Part 601 Express Terms
6 NYCRR Parts 601 and 675 are repealed and a new Part 601 is adopted to read as follows:
Part 601: Water Withdrawal Permitting, Reporting and Registration (Exclusive of Long Island Wells regulated under Part 602)
(Statutory authority: Environmental Conservation Law § 3-0301(2)(m), article 15 titles 15, 16 and 33, title 10 of article 21)
601.5 Annual reporting
601.6 Water withdrawal permits
601.7 Initial permits
601.8 Consolidation of existing public water supply permits
601.9 Permit exemptions
601.10 Application for a permit; Renewal of an Existing Permit
601.11 Action on permit applications
601.12 General provisions of a water withdrawal permit
601.13 Approval of plans by the Department of Health
601.14 Approval of completed works
601.15 Modification of water withdrawal permits
601.16 Denial, suspension or revocation of permits
601.17 Registration of water withdrawals for agricultural purposes
601.18 Registration of interbasin diversions; prohibitions
601.19 Monitoring Requirements
601.20 Routine Monitoring, Recording, and Reporting
601.21 Inspection and Entry
601.22 Signature of forms
§ 601.1 Purpose
The purpose of this Part is to regulate the use of the water resources of the state pursuant to article 15 title 15 of the Environmental Conservation Law by implementing a water withdrawal permitting, registration and reporting program for water withdrawals equaling or exceeding a threshold volume. This Part also implements New York's obligation under the Great Lakes-St. Lawrence River Basin Water Resources Compact to create a regulatory program for water withdrawals in the Great Lakes-St. Lawrence River Basin pursuant to article 21 title 10 of the Environmental Conservation Law.
§ 601.2 Definitions
(a) 'Agricultural purpose' means the practice of farming for crops, plants, vines and trees, and the keeping, grazing, or feeding of livestock for sale of livestock or livestock products, and the on-farm processing of crops, livestock and livestock products.
(b) 'Commissioner' means the Commissioner of the New York State Department of Environmental Conservation.
(c) 'Compact basin commission' means an interstate commission or similar body having jurisdiction with respect to the regulation of water resources within its basin in the state, created by interstate compact or federal-interstate compact, including but not limited to, the Susquehanna River Basin Commission and the Delaware River Basin Commission.
(d) 'Department' means the New York State Department of Environmental Conservation. (e) 'Department of Health' means the New York State Department of Health.
(f) 'Environmental Conservation Law' or 'ECL' means the New York State Environmental Conservation Law.
(g) 'Environmentally sound and economically feasible water conservation measures' means 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.
(h) 'Facility' means any or all of the physical components of a water withdrawal system. See 'works' for a related definition.
(i) 'Interbasin diversion' means the transfer of water or wastewater from one New York major drainage basin to any other drainage basin.
(j) 'New York major drainage basin' means one of the following 17 watersheds, each of which is identified herein by various United States Geological Survey eight-digit Hydrologic Unit Codes, as referenced in subpart 601.24: Allegheny River (05010001, 05010002 and 05010004); Atlantic Ocean - Long Island Sound Watershed (01100006, 02030102, 02030104, 02030201, 02030202 and 02030203); Black River Watershed (04150101); Chemung River Watershed (02050104 and 02050105); Delaware River Watershed (02040101, 02040102 and 02040104); Genesee River Watershed (04130002 and 04130003); Housatonic River Watershed (01100005); Lake Champlain Watershed (04150401, 04150404, 04150406, 04150408 and 04150409); Lake Erie - Niagara River Watershed (04120101, 04120102, 04120103 and 04120104); Lake Ontario and Minor Tributaries Watershed (04130001, 04140101, 04140102 and 04150102); Lower Hudson River Watershed (02020006, 02020007, 02020008 and 02030101); Mohawk River Watershed (02020004 and 02020005); Seneca-Oneida-Oswego River Watershed (04140201, 04140202 and 04140203); Passaic-Newark (Ramapo River) Watershed (02030103); St. Lawrence River Watershed (04150301, 04150302, 04150303, 04150304, 04150305, 04150306, 04150307 and 04150308); Susquehanna River Watershed (02050101, 02050102 and 02050103); Upper Hudson River Watershed (02020001, 02020002 and 02020003).
(k) 'Person' means any individual, public or private corporation, political subdivision, government agency, Department or bureau of the state, municipality, industry, co-partnership, association, firm, trust, estate or any other legal entity whatsoever.
(l) 'Potable water' means water intended for human consumption that meets the requirements for a public water system as set forth in the State sanitary code.
(m) 'Public water supply system' means a permanently installed water withdrawal system, facilities used in connection with such system, and its source, which together provide piped potable water to the public for potable purposes, if such system has at least five service connections used by year-round residents. A public water supply system may also provide water for other residential purposes and commercial, industrial or other institutional purposes.
(n) 'State' means the State of New York.
(o) 'State Pollutant Discharge Elimination System' or 'SPDES' means the system established pursuant to article 17 of the ECL and Part 750 of 6 NYCRR for the issuance of permits authorizing discharges to the waters of the state.
(p) 'Threshold volume' means the withdrawal of water of a volume of one hundred thousand gallons or more per day, determined by the limiting maximum capacity of the water withdrawal system; except that for withdrawals for agricultural purposes the threshold volume shall mean the withdrawal of water of a volume in excess of an average of one hundred thousand gallons per day in any consecutive thirty-day period; and except that for public water supply systems that have an existing capacity of under one hundred thousand gallons per day but are required by the Department of Health to add redundant wells, threshold volume shall mean the existing capacity of the system, excluding the redundant wells, so long as the withdrawal of water continues to remain below one hundred thousand gallons per day.
(q) 'USGS' means the United States Geological Survey.
(r) 'Vessel' shall 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.
