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Watershed for Sale: Explosive Development Threatens New York City's Drinking Water Supply

by Robert F. Kennedy, Jr., Mark Sullivan & Mary Beth Postman, Riverkeeper, Inc.

November, 1999

Introduction

This is the second of five reports analyzing the performance of the New York City Department of Environmental Protection (DEP) in safeguarding the City's water supply and implementing the terms of the 1997 Watershed Memorandum of Agreement.[1] This report examines DEP's Bureau of Water Supply, Quality and Protection's Engineering Section, the branch of DEP charged with, among other things, reviewing new development proposals to ensure their consistency with water quality and regulatory controls. On July 21, 1999, New York City passed the halfway point in the five-year program that began with the historic signing of the 1997 Watershed Memorandum of Agreement. One of the most important aspects of that agreement was the opportunity it provided DEP to control irresponsible development in the City's watershed. In this respect, the City 's program has been a disastrous failure.

EXECUTIVE SUMMARY

The Croton, Kensico and West Branch watersheds of the New York City drinking water supply are suffering an onslaught of real estate development at a pace and scale never before witnessed. Largely due to lack of diligence by the Giuliani administration, developers are pushing into every remaining unoccupied corner of the watershed, building roads, strip malls, office complexes, apartment buildings and residential subdivisions. This accelerating destruction jeopardizes both the health of water consumers and the financial security of the city itself, as the possibility of a federally mandated $8 billion dollar filtration plant looms large.

Under the Giuliani Administration, the City agency charged with protecting the water supply, the New York City Department of Environmental Protection (DEP), has shown little willingness to fight the tough political and legal battles necessary to safeguard it. Following City Hall's weak signals, DEP engineering staff has capitulated to the powerful watershed real estate lobby on issue after issue. In a series of stunning policy decisions, DEP leadership recently has opened up thousands of acres of watershed land once-protected from the threat of development due to wetlands, steep slopes or restrictions on the construction of new sewage treatment plants.

Though DEP's Engineering Section employs some of DEP's most committed personnel, the ability of this unit to effectively control watershed development has been hamstrung. It is hampered by shoddy engineering practices endorsed by upper-level staff and by major policy decisions of high-ranking DEP and City Hall officials. As a consequence, the watershed that supplies 9 million New Yorkers with unfiltered drinking water is in jeopardy.

The Watershed Agreement gives DEP a fighting chance to control dangerous growth and minimize injury to water quality. But the regulations are not self-enforcing. They require strict application and aggressive enforcement against developers who pollute or contribute to the subdivision sprawl that threatens unspoiled areas outside of existing villages, towns and hamlets.

Tolerance of shoddy engineering practices by high-level DEP engineers also has played into the hands of the watershed's most rapacious developers. DEP engineers have used discredited and outdated stormwater models that encourage dangerous development; they have routinely failed to conduct site visits prior to issuing approvals; they have missed opportunities to steer development projects out of sensitive areas by failing to attend local planning board meetings. DEP has abandoned its powers to map and protect small wetlands or to use the State Environmental Quality Review Act to fight harmful projects and support positive watershed protection initiatives. Finally, preoccupied by crisis management, DEP has done almost nothing to prepare for 2002, when the City will sit down with the U.S. Environmental Protection Agency, the State Health Department, environmental groups and upstate communities to renegotiate the terms of filtration avoidance, a crucial opportunity to strengthen the watershed regulations.

Though staffed by some of the agency's brightest and most devoted employees, DEP's Division of Engineering has allowed itself to become an agent of destruction in the New York City watershed. This report outlines the major policy failures of DEP's Division of Engineering. It also makes a series of recommendations for strengthening watershed development review and for fighting the most harmful development projects. Among other things, DEP must:

 Revoke its policy of allowing construction of new septic systems on steep slopes in the watershed.  Seek federal protection for wetlands, including small, isolated wetlands, within the watershed and use the City's own powers to safeguard these critical resources.  Reject the use of experimental sewage treatment technologies such as the Zenon System that allow developers to circumvent the watershed agreement.  Take advantage of a burgeoning anti-sprawl movement by assisting local watershed groups in fighting the most egregious developments.  Adopt new methods of analyzing stormwater pollution.  Utilize the full array of local, state and federal environmental laws, especially the State Environmental Quality Review Act, to combat harmful development projects.  Stand up to destructive policies by state agencies such as the Department of Health, the Department of Transportation, and the Department of Environmental Conservation.

