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NYC 9/11 Public Portal Document

to comply with significant provisions of both the FAD and the Watershed Agreement. Any act or omission which violates the FAD must also be considered to be a violation of the National Primary Drinking Water Regulations, and thus the SDWA. The Safe Drinking Water Act provides that all surface drinking water suppliers construct filtration plants unless the water purveyor can demonstrate "through ownership and/or written agreements with landowners within the watershed that'it can control all human activities which may have an adverse impact on the microbiological quality of the source water." 40 CFR 414.71(b)(2)(iii).

The 1997 New York City Watershed Memorandum of Agreement was designed to meet this stringent requirement. The Agreement obligates New York City to spend approximately $1.2 billion rebuilding environmental infrastructure and to purchase and protect sensitive lands upon which development could otherwise threaten water quality.

In return for these investments, the watershed communities agreed to allow the City to promulgate and enforce regulations to control pollution sources and discourage dangerous development within the Watershed. The Agreement itself does not prohibit dangerous land uses but grants New York City officials the power to exercise control over land uses which harm water quality. The Agreement will not prevent pollution of the water supply if the City fails to aggressively enforce its regulations and the other state and federal environmental laws that it has the authority to enforce. Since signing the Agreement in 1997, the City has failed to enforce its terms or to meet its obligations.

The City's lax enforcement of the Watershed Agreement, coupled with the explosive development of impervious surfaces in East of Hudson watershed (Putnam and Westchester Counties) make it impossible for New York City to meet the Safe Drinking Water Act's requirements for filtration avoidance. As a result of the City's failure to enforce the Watershed Agreement, Putnam County is now the fastest growing county in the state with growth concentrated in undeveloped watershed lands. Development in Westchester County during the past three years has outstripped the pace set between 1988 and 1996 when 11,630 acres were developed. The current boom in development East of Hudson is adding thousands of acres of impervious surfaces to this area of the City's watershed, straining the reservoirs' ability to absorb pollutants.

The construction of impervious surfaces is a "human aetivit[y] which may have an adverse impact on the microbiological quality of source water" within the meaning of the SDWA. DEP's own studies confirm the connection between impervious surfaces and declining water quality. These studies link impervious surfaces to the occurrence of nitrogen and phosphates, as well as Giardia and Cryptosporidium in the City's reservoirs. Indeed, impervious surfaces are the largest source of pathogens in the watershed.' Any rise in the levels of these pollutants threatens to violate the terms of the City's filtration waiver, and Safe Drinking Water Act's filtration avoidance criteria set forth at 40 C.F.R. § 171.71(b)(2).

In addition to violating the general SDWA requirement to establish control over watershed lands, Plaintiffs wishes to place New York City and the NYC DEP on notice of the following specific violations:

1) FAD Task 311-b requires the City to implement and administer the new Watershed Rules and Regulations, Rules of the City of New York, Title 15, Chapter 18 (Watershed Rules). The City must

' Recent research models developed in the Pacific Northwest (Booth, 1991, and Booth and Reinelt, 1993) suggest that a threshold for urban stream stability exists at about 10% imperviousness. Watershed development beyond this threshold consistently resulted in unstable and eroding channels. See <h ttp://www. pipeline - co M—inrru no ff/ i mpe rv. htt n>

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