(s) 'Water service area' means the area within the incorporated boundaries of a City or Village or within the boundaries of a duly formed water district, district extension or water improvement area, or the boundaries of an area expressly approved for public water supply by the Department or a predecessor commission.
(t) 'Water withdrawal system' means any facility, works, equipment or infrastructure operated or maintained for the provision or withdrawal of water including, but not limited to, collection, pumping, treatment, transportation, transmission, storage, and distribution facilities and works.
(u) 'Withdrawal or withdrawal of water' means the removal or extraction of water for any purpose from the waters of the state.
(v) 'Works' means any or all of the physical components of a water withdrawal system, including but not limited to intake structures, pumping stations, storage tanks, wells, treatment plants, and supply and distribution piping arrangements. (Works generally refers to the more active components of a water withdrawal system, while facility is more commonly used for more passive components.)
§ 601.3 Applicability
This Part applies to any person who is engaged in, or proposes to engage in, the construction, operation or maintenance of a water withdrawal system that withdraws water of a volume equal to or greater than the threshold volume; the taking, condemnation or acquisition of land for the development or protection of sources of public water supply systems in excess of the threshold volume; the extension of a water service area associated with a water withdrawal system that withdraws water of a volume equal to or greater than the threshold volume; and the interbasin diversion of water or wastewater. This Part also applies to any person who proposes to transport or carry waters of the state to any location outside the state as specified in ECL 15-1505(1), or to transport or carry by vessel more than ten thousand gallons in any one day of the waters of the state. All valid public water supply permits and approvals issued by the Department or its predecessors that are in effect as of February 15, 2012 shall remain in full force and effect according to their terms for the purpose of satisfying the permit requirements of this Part for water withdrawals from a source and in an amount authorized by such permit or approval, except that the Department may seek modification of such a permit in accordance with this Part.
§ 601.4 Prohibitions
The following withdrawals from the waters of the State are prohibited, and no permit shall be issued authorizing any such withdrawal:
(a) Any water withdrawal that is not in compliance with the applicable requirements of the Great Lakes- St. Lawrence River Basin Water Resources Compact, as enacted in ECL article 21 title 10, including any water withdrawal which will result in an interbasin diversion prohibited by that Compact and/or the provisions of subpart 601.18 of this Part;
(b) Any water withdrawal that is not in compliance with the applicable provisions of a compact basin commission water withdrawal approval;
(c) Any water withdrawal not in compliance with all applicable laws including, without limitation, ECL article 15 title 15 and/or this Part.
§ 601.5 Annual Reporting
(a) Any person who is subject to the permit requirements of subparts 601.6 or 601.7 (whether or not any such person has yet been required to submit an application for an initial permit pursuant to the provisions of subparagraph (b) of subpart 601.7), the agricultural registration requirements of subpart 601.17, the interbasin diversion registration requirements of subpart 601.18; hydropower facilities operating under a valid Federal Energy Regulating Commission license; Susquehanna River Basin Commission-approved water withdrawals or Delaware River Basin Commission-approved water withdrawals; and persons who are not otherwise exempt, must submit an annual water withdrawal report to the Department under subpart 601.5. Such annual report shall be submitted to the Department by March 31 every year. The annual report shall be submitted on a form available from the Department, based on the water withdrawals for the previous calendar year, and shall include all information requested by the Department including but not be limited to the following:
(1) the water source, the location of the water source and the source capacity if known;
(2) the amount of water withdrawn for the reporting period, including the average and peak withdrawals, for monthly or other intervals specified by the Department;
(3) a description of the use of the water withdrawn;
(4) the estimated amounts of water returned, if any, the locations of such returns, and the method of such returns;
(5) the actual or estimated average monthly and annual volumes and rates of water lost or consumptively used from the withdrawal; and
(6) the water conservation and efficiency measures undertaken during the reporting period.
(b) The following water withdrawals are exempt from the annual reporting requirements of this subpart:
(1) closed loop, standing column, or similar non-extractive geothermal systems;
(2) withdrawals subject to permits pursuant to ECL section 15-1527 and Part 602 of 6 NYCRR for Long Island water wells;
(3) on-site water withdrawal systems for approved inactive hazardous waste remedial site programs conducted pursuant to state or federal court order or state or federal government agency agreement or order;
(4) withdrawals used for fire suppression or other public emergency purposes;
(5) direct withdrawals from the Atlantic Ocean or Long Island Sound;
(6) water withdrawals to supply ballast water necessary for lawful and normal vessel activity;
(7) water withdrawals directly related to routine maintenance and emergency repairs of dams; and
(8) reclaimed wastewater withdrawn for reuse.
(c) 2013 Transition Provision. Any person who submits an annual water withdrawal report to the Department in compliance with the requirements of this subpart shall satisfy the registration and annual reporting provisions of ECL article 15 titles 16 and 33, respectively, until the effective date of the repeal of those titles, which is December 31, 2013, except that such person (unless making a withdrawal for an agricultural purpose registered pursuant to subpart 601.17 of the Part) shall continue to be subject to 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, until the effective date of their repeal. A person who must submit an annual report or an annual or biennial registration during calendar year 2013 pursuant to ECL article 15 title 16 and/or 33 should submit their report or registration in 2013 by or before the 2013 filing deadline there under, and shall begin in 2014 to submit their annual reports by or before March 31 in accordance with subpart 601.5(a), above.