In sum, DEP must marshal the talents of its staff and its substantial resources to act as an advocate for water quality and for the 9 million rate payers who provide the agency's budget.

PART I. PAVING THE WATERSHED

A. An Unprecedented Development Boom Is Devouring The Croton Watershed

Fueled by low interest rates and unemployment, a booming stock market, and corporate relocations, New York City's Croton watershed is in the throes of an unprecedented development boom.[2] Like mushrooms after a rainstorm, shopping malls, office complexes, movie theaters, self-storage facilities, religious compounds, apartment buildings, manufacturing centers and sprawling housing developments are sprouting up in virtually every unoccupied corner of the watershed.[3] Accompanied by armies of tax lawyers and consultants, developers are flocking to planning boards, clamoring for permits and threatening to sue if their plans are not approved. This watershed real estate bonanza poses an immediate threat both to water quality in New York City's reservoirs and to the region's last vestiges of rural charm.

The pace and scale of destruction in the Croton System is breathtaking. Developers and state highwaymen are paving wetlands with parking lots and roadways, filling fragile streams, excavating hillsides and clearing forest land. Residential real estate transactions in Westchester reached record levels in 1995, 1996, 1997, and 1998.[4] According to Westchester Realtors, there is no sign of a slowdown for 1999.[5] In fact, the first quarter of 1999 has seen an acceleration of the demand for new housing.[6] Over 8,000 houses and apartments have been proposed or have commenced construction in Westchester and Putnam Counties.[7] This is up from 2,300 building permits issued in 1991-92 and almost matches the record 1985-86 construction boom when 8,900 permits were issued.[8] This housing growth accompanies a population explosion in the Croton watershed. Between 1990 and 1998 Putnam County was, by a long shot, the fastest growing county in New York State, with a population increase of 11.2%.[9] Putnam's population has risen from 56,000 in 1970 to approximately 94,000 today.[10]

The county has had the fastest job growth in the region during the 1990s as growing numbers of small manufacturers and service companies abandon New York City for the lure of suburbia.[11] Almost 6-1/2 million square feet of new commercial space is proposed in Westchester and Putnam Counties to provide jobs and services for the watershed's burgeoning population.

New construction is devouring the watershed's remaining open space. The last Putnam and Westchester farms are rapidly converting to subdivisions and asphalt.[12] According to a December 1997 inventory by the Westchester County Department of Planning [Land Use Trends in Westchester County 1988-1996], Westchester's watershed towns had 46,580 undeveloped acres in 1988. But by 1996, just eight years later, 26% (11,630 acres) of that land had been developed. That pace has since accelerated with record-breaking years of 1997 and 1998.

Surveying the astounding growth in August 1999, Putnam's Republican County Executive Robert Biondi asked, "[s]hould the county be black topped from the Hudson River to Connecticut? That could happen!"[13]

B. Explosive Growth Is Making Anti-Sprawl Advocates Out Of Growing Numbers Of Watershed Residents

The encroaching sprawl has spawned a powerful anti-growth movement in the watershed communities of Northern Westchester and Putnam Counties, providing local allies for the City's regulatory program. Many longtime residents resent the effects of suburban sprawl: traffic snarls, overcrowded schools, higher taxes, and environmental degradation.[14] Highly motivated grass-roots citizens groups have formed in all of Westchester's and Putnam's watershed towns, protesting uncontrolled growth. A recent Journal News/Manhattanville College poll indicates that a majority of watershed residents think stronger regulations are needed to control growth, and would be willing to pay higher taxes to set aside money for the protection of open space.[15] Surprisingly, such sentiments were strongest in Putnam County where local political leadership is still tightly controlled by the most shortsighted elements of the county's real estate industry.

