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NYC 9/11 Public Portal Document

also comply with New York State Department of Health ("NYS DOH") regulations which are incorporated into the Watershed Rules. See 18 R.C.N.Y. § 38(a)(2). NYS DOH regulation Title 10, Appendix 75-A limits septic systems installation to sites with no greater than a 15% slope. See 10 N.Y.C.R.R. §75-A.4(1). In response to clamoring by upstate developers, DEP violated the State Public Health Law, NYS DOH regulations and the City watershed regulations by issuing a new policy in September 1998 that allows developers to install septic systems on steep slopes (slopes steeper than a 15% grade) within the New York City watersheds. This rule promulgated by the New York City Department of Environmental Protection by e-mail on September 9, 1998 and confirmed and expanded upon in a letter of September 14, 1998, directly contradicts the above regulation by allowing development on slopes of up to 20%. According to Putnam County, twenty-five percent of all new housing starts in the county utilize this new loophole created by DEP officials in violation of the Watershed Agreement.

2) FAD Task 308 mandates that the City shall implement a strategy for reducing non-point source loadings. Section 18-39 of the Watershed Regulations (15 R.C.N.Y. § 18-39) limits the creation of impervious surfaces adjacent to streams, rivers, lakes, and reservoirs within the watershed. This section also requires that developers prepare stormwater pollution prevention plans (SPPPs) which protect water quality by assuring that post-construction loading shall not exceed pre-construction loadings. DEP's failure to use storm water formulas that accurately calculate pollution loadings or to require developers to implement Best Management Practices that reduce pollution to pre-development conditions violates FAD Task 308. Furthermore, NYC DEP engineers consistently fail to conduct field studies of proposed developments before issuing approvals. By neglecting to adequately review on-site conditions, the City has effectively abdicated its mandated oversight capacity.

Inadequate formulas for projecting storm flows, faulty BMPs for controlling them, and shoddy quality reviews mean that the City approvals do not reflect real stormwater conditions, and result in new stormwater loadings in the watershed that are forbidden under the Agreement.

3) FAD Task 312n-1 requires the City to ensure that owners of wastewater treatment plants in the watershed "secure NYC DEP approval of facility upgrade plans and compliance schedules" by November 1, 1998. These plants discharge effluent into watershed waters, including chemicals, nutrients, bacteria and enteric viruses. As of April 2000, none of the 102 plants has an approved Plant Upgrade Plan. Only half of the plants have completed the fourth step of the 30 step upgrade process. The City's failure to properly manage and implement the Upgrade Program makes it inevitable that the upgrades will be unfinished by the May 2002 deadline. According to a recent report by the Watershed Inspector General, the City will require a minimum of two additional years to complete upgrades to the required improvements to these facilities. The dangerous lapses in Plant Upgrade schedules constitute an ongoing threat to the safety of the watershed and a clear violation of FAD Task 312n-1.

4) FAD Task 31Og requires the City to implement and fund a program to rehabilitate failing individual septic systems in the watershed. The City has violated FAD Task 310g by undertunding and delaying its septic system replacement program. The extent of the problem of failing and substandard septic systems was seriously underestimated by City officials in the Watershed Agreement. A survey of septic systems in the Delaware Watershed which were approved by the NYC DEP prior to 1990 has revealed that the vast majority should be considered substandard. NYC DEP relied upon inaccurate soil suitability assumptions in determining the expected septic failure rate within the Delaware watershed. As a result, the City seriously underestimated the relative cost of replacing the systems. Given the limited land available for replacement systems, the average rehabilitation cost is well in excess of 510,000. The majority of pre-1990 septic systems were installed in hardpan soils with shallow seepage basins. The cost of upgrading these systems will surpass the conservative estimate upon which the City bases its rehabilitation program. It is not reasonable to expect successful pollutant attenuation from the existing substandard septic systems. According to the Delaware County Soil and Water Conservation District and

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