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Regulatory Impact Statement Summary NYCRR Parts 701 & 703

Regulatory Impact Statement Summary

The waters of New York State (both freshwater and saline) are grouped into classes with uses designated for each class, along with standards to protect their uses. There are five classes of saline waters defined in Title 6 of the New York Codes, Rules, and Regulations (NYCRR) Part 701 (Part 701): SA, SB, SC, I, and SD. The purpose of this rulemaking is to amend Part 701 to require that the quality of Class I and Class SD waters be suitable for "primary contact recreation," and to adopt corresponding total and fecal coliform standards in 6 NYCRR Part 703 (Part 703). Primary contact recreation refers to activities which involve direct, intentional human contact with water, such as swimming and water skiing. This rulemaking is needed to ensure that Class I and Class SD waters meet the "swimmable" goal of the federal Clean Water Act. The proposed revisions would impact limited waters in the State; the majority of Class I and Class SD waters are located in New York City, with a few waters located in Suffolk County.

1) Statutory Authority

The statutory authority for adoption of water quality regulations and standards is found in the Environmental Conservation Law (ECL) Articles 3, 15 and 17. ECL Article 3 provides that the Commissioner of the Department of Environmental Conservation (Department) may adopt regulations to carry out the purposes of the ECL in general. ECL Articles 15 and 17 direct the Department to classify the waters of the state in accordance with best usage in the interest of the public and "maintain reasonable standards of purity of the waters of the state consistent with public health and public enjoyment thereof . . . ." Specifically, Section 17-0301 provides that the Department "shall group the designated waters of the state into classes. Such classification shall be made in accordance with considerations of best usage in the -------------------------interest of the public" and further that the Department "shall adopt and assign standards of quality and purity for each such classification necessary for the public use or benefit contemplated by such classification."

2) Legislative Objectives

The legislative objectives of the statutory authority discussed above are to "conserve, improve and protect [the State's] natural resources and environment and to prevent, abate and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well being" and to guarantee that the "widest range of beneficial uses of the environment is attained without risk to health or safety, unnecessary degradation or other undesirable or unintended consequences." The proposed amendments to Parts 701 and 703 would help the State to achieve these objectives and would also contribute to achieving the federal mandate "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," and the national goal, wherever attainable, of water quality which "provides for recreation in and on the water," commonly referred to as the swimmable goal.

3) Needs and Benefits

This proposed action is needed to protect and preserve saline surface water resources for primary contact recreation uses, such as swimming, surfing, and water skiing, in accordance with the Clean Water Act regulatory requirements. The saline surface waters that would be affected by this rulemaking are all of the Class I and Class SD waters in New York State.

A) Class I and Class SD Waterbodies

A limited number of waterbodies in New York State are currently classified as Class I or Class SD. Almost all of these waterbodies are located within the bounds of New York City, and the remainder are in Suffolk County.

B) The Clean Water Act

The proposed regulatory changes are needed to ensure that Class I and Class SD waters meet the swimmable goal of the Clean Water Act. The Clean Water Act is the federal statute governing water pollution throughout the nation. In the Act, Congress set a general objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." To achieve that objective, Congress set a national goal that, "wherever attainable," water quality that "provides for recreation in and on the water" would be achieved by 1983. This provision, set out in section 101(a)(2) of the Act, is often referred to as the Clean Water Act's swimmable goal

Consistent with the general objective stated above, Congress required that each state set water quality standards for all surface waters in the state. Water quality standards include two components-designated uses and water quality criteria-that operate in tandem. Designated uses are the best uses assigned to a particular waterbody, such as a source of public drinking water or a location for swimming or fishing. The water quality criteria are the specific technical standards needed to protect particular designated uses.

C) The Swimmable Goal

Since 1975, New York State has been authorized by the United States Environmental Protection Agency (EPA) to regulate point source discharges to the waters of the state in accordance with the National Pollutant Discharge Elimination System and adopt water quality regulations to achieve the swimmable goal of the Clean Water Act. In Part 701, the Department has established surface water classifications that delineate best usages and requirements for water quality for different classes of waters. All of the surface water classifications (freshwater and saline), except those for Class I and Class SD, designate primary contact recreation as a best usage or require that the water quality be suitable for primary contact recreation. Accordingly, Class I and Class SD waters are the only surface waters within the State that are not required by Department regulation to meet the swimmable goal of the Clean Water Act. The proposed rulemaking would require that the quality of Class I and Class SD waters be suitable for primary contact recreation, and meet corresponding total and fecal coliform standards.