§ 601.6 Water Withdrawal Permit
Except to the extent that it is otherwise explicitly stated in this Part, no person may take any of the following actions without having first obtained a water withdrawal permit:
(a) take, condemn or acquire lands for a source or for the protection of such source of public water supply equal to or greater than the threshold volume;
(b) commence or undertake the construction of any water withdrawal system, including any of its facilities or works, with a capacity equal to or greater than the threshold volume;
(c) operate or maintain any water withdrawal system with a capacity equal to or greater than the threshold volume;
(d) extend supply or distribution mains of a public water supply system into any new water service area or extension thereof such that the water withdrawal system remains or becomes one with a capacity equal to or greater than the threshold volume;
(e) make a non-incidental change in the permitted use(s) of a water withdrawal system with a capacity equal to or greater than the threshold volume;
(f) for a public water supply system with a capacity equal to or greater than the threshold volume, to enter into a final contract or other agreement for the bulk sale of 10,000 gallons per day or more of water for a commercial, industrial, or oil or gas well development purpose outside of the public water supply system's approved water service area;
(g) take, condemn or acquire an existing water withdrawal system with a capacity equal to or greater than the threshold volume;
(h) place into service any additional or replacement wells in connection with an existing water withdrawal system such that the water withdrawal system remains or becomes one with a capacity equal to or greater than the threshold volume;
(i) increase the amount of water withdrawal, whether by changing the pumping specifications, enlargement of the conduits, increased reservoir storage, or by any other means, such that the water withdrawal system becomes one with a capacity equal to or greater than the threshold volume, or further exceeds the threshold volume than it did previously;
(j) transport or carry water in any amount from any fresh surface waters of this State or from any ground waters of this State to any location outside the State through pipes, conduits, ditches or canals; or
(k) transport or carry by vessel, more than ten thousand gallons in any one day of the waters of any surface water in this State.
§ 601.7 Initial Permits
(a) This subpart applies to any person who operated a water withdrawal system with a capacity equal to or greater than the threshold volume as of February 15, 2012; reported their withdrawals to the Department pursuant to ECL article 15 title 16 or title 33 on or before February 15, 2012; is not operating a public water supply; and is not exempt from the permit requirements of this Part pursuant to subpart 601.9.
(b) Persons to whom this subpart applies under subparagraph (a) shall apply for an initial permit.
(1) Applications for initial permits shall be submitted on forms available from the Department.
(2) A complete application for an initial permit shall be submitted by and in accordance with the following schedule: June 1, 2013 for water withdrawal systems that withdraw or are designed to withdraw a volume of 100 million gallons per day (mgd) or more; February 15, 2014 for water withdrawal systems that withdraw or are designed to withdraw a volume equal to or greater than 10 mgd but less than 100 mgd; February 15, 2015 for water withdrawal systems that withdraw or are designed to withdraw a volume equal to or greater than 2 mgd but less than 10 mgd; February 15, 2016 for water withdrawal systems that withdraw or are designed to withdraw a volume equal to or greater than 0.5 mgd but less than 2 mgd; February 15, 2017 for water withdrawal systems that withdraw or are designed to withdraw a volume equal to or greater than 0.1 but less than 0.5 mgd.
(3) Notwithstanding the schedule set forth in subparagraph (b)(2), for a withdrawal that is specifically regulated as of February 15, 2012 under a SPDES permit or a permit issued under ECL article 15 (other than title 15), an initial permit application must be submitted either by June 1, 2013 or 180 days before the existing permit is scheduled to expire absent renewal, whichever occurs later. An initial permit application submitted under this subparagraph (b)(3) must specify in the cover correspondence and on the face of the application that it is being submitted in accordance with the 180-day deadline concerning one or more of the above-specified existing permits.
(c) Any person to whom this subpart does not apply due to a failure to report existing withdrawals as of February 15, 2012, shall submit a complete application for a permit in accordance with subpart 601.6 by June 1, 2013.
(d) An initial permit that is issued by the Department under this subpart is for the withdrawal volume equal to the maximum withdrawal capacity reported to the Department on or before February 15, 2012.
(e) An initial permit is for a fixed term not to exceed ten years. It includes all terms and conditions of a water withdrawal permit, including environmentally sound and economically feasible water conservation measures to promote the efficient use of supplies, and is subject to modification, suspension and revocation, pursuant to the requirements of this Part.
(f) Where the water withdrawal system listed in an initial permit application is associated with a project, facility, activity or use that is subject to a SPDES permit or another Department permit, the Department will review the initial permit application in coordination with the SPDES or other permit program, particularly with respect to any pending permit renewals.
§ 601.8 Consolidation of Existing Public Water Supply Permits
The Department may consolidate and combine two or more of the water supply permits of a public water supply system existing as of February 15, 2012 into one comprehensive water withdrawal permit that encompasses the provisions, terms and conditions of the existing permits and renders such provisions, terms and conditions consistent with each other. The Department may require submission of a permit application under this Part in connection with such a consolidation if the Department determines that such consolidation is necessary to protect the environment and the public health, safety and welfare and to ensure the proper management of the waters of the State.
§ 601.9 Permit Exemptions
The following actions with respect to a water withdrawal system are exempt from the permit requirements of this Part:
(a) Withdrawals for agricultural purposes that have been registered or their annual water usage reported pursuant to the requirements of ECL article 15 title 16 or title 33 as of February 15, 2012. These withdrawals are subject to the annual reporting requirements of subpart 601.5 and the registration requirements of subpart 601.17 of this Part;
(b) Withdrawals that have received an approval from the Delaware River Basin Commission or Susquehanna River Basin Commission. These withdrawals are subject to the annual reporting requirements of subpart 601.5 and to the registration requirements of subparts 601.17 and 601.18 of this Part, respectively, as applicable;
(c) Withdrawals of hydropower facilities operating under a valid Federal Energy Regulating Commission license;
(d) Withdrawals from the New York State Canal System, as defined by Subdivision 1 of Section 2 of the Canal Law, that are used by the New York State Canal Corporation for purposes authorized by law;
(e) Closed loop, standing column or similar non-extractive geothermal systems;
(f) Long Island wells permitted pursuant to ECL section 15-1527 and Part 602 of 6 NYCRR;
(g) On-site water withdrawal systems for approved inactive hazardous waste remedial site programs conducted pursuant to state or federal court order or state or federal government agency agreement or order;
(h) Withdrawals used for fire suppression or other public emergency purposes;
(i) Direct withdrawals from the Atlantic Ocean or Long Island Sound;
(j) The extension of supply or distributing mains or pipes within a previously-approved water service area that remains within the amount authorized in a water supply permit or water withdrawal permit for the purpose of supplying potable water;
(k) The reconstruction of facilities in an existing water withdrawal system when the capacity of such system is in no way altered (reconstruction does not include constructing an adjacent withdrawal structure);
(l) The construction of filtration or other treatment facilities that will not in any way alter the amount of water which can be made available from the present source of supply;
(m) Water withdrawals to supply ballast water necessary for lawful and normal vessel activity; or
(n) Water withdrawal directly related to routine maintenance and emergency repairs of dams.
