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Regulatory Impact Statement NYCRR Parts 701 & 703

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.1 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 32 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 public3 and "maintain reasonable standards of purity of the waters of the state consistent with public health and public enjoyment thereof . . . ."4 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."5 More specifically, the objectives are to "maintain reasonable standards of purity of the waters of the state consistent with public health and public enjoyment thereof the propagation and protection of fish and wild life, including birds, mammals and other terrestrial and [aquatic] life, and the industrial development of the state, and to that end require the use of all known available and reasonable methods to prevent and control the pollution of the waters of the state of New York."6 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.7

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. Tables 1 and 2 list the Class I and Class SD waterbodies in New York City and Suffolk County.

Table 1: Class I Waters in New York State
Jurisdiction Waters 6 NYCRR 8
New York City Alley Creek Section 935.6, Item 13
Arthur Kill Section 890.6, Item 12
Bedell Avenue Creek Section 890.6, Item 27
Bergen Basin Section 891.6, Item 12
Bronx River Section 935.6, Item 28
Coney Island Creek Section 890.6, Item 5
East River Section 890.6, Items 52 and 53
Section 935.6, Items 1 and 2
Flushing Creek Section 935.6, Item 6
Harlem River, Little Hell Gate, Bronx Kill Section 890.6, Item 56 and 56.1
Hawtree Basin Section 891.6, Item 13
Hudson River Section 864.6, Item 1
Great Kills Creek Section 890.6, Item 19
Hook Creek Section 891.6, Item 3
Lower New York Bay portion, including Gravesend Bay Section 890.6, Item 4
Mill Creek Section 890.6, Item 28
New Creek Section 890.6, Item 18
Oakwood Creek Section 890.6, Item 20
Old Mill Creek Section 894.6, Item 16
Raritan Bay Section 890.6, Item 11
Sheepshead Bay Section 891.6, Item 21
Shellbank Basin Section 891.6, Item 14
Thurston Basin Section 891.6, Item 8
Tributaries to East River Section 935.6, Item 11
Tributaries to Hook Creek Section 891.6, Items 4 and 7
Tributary to Jamaica Bay Section 891.6, Item 15
Tributaries to Jamaica (Hendrix Creek, Fresh Creek, Paerdegat Basin) Section 891.6, Item 17
Tributaries of Jamaica Bay (Barbadoes Basin, Verman Basin, Sommerville Basin, Motts Basin) Section 891.6, Item 2
Tributary of Little Neck Bay Section 935.6, Item 17
Upper New York Bay, including the Narrows, Atlantic Basin, and Gowanus Bay Section 890.6, Item 6
Westchester Creek and Pugsley Creek Section 935.6, Item 47
Suffolk County Undesignated Tributaries of Great South Bay Section 925.6, Item 82
Table 2: Class SD Waters in New York State
Jurisdiction Waters 6 NYCRR 9
New York City Arthur Kill Section 890.6, Item 13
Benedic Creek Section 890.6, Item 33
Bodine Creek Section 890.6, Item 45
Bridge Creek Section 890.6, Item 44
Erie Basin Section 890.6, Item 6.1
Fresh Kills Section 890.6, Item 34
Gowanus Canal Section 890.6, Item 7
Kill Van Kull Section 890.6, Item 15
Newark Bay Section 890.6, Item 14
Newtown Creek or English Kills Section 890.6, Item 54
Old Place Creek Section 890.6, Item 43
Sleight Creek Section 890.6, Item 31
Steinway Creek Section 935.6, Item 4
Tributary of East River Section 935.6, Item 5
Tributaries of Arthur Kill Section 890.6, Item 30
Tributaries of Arthur Kill Section 890.6, Item 41
Tributary of Arthur Kill Section 890.6, Item 42
Tributary of Kill Van Kull Section 890.6, Items 49 and 50
Suffolk County Undesignated Tributaries of Great South Bay Section 925.6, Item 82
Tributaries to Terrell River Section 920.4, Item 35.1
Tributary to Seatuck Creek Section 920.4, Item 55

