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LEAGUE OF WOMEN VOTERS OF WESTCHESTER

A. BRIEF OVERVIEW OF WATER QUALITY PROBLEMS

I. Polluted Runoff and Water Quality

Polluted runoff is storm water and snow melt that flows along the land picking up
contaminants and delivering them to surface waters such as reservoirs.

After 25 years, the Federal Clean Water Act has addressed most of the piped discharges
of sewage and industrial waste by requiring the use of fairly extensive effluent treatment
technologies. These piped discharges are often called "point sources" of pollutants.

Today, EPA has repeatedly recognized that "polluted runoff is the greatest source of
water quality problems in the United States."

Sources of water pollution vary from location to location, but nationally according to
EPA:

(i) 60% is from polluted runoff from diffuse sources;

(ii) 15% is from urban storm water channelized flow; and

(iii) 25% is from sewage plants and industrial "point source" or piped discharges.

According to the Federal Clean Water Action Plan: 40 percent of the nations waterways
assessed by States are still unsafe for fishing and swimming; 50 percent of the approximately
1,000 watersheds evaluated are experiencing "significant" levels of degradation under generally
accepted methodologies.

Leading causes of water quality impairment:

(i) sediments (pathogen transport interference with the effectiveness of drinking
water chlorination);

(ii) nutrients such as phosphorus and nitrogen (causing algae blooms);

(iii) pesticides;

(iv) petroleum products and MTBE;

(v) pathogens (disease causing microbes, including Cryptosporidium and Giardia
which are resistant to chlorination and that generally come from human and animal wastes);

(vi) temperature (heated runoff can result in fish kills);

(vii) heavy metals such as lead and mercury (toxic metals that bi-accumulate in
humans and fish); and

(viii) other toxic organic compounds.

The scope of adverse impacts to water quality and the necessary methods to address
pollution problems depend on the particular attributes of the watershed. This is a central basis
for the "Watershed approach" to water quality protection that has been strongly endorsed by
EPA and the National Academy of Sciences. The goal is to understand and address problems
and sensitivities of a particular watershed.

A key concept in drinking water protection : the "Multiple Barrier" approach to drinking
water quality protection advocated by the National Academy of Sciences, EPA and the American
Water Works Association:

(i) select the highest-quality source water;

(ii) protect the water from the sources of pollutants;

(iii) use the best available treatment technologies;

(iv) maintain a clean distribution system;

(v) employ thorough water quality monitoring and data analysis;

(vi) retain trained operators; and

(vii) maintain operating equipment.

It makes tremendous environmental and economic sense to implement programs to
prevent pollutants from entering the waters. Example: the partnership to protect the Catskill and
Delaware portions of the New York City Watershed that has resulted in at least a $6 billion
savings by obviating the need to build a drinking water filtration plant.

II. Attributes of the New York City Watershed.

Drinking water supply for over 9 million people, serving almost all of New York City,
approximately 85% of Westchester County, 15% of Putnam County, and numerous other upstate
communities including New Paltz and Newburg.

The Watershed is only about 4.2% of the land area of New York State, extending through
portions of seven counties and Connecticut, it includes most of the Catskill Forest Preserve.

The New York City drinking water supply is unfiltered, meaning that the only treatment
between reservoir and faucet for City residents is disinfection through chlorination. Most of the
Westchester and Putnam water supplies are filtered.

The water supplied is safe to drink, and usually of a high quality. However, unfiltered
water supplies are very sensitive. The water quality of a number of reservoirs, particularly those
within the "Croton" portion of the Watershed is threatened or impaired.

Polluted runoff is broadly accepted as being by far the largest source of pollutants
currently entering the New York City Watershed. This, even though there are 107 sewage
treatment plants that discharge directly into drinking water streams. Most pollution occurs
during major rainstorm or snow melt events.

III. Impaired Water Quality: The New Croton Reservoir Example.

The New Croton extends through a number of Westchester Towns and is the "terminal"
reservoir of the "Croton" portion of the Watershed.

