exempt from the permit requirements of the rule. However, the SRBC and DRBC approval processes have provisions for including requirements from host states, which may include New York's pass-by flow requirements, as applicable, permit conditions, and regulations, including HVHF drilling regulations. If a water withdrawal is permitted pursuant to the provisions of ECL § 15-1529, the Long Island Well program, then it too would be exempt from the requirements of the rule.
For public water supply withdrawals, the New York State Department of Health will continue to regulate the treatment and distribution of potable water. The New York State Public Service Commission shall also continue to regulate the water rate schedules set for privately owned public water supply systems.
The Department considered proposing regulations without the monitoring, recording and recordkeeping provisions (§§ 601.19 and 601.20), the permit denial, suspension and revocation provisions (§ 601.16), the inspection and entry provisions (§601.21), the signature of forms provision (§601.22), and the references provision (§601.24), respectively. However, it was determined that the legislative objectives of the Chapter 401 amendments and the Compact cannot be met without the monitoring, recording and recordkeeping provisions. The rationale for this is set forth above in Item 3 herein, entitled Legislative Objectives. The Department adapted the regulations in §§ 601.19 and 601.20 from existing SPDES regulations because they are already well-known to and implemented by those who use withdrawn water for purposes that generate waste water discharges to a water source. The permit denial, suspension and revocation provision in § 601.16 appears in substantially similar form in the SPDES regulations as well and is necessary to put permittees on notice of the circumstances that can lead to rejection of a water withdrawal proposal or suspension or revocation of a permit. The same is true for § 601.22 and 601.24. In developing the general provisions applicable to water withdrawal permits, New Jersey's water withdrawal permitting program was examined as an example of the existing regulatory programs in the Northeast.
9. 'Federal Standards.'
The state's water withdrawal law does not derive its authority from federal laws or regulations. The regulations exempt withdrawals that are regulated by FERC from the permit requirements.
10. 'Compliance Schedule.'
The regulations become effective April 1, 2013 and the relevant 2013 permit application deadlines fall on June 1. The following is a brief summary of the applicable time frames; however, the regulations should be consulted for a fuller understanding of the time frames for compliance.
|1st Annual Report:
Due March 31
See § 601.5
|Annual Report is due from any person who operates a water withdrawal system and is subject to:
- permit requirements of §§ 601.6 or 601.7
- agricultural registration requirements of § 601.17
- interbasin diversion registration requirements of § 601.18
- SRBC or DRBC approval of the withdrawal
- a valid FERC license; OR
Any person not exempt under § 601.9
|Annual Reports submitted in 2013 pursuant to § 601.5, as to content, for the year 2012 will satisfy reporting requirements of ECL article 15 titles 16 or 33 concerning 2012 withdrawals. However, the two-year registration fee of two hundred dollars ($200), or the annual report fee of fifty dollars ($50) pursuant to ECL article 15 title 16 or title 33, as applicable, continue to apply until the effective date of their repeal.|
|Initial Permit applications:
See § 601.7
|Initial permit application under § 601.7 is required from any person who:
- operates a water withdrawal system with a capacity at or over size threshold as of February 15, 2012
- properly reported their withdrawals under title 16 or 33 of ECL article 15 as of February 15, 2012
- the water withdrawal system in question is not a public water supply AND
- the withdrawal system is not exempt from the permit requirements under 601.9
|Initial permit applications are due by:
-6/1/2013 for withdrawals >100 mgd*
-2/15/2014 for > 10 but < 100 mgd
-2/15/2015 for > 2 but < 10 mgd
-2/15/2016 for > 0.5 but < 2 mgd
-2/15/2017 for > 0.1 but < 0.5 mgd
*mgd = million gallons per day. Exception: withdrawals regulated as of February 15, 2012 under SPDES permits or ECL article 15 permits (other than title 15) are due 180 days before existing permits expire or by June 1, 2013, whichever is later.
|Permit applications for withdrawals existing as of 2/15/2012:
|Those to whom the initial permit provision of 601.7 does NOT apply due to a failure to report existing withdrawals as of February 15, 2012, must submit a complete water withdrawal permit application by June 1, 2013.
|Annual Interbasin Diversion Registration:
Due March 31
See § 601.18
|- Annual interbasin diversion registration for diversions existing as of 2/15/2012 was due 2/15/2013 (statutory deadline).
- Annual renewal for all by March 31 each year.
|No person shall cause an interbasin diversion, or increase the volume of one, in excess of an average of 1 million gpd unless diversion is registered.
|Register Agricultural withdrawal:
Due Due March 31
See § 601.17
|- Annual "request to register agricultural withdrawals" for those existing as of 2/15/2012 are due 3/31/2013 (statutory deadline);
- thereafter by March 31 each year.
|AGRICULTURAL WITHDRAWALS MUST BE REPORTED BY 2/15/2012 UNDER ECL §15-1601 OR §15-3301 OR WATER WITHDRAWAL PERMIT EXEMPTION UNDER ECL §15-1504 IS WAIVED.