The saline surface waters of New York State are one of New York's greatest natural resources. There are approximately 1,530 square miles of saline waters within the boundaries of the State. The saline waters of the State are those rivers, bays, and estuaries located in and adjacent to the Long Island Sound, Atlantic Ocean, New York Harbor, and lower Hudson River. The saline waters located around Long Island and New York City are a significant recreational resource for the State's population. These saline surface waters also receive treated and untreated wastes, and support the industrial, commercial, and agricultural sectors. Thus, these saline waters are integral to the State's economy and protection of the quality of these waters is important to the quality of life of the State's residents.

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."10 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 1983.11 This provision, set out in section 101(a)(2) of the Act, is often referred to as the Clean Water Act's swimmable goal. The presumption is that the swimmable goal can be achieved. If any party believes that the water cannot meet this use, they can provide the Department with documentation to demonstrate why the swimmable use is not feasible to attain based upon one or more of the factors listed in 40 CFR 131.10(g). The Department would review this documentation and determine whether or not there is sufficient information to document and support a use removal (e.g., not swimmable or not swimmable during the entire recreation season), subject to approval by the U.S. EPA.

Consistent with the general objective stated above, Congress required that each state set water quality standards for all surface waters in the state.12 Water quality standards include two components-designated uses and water quality criteria-that operate in tandem.13 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.14 The water quality criteria are the specific technical standards needed to protect particular designated uses.15

For example, the designated use for a waterbody may be primary contact recreation, which includes direct, intentional human contact with water through swimming, waterskiing or other activities.16 The associated water quality standard for that designated use would set the maximum concentrations of certain types of bacteria in the water consistent with preventing illness in the adults and children who participate in those activities.17 Primary contact use is consistent with the Clean Water Act's swimmable goal.18 The Clean Water Act requires states to periodically review the existing water quality standards and revise them if appropriate.19

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, as stated in Section 3(B) above, 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. Because the Clean Water Act requires New York City to make the expenditures that are necessary to meet this goal, no costs above and beyond what is already required would be imposed by this rulemaking.

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. The LTCP Policy sets forth how water quality standards are to be attained. It also addresses situations where those standards are unattainable and how far a discharger must go towards meeting the standards. 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. No costs are imposed by this rulemaking beyond those already required by the LTCP Policy and Section 402(q).

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." The Order addressed long standing violations by New York City, including violations of a previous CSO Order. The Order provides a process and schedule for New York City to submit LTCPs to the DEC for approval. Consistent with EPA's LTCP Policy, the LTCPs are required to set forth projects the City could construct to attain water quality standards or, where standards were not attainable, the LTCP would include a Use Attainability Analysis (UAA) detailing how close the City could get to meeting the standards. The CSO Order covers the Class I and Class SD waters in New York City that are impacted by CSOs. New York City has agreed to meet the swimmable goal of the Clean Water Act for the CSO-impacted waterbodies, and consequently no costs would be imposed by this rulemaking beyond those already required by the CSO Order.

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). The IEC is a tri-state water and air pollution control agency of New York, New Jersey, and Connecticut. The IEC is authorized under ECL Article 21, Title 5 to establish water quality classifications and standards, and effluent standards. Several of the Class I waters in New York City, in particular Alley Creek and the tributaries to Jamaica Bay, are also classified as Class A by the IEC. These Class A waters are required to be suitable for primary contact recreation. Thus, the proposed regulatory changes would make New York State classifications consistent with existing IEC classifications. Because these waters are already classified for primary contact recreation by the IEC, this proposed rulemaking would impose no new requirements or costs for these waters.