It provides, on average, drinking water to 900,000 persons daily in New York City and
Westchester. The new Croton serves upwards of 2 million people under drought planning and
other emergency scenarios.

State DEC has classified the New Croton as "impaired" due to excess phosphorus a
nutrient that encourages plant growth. Fully 9 of the 19 reservoirs in the New York City
Watershed have been found to be "eutrophic" (that is, significantly impacted by excess algae
growth) under generally accepted scientific standards.

Under the Clean Water Act EPA has set a "total maximum daily load" pollution reduction
goal for 9 of the 19 reservoirs in the NYC Watershed that have been found to be adversely
impacted due to excess phosphorus.

Practical reality: the New Croton reservoir is either turned off, or blended by City DEP
with Catskill waters, for 2 to 4 months a year. This water body is in use right now and its waters
are to remain unfiltered at least through 2010, if not longer.

IV. The Phosphorus "Chain Reaction" of Adverse Impacts.

Phosphorus is the "limiting" nutrient in fresh water. In general, excess phosphorus during
the warm weather growing season increases the growth of algae. Sources of phosphorus include:
human and animal wastes, failing septic systems, grass clippings and dead vegetation, fertilizers,
and eroded soils. Excess phosphorus initiates an adverse "chain reaction" on water quality:

(i) Algae (a plant) grows in great numbers and dies;

(ii) Bacteria (an oxygen breathing animal) feast on dead algae and multiply dramatically
in number lower level waters become devoid of oxygen;

(iii) Dead bacteria and algae increase the amount of organic matter suspended in the
water;

(iv) The water body "turns" and a new de-oxygenated or "anaerobic" biological system
takes over;

(v) Anaerobic biology causes the release of iron and manganese (heavy metals) that were
previously bound to bottom sediments into the water. Additional phosphorus that had been
bound to these bottom sediments is also released;

(vi) Water taste, odor and color become poor due to the de-oxygenated biology often
referred to as "skunked" water;

(vii) Increased levels of "disinfection by-products" (chlorinated organic compounds) are
formed due to the reaction of excess organic materials (e.g., dead algae and bacteria) with the
chlorine used as a drinking water disinfectant. These chemicals are listed as suspected
carcinogens by EPA and have been found in a number of medical studies to increase levels of
early-term miscarriage; and

(viii) Increased levels of suspended materials in the water interfere with the effectiveness
of chlorination facilitating the potential transport of pathogens such as Cryptosporidium,
Giardia, and e-coli.

V. Another Example: Muddy Water from Construction Sites.

Westchester and Putnam Counties are under tremendous development pressure.
Development is now creeping up into steep slopes, poor soils, and wet areas. Average price of a
new Westchester home is well over $450,000.

Construction cuts can create enormous levels of eroded soils entering water bodies.
There are numerous recent examples of plumes of muddy or turbid storm water from
construction sites extending out into drinking water reservoirs.

According to EPA erosion from construction sites is at least 10 to 20 times that of row
crop farming and many hundreds of times that of undeveloped forests and meadows.

Small clay or colloidal particles can remain suspended in the water for over 6 months.

In an unfiltered drinking water system there is no effective way to remove the suspended
particles from the water.

Example: the City of Peekskill was forced to shut down its clogged water filtration plant
on a number of occasions a few years ago because of muddy water from the construction of
Putnam Valley's new high school.

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B. THE BASICS OF FEDERAL AND STATE WATER POLLUTION CONTROL LAWS

I. Summary

The Clean Water Act and the State Environmental Conservation Law regulate the
discharge of pollution (such as industrial waste and sewage) into the waters. The basic concept
of these laws is that no one is allowed place pollutants into either ground or surface waters
without a permit, and that permits are to be written by the New York State Department of
Environmental Conservation ("DEC") to contain limits on pollutants that will maintain the
particular water-body in a condition consistent with its best use (e.g., drinking, swimming,
fishing, etc.).

The Federal and New York State laws also address water pollution in several general
ways:

(i) Require all dischargers throughout the nation to employ a particular
minimum level of pollution control technology depending on the type of industry
or category of discharger;

(ii) Mandate that all States classify each significant body of water
according to its "best use;"

(iii) Based on the technology standard that is applicable and the
classification of the particular water-body, set pollution control limits in the
permits at levels which will maintain the water-body for its best use.