(o) Temporary water withdrawals for the purposes of construction, dewatering, hydrostatic testing, or aquifer testing, where the volume withdrawn is less than an average of 100,000 gallons per day in any consecutive thirty-day consecutive period (3 million gallons during a 30 day period).
§ 601.10 Application for a Permit; Renewal of an Existing Permit
An application for a water withdrawal permit or for the renewal of an existing permit shall be on forms available from the Department and shall include all information determined by the Department to be necessary to act on the application, including but not limited to information which may be required to comply with the requirements of an applicable compact basin commission. The application must be signed by an authorized individual and all required resolutions, consents, ordinances or certifications must be attached thereto. Unless otherwise instructed, applicants must submit all forms and exhibits in hard copy, and electronically whenever reasonably possible. The application for a permit shall include the following exhibits, as applicable to the withdrawal:
(a) 'Project authorization.' For public water supply systems, project authorization shall include but not be limited to adequate proof that the proposed project was legally adopted and authorized by an ordinance, resolution, or order of the governing body of the applicant. This includes proof that all requirements of local law have been met by the applicant. Such proof includes, but is not limited to, copies of resolutions, ordinances, determinations or certifications. For a privately owned public water supply system, project authorization shall include but not be limited to adequate proof of its formation of a water-works corporation pursuant to article 4 of the Transportation Corporations Law.
(b) 'General map.' For all water withdrawal systems, the map shall show in sufficient detail the location or position of the various lands, structures, and works associated with the existing and/or proposed water withdrawal system, the location of lands to be acquired, and all dams, reservoirs, well sites, ponds, wetlands, weirs, diversion structures or other known withdrawals in the vicinity. For public water supply systems, a general map indicating the boundaries of the proposed water service area and any potential sources of contamination in the vicinity of the system's source(s) of supply and any other points or locations as may be required by the Department. (c) 'Watershed maps.' Watershed maps shall be USGS topographic maps, or the equivalent, and must indicate the location of the withdrawal and the location of any return flow, including any existing or proposed interbasin diversions. For surface water withdrawals, the map shall include the line of divide surrounding the tributary watershed.
(d) 'Contract plans.' Include the contract plans for the water withdrawal system. However, for public water supply systems, contract plans and specifications for treatment and distribution aspects of the system shall be provided directly to the Department of Health for review and approval.
(e) 'Engineer's report.' The engineer's report shall be from the professional engineer, licensed by the State, who made the recommendations and/or designed the proposed water withdrawal system. The report shall contain the following minimum information:
(1) a general description of the project and the engineering features of the existing or proposed water withdrawal system;
(2) a listing of all existing sources of water supply, including wells, surface withdrawals, and any purchases, sales or transfers of water;
(3) an evaluation of all practicable alternatives to the proposed source, which shall include an analysis of increased water conservation measures as a means to reduce or eliminate the need for the proposed source;
(4) for public water supply systems, the present and projected population of the water service area and the present and projected consumption rate;
(5) for public water supply systems, the radius of land owned or controlled for wellhead protection surrounding any proposed groundwater withdrawal, or the water quality classification and a copy of any Department of Health Watershed Rules and Regulations for any proposed surface withdrawal;
(6) the general character and extent and essential design features of proposed controlling, diverting or regulatory works;
(7) the proposed instantaneous and maximum daily rates of withdrawal; the existing and projected daily average, daily maximum, and 30 day maximum water demands of the water withdrawal system;
(8) when applicable, any fire suppression flows which can be supplied, including the duration for which such flows can be maintained;
(9) for public water supply systems, the location, extent and character of proposed treatment facilities;
(10) for groundwater sources, well drilling logs, monitoring well locations and pump test data and analyses of results; and
(11) for surface water sources, information on rainfall, stream flows and classifications, contributing watershed size, location of the nearby USGS stream gages, other upstream water withdrawals, safe yield analyses or passby flow calculations and proposed withdrawal methods including intake structure design and screening.
(f) 'Water conservation program.' A completed form as made available by the Department or, if acceptable to the Department, a detailed plan, that demonstrates the applicant's water conservation and efficiency measures that are environmentally sound and economically feasible and that minimize inefficiencies and water losses. Such measures must include but are not limited to: source and customer metering; frequent system water auditing; system leak detection and repair; recycling and reuse; and ability to enforce water restrictions during drought.
(g) 'Annual reporting form for existing withdrawals.' A copy of the latest annual report submitted pursuant to subpart 601.5.
(h) 'Acquisition maps.' Land acquisition maps showing:
(1) the lands proposed to be acquired, taken, condemned, or leased; and
(2) if the land is for a reservoir, indicate ground surface contours in detail sufficient to permit an accurate determination of the proposed storage capacity of the reservoir;
(i) 'Water analyses.' For public water supply systems, chemical and bacteriological analyses of the water from the proposed source shall be provided directly to the Department of Health for review.
(j) 'Treatment methods.' For public water supply systems, proposed methods of treatment of the water supply to insure its quality and the ability to meet applicable Department of Health standards for drinking water.