The majority of regulated parties other than New York City discharge industrial process waters that do not have any bacterial load. These parties would not be impacted by this rulemaking. A few regulated parties discharge treated sanitary sewage that may contain bacterial contamination from human sources. The Department already requires disinfection of all of these discharges and compliance with Class SC water quality standards, which conform to applicable Interstate Environmental Commission ("IEC") standards for these waterbodies. Under IEC standards, effluent discharges must meet bacterial water quality standards that would require disinfection. Because Class SC standards require that discharges meet the swimmable goal, no additional pollution abatement would be required as a result of this rulemaking.

Although this proposed rulemaking would not impose any new costs on New York City, a review of New York City's capital cost obligations in order to meet the swimmable goal is presented in Section 4(C) below.

C) Estimated Pollution Abatement Capital Costs for New York City Waters

The total estimated capital cost for projects to improve attainment levels of Class I and Class SD waters to be suitable for primary contact recreation range from around $5.8 to $6.5 billion. Table 3 sets forth a summary of the estimated costs of pollution abatement for New York City waters required to meet the swimmable goal, in accordance with the Clean Water Act, EPA's CSO LTCP Policy, the CSO Order, and the IEC regulations. The estimated costs are based on modeling analyses presented in Waterbody/Watershed Facility Plans (WWFPs) and LTCPs completed by the New York City Department of Environmental Protection. The WWFPs and LTCPs considered the impacts of CSOs on ambient water quality of the Class I and Class SD waters. The cost estimates provided in Table 3 are only associated with the abatement of CSOs and reflect project costs to attain Class SB/SC total coliform/fecal coliform standards20 on a seasonal basis.

Table 3: Estimated Capital Costs to Attain Water Quality Suitable For Primary Contact Recreation 21
Waterbody Current
Classification

Estimated Cost
(millions$) 22

Reference 23
Alley Creek I 4 Alley Creek LTCP, Nov. 2013
Bron River I 80 to 471 Bronx River WWFP, Jul. 2010
Coney Island Creek I 555 to 665 Coney Island Creek WWFP, Jun. 2009
Flushing Bay I 1,682 Flushing Bay WWFP, Aug. 2011
Flushing Creek I 36 Flushing Creek WWFP, Aug. 2011
Little Neck Bay Tributary I 0 Alley Creek LTCP, Nov. 2013
Sheepshead Bay I 0 Jamaica Bay WWFP, Oct. 2011
Jamaica
Tributaries
Fresh Creek 24 I 0 Jamaica Bay WWFP, Oct. 2011
Hendrix Creek 24 I 0 " "
Spring Creek 24 I 0 " "
Bergen Basin I 736 to 875 " "
Thurston Basin I 388 to 432 " "
Barbadoes Basin 25 I 0 " "
Sommerville Basin 25 I 0 " "
Mott Basin 25 I 0 " "
Shellbank Basin 25 I 0 " "
Hawtree Basin 25 I 0 " "
Hook Creek I 0 " "
Hook Creek Tributaries I 0 " "
Paerdegat Basin I 47 Paerdegat Basin LTCP, Jun. 2006
Open Waters
/ East River
Hudson River Manhattan 24 I 0 East River and Open Waters WWFP
(DRAFT), Jun. 2007
Upper NY Bay 24 I 0 " "
Lower NY Bay I 0 " "
Upper East River 24 I 0 " "
Upper East River
Bowery Bay 24
I " "
Harlem River 24
I " "
Lower East River 24
I " "
Raritan Bay I " "
New Creek
I " "
Great Kills Creek I " "
Oakwood Creek I " "
Bedell Avenue Creek
I " "
Mill Creek I " "
Kill van Kull 24 SD " "
Kill van Kull tributaries
SD " "
Arthur Kill 24 I/SD " "
Arthur Kill tributaries SD " "
Steinway Creek SD " "
Tributary of East River
SD " "
Erie Basin SD " "
Newark Bay
SD " "
Sleight Creek
SD " "
Benedic Creek SD " "
Fresh Kills
SD " "
Old Place Creek SD " "
Bridge Creek
SD " "
Bodine Creek SD " "
Westchester Creek I 467 Westchester WWFP, Jun. 2011
Gowanus Canal 24 SD 0 Gowanus Canal WWFP, Aug. 2008
Newtown Creek SD 1,800 Newtown Creek WWFP, Jun. 2011
TOTAL $5,796 to 6,481

