Folder_0047

NYC 9/11 Public Portal Document

Department of Watershed Affairs, the likelihood for the water supply to be contaminated remains "unacceptably high" unless the City dramatically improves its rehabilitation program.

5) FAD Task 308j requires the City to implement and administer a Wetlands Protection Program. An integral component of such a Program must be a concerted policy of broad wetlands designation, regulation, and protection. Despite the passage of nearly three years since the signing of the Watershed Agreement, the City has failed to extend protection to smaller wetlands, instead regulating only the larger wetlands mapped by New York State despite commitments to map watershed wetlands down to 1 acre in size. 2

Furthermore, the City has consistently taken a position which encourages development related destruction of watershed wetlands. DEP has refused to seek restrictions on the use of CWA § 404 Nationwide Permits within the watershed. In a letter dated February 5, 1999, Commissioner Miele reversed DEP's position regarding Nationwide Permits as it had been represented to EPA by Deputy Commissioner William N. Stasiuk in DEP's Quarterly Report on the Status of Implementing Projects Designed to Reduce Nonpoint Source Pollution, dated December 31, 1998. Stasiuk unequivocally stated that Nationwide Permits "should not be employed in the New York City drinking water supply watershed and that allowing losses of wetlands up to 1/3 acre may impact the City's drinking water supply." 3

In fact, the City's continued effort to eliminate use of the Nationwide Permits in the Watershed had been one of the central commitments made to EPA in exchange for the City's filtration avoidance order. In abandoning that position, Miele and the DEP have also abandoned their obligation under the Watershed Agreement to preserve vital wetlands in the watersheds.

6) FAD Task 312b-1 requires the City-owned wastewater treatment plants in the Watershed to comply with their Final Effluent Limitations. As evidenced by the recent consent decree between the City and the New York State Department of Environmental Conservation, the Margaretville and Tannersville plants have violated their permitted effluent limitations. Such discharges are per se violations of the FAD.

7) The Surface Water Treatment Rule obligates the City to 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). This requirement is incorporated into the FAD as Task 301. The City's land acquisition program has failed to give it control over critical resource lands within the watershed. The city's failure to close on more parcels is directly related to City procedures that forbid the City from . offering reasonable option prices to persuade land owners to hold the land during the City's lengthy review process. Generally, the City's policies result in an 18 to 24 month delay between contract signing and closing. DEP is only offering 3% for an option price. Such long delays and low option prices are not conducive to a successful land acquisition program. Indeed, many real estate entities within the Watershed are now refusing to deal with the City. As a result of this slow pace of land acquisition, the City has only purchased 17 acres in the critical and vulnerable Kensico watershed and has lost myriad opportunities to protect critical parcels.

2 NYC DEP maintains the position that it is only responsible for exercising its jurisdiction over wetlands mapped by the NYS DEC. Under state law, DEC mapped wetlands must be at least 12.4 acres in size. r DEP's position opposing use of Nationwide Permits in the Watershed has been endorsed by members of the New York State Senate and Assembly, the New York City Congressional delegation, watershed Congressional members Maurice Hinchey, and Nita Lowey, the New York City Council, Bronx Borough President Fernando Ferrer, the Public Advocate Mark Green, New York City Comptroller Alan Hevesi, the Westchester County Board of Legislators, Westchester County Executive Andrew Spano, and the entire environmental community.

ll

NYC-WTC 000137619