(k) 'Project justification.' A summary statement in justification of the proposed project using facts and information contained in the applicant's exhibits with specific references thereto, which shows:
(1) why the proposed project was selected from the evaluated alternatives;
(2) why increased water conservation or efficiency measures cannot negate or reduce the need for the proposed water withdrawals;
(3) why the proposed water withdrawal quantity is reasonable for the proposed use;
(4) why the proposed water conservation measures are environmentally sound and economically feasible;
(5) whether the proposed water supply is adequate;
(6) whether the proposed project is just and equitable to other municipalities and their inhabitants in regards to present and future needs for sources of potable water;
(7) whether the proposed withdrawal will result in no significant individual or cumulative adverse environmental impacts; and
(8) whether the proposed withdrawal will be consistent with all applicable municipal, state and federal laws as well as regional interstate and international agreements.
(l) 'Canal withdrawal approvals.' For any water withdrawal system withdrawing from the New York State Canal System, adequate proof that the applicant obtained a permit or other approval from the New York State Canal Corporation pursuant to Section 100 of the Canal Law.
(m) 'Transmittal letter.' A letter of transmittal containing the following information:
(1) names, addresses and phone numbers of the applicant, its attorney, engineer and any consultants;
(2) name and address of any public halls or other places in which a public hearing, if required, may be held; and
(3) names and publication schedules of local newspapers.
(n) 'Great Lakes-St. Lawrence River Basin Water Resources Compact Process Requirements.' Diversions of any quantity out of the Great Lakes-St. Lawrence River Basin are prohibited by the Great Lakes- St. Lawrence River Basin Water Resources Compact, as enacted in ECL article 21 title 10. Limited exceptions for public water supply systems will only be considered by the Great Lakes-St. Lawrence River Basin Water Resources Council and Regional Body when in compliance with that Compact. In applying to the Great Lakes- St. Lawrence River Basin Water Resources Council and Regional Body for any such exception, as applicable, the applicant proposing such an exception is responsible for providing the Department information in a timely manner to respond to requests by the Great Lakes-St. Lawrence River Basin Water Resources Council and Regional Body. The applicant proposing such an exception is also responsible for costs associated with providing any additional information, document copies, internet postings, and public meetings required by the Regional Notification and Application Review/Approval processes of the Great Lakes-St. Lawrence River Basin Water Resources Council and Regional Body.
(o) Permit Renewals. Any permittee who intends to continue to operate a water withdrawal system beyond the period of time covered in the applicable water withdrawal permit must apply for a renewal of the permit at least 30 days prior to its expiration unless a different deadline is specified as a condition of the permit. Public notification of water withdrawal permit renewal applications and timeframes for issuance shall be in accordance with Part 621 of this title.
§ 601.11 Action on Permit Applications
(a) The Department may grant or deny a permit, or grant a permit with conditions.
(b) All water withdrawal permits shall be valid for a fixed term not to exceed ten years.
(c) In making its decision to grant or deny a permit or to grant a permit with conditions, the Department shall determine whether:
(1) the proposed water withdrawal takes proper consideration of other sources of water supply that are or may become available;
(2) the quantity of supply will be adequate for the proposed use;
(3) the proposed project is just and equitable to all affected municipalities and their inhabitants with regard to their present and future needs for sources of potable water supply;
(4) the need for all or part of the proposed water withdrawal cannot reasonably be avoided through the efficient use and conservation of existing water supplies;
(5) the proposed water withdrawal is limited to quantities that are considered reasonable for the purposes for which the water use is proposed;
(6) the proposed water 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; this determination may include an evaluation of whether all withdrawn water that is not lost to reasonable consumptive use will be returned to its source New York major drainage basin;
(7) the proposed water withdrawal will be implemented in a manner that incorporates environmentally sound and economically feasible water conservation measures; and
(8) the proposed water withdrawal will be implemented in a manner that is consistent with applicable municipal, state and federal laws as well as regional interstate and international agreements.
(d) When a proposed water withdrawal for a public water supply also constitutes a diversion of water out of the Great Lakes-St. Lawrence River Basin that is subject to Great Lakes-St. Lawrence River Basin Water Resources Compact, as enacted in ECL article 21 title 10, the Department will determine whether all withdrawn water that is not lost to reasonable consumptive use will be returned to the Great Lakes-St. Lawrence River Basin.
(e) The Department may require the submission of such additional information as is necessary to determine compliance with this Part after a permit application has been filed. If such an application is incomplete or otherwise deficient, the processing of the application shall not be completed until such time as the applicant has supplied the missing information or otherwise corrected the deficiency. If the Department determines that site visits by representatives of the Department would be useful in evaluating the application, such site visits shall be considered a necessary part of the application.
(f) Article 70 of the ECL and the rules and regulations promulgated thereunder shall govern permit applications, renewals, modifications, suspensions and revocations under this Part.
(g) The Department, in its discretion, may impose special conditions on public water supply systems located in or adjacent to, or serving an agricultural district established pursuant to article 25-AA of the Agriculture and Markets Law.
(h) When the water withdrawal system listed in an application is associated with a project, facility, activity or use that is subject to a SPDES permit or another Department permit, the Department will review the permit application in coordination with the SPDES or other permit program.
§ 601.12 General Provisions of a Water Withdrawal Permit
The following provisions apply to water withdrawal permits including public water supply permits issued prior to April 1, 2013:
(a) The water withdrawal system shall not supply or be committed to supply water beyond the amounts approved by the Department.
(b) The permittee shall, at all times, properly operate and maintain all facilities which are installed or used by the permittee to achieve compliance with the conditions of the permit.
(c) The permittee shall ensure that the intake structure for any surface water withdrawal is designed and maintained to sustain any passby flow requirement established in the permit.
(d) The water withdrawal permit, or a true copy, shall be kept readily available for reference at the facility.