Developing cost estimates for each of the waterbodies listed in Table 3 requires complex watershed and receiving water quality modeling to identify reasonable and effective pollution abatement projects on a waterbody/watershed-specific basis. Each watershed/waterbody has unique hydrologic, hydraulic, and hydrodynamic conditions and, as a result, the pollution abatement projects will vary by waterbody/watershed. Moreover, pollution abatement modeling only provides a projection of water quality improvements; the actual improvements to ambient water quality must be confirmed with post-construction compliance monitoring. Therefore, the modeling analyses presented in the WWFPs and LTCPs provide a best estimate of the ambient water quality that might result from implementation of abatement projects for each waterbody. For purposes of developing the cost estimates for pollution abatement, the Department considered 95 percent or greater projected attainment of water quality standards to be acceptable. Lastly, the pollution abatement projects discussed herein were selected by the Department for cost estimate purposes. Future analyses by New York City may identify alternative projects that could attain Class I and Class SD water quality standards for specific waterbodies.

The total estimated capital cost for projects to improve attainment levels of Class I and Class SD waters to be suitable for primary contact recreation range from around $5.8 to $6.5 billion. The majority of these estimated costs were based on analyses completed in the WWFPs that considered the recreational season to be from Memorial Day to Labor Day, which is the bathing season established by the New York City Department of Health. This recreational season does not exactly coincide with the recreational season for New York State, which is May 1 to October 31. In some cases, the difference in recreational season would have no impact on the capital cost estimates, while in other cases the costs may vary from those presented in Table 3. For example, the cost for a disinfection system might not change if a longer recreational season is considered because once the project is constructed it is available for use for the entire year. The Department believes that the differences in recreational seasons considered in the analyses do not significantly alter the total estimated capital costs.

i) Alley Creek

Using existing pollution controls, Alley Creek is projected to attain the Class SB/SC fecal coliform standard approximately 93 percent of the time for recreational seasons (May 1 to October 31) over the 10 year assessment period used in the LTCP.26 Additional pollution abatement projects, in particular disinfection of overflows from the existing Alley Creek CSO retention facility, would further improve ambient water quality. With disinfection of overflows, the waterbody is projected to attain the Class SB/SC fecal coliform standard 98 percent of the time for the same assessment period. The estimated construction cost for disinfection is $4 million.

ii) Bronx River

Using existing pollution controls, the Bronx River is projected to attain the Class SB/SC total coliform standards 67 percent of the time and attain the Class SB/SC fecal coliform standard 100 percent of the time.27 Attainment is measured at a midway point in the tidal section of the river for a recreational season (June to August) over a one year average rainfall assessment period. Additional pollution abatement projects, including inflatable dams, bending weirs, and disinfection of CSOs, will further reduce CSOs and improve ambient water quality; however, the projected attainment level for the Class SB/SC total coliform standards is not available for these abatement projects.28 The estimated construction cost for the inflatable dams and bending weirs is $80 million and for a storage tank with disinfection is $471 million.

iii) Coney Island Creek

Using existing pollution controls, Coney Island Creek is projected to attain the Class SB/SC total coliform 80th percentile standards29 67 percent of the time and attain the Class SB/SC fecal coliform geometric mean and total coliform median standards 100 percent of the time.30 Attainment is measured at a midway point in the creek, for a recreational season (mid-May to mid-September) over a one year average rainfall assessment period. Additional pollution abatement projects, in particular a flushing tunnel, will further improve ambient water quality; however, the projected attainment level for the Class SB/SC total coliform 80th percentile standard is not available for these abatement projects.31 The estimated construction cost for the flushing tunnels is $555 to $665 million.