(iv) Require industrial dischargers that discharge wastes into sewage
treatment systems to pre-treat their waste water.

In New York, the EPA has delegated to DEC the authority to administer the federal Clean Water
Act. What follows is a brief summary of the federal law followed by a more comprehensive
summary of the applicable State law.

II. The Federal Clean Water Act

In 1972, Congress passed the Clean Water Act ("CWA"), 33 U.S.C. 1241 to
1387. The CWA:

(i) Set minimum national treatment standards for categories of industrial
dischargers of pollutants into surface waters. So, for example, all paper mills,
copper smelters, oil refineries, etc., must, at a minimum, employ the same water
pollution control technology that the EPA has established as the standard for that
particular industry -- wherever the plant is located within the nation. 33 U.S.C.
1317(a).

(ii) Established minimum national performance standards for municipal
sewage treatment plants, known as "publicly owned treatment works"
("POTWs"). Today, all sewage treatment plants must, at a minimum, meet
"secondary" treatment levels, which is defined as removal of almost all solids,
85% removal of biochemically oxygen demanding materials (BOD), and removal
of 85% of small particles which have become suspended in the sewage (total
suspended solids or TSS). 33 U.S.C. 1311(b)(1)(B), 1314(d)(1); see 40 CFR
133.102.

(iii) Through national pre-treatment standards, limited the pollutants that
industrial dischargers may place into sewage systems which flow into sewage
treatment plants. 33 U.S.C. 1313; see 40 CFR 403.8, 403.11.

(iv) Required all states to classify each surface water body according to its
best uses (e.g. drinking water, fish propagation, swimming, recreation, fish
survival, etc.). This enormous undertaking is reported in six full volumes of the
New York Compilation of Codes Rules and Regulations. Waste disposal is not an
acceptable "use." If the water body is not designated to be clean enough for
swimming or fishing, the state should, every three years, re-examine whether it
can attain this standard. (This is the "fishable/swimmable" mandate of the Clean
Water Act.) The states were also required to specify, on the basis of EPA
guidelines, the "water quality criteria" (or maximum levels of various pollutants)
applicable to each classification of water-body so as to assure that the water may
be put to its best use. 33 U.S.C. 1313.

(v) Specified that anyone seeking to discharge a "pollutant" from a "point
source" (as those terms are broadly defined) into the surface waters of United
States must first obtain a permit from EPA. These permits are called "National
Pollutant Discharge Elimination System" ("NPDES") permits. 33 U.S.C. 1342.
These permits set effluent limits and monitoring and record-keeping requirements.

(vi) Required that the pollutant or effluent limitations specified in the
NPDES permit be based upon: (i) the national minimum technology treatment
standards and/or (ii) the removal of pollutants necessary to assure that the water-
body into which the discharge is made is of a quality consistent with the "best
use" assigned to that water-body under its classification. 33 U.S.C. 1311(b),
1312.

III. New York's Water Pollution Control Law

The CWA envisions that this federal program will be delegated to the states. New York
has established is own comprehensive statutory and regulatory program concerning the control of
water pollution following the federal model. See Environmental Conservation Law ("ECL")
Article 17. The State's program has been approved by EPA as being consistent with the
requirements of the Federal CWA, allowing New York to be delegated primary enforcement and
permitting authority. EPA, however, retains strong oversight powers and can still bring
enforcement actions on its own. 33 U.S.C. 1319(2).

An important distinction between the State and Federal programs is that the State
regulates discharges of pollutants into both surface waters and groundwater, see ECL 17-
0105(2) (definition of "waters of the state"), while the CWA only addresses certain surface
waters that are defined as "waters of the United States."