(e) Upon issuance of a water withdrawal permit, a determination has been made on the basis of a submitted application, plans, or other available information, that compliance with the specified permit provisions will protect classified water use and assure compliance with applicable water quality standards. Satisfaction of permit provisions notwithstanding, if operation pursuant to the permit causes or contributes to a condition in contravention of State water quality standards or guidance values, or if the Department determines that a modification of the permit is necessary to prevent impairment of the best use of the waters or to assure maintenance of water quality standards, the Department may require such a modification and the Commissioner may require abatement action to be taken by the permittee and may also prohibit such operation until the permit has been modified pursuant to subpart 601.15.
(f) The provisions of a water withdrawal permit are severable, and if any provision of the permit, or the application of any provision of the permit to any circumstance, is held invalid, the application of such provision to other circumstances, and the remainder of the permit, shall not be affected thereby.
(g) For a withdrawal that originates within the jurisdiction of a compact basin commission, the withdrawal must also comply with any applicable water withdrawal standards or requirements of that compact basin commission.
(h) The permittee must comply with all terms and conditions of the permit. Any permit noncompliance constitutes a violation of the ECL and this Part and is grounds for: enforcement action; permit suspension, revocation or modification; and denial of a permit renewal application.
(i) Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Department, the permittee shall promptly submit such facts or corrected information to the Department.
(j) It shall not be a defense, for a permittee in an enforcement action, that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit.
(k) The filing of a request by the permittee for a permit modification, termination, transfer, or a notification of planned changes or anticipated noncompliance, does not stay any permit condition.
(l) The permittee shall furnish to the Department, within a reasonable time as set forth in the Department request, any information that the Department may request to determine whether cause exists for modifying, suspending, or revoking a water withdrawal permit, or to determine compliance with the permit. The permittee shall also furnish to the Department, upon request, copies of records required to be kept by the permittee.
(m) Nothing in a water withdrawal permit relieves the permittee from a requirement to obtain any other permits required by law.
(n) The issuance of a water withdrawal permit by the Department and the receipt thereof by the permittee does not supersede, revoke or rescind an order on consent or modification thereof or any of the terms, conditions or requirements contained in such order or modification thereof unless specifically intended by said order or a modified order.
(o) The issuance of a water withdrawal permit does not convey any property rights in either real or personal property, or any exclusive privileges, nor does it authorize any injury to private property or any invasion of personal rights, nor any infringement of federal, state or local laws or regulations; nor does it obviate the necessity of obtaining the assent of any other jurisdiction as required by law for the water withdrawal authorized.
§ 601.13 Approval of Plans by the Department of Health
Contract plans and specifications, or changes thereto, for a public water supply system for which a permit has been issued by the Department are subject to review and approval by the Department of Health prior to the commencement of construction.
§ 601.14 Approval of Completed Works
(a) The construction of any works pursuant to a water withdrawal permit granted under this Part shall be under the general supervision of a person licensed to practice engineering in this state (professional engineer). Upon completion of construction and pre-operational testing, such works may not commence final operation until the professional engineer first certifies in writing to the Department that the works have been constructed in accordance with the issued permit.
(b) For public water supply systems, the water withdrawal permittee shall submit to the Department a copy of the Approval of Completed Works issued by the Department of Health before the commencement of final operation of the water withdrawal system.
(c) The Department, in its discretion, may allow the operation of portion of a project prior to the completion of the entire project so long as the relevant portion of the project has obtained the approvals required in subparagraphs (a) and (b).
§ 601.15 Modification of Water Withdrawal Permits
(a) Water withdrawal permits may be modified in accordance with Part 621 of 6 NYCRR.
(b) In addition to the grounds set forth in Part 621, the Department may modify a water withdrawal permit on any of the following grounds:
(1) Satisfaction of the terms of a special permit condition or requirement has not achieved expressed objectives of the special permit condition or requirement;
(2) When required to satisfy a condition or conditions of a permit;
(3) To adjust permit limitations, where necessary to prevent over-allocation or use of a water source or to protect the environment and the health, safety and welfare of the public;
(4) To correct technical mistakes, such as typographical errors and errors in calculation, or to correct mistaken interpretations of law made in determining permit conditions, or to make changes to monitoring requirements or make other minor technical adjustments;
(5) To implement a legal requirement from applicable law or regulation; or
(6) To comply with the requirements of the Great Lakes-St. Lawrence River Basin Water Resources Compact, as enacted in ECL article 21 title 10, or the requirements of any other compact basin commission.
(c) When a permit is modified, only the aspects of the permit that are modified are subject to public review.
§ 601.16 Denial, Suspension or Revocation of Permits
(a) The Department may deny an application for a water withdrawal permit if the Department determines that:
(1) the water withdrawal will result in contravention of water quality standards or guidance values;
(2) the water withdrawal will exceed or cause to be exceeded the safe yield or sustainable supply of the water source;
(3) the water withdrawal will cause a new or increased interbasin diversion that results in a significant adverse impact on the water quantity of the source New York major drainage basin;
(4) the permittee or applicant has been convicted of a crime related to the permitted activity under any federal or state law;
(5) the permittee or applicant has been determined in an administrative, civil or criminal proceeding to have violated any provision of the ECL, any related order or determination of the Commissioner, any regulation of the Department, any condition or term of any permit issued by the Department, or any similar statute, regulation, order or permit condition of the federal or other state government, or agency, on one or more occasions and in the opinion of the Department, the violation that was the basis for the action posed a significant potential threat to the environment or human health, or is part of a pattern of non-compliance; or
(6) the water withdrawal has not been approved by the applicable compact basin commission.