iv) Flushing Bay

Using existing pollution controls, Flushing Bay is projected to attain the Class SB/SC total coliform 80th percentile standards 67 percent of the time and attain the Class SB/SC fecal coliform geometric mean and total coliform median standards 100 percent of the time.32 Attainment is measured at a point in Inner Bay near the breakwater, for a recreational season (June to August) over a one year average rainfall assessment period. Additional pollution abatement projects, in particular a CSO storage tunnel, will reduce further CSOs and improve ambient water quality; however, the projected attainment level for the Class SB/SC total coliform 80th percentile standard is not available for this abatement project.33 The estimated construction cost for the CSO storage tunnel with disinfection is $1.682 billion.

v) Flushing Creek

Using existing pollution controls, Flushing Creek is projected to attain the Class SB/SC total coliform 80th percentile and fecal coliform standards 67 percent of the time and attain the Class SB/SC total coliform median standards 100 percent of the time.34 Attainment is measured at a mid-point in the waterbody for a recreational season (June to August) over a one year average rainfall assessment period. Additional pollution abatement projects, in particular disinfection of overflows from the existing Flushing CSO retention facility, will further improve ambient water quality; however, the projected attainment level for the Class SB/SC total coliform 80th percentile and fecal coliform standards is not available for this abatement project.35 The estimated construction cost for the disinfection is $36 million.

vi) Little Neck Bay Tributary

Little Neck Bay tributary is not impacted by CSOs and is tidally influenced and well-flushed by Little Neck Bay, which is a Class SB water. For these reasons, the Department believes that no additional pollution abatement is necessary to attain the SB/SC standards.

vii) Sheepshead Bay

Sheepshead Bay is not impacted by CSOs and is tidally influenced and well-flushed by Jamaica Bay, which is a Class SB water. For these reasons, the Department believes that no additional pollution abatement is necessary to attain the SB/SC standards.

viii) Jamaica Bay Tributaries

The following waterbodies are tributaries of Jamaica Bay:

a) Fresh Creek

Using existing pollution controls, Fresh Creek is projected to attain the Class SB/SC total coliform and fecal coliform standards 100 percent of the time.36 Attainment is measured at a mid-point in the waterbody for a recreational season (June to August) over a one year average rainfall assessment period. For these reasons, the existing analyses project that no additional pollution abatement is required.

b) Hendrix Creek

Using existing pollution controls, Hendrix Creek is projected to attain the Class SB/SC total coliform and fecal coliform standards 100 percent of the time.37 Attainment is measured at a mid-point in the waterbody for a recreational season (June to August) over a one year average rainfall assessment period. For these reasons, the existing analyses project that no additional pollution abatement is required.

c) Spring Creek (also referred to as Old Mill Creek in 6 NYCRR Part 891)

Using existing pollution controls, Spring Creek is projected to attain the Class SB/SC total coliform and fecal coliform standards 100 percent of the time.38 Attainment is measured at a mid-point in the waterbody for a recreational season (June to August) over a one year average rainfall assessment period. For these reasons, the existing analyses project that no additional pollution abatement is required.

d) Bergen Basin

Using existing pollution controls, Bergen Basin is projected to attain the Class SB/SC total coliform and fecal coliform standards 67 percent of the time.39 Attainment is measured at a mid-point in the waterbody for a recreational season (June to August) over a one year average rainfall assessment period. Additional pollution abatement projects, in particular a CSO storage tunnel, will further reduce CSOs and improve ambient water quality; however, the projected attainment level for the Class SB/SC total coliform and fecal coliform standards is not available for these abatement projects.40 The estimated construction cost for the CSO storage tunnel with disinfection is $736 to $875 million.