C. Every Foot Of Pavement Brings More Pollution

The Croton system construction boom is particularly disturbing in light of new evidence that links development of impervious surfaces to the occurrence of pollutants, including phosphates and cryptosporidium, in the City's reservoirs. Pursuant to the mandates of the U.S. Environmental Protection Agency's (EPA's) May 1997 Filtration Avoidance Determination, DEP has conducted extensive research into the sources, transport and fate of Giardia, cryptosporidium and enteric viruses within the New York City watershed. The City published the first phase of this pathogen study on July 31, 1997.[16] The study demonstrates what environmentalists have long suggested: that the largest source of pathogens to the watershed is not agricultural runoff, undisturbed lands or even sewage treatment plants, but suburban and urban landscapes.[17]

For many years, DEP's official position has parroted that of the State's notoriously developer-friendly Department of Health (DOH): that wild animals are a co-equal culprit with subdivision development and that therefore there is no preference between undisturbed areas and developed landscapes. In 1993, when New York City attempted to gain regulatory authority over road expansions, former State Department of Health Deputy Director Dr. Bill Stasiuk, today the Deputy Commissioner of DEP, blocked the regulations, arguing there was no proof that road expansions were connected to increased pollution loads. Now that proof exists. DEP's pathogen studies demonstrate clearly that cryptosporidium cysts were most often found in discharges from urban landscapes and Giardia Lamblia cysts were most often found in discharges from sewage treatment plants, followed by urban landscapes.[18]

D. The New Development Boom Is Threatening the City's Ability to Avoid Filtration

Moreover, the building boom in Westchester and Putnam Counties threatens not only the Croton system, which lies entirely east of the Hudson River, but also the Catskill/Delaware systems. Although the majority of the Catskill/Delaware system lies west of the Hudson River in the rugged Catskill Mountains, its waters flow through the West Branch and Kensico reservoirs, which are both located in Putnam and Westchester Counties respectively.[19] A decline in water quality within the West Branch or Kensico reservoirs would trigger an EPA filtration mandate, requiring the City to build a fantastically expensive filtration plant (estimates range from $6 to $8 billion dollars to construct and $500-800 million per year to operate the plant). If water quality does not appreciably decline, EPA could still mandate filtration based on DEP's inability to control human activity (development) in the watershed.

PART II. DEP NEEDS A COMMISSIONER WITH A STRONG COMMITMENT TO WATERSHED PROTECTION.

Riverkeeper's 1997 report, A Culture of Mismanagement,[20] questioned the competence of several DEP personnel in key leadership positions. Ultimately, however, DEP's failure to control destructive watershed development is due less to incompetence than to lack of leadership. Commissioner Joel Miele occupies DEP's highest office during the most critical transition in the agency's history. Sadly, his administration has failed to implement the Giuliani administration's promises of reform.

Mayor Rudolph Giuliani appointed Joel Miele to replace Marilyn Gelber as DEP Commissioner in July 1996. Miele, a civil engineer and partner in a Queens real estate development company,[21] was an unlikely choice to reform a City department whose corrupt institutional culture is rooted in its historical domination by an insular clique of civil engineers with close relationships to the watershed construction industry. Miele served as Mayor Giuliani's Buildings Commissioner between 1994 and 1996, and according to Giuliani's First Deputy Mayor Peter Powers, Miele had broken up the ossified and inefficient institutional culture at the City Housing Department.

Powers thought Miele was ideally suited to changing the notoriously intransigent bureaucracy at DEP. He recommended Miele as the person to brace the backbones of lower-level DEP bureaucrats who earnestly want to protect the watershed but lack the confidence that their efforts will be supported by a strong commissioner. Only by sending strong signals of support from City Hall and DEP's Lefrak City headquarters could the agency deploy the technical and administrative talents of its staff on behalf of science-based watershed protection.

Unfortunately, Commissioner Miele has at best exercised a hands-off approach, which empowers DEP's old-boy engineering network.[22] At worst, Commissioner Miele has stressed the importance of testing political waters before acting. Acting on behalf of the Giuliani administration, Commissioner Miele has at times shown more interest in placating upstate developers and their political allies than in protecting City water quality. Commissioner Miele's weak agenda will almost certainly cause DEP to miss the historical opportunity to save the New York City watershed.

PART III. DEP SHOULD BASE ITS WATERSHED POLICIES ON SCIENTIFIC RATHER THAN POLITICAL CONSIDERATIONS.

Since signing the Watershed Agreement in January 1997, this Administration has routinely capitulated to upstate real-estate interests and undermined the efforts of DEP low-level engineering staff to fight unwise development. Indeed, three critical decisions by Commissioner Miele and his high-level staff have effectively opened up thousands of once protected watershed acres to new development. Each of these decisions was the result of political pressure from the watershed's powerful real estate industry. The land affected is the most sensitive land in the watershed: steep slopes, wetlands and the last undeveloped basins in the Croton system. This report discusses each of these decisions in detail below beneath a bold headline framed as a recommendation for remediating the damage and preventing any further damage.