(b) In addition to the criteria set forth in Part 621 of 6 NYCRR for suspension or revocation of a permit, the Department may suspend or revoke a water withdrawal permit if the Department determines that:
(1) the facility that would or does employ the permitted water withdrawal has not operated and is not likely to operate during the term of the permit;
(2) the permittee or applicant has been convicted of a crime related to the permitted activity under any federal or state law;
(3) the permit was issued erroneously or by mistake;
(4) the permit was obtained through fraud, deceit, or through the submission of incorrect data; (5) the permittee was negligent, or practiced fraud or deceit, in the performance of the permitted
(6) the permittee is out of compliance with the requirements of the Great Lakes-St. Lawrence River Basin Water Resources Compact, as enacted in ECL article 21 title 10, or any other compact basin commission.
§ 601.17 Registration of Water Withdrawals for Agricultural Purposes
(a) This subpart applies to any person who (i) engaged in the operation of a water withdrawal system for agricultural purposes on February 15, 2012, where the cumulative withdrawal for a single parcel or proximate parcels is equal to or in excess of an average of 100,000 gallons per day in any thirty day consecutive period (3 million gallons during a 30 day period); and (ii) prior to February 15, 2012, registered or reported annual water usage pursuant to the requirements of title 16 or title 33 of ECL article 15.
(b) By March 31 of each year, each person to whom this subpart applies shall register the withdrawal with the Department pursuant to public law 2011, chapter 401, § 4, effective August 16, 2011. In order to be deemed complete, the registration shall include:
(1) the information requested on forms made available by the Department.
(2) General map. Maps shall be USGS topographic maps, or the equivalent, and must indicate the location of the withdrawal and the location of any return flow, including any existing or proposed interbasin diversions. For surface water withdrawals, the map shall include the line of divide surrounding the tributary watershed. The map shall also show in sufficient detail, the location of related dams, reservoirs, ponds, wetlands, weirs or diversion structures.
(3) Annual Water Withdrawal Reporting Form completed for the previous calendar year pursuant to subpart 601.5.
(c) All registrations shall be signed by an authorized individual and submitted to the Department.
(d) Any withdrawal must comply with all other applicable requirements of law.
(e) The receipt by the Department of a complete registration does not constitute an approval by the Department.
(f) Registration is not required for agricultural withdrawals that are operating pursuant to a DRBC or SRBC approval.
§ 601.18 Registration of Interbasin Diversions; Prohibitions
(a) No person shall cause an interbasin diversion, or increase the volume of an interbasin diversion, which results in a diversion of water or wastewater in excess of 1,000,000 gallons per day, as determined by the limiting maximum capacity of the treatment or conveyance system, or construct facilities or equipment therefore, unless the diversion or increased diversion is duly registered with the Department.
(b) Registration is not required for interbasin diversions that are operating pursuant to a water withdrawal permit, or a DRBC or SRBC approval.
(c) Pursuant to ECL article 15 title 15 subsection 2, all interbasin diversions in excess of 1,000,000 gallons per day that existed on February 15, 2012, and that were required to be registered, shall have been registered no later than February 15, 2013.
(d) Renewals of interbasin diversion registrations shall be submitted annually by March 31 and within 60 days of transfer of ownership of the facilities which create an interbasin diversion.
(e) In order to be deemed complete, the interbasin diversion registration or renewal shall include:
(1) The information requested on forms made available by the Department.
(2) General map. Maps shall be USGS topographic maps, or the equivalent, and must indicate the location of the withdrawal, the diversion and the discharge or return flow. The map shall include the line of divide between New York major drainage basins, and the locations of all inter-connecting pipelines, canals, streams or tunnels.
(3) Engineer's report. Engineer's report from the professional engineer, licensed by the State, who made the recommendations and/or designed the proposed interbasin diversion. The report shall contain the following minimum information:
(i) a general description and the engineering features of the existing or proposed interbasin diversion;
(ii) a listing of all related Departmental permit applications or permits;
(iii) a description of the amounts of water or wastewater diverted on a daily, monthly and annual basis; and
(iv) an evaluation of the impacts of the diversion on the quantity of water in the New York major drainage basin that is the source of the diversion and from which waters are diverted.
(4) Annual Water Withdrawal Reporting Form completed for the previous calendar year pursuant to subpart 601.5.
(f) An interbasin diversion registration shall be submitted to the Department and be signed by an authorized individual pursuant to subpart 601.22.
(g) Any interbasin diversion must comply with all other applicable requirements of law.
(h) The receipt by the Department of a complete interbasin diversion registration does not constitute an approval by the Department.
(i) No person shall make a new or increased interbasin diversion which results in a significant adverse impact on the water quantity in the New York major drainage basin that is the source of the diversion and from which waters are diverted.
(j) Diversions of any quantity from the Great Lakes-St. Lawrence River Basin are prohibited by the Great Lakes-St. Lawrence River Basin Water Resources Compact, as enacted in ECL article 21 title 10. Limited exceptions for public water supply systems will only be considered when in compliance with that Compact as is further set forth in subpart 601.10(n).
§ 601.19 Monitoring Requirements
(a) Any water use authorized by a water withdrawal permit shall be subject to such requirements for monitoring the intake, waters of the state or other source as may be required by the Department to determine compliance with permit limitations and water quality standards that are or may be affected by the water withdrawal. These requirements include the installation, use, and maintenance of monitoring equipment or methods, and if imposed shall be included as provisions of the water withdrawal permit.
(b) All water withdrawal sources shall be equipped with totalizing flow meters, which shall be properly calibrated within the year prior to permit application and at least once every five years thereafter. If the water withdrawal is used solely for the purpose of fire protection or if the Department determines that the installation of a totalizing flow meter is impractical or unnecessary, the permittee may estimate water withdrawal quantities using an accurate method approved by the Department.
(c) The water withdrawal rate for any water use authorized by a water withdrawal permit shall be monitored by the permittee.
(d) Each parameter required to be monitored pursuant to this subpart shall be monitored at intervals to be determined by the Department as sufficiently frequent to yield data that characterizes the nature of the monitored flow or water levels. Variable water withdrawal rates may require monitoring at more frequent intervals than relatively constant withdrawal rates.