e) Thurston Basin

Using existing pollution controls, Thurston Basin is projected to attain the Class SB/SC total coliform 80th percentile standard 67 percent of the time and the Class SB/SC total coliform median and fecal coliform standard 100 percent of the time.41 Attainment is measured at a mid-point in the waterbody for a recreational season (June to August) over a one year average rainfall assessment period. Additional pollution abatement projects, in particular a CSO storage tunnel, will further reduce CSOs and improve ambient water quality; however, the projected attainment level for the Class SB/SC total coliform and fecal coliform standards is not available for these abatement projects. The estimated construction cost for the CSO storage tunnel with disinfection is $388 to $432 million.

f) Paerdegat Basin

Using existing pollution controls, Paerdegat Basin is projected to attain the Class SB/SC total coliform 80th percentile standard 67 percent of the time and the Class SB/SC total coliform median and fecal coliform standard 100 percent of the time.42 Attainment is measured at a mid-point in the waterbody for a recreational season (June to August) over a one year average rainfall assessment period. Additional pollution abatement projects, in particular disinfection of the overflow from the existing Paerdegat Basin CSO retention facility, will further improve ambient water quality; however, the projected attainment level for the Class SB/SC total coliform standard is not available for this abatement project.43 The estimated construction cost for the disinfection is $47 million.

g) Barbadoes Basin, Sommerville Basin, Mott Basin, Shellbank Basin, Hook Creek and its tributaries, and Hawtree Basin

Barbadoes Basin, Sommerville Basin, Mott Basin, Shellbank Basin, Hook Creek and its tributaries, and Hawtree Basin are not impacted by CSOs.44 Additionally, these waterbodies are tidally influenced and well-flushed by Jamaica Bay, which is a Class SB water. For these reasons, the Department believes that no additional pollution abatement is necessary to attain the SB/SC standards.

ix) Open Waters and East River

Open Waters45 and East River include the following waterbodies:

a) Hudson River Manhattan, Upper New York Bay, Upper East River, Upper East River Bowery Bay, Harlem River, Raritan Bay, Lower New York Bay, Lower East River, Kill van Kull, and Arthur Kill

Using existing pollution controls, the Hudson River Manhattan, Upper New York Bay, Upper East River, Upper East River Bowery Bay, Harlem River, Raritan Bay, Lower New York Bay, Lower East River, Kill van Kull, and Arthur Kill are projected to attain the Class SB/SC total coliform and fecal coliform standards 100 percent of the time.46 Attainment is measured for a recreational season (June to August) over a one year average rainfall assessment period. For these reasons, the existing analyses project that no additional pollution abatement is required for these waterbodies.

b) Erie Basin, Steinway Creek, Newark Bay, Bodine Creek, Bridge Creek, Old Place Creek, Fresh Kills, Benedic Creek, Sleight Creek, New Creek, Great Kills Creek, Oakwood Creek, Bedell Avenue Creek, Mill Creek, tributaries of Arthur Kill, tributaries of Kill Van Kull, and tributary of East River

The Erie Basin, Steinway Creek, Newark Bay, Bodine Creek, Bridge Creek, Old Place Creek, Fresh Kills, Benedic Creek, Sleight Creek, New Creek, Great Kills Creek, Oakwood Creek, Bedell Avenue Creek, Mill Creek, tributaries of Arthur Kill, tributaries of Kill Van Kull, and the tributary of East River are listed as separate waters under 6 NYCRR Parts 890 and 935, but these waterbodies are considered part of the Open Waters and East River. The draft East River and Open Waters WWFP (June 2007) did not analyze each of these waterbodies separately for water quality, but the waterbodies are predominantly or entirely tidally influenced by the larger open waters in to which they discharge, in particular Arthur Kill, Kill Van Kull, Raritan Bay, Lower New York Bay, and Upper New York Bay. Given this tidal influence, the Department believes that the attainment levels for the aforementioned waterbodies will mirror the attainment levels of the Arthur Kill, Kill Van Kull, Raritan Bay, Lower New York Bay, and Upper New York Bay. As discussed in Section 4(C)(ix)(a) above, these larger waterbodies are projected to attain the Class SB/SC total coliform and fecal coliform standards 100 percent of the time for a recreational season (June to August) over a one year average rainfall assessment period with existing pollution controls. For these reasons, the Department believes that no additional pollution abatement is necessary to attain the SB/SC standards.