If the Department does not adopt regulations to achieve the swimmable goal for Class I and Class SD waters, the EPA has the authority to impose the swimmable goal for New York waters through federal regulations. The implications of the EPA taking such action are discussed further under Section 8 of this statement.

4) Costs

This rulemaking, which requires that the quality of Class I and Class SD waters be suitable for primary contact recreation, would affect waterbodies within New York City and Suffolk County.

A) Suffolk County

This rulemaking would not impose any costs on Suffolk County or any regulated persons or local governments within the County. There are no wastewater treatment plants or other regulated parties in Suffolk County that discharge into Class I or Class SD waters. Accordingly, this rulemaking would not impose any costs on regulated persons or local governments in the County because no treatment modifications or facility upgrades would be required.

B) New York City

In New York City, there are numerous municipal wastewater treatment plants and several other regulated parties that discharge into Class I or Class SD waters. Investments in water pollution abatement are necessary to bring New York City waters into compliance with the swimmable goal. However, for several reasons, New York City is already obligated to make those investments, and therefore, the proposed amendments would not impose any costs on regulated persons or local governments in New York City above and beyond costs that are currently required.

First, the Clean Water Act obligates New York City to take appropriate measures to ensure that the waters of New York City meet the swimmable goal. Second, in 1994, the EPA promulgated a Combined Sewer Overflow (CSO) Long Term Control Plan Policy (LTCP Policy) to address LTCPs. The LTCP Policy was drafted to provide guidance for EPA, states, and municipalities on the required elements of an approvable LTCP. In 2000, the LTCP Policy was codified into federal statute in Section 402(q) of the Clean Water Act. The LTCP Policy and Section 402(q) require that CSO's meet the requirements of the Act, including the swimmable goal. Third, in 2012, DEC and New York City signed a Modified CSO Order (CSO Order) in which the City committed to attain water quality standards as well as comply with other Clean Water Act requirements "in furtherance of the water quality goals of the federal Clean Water Act." Fourth, some of the Class I and Class SD waters within New York City are already designated for primary contact recreation under the regulations of the Interstate Environmental Commission (IEC). Therefore, this rulemaking will not impose any costs on regulated persons or state or local governments beyond those costs that are currently required.

C) Costs to the Department, the State, and local governments

This rulemaking would not impose any costs on the Department, the State or any of its agencies, or any local governments except as discussed above in relation to New York City.

5) Local Government Mandates

This rulemaking would not impose any mandates on local governments, except New York City, as a regulated party. As discussed in Section 4(B) of this statement, it would not impose any mandates that are not already required by the Clean Water Act, EPA's CSO LTCP Policy, the CSO Order, or the IEC. This rulemaking would not impose any mandates on Suffolk County or any local governments within the County.

6) Paperwork

There would be no paperwork or reporting requirements as a result of this rulemaking.

7) Duplication

Although this rulemaking will result in some overlap of state and federal requirements, it is necessary to achieve consistency between the Clean Water Act and New York State regulations.

8) Alternatives

The only alternative considered was the "no action" alternative. Taking no action would not address the fact that Class I and Class SD waters currently do not comply with the swimmable goal of the Clean Water Act. If the water classifications remain unchanged, it is possible that the EPA could exercise its authority to promulgate regulations for New York State to bring the Class I and Class SD waters into compliance with the Clean Water Act. If the EPA were to take this action, the Department would lose some flexibility for setting water quality standards for the state waters. Moreover, a bifurcated regulatory program would be more complicated and confusing to the regulated community. The Department has rejected the no-action alternative.

9) Federal Standards

The proposed regulatory changes do not exceed any federal minimum standards. As discussed above in in Sections 3(B) and 7 of this statement, the proposed regulatory changes would bring New York State water quality classifications and requirements into compliance with the federal minimum standards, in particular the nationwide goal of achieving swimmable waters.

10) Compliance Schedule

The proposed regulatory changes would take effect on the day that the Notice of Adoption for these regulations is published in the New York State Register. The Department recognizes that it would be unreasonable, both physically and fiscally, to expect regulated parties to comply with the regulations immediately. However, the City is obligated under the CSO Order to comply with established waterbody-specific schedules for LTCPs and construction projects, and the Department fully expects the City to meet its' obligations under the CSO Order. In addition, under 6 NYCRR section 702.17, the Department may grant a variance to water quality-based effluent limitations included in a SPDES permit under certain circumstances to provide temporary regulatory relief while measures are taken to achieve compliance.


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