1. The SPDES Permit Program

A central element of New York's water pollution control program is the requirement that
anyone seeking to discharge pollutants into the surface or ground waters must first obtain a
permit (a "State Pollutant Discharge Elimination System" ["SPDES"] permit). This program
requires strict compliance with the pollutant limits (or effluent levels) specified in the SPDES
permit. Permitees are also required to undertake laboratory tests of pollutant levels in their
facility's effluent and provide these publicly available records to DEC (known as "discharge
monitoring reports"). ECL Article 17, Title 8. A review of the statutory and regulatory language
and terminology provides a sense of the broad sweep of the SPDES permit requirement.

(i) Permit requirement: "no person shall discharge or cause a discharge of
any pollutant without a SPDES permit having been issued to such person pursuant
to this Article and ECL, article 17, title 8, with respect to such discharge; and no
person shall discharge or cause a discharge of any pollutant in a manner other than
as prescribed by such permit." 6 NYCRR 751.1.; See ECL 17-0505, 17-
0803.

(ii) Pollutant is defined as: dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock, sand and
industrial, municipal, and agricultural waste discharged into water; and ballast
which may cause or might reasonably be expected to cause pollution of the waters
of the State in contravention of the standards adopted as provided herein. ECL
17-0105(17). Thus, while standard pollutants, such as chemical wastes are
included in this definition, so are such things as mud from construction sites or
mines, oily runoff from roads or junkyards, and septic discharges.

* Discharge is defined as "any addition of any pollutant to State waters,
waters of the contiguous zone, or the ocean through an outlet or point source." 6
NYCRR 750.2(9).

* Waters of the State encompasses all surface and ground waters of New
York including that portion of the Atlantic Ocean that is within the State's
territorial limits. ECL 17-0105(2).

* Point source means: "any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding operation or vessel
or other floating craft, from which pollutants are or may be discharged." 6
NYCRR 750.2(20). Not included in this is most farm field runoff (unless
channelized), timber area runoff (except from roads), or seepage.

There are limited exceptions to the SPDES permit requirement: (i) discharges associated with an
approved hazardous waste site cleanup (covered under the Superfund program), (ii) individual
septic systems with less than 1,000 gallons of flow per day (which are regulated by the State
Department of Health), and (iii) the discharge of dredge or fill material (covered under other
DEC wetland permit programs). 6 NYCRR 751.3. However, as one can see from the scope of
the statutory definitions, the permit requirements apply to almost every vehicle for transmitting
pollutants into the waters of the State.

2. Water-Body Classifications

The Federal Clean Water Act required the States to classify each water-body within the
State according to its "best uses." 33 U.S.C. 1313; see ECL 17-0301(2), (3). In New York
the main classifications are Class A (drinking water supply), Class B (swimming, boating and
fishing), Class C (fishing) and Class D (fishing but not suitable for fish reproduction). 6
NYCRR 701. Every significant water body in New York has been classified by DEC. See 6
NYCRR Parts 800 to 941. As discussed below, a water-body's classification plays an important
role in determining the level of pollutants that may be allowed by a SPDES permit.

3. Water Quality Criteria

The State and EPA have developed water quality criteria -- standards for the maximum
levels of a particular pollutant that may be found in a given water-body based on that water-
body's classification. See 33 U.S.C. 1311(b); ECL 17-0301(4). Under the State program,
these water quality standards have been promulgated in both a "narrative" and "numerical" form.
See 6 NYCRR Part 703.

The narrative water quality standards are conceptual and descriptive, yet often very
powerful. They address such matters as "taste," "color," "odor," resulting from "deleterious
substances" -- prohibiting such substances to the extent that they "will adversely affect the taste,
color or odor [of waters] or impair the waters for their best usages." 6 NYCRR 703.2. As
another example, the narrative water quality standard may be violated when there is a discharge
resulting in "turbidity" that "will cause a substantial visible contrast to natural conditions."
Similar narrative standards are in place with respect to:

(i) suspended, colloidal and settleable solids;

(ii) oil and floating substances;

(iii) garbage, cinders, sludges, and other refuse;

(iv) nutrients such as phosphorus and nitrogen that will
cause excessive algae growth; and

(v) radioactivity and thermal discharges.

See 6 NYCRR 703.2.