Recommendation #1 DEP Should Revoke Its Policy Allowing Construction Of Septic Systems On Steep Slopes In The New York City Watershed.

A prime example of DEP's willingness to put the priorities of the upstate real estate lobby ahead of its own duties as watershed advocate is the recent action to open steep slopes in the City watershed to new development despite state regulation that forbids it. Appendix 75-A of the Public Health Regulations forbids construction of septic systems on slopes that are steeper than 15% in order to safeguard against septic system failures and to protect water quality.[23] During the 1970s, DOH apparently adopted an unwritten policy allowing developers to construct septic systems on slopes as steep as 20%, so long as they bulldozed the hill or imported fill to flatten the slope to 15%. In 1996, DOH formally published this interpretation in a Septic System Design Handbook[24] used by developers and county health department engineers but not generally known to the public. DOH nowhere made the scientific and technical justification for this rule change as required by state health regulations.[25] Neither DOH nor the Counties published any public notice of the deviation from the published regulations. No agency performed environmental review required by law under the State Environmental Quality Review Act.[26] Neither EPA nor any of the other signatories to the New York City Watershed Agreement were informed by DOH of the interpretation. No public hearings were held. DOH offered no studies to support the rule change and has since cited only the flimsiest anecdotes from biased sources to justify its action.

Perhaps most dismaying of all was the timing of the publication - five months after the finalization of the Watershed Agreement in Principle in November 1995, and at the outset of discussions on the final Memorandum of Agreement. In a piece of textbook bad faith, the environmental parties and many of the other parties to the MOA, while in the act of negotiating the terms of that agreement, were kept in the dark while DOH secretly altered a critical substantive requirement of the watershed regulations.

By implementing this policy in an ad hoc fashion, DOH was able to avoid public review of a dubious practice that has caused - and continues to cause - serious injury to the watershed. Downgrading a slope requires extensive devegetation and removal of native soils, which destroys the protective canopy and root systems, leading to erosion and sedimentation in nearby waterbodies. Erodable imported soils used to grade the slope almost inevitably end up in streams and reservoirs. Furthermore, imported fill does not filter septic waste as effectively as natural fill.[27]

Over time, DOH and the respective county health departments realized that this policy allowing "cut-and-fill systems" was causing serious erosion and sedimentation problems. However, rather than rolling back this damaging policy and risk aggravating the real estate industry, in 1995, just prior to formally publishing the new cut-and-fill policy, DOH issued general waivers to Westchester, Putnam and Dutchess Counties allowing the installation of septic systems on slopes up to 20% without first regrading the site. The waivers, which were illegal, have since been revoked by Governor Pataki, but in their place remains the old DOH interpretation of its regulations, which allows the widely repudiated practice of slope modification.[28]

The DOH interpretation is now facilitating an unprecedented development boom on watershed lands. By 1998, fully 25% of new housing permits in Putnam County (the state's fastest growing county) were taking advantage of DOH's loophole. Closing this illegal loophole is unlikely to slow the breathtaking pace of development in the Putnam County watershed or restore the quality of its chronically polluted reservoirs, but may help channel the most irresponsible kinds of development away from the County's most fragile landscapes.

DEP enjoys review and approval authority over a variety of activities within the watershed, including the design, treatment, construction, maintenance and operation of new Subsurface Sewage Treatment Systems (SSTS).[29] The Watershed Rules, among other things, strengthen the SSTS regulations by establishing limiting distances from watercourses, wetlands and reservoirs.[30] According to the terms of the watershed rules, in order to obtain approval from DEP for construction of a new SSTS within the watershed, builders must comply with the design standards promulgated by the New York State Department of Health contained in 10 N.Y.C.R.R. Part 75 and Appendix 75-A. The only exception is when a local government or agency has enacted, or the watershed rules specify, more stringent standards, in which case the more stringent standards "shall apply."[31] These standards represent the minimum requirements necessary to protect public health.[32]

Until March 13, 1998, it was the practice of Department of Environmental Protection also to permit slope modification for new SSTS in the watershed. On that date, after lengthy discussions with Riverkeeper, DEP determined that it was necessary and advisable to enforce strict compliance with the mandates of Part 75-A, and announced its intention to require that all future SSTS within the watershed be installed on natural slopes of 15% or less.