x) Westchester Creek

Using existing pollution controls, Westchester Creek is projected to attain the Class SB/SC total coliform 80th percentile standard 67 percent of the time and the Class SB/SC total coliform median and fecal coliform standard 100 percent of the time.47 Attainment is measured at a mid-point in the waterbody for a recreational season (June to August) over a one year average rainfall assessment period. Additional pollution abatement projects, in particular a CSO storage tank, will further reduce CSOs and improve ambient water quality; however, the projected attainment level for the Class SB/SC total coliform standard is not available for this abatement project.48 The estimated construction cost for the CSO storage tank is $467 million.

xi) Gowanus Canal

Using existing pollution controls, the Gowanus Canal is projected to attain the Class SB/SC total coliform and fecal coliform standards 100 percent of the time.49 Attainment is measured for a recreational season (June to August) over a one year average rainfall assessment period. For these reasons, the existing analyses project that no additional pollution abatement is required.

xii) Newtown Creek

Using existing pollution controls, Newtown Creek is projected to attain the Class SB/SC total and fecal coliform standards 67 percent of the time.50 Attainment is measured at a mid-point in the waterbody for a recreational season (June to August) over a one year average rainfall assessment period. Additional pollution abatement projects, in particular a CSO storage tunnel, will further reduce CSOs and improve ambient water quality; however, the projected attainment level for the Class SB/SC total coliform standard is not available for this abatement project.51 The estimated cost for the CSO storage tunnel with disinfection is $1.8 billion.

D) 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

Both federal law and federal regulations set forth requirements for states regarding water quality standards (uses and criteria). Currently, New York water quality regulations for Class I and Class SD waters are inconsistent with federal requirements. Although this rulemaking would result in some duplication and overlap of state and federal requirements, it is necessary to achieve consistency between the Clean Water Act and New York State regulations. Such duplication or overlap would not result in any additional requirements for regulated parties.

The Clean Water Act section 1313(c)(2)(A) specifically requires: "Whenever the State revises or adopts a new standard, such revised or new . . . water quality standard shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses. Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this Act. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation."

In its regulations, the EPA requires states to "specify appropriate water uses to be achieved and protected" and to take into consideration the use and value of water for recreation (i.e., the swimmable goal of the Clean Water Act) when classifying waters of the state.52 Further, EPA regulations require states to "adopt those water quality criteria that protect the designated use." 53

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.

Another possible consequence of failing to adopt these regulations is that the EPA could rescind the Department's authorization to implement all or part of its State Pollutant Discharge Elimination System (SPDES) program. This would result in significant loss of control of the State's water quality regulatory program. The State has more comprehensive knowledge than the EPA of local factors (e.g., local government needs, economic conditions) that may influence decisions related to water quality regulations, which are important for effective program implementation. For these reasons, the Department 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.

Footnotes

(1) See 6 NYCRR Part 701.

(2) See ECL § 3-0301.

(3) See ECL §§ 15-0313, 17-0301.

(4) ECL § 17-0101.

(5) ECL § 1-0101.

(6) ECL § 17-0101.

(7) 33 U.S.C. § 1251 et seq. (1972).

(8) The sections of 6 NYCRR listed in this table provide a description of the general location of these waters and a reference to maps showing the specific location of these waters.

(9) The sections of 6 NYCRR listed in this table provide a description of the general location of these waters and a reference to maps showing the specific location of these waters.

(10) 33 U.S.C. § 1251(a).

(11) 33 U.S.C. § 1251(a)(2).

(12) See 33 U.S.C. § 1313(a).