DEC has also promulgated numerical water quality standards for a large number of
substances. See 6 NYCRR 703.5. These standards set a maximum level of contamination (or
concentration) for a particular pollutant in the water-body, often called the "ambient water
quality standard." The standard for the concentration of a pollutant may change depending on
the classification of the water-body. For example, the water quality standard for the cancer-
causing chemical benzene (which is found in petroleum) is 1 part per billion in potential drinking
water sources and 10 parts per billion in all other waters. DEC has also promulgated extensive
non-regulatory "guidance values" for hundreds of other substances in its "Technical and
Operational Guidance Series" ("TOGS") section 1.1.1.

One water quality standard affecting drinking water wells that often arises is excess
chlorides (250 parts per million) - - which may be caused by pollution from rock salt in winter
roadway treatments or from the use of home water-softeners.

4. Basis for SPDES Effluent Limitations

The limitations on the levels of pollutants that may be emitted into a water-body from a
specific source are developed through a complex assessment process by DEC technical and
scientific staff. The ECL requires the SPDES permits to be set at a level that will assure
compliance with water quality standards. ECL 17-0811. In its most basic terms, the DEC staff
should generally review (i) the type of pollution control equipment specified by EPA as its
"technology based standard" and (ii) the levels of pollution that would be consistent with
maintaining the particular water-body for its best use, and then selects the more stringent
requirements. The EPA retains the right to object to a SPDES permit issued by DEC should EPA
believe that the terms of the permit fail to comply with the requirements of the Clean Water Act.
See 40 CFR 123.44.

5. Prohibition on Water Pollution

In addition to the SPDES permit requirement, the Environmental Conservation Law
contains an additional general prohibition against pollution which causes a contravention of any
water quality standard. This important enforcement tool makes it "unlawful for any person,
directly or indirectly, to throw, drain, run or otherwise discharge into such waters organic or
inorganic matter that shall cause or contribute to a condition in contravention of the [water
quality] standards adopted by the [DEC]." ECL 17-0501. This broadly worded provision
applies to those persons who indirectly contribute to a violation of a narrative or numeric water
quality standard.

6. The SPDES General Permit Program to Address Polluted Runoff

DEC has implemented general permits to address polluted runoff from new construction.
DEC will soon be issuing new "Phase II" general permits to address polluted runoff from
construction activity and from "MS4's" or "Municipal Separate Storm Sewer Systems." It is
important to remember that these general permits are SPDES permits that are enforceable in the
same manner as any other SPDES permit.

The Federal Clean Water Act directed EPA to establish a program to address the threat of
pollution carried into surface waters from runoff discharging from certain locations. 33 U.S.C.
1342(p). The Clean Water Act allows an individual state to establish its own delegated storm
water permit program so long as the program is consistent with EPA established guidelines. 33
U.S.C. 1342(b). New York State established its own program to address polluted storm water
discharges in a manner consistent with EPA regulations and guidelines. See ECL 17-0808,
70-0117(6).

Presently, the DEC general permit covers construction sites that are 5 acres or more in
size. See DEC, SPDES General Permit for Storm Water Discharges from Construction
Activities, Permit No. GP-93-06, Part I, B.1. Under EPA's new Phase II regulations, storm water
discharges resulting from commercial or industrial activities which disturb 1 acre or more must
be subject to general permit coverage as an "industrial" activity. 40 CFR 122.26(a)(9)(i),
122.26(b)(14)(x), 122.26(b)(15)(i) and 122.34(b)(4)(i). Under the Phase II program, DEC also
has the discretion to require permits for construction sites smaller than 1 acre where such sites
contribute to a water quality violation or contribute significant amounts of pollutants to the
waters. 40 CFR 122.26(b)(15)(ii).

The ECL allows DEC to issue general permits to implement the federal Phase II program
or to implement its own state program to control polluted runoff. ECL 17-0808, 70-0117(6).
The DEC Commissioner is provided with broad authority to issue all regulations, permits and
general permits necessary to implement the "clean water" provisions of the ECL, specifically
ECL Article 17, Titles 1-11, and 19. See ECL 17-0303(3), 17-0303(4)(d) and 70-0117.