Then, in yet another bow to real estate interests, on September 14, 1998, via an e-mail message sent to various employees of the Department, Ed Polese, P.E., Chief of DEP's Engineering Section, reversed this rule, determining that compliance with 10 N.Y.C.R.R. § 75-A was not required, and in effect issued a new rule with respect to the construction of new SSTS on slopes in excess of 15%. Polese's brief message read as follows: "As of September 10, 1998 slopes that are greater than 15% but less than 20% may be modified to 15% or flatter to meet the requirements of 75A. Modification to be accomplished by fill only." This message was followed by a memorandum, dated September 18, 1998, in which Polese briefly elaborated upon the conditions of the new rule. Polese first reiterated the new rule, stating that the Department will permit the modification of the natural slope of between 15% and 20% down to 15% by the use of fill, and then stated that any applicants who were previously disapproved, based upon slope, may reapply. According to Polese's memorandum, the new rule also includes the requirement that "percolation tests must be conducted in the stabilized fill and range from three to thirty minutes per inch."

The text of this new rule issued by Polese and the Department of Environmental Protection, which applies across the 1,900 square mile watershed area, was never published in the City Record. Members of the public were given no opportunity to comment upon the proposed rule. Furthermore, the Department failed to conduct even the most rudimentary review of the environmental impacts associated with the new rule. It was, quite simply, an e-mail edict.

Polese's new interpretation is designed to favor the most destructive large developments. The interpretation does not apply to commercial development, but facilitates the residential subdivisions that are driving Putnam's taxes through the roof. Small property owners are not benefited by the interpretation since the Public Health Law allows such individuals a specific waiver whenever the regulations would prevent them from developing their land. Only large tract housing developments are affected. These are the special interests who are turning eastern Putnam into a bedroom community tax nightmare. The DEP interpretation allows such actors to trade high standards of living for themselves for lower quality of life for the rest of watershed residents.[33]

Any change in the regulations should be supported by science and subject to environmental review which gives the residents of Putnam County and New York's nine and a half million water consumers pertinent information justifying the decision and a voice in the process. Such a decision is too important to take place in private correspondence and secret meetings between agencies that have traditionally favored real estate developers over water consumers. DEP should use its authority to immediately impose a moratorium on approvals of these systems until such a study is completed.

Recommendation #2 DEP Should Ask The Army Corps For Greater Protection Of Watershed Wetlands.

In a stunning example of DEP capitulation to upstate interests at the expense of water quality, in February 1999 Commissioner Miele withdrew a series of recommendations made by Deputy Commissioner Dr. William Stasiuk to the Corps of Engineers which would have strengthened protection of watershed wetlands. Commissioner Miele's retreat from strong wetland protection was in direct response to political influence exerted by a Republican state senator from the Catskills.

The watershed includes 27,968 acres of wetlands. Their preservation is essential to maintaining the exceptional water quality New York City enjoys without filtration. Wetlands, including smaller, isolated wetlands, play a critical role in water purification and flood prevention. They recharge the aquifers that feed the purest waters to our reservoirs and maintain stream flows during drought. They act as natural filtration systems by trapping construction runoff, sediments, pesticides, road salts, toxic motor fluids and nutrients such as phosphorus and nitrogen. They also provide important wildlife habitat and serve flood control functions that are critical to protecting quality of life and property in the 2,000-square-mile watershed. Unfortunately, city, state and federal regulatory schemes designed to prevent the loss of these critical waterbodies are inadequate.[34]

In New York State, the Department of Environmental Conservation regulates all wetlands larger than 12.4 acres, allowing fill activity in wetlands of smaller size to fall under the anemic protection of the U.S. Army Corps of Engineers' regulatory authority.[35] Under the current Corps' notorious Nationwide 26 permits, developers may destroy up to one acre of any isolated or above headwaters wetlands[36] simply by filing a pre-construction notification letter with the Corps.