(13) See 33 U.S.C. § 1313(c)(2)(A).

(14) Id.; see also EPA, Designated Uses, at www.water.epa.gov/scitech/swguidance/standards/uses.cfm.

(15) See EPA, Water Quality Criteria, at www.water.epa.gov/scitech/swguidance/ standards/crit.cfm.

(16) See, e.g., EPA, Guidance: Coordinating CSO Long-Term Planning with Water Quality Standards Reviews, EPA-833-R-01-002, at A-9 (the "2001 CSO/WQS Guidance"), attached as Exhibit XX.

(17) Id.

(18) Id.

(19) See 33 U.S.C. § 1313(c)(1).

(20) Class SB/SC waters are suitable for primary contact recreation and have the same fecal and total coliform water quality standards as are proposed for the Class I and Class SD waters.

(21) Based on the assumed recreational season for New York State of May 1 to October 31. Capital cost data available from the WWFPs and LTCPs typically considered the recreational season to be June to August or May to September.

(22) All cost estimates reflect 2013 dollars.

(23) All documents referenced in this Table, except for the Paerdegat Basin LTCP and East River/Open Water WWFP, are available at: http://www.hydroqual.com/projects/ltcp/wbws/index.htm. The Paerdegat Basin LTCP and East River/Open Water WWFP are available in hard copy upon request from Gary Kline, DEC Division of Water, at gary.kline@dec.ny.gov or (518) 402-9655.

(24) WWFP indicates that the waterbody will attain primary contact recreation water quality standards after implementation of commitments under the New York City CSO Consent Order, DEC Case No. CO2-20110512-25.

(25) Waterbody is not impacted by combined sewer overflows and is currently not listed on the New York State Final 2012 303(d) list of impaired waterbodies for either fecal or total coliform. See New York State Section 303(d) List of Impaired/TMDL Waters, available at http://www.dec.ny.gov/chemical/31290.html.

(26) See Alley Creek LTCP (November 2013).

(27) See Bronx River WWFP (July 2010).

(28) The attainment levels for SB/SC standards will become available when New York City completes the LTCP for this waterbody.

(29) "80th percentile standard" refers to the water quality standard for total coliform for Class SB and Class SC waters in 6 NYCRR § 703.4(a), that states: "[t]he monthly median value and more than 20 percent of the samples, from a minimum of five examinations, shall not exceed 2,400 and 5,000, respectively."

(30) See Coney Island Creek WWFP (June 2009).

(31) See footnote 28.

(32) See Flushing Bay WWFP (August 2011).

(33) See footnote 28.

(34) See Flushing Creek WWFP (August 2011).

(35) See footnote 28.

(36) See Jamaica Bay WWFP (October 2011).

(37) See Jamaica Bay WWFP (October 2011).

(38) See Jamaica Bay WWFP (October 2011).

(39) See Jamaica Bay WWFP (October 2011).

(40) See footnote 28.

(41) See Jamaica Bay WWFP (October 2011).

(42) See Paerdegat Basin LTCP (June 2006).

(43) See footnote 28.

(44) See Jamaica Bay WWFP (October 2011).

(45) "Open Waters" refers to open water reaches within the following waterbodies: the Hudson River-Bronx; the Hudson River-Manhattan; the Harlem River; the Upper East River; the Lower East River; Long Island Sound-Eastchester Bay; #LS; Upper New York Bay; the Arthur Kill; the Kill Van Kull; Lower New York Bay-Raritan Bay; and the Atlantic Ocean.

(46) See Draft East River and Open Waters WWFP (June 2007).

(47) See Westchester Creek WWFP (June 2011).

(48) See footnote 28.

(49) See Gowanus Canal WWFP (August 2008).

(50) See Newtown Creek WWFP (June 2011).

(51) See footnote 28.

(52) 40 CFR § 131.10(a).

(53) 40 CFR § 131.11(a).


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