When implementing the Phase II regulations, DEC is also acting to implement the federal
Clean Water Act. Here too, the DEC Commissioner is allowed to add to SPDES permits "such
other terms, provisions, requirements or conditions as may be necessary to meet the requirements
of the [Clean Water] Act." ECL 17-0815(7). This would clearly include the discretion to
implement, though the general permit, specific storm water control criteria or "TMDL" (total
maximum daily load) pollution budgets developed pursuant to Clean Water Act 303(d). When
issuing a storm water general permit, DEC should not go through formal rule-making; rather, it
must simply follow the same procedures that apply to the issuance of a major permit under ECL
Article 70. ECL 70-0117(6)(e).

The requirements of the general permit are complex. For our purposes it requires:

(i) obtaining permit coverage by notification to DEC before the initiation of construction;

(ii) the development of a detailed, engineered, and site "specific storm water pollution
prevention plan;"

(iii) the complete implementation of the storm water pollution prevention plan with
weekly inspection reports by a qualified individual; and

(iv) the permit holder to avoid violating any state water quality standards at any time.

7. Enforcement

While EPA retains the authority to bring an enforcement action directly against a violator
for substantial civil and criminal penalties, see 33 U.S.C. 1319, the vast majority of
enforcement actions undertaken in New York are brought pursuant to the Environmental
Conservation Law.

In most cases, DEC first pursues administrative enforcement (unless an immediate
injunction is necessary). If an administrative consent order cannot be negotiated, DEC may refer
the matter to the Attorney General. The Attorney General can also enforce ECL violations
without a referral.

(i) ECL 71-1929 provides for penalties of up to $25,000 per day of
violation of any SPDES permit or other water quality standard.

(ii) ECL 71-1931 allows for violations of water pollution control laws,
regulations, permits or related DEC administrative orders to be enjoined.

(iii) ECL 71-1933 provides for progressively more stringent criminal
penalties for knowing or intentionally illegal conduct -- allowing for increasingly
more stringent prison sentences and fines.

(iv) ECL 71-1933(3)(b)(ii) imposes significant criminal penalties
against anyone who knowingly introduces a pollutant or hazardous substance into
a sewer system that, in turn, causes the sewage treatment plant to violate its
SPDES permit or some other water quality standard.

The Federal Clean Water Act also provides for suits by adversely affected citizens against
any person who is alleged to be in violation of "an effluent standard or limitation." 33 U.S.C.
1365. The term "effluent limitation" is defined broadly to include "any restriction established by
a State or the [EPA] Administrator on quantities, rates, and concentrations of chemical, physical,
biological and other constituents which are discharged from point sources into navigable waters,
waters of the contiguous zone, or the ocean." 33 U.S.C. 1362(10). As a precondition to
instituting a citizen's suit, plaintiffs must first provide a 60 day notice of their intent or sue to the
EPA Administrator, the State and the alleged violator. 33 U.S.C. 1365(b). A successful
plaintiff may receive attorney's and expert fees, and substantial civil penalties (to the benefit of
the United States Treasury) may also be assessed. 33 U.S.C. 1365(a),(c).

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C. WATER QUALITY AND SEQRA: USING THE STATE ENVIRONMENTAL QUALITY REVIEW ACT

I. Overview

SEQRA applies to discretionary decisions by governments to fund, authorize or approve
any "action" that "may have a significant impact" on the environment. Actions include rule-
makings and re-zonings, in addition to specific development projects.

There is a low threshold for the requirement that an Environmental Impact Statement
("EIS") be prepared. An EIS is required if the proposed action "may" have a significant adverse
impact on a particular environmental attribute such as water quality.

SEQRA "lead agencies" (the governmental agency that coordinates the SEQRA review)
have a fair degree of authority to specify the scope and detail of analysis contained in the EIS.