On July 1, 1998, and October 14, 1998, the Army Corps of Engineers proposed long-awaited modifications to its Nationwide Permit (NWP) program. Unfortunately, instead of strengthening the regulations, the Army Corps of Engineers proposed to further weaken the existing protections by transferring to the Nationwide Permit Program extensive new categories of wetlands that are currently subject to more restrictive individual permit requirements. Revised Nationwide Permit 26 is no longer constrained to isolated and above headwaters wetlands and water but will now apply to all non-tidal wetlands. Thus, hundreds of thousands of acres of additional waters and wetlands in New York are now subject to incremental destruction under the nationwide permits.[37] According to the New York State Department of Environmental Conservation, this relaxation will have an adverse affect on water quality within New York State.

In order to counteract the adverse impact of this retreat, the Corps simultaneously announced its intention to exclude certain "designated critical resource waters" from the nationwide permitting program. The Corps ordered its forty-eight district offices to include regional permit conditions to protect high value waters within their jurisdiction. The Corps' New York district office initially proposed the New York City drinking water watershed, which supplies unfiltered drinking water to over 9 million New York residents, as just such a critical resource water and requested comments on that proposal from DEP. City officials had long ago concluded that the nationwide permit system was inconsistent with its objective to promote watershed protection and had promised EPA that it would seek to have the nationwide permits abolished in the New York City watershed.[38] Consistent with this commitment, in a series of letters to the Corps between August 21, 1998 and December 18, 1998, Deputy Commissioner Stasiuk made the sensible request that no nationwide permits apply within the watershed.

On November 18, 1998, the New York District proposed regional conditions to the NWPs, one of which addressed the New York City Watershed - Regional Condition E.[39] The proposed condition would have helped to counterbalance the Corps' rollback of regulatory coverage by lowering the threshold area of wetlands that could be destroyed without individual permits within the City watershed to one third of an acre. The proposed regional condition fell short of Dr. Stasiuk's request that no nationwide permits apply in the watershed.

Still, when New York State Senator John J. Bonacic learned of Stasiuk's letter, he issued a press release accusing the city of violating the watershed agreement and attempting to grab more regulatory power.[40] Bonacic, who represents the Catskill/Delaware watershed is a political powerhouse among upstate Republicans who are critical to Mayor Giuliani's senatorial ambitions. Bonacic also called City Hall and spoke to the First Deputy Mayor Joe Lhota to insist that the city withdraw its comments to the Corps. City Hall capitulated. In a stunning turnaround, Commissioner Miele wrote to the Corps of Engineers on February 5, 1999, withdrawing the city's request for strong wetlands protection and publicly excoriating Dr. Stasiuk, stating that "the comments you received have not been reviewed, accepted and/or approved by my office and are therefore unofficial." Commissioner Miele further stated that no further regulatory controls were needed for watershed wetlands.[41]

The New York Times,[42] The Daily News,[43] The Village Voice,[44] New York City Council members[45] and virtually all of New York City's state Assembly and Senate leaders,[46] New York City's entire Congressional delegation and watershed Congressperson Maurice Hinchey,[47] joined environmentalists in crying foul.

The sudden withdrawal of Dr. Stasiuk's comments in apparent response to political intervention by upstate legislators casts serious doubt upon the City's ability to make science-based decisions in the politically charged atmosphere of a statewide Senate race, and to avoid an EPA filtration mandate. New York City is operating its water supply pursuant to a Filtration Avoidance Determination (FAD) granted by EPA. The FAD allows the City to avoid the catastrophic financial and social costs of constructing a filtration system for the Catskill/Delaware water supply as required by the Safe Drinking Water Act. Pursuant to the Surface Water Treatment Rule, the EPA utilizes both objective and subjective criteria to determine if a public water supply may avoid filtration.[48] The loss of wetlands will erode the City's ability to meet certain objective criteria including turbidity levels[49] and fecal coliform bacteria levels.[50] It also will cast doubt upon the City's ability to meet the Surface Water Treatment Rule's subjective criteria for watershed control. Continued filtration avoidance rests upon New York City's ability to demonstrate to EPA that it can control all human activities within the watershed that may affect water quality and "maintain a watershed control program which minimizes the potential for contamination."[51]

Recommendation #3 DEP Should Reject The Use Of Zenon And Other Experimental Sewage Treatment Technologies That Are Being Used By Developers To Circumvent The Watershed Agreement. DEP has bent over backward to hastily approve experimental technologies that will allow watershed developers to circumvent the discharge restrictions in the City's 1997 watershed regulations. Most prominent among these is the "Zenon" treatment system. DEP's embrace of this technology is opening up vast new areas of previously unspoiled watershed landscapes to particularly intensive development.