(e) For any public water supply system subject to this Part and constructed or placed in operation after April 1, 2013, water meters shall be installed for all service connections. For public water supply systems operating prior to April 1, 2013, water meters may be required to be installed where the Department determines it is necessary to protect the environment, public health, safety and welfare and to ensure the proper management of the waters of the state.
(f) Any groundwater well installed after April 1, 2013 shall be equipped with apparatus for measuring and recording water levels and the apparatus shall be properly calibrated at least once every five years thereafter. Any surface water impoundment installed after April 1, 2013 shall be equipped with apparatus to measure water levels and corresponding storage volumes.
(g) For any water withdrawal system, the permittee shall monitor, and maintain in good order all records pertaining to, the permittee's performance in implementing water conservation and efficient use goals and objectives.
§ 601.20 Routine Monitoring, Recording, and Reporting
(1) The permittee shall comply with all monitoring, recording and reporting requirements specified in the permit.
(2) The permittee shall periodically calibrate and perform maintenance procedures to ensure accuracy of measurements. Verification of maintenance shall be recorded and available at the facility. The permittee shall repair and record, within 30 days of discovery unless otherwise specified in a water withdrawal permit, any required instrumentation that becomes inoperable, and include a description of the malfunction and repair in the permittee's annual report. In addition, the permittee shall verify the accuracy of its measuring equipment to the Department upon request.
(3) No person shall falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under the permit.
(b) Recording of monitoring activities and results.
(1) The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by a water withdrawal permit, and records of all data used to complete the application for the permit, for a period of at least 5 years from the date of the sample, measurement, report or application. This period shall be extended upon written notice of the Department, provided that the extension is necessary to implement the provisions of this Part and that the reason or reasons for the extension are provided in the request.
(2) Records of monitoring information shall include:
(i) the date, exact place, and time of measurements;
(ii) the individual(s) who performed the measurements; and
(iii) the results of such measurements.
(3) When records are stored electronically, the records must be preserved in a manner that assures their integrity. Such records must also be in a format which is accessible to the Department.
(4) The permittee shall make available to the Department for inspection and copying or furnish to the Department within 5 business days of receipt of a Department request for such information, any information retained in accordance with this part.
§ 601.21 Inspection and Entry
(a) The permittee shall allow authorized representatives of the Department, upon the presentation of credentials and other documents as may be required by law, to:
(1) enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of a water withdrawal permit;
(2) have access to and copy, at reasonable times, any records that must be kept under the conditions of the permit, including records required to be maintained for purposes of operation and maintenance;
(3) inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under the permit; and
(4) sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the ECL, any parameters at any location.
(b) If any part of the permittee's water withdrawal system or works is located on any property not owned by the permittee, the permittee must be able to demonstrate, upon the request and to the satisfaction of the Department, that permittee has legal access to these locations or facilities and ensure that an authorized representative of the Department, upon presentation of credentials, will have access to these locations and facilities.
§ 601.22 Signature of Forms
(a) Except as provided below in subparagraph (b), all water withdrawal permit applications, registrations and reports required under this Part shall be signed as follows:
(1) For a corporation. By a responsible corporate officer. For the purpose of this subpart, a responsible corporate officer means: (i) A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy making or decision making functions for the corporation, or (ii) the manager of one or more manufacturing, production, or operating facilities, provided, the manager is authorized to make management decisions which govern the operation of the regulated facility including having the explicit or implicit duty of making major capital investment recommendations, and initiating and directing other comprehensive measures to assure long term environmental compliance with environmental laws and regulations; the manager can ensure that the necessary systems are established or actions taken to gather complete and accurate information for permit application requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.
(2) For a partnership or sole proprietorship. By a general partner or the proprietor, respectively.
(3) For a municipality, State, Federal, or other public agency. By either a principal executive officer or ranking elected official. For purposes of this subpart, a principal executive officer of a Federal agency includes: (i) The chief executive officer of the agency, or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., Regional Administrators of EPA).
(b) All reports required by permits, and other information requested by the Department shall be signed by a person described in paragraph (a) of this subpart, or by a duly authorized representative of that person. A person is a duly authorized representative only if: (i) The authorization is made in writing by a person described in paragraph (a) of this subpart; (ii) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company (a duly authorized representative may thus be either a named individual or any individual occupying a named position); and (iii) the written authorization is submitted to the Department.
(c) If an authorization under paragraph (b) of this subpart is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of paragraph (b) of this subpart must be submitted to the Department prior to or together with any reports, information, or applications to be signed by an authorized representative.
(d) In lieu of a signature, the Department may permit the use of a unique identifier assigning responsibility for the veracity of the information contained in an application to the same person or persons that would otherwise be required to sign the application in this subpart. Such a document with a unique identifier shall be considered a "signed document" with a certifying signature and a written instrument that could subject the signatory to liability under the New York State penal law for officers concerning perjury and false written statements pursuant to articles 175 and 210 of said law.
(e) On the basis of previous violations by the duly authorized representative of the permittee for falsification of reports to the Department, the Department may revoke that person's authorization to sign reports to the Department.
(f) No person shall knowingly make any material false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this permit, including monitoring reports.
(g) All applications, reports, or notifications required or authorized to be made or filed by this Part or by the provisions or conditions of any permit issued pursuant thereto, by or on behalf of a permittee, applicant for a permit or person subject to the requirement of a permit shall be sworn to in respect to all statements of fact therein or shall bear an executed statement as provided in subpart 210.45 of the New York State Penal Law to the effect that false statements made therein are made under penalty of perjury.
§ 601.23 Severability
If any provision of this Part or the application thereof to any person or circumstance is held invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons and circumstances.
§ 601.24 References
The New York major drainage basins in subpart 601.2(j) were derived from an update of the United States Geological Survey's (USGS's) Hydrologic Unit Codes (HUCs). The updated HUCs were prepared 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).