Through the SEQRA process, the lead agency is required to:

(i) take a "hard look" at potentially significant environmental impacts;

(ii) evaluate a reasonable range of alternatives to the proposed project, including a
"no action" alternative, and

(iii) select an alternative and identify mitigation measures that avoid or limit
adverse environmental impacts to the maximum extent feasible, taking into account social and
economic circumstances.

Mitigation measures that may be required by the SEQRA Lead Agency are not limited to
regulatory compliance alone. Best management practices and lower impact alternatives may be
recommended by interested parties and adopted by the lead agency based on reasonable technical
and scientific judgments.

A central goal of SEQRA is to inject environmental considerations into the early stages of
the development and design of a proposed project. This is a key attribute of SEQRA that allows
for the actual implementation of better site designs to protect water quality.

SEQRA generally requires proposed actions or projects to be assessed in the context of
environmental background conditions, including such attributes as:

(i) critical environmental areas;

(ii) secondary impacts and synergistic impacts, and

(iii) environmental thresholds or carrying capacities.

Compliance with SEQRA is enforced through Article 78 review (an accelerated court
proceeding to challenge a governmental decision). The doctrine of "exhaustion of administrative
remedies" generally applies to SEQRA petitions challenging the adequacy of an EIS or a SEQRA
findings statement meaning that if you do not participate by commenting during the SEQRA
EIS process, you may lose the right to legally challenge a lead agency's determination.

II. Information Useful for Effective SEQRA Participation.

Obtain information on proposed projects as early as possible.

(i) Planning Board or Town Board agendas for project proposals;

(ii) DEC's environmental notice bulletin; and

(iii) Newspapers.

Maps of environmentally sensitive or stressed areas on a town-by-town and/or reservoir-
by-reservoir basis serve as an initial reference for SEQRA "issue spotting."

(i) steep slopes;

(ii) State DEC and Town wetlands, and their adjacent areas;

(iii) 60 day pathogen travel time areas;

(iv) phosphorus restricted basins, reservoir basins that exceed TMDL criteria,
State DEC 303(d) listed water bodies;

(v) areas with high levels of impervious surfaces; and

(vi) unstable stream reaches and trout streams.

To efficiently support SEQRA comments, develop short, understandable, technical
documents describing the connection between certain development activities, or the preservation
of certain natural resources, and water quality. These documents will assist the lead agency and
concerned citizens in understanding the reasons for water quality protection efforts within the
context of SEQRA. Such information would also serve as a useful part of the administrative
record. Sample comments that can be developed by technical experts or individuals employing
readily available scientific literature from such sources as the National Research Council or the
United States EPA:

(i) How wetlands benefit water quality existing level of wetland loss;

(ii) Impervious/less pervious surfaces and polluted runoff;

(iii) Adverse impacts on water quality of excess phosphorus pollution;

(iv) Benefits of minimizing certain pesticides and fertilizers;

(v) Siltation and turbidity from construction sites and land clearing activities, and

(vi) Reservoir and stream buffer areas to protect water quality.

Identify "critical environmental thresholds" for reservoir basins to be reviewed within the
SEQRA process. Examples: excess phosphorus causing eutrophic reservoir conditions,
impervious surfaces causing excess storm water flows and polluted runoff, unstable stream
reaches, etc.

III. Rules of Thumb for Effectively Employing SEQRA to Protect Water Quality in
the Highly Sensitive New York City Watershed.

1. Encourage EISs. Request that SEQRA lead agencies require that proposed
projects go through the Environmental Impact Statement process with respect to potentially
significant water quality impacts. An EIS need not be all encompassing, but rather, may focus on
issues of more central concern (e.g., water quality in the Watershed). In general, negative
declarations of environmental significance should be discouraged. Many factors and attributes of
a drinking water watershed help to elevate the potential "significance" of a particular project's
adverse impacts on water quality, for example:

(i) New York City Watershed as an unfiltered drinking water supply;

(ii) DEC's "AA" or "A" classification of the reservoirs as a drinking water source;

(iii) Water bodies that are already stressed by phosphorus, as exemplified by the
Total Maximum Daily Load requirements, DEC listing of a water body as impaired pursuant to
Section 303(d) of the Clean Water Act, and DEP designation of a reservoir as eutrophic or
phosphorus restricted;

(iv) Catskill Park and Forest Preserve (which encompasses a large portion of the
Watershed);

(v) Great Swamp and other wetland areas;

(vi) Trout streams;

(vii) Other background conditions that indicate a stressed or especially sensitive
environment, such as high levels of existing development, high levels of impervious surfaces,
steep slopes, unstable stream reaches, etc.