According to its manufacturer and promoters, Zenon enables users to recycle most of their wastewater, significantly cutting the waste stream and reducing the need for conventional disposal to ground or surface waters. While the Zenon system may promise substantial benefits, the City should not permit its use without careful study of its effectiveness and reliability. There is little data detailing the practical operating concerns or the performance history of the system. Moreover, reliance on a single company to provide technical services and upkeep is worrisome since the company might not be available indefinitely for repair and engineering service. DEP should require a full Environmental Impact Statement (EIS) in order to assess the effects of a new technology on watershed protection and development patterns and its impact on the watershed agreement. Commissioner Miele has opposed an EIS since that process "will only delay Zenon, which we consider a good thing."[52]

Despite pleas from the environmental community and DEP's own engineering staff, Commissioner Miele approved Zenon without formal environmental review on February 25, 1998. DEP's approval of Zenon flies on the face of the agency's historical ironclad policy that: (1) no experimental technology should be used in the watershed; and (2) any new technologies should be tested elsewhere and vouched for in peer-reviewed published papers. Perhaps the greatest danger from imprudent use of Zenon is the threat of increased non- point source pollution. Zenon will allow pavement on thousands of watershed acres that, until now, were undeveloped - and considered undevelopable - because of the limitations on conventional septic systems and sewage treatment plants.

Putnam County development interests are now publicly touting Zenon as a technological breakthrough which will catalyze intensive growth despite the watershed regulations. Real estate industry leaders have joined Zenon's manufacturers in organized educational efforts to ensure that developers are aware of the technology. Developers have proposed using Zenon almost exclusively where the technology may allow them, in stressed watersheds or particularly sensitive land, to avoid the constraints in the watershed regulations. The most egregious and irresponsible watershed development projects hope to utilize Zenon. [53]

The conditional approval policy[54] announced by DEP ignores the potentially catastrophic growth inducing aspects of Zenon and similar systems. Because the parties did not anticipate its existence during the watershed negotiations, they made no adequate provision for dealing with the non-point source pollution associated with developments induced by Zenon-type systems. Already, the least responsible watershed developers are lining up to incorporate Zenon technology into their proposed projects, in many cases to avoid the sewage discharge restrictions in DEP's new watershed regulations.

Most alarmingly, DEP and Putnam County planners are using Zenon to maximize development opportunities under the limited phosphorous offset program, established under the watershed regulations, 18 RCNY § 82(g). That program allows for not more than three new wastewater treatment plants in the phosphorous restricted basins of the Croton System, provided that the applicants can offset their new phosphorous inputs by somehow eliminating existing inputs in the same basin by a 3-1 ratio. The total discharge of these three new sewage treatment plants may not exceed 150,000 gallons per day. When compared to a conventional treatment plant, Zenon dramatically reduces the waste stream by recycling wastewater prior to discharge. The Emgee Highlands project, the Kent Manor residential subdivision, and the Campus at Fields Corner each hope to utilize Zenon and have applied for approval under the Phosphorous offset program.[55]

The City's political decision to waive the prohibition against septic construction on steep slopes, its withdrawal of the request that the Corps of Engineers close its loophole for wetland development, and its decision to approve experimental sewage treatment techniques like Zenon, have exposed tens of thousands of acres of once-protected watershed land to unwise development. After reviewing DEP's performance in these areas, one high-level EPA official commented in March 1998, "You can sign on to [the watershed] agreement but if your heart's not in it you can pick away at it with the little things and that seems to be what is happening here." PART IV. DEVELOPMENT REVIEW

The DEP unit charged with controlling development that is inconsistent with watershed regulations is known as "Engineering Design and Review", or "Project Review". Project Review is a subdivision of the Engineering Section headed by Edwin Polese.[56] Polese and his Deputy Chiefs Lynn Sadosky, P.E., and David Rider, P.E., coordinate the activities of DEP engineers who should be appearing at planning board meetings, assisting citizen groups, developing review of stormwater and septic plans for developments, assessing potential effects on water quality and advising DEP attorneys and New York City Corporate Counsel when to sue developers or planning officials who abuse