2. Re-direct Development. Recommend to the lead agency that development
projects, land clearing, or public works projects be re-directed, scaled-down or denied to avoid
and buffer environmentally sensitive areas (streams, wetlands, steep slopes, areas adjacent to
water bodies, etc.).

3. Address Storm Water Issues Within the SEQRA Process. Request that the
engineered analyses of storm water and polluted runoff be undertaken as part of the EIS. This
applies to both the construction and post-construction phases of development projects. Go
beyond regulatory compliance to request the analysis and incorporation of state-of-the-art storm
water management practices within the project. Require that mitigation measures be spelled out
in detail and require mitigation measures to be incorporated into subsequent DEP required
storm water pollution prevention plan or DEC permits. Do not allow storm water issues to be
delayed until post-SEQRA permitting.

4. Lower Impact Alternatives. Request that the lead agency require the full
development of lower build and lower impact project alternatives. Instead of devising a
stormwater pollution prevention plan at the end of a project review, seek to incorporate effective
storm water management practices directly into the project itself. Many consider this to be a
more effective and more economical approach. Employ broadly available information on "better
site designs" that are currently available (e.g., clustering, narrower streets, parking lot dry wells,
build up not out, pervious drive ways, forest clearing limitations, stream and wetland buffer
areas, etc.). Request alternative designs that have significantly reduced levels of impervious
surfaces. Request construction sequencing that significantly limits the amount of exposed land
clearing or excavated areas at any one time. Force the complete assessment of lower build
alternatives so that the lead agency's choice among alternatives is a real one.

5. Mitigation, Site Design and Assessment Recommendations. Lead agencies
and project sponsors run a risk if they ignore reasonable and feasible mitigation measures
proposed during the SEQRA process. Identify and propose appropriate environmental
assessment methodologies for use during SEQRA scoping. In general, press for quantitative,
rather than merely qualitative, evaluation methodologies.

6. Phosphorus and Critical Environmental Thresholds. Request that all
development projects or community planning efforts quantitatively demonstrate that phosphorus
pollution will not be increased as a result of the proposal stress the need to comply with the
EPA approved Total Maximum Daily Loads for individual reservoirs and State DEC anti-
degradation policy.

7. Enforceable Mitigation Measures. SEQRA mitigation can and should go
beyond regulatory compliance. This is an important point. Recommend storm water mitigation
and buffers based on state-of-the-art technical practice. Require detailed mitigation measures to
be identified in the EIS and be committed to in the SEQRA findings statement. Include
requirements with respect to the long-term maintenance of mitigation measures. Better assure
that mitigation measures are legally binding by incorporating required mitigation measures as
enforceable permit conditions.

8. Compliance Assurance. Undertake appropriate enforcement where SEQRA's
requirements have been ignored. Conduct field inspections to assure compliance with required
mitigation both during and after construction.

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D. OTHER USEFUL MEASURES TO LIMIT POLLUTED RUNOFF

(i) Preserve open space and purchase sensitive Watershed lands;

(ii) Reduce fertilizer use;

(iii) Reduce and/or cap the level of impervious surfaces through Town land use controls;

(iv) Preserve wetlands of any size;

(v) Maintain and fix septic systems;

(vi) Retrofit older parking areas and developments with storm water controls;

(vii) Stabilize streams to limit erosion of soils and sediments; and

(viii) Construction site stormwater controls: compliance with the State DEC General
Permit and New York State Water Quality Standards.

* * * * *

James M. Tierney
Watershed Inspector General
Environmental Protection Bureau
Office of the Attorney General
The Capitol
Albany, New York 12224
(518) 474-4843
James.Tierney@oag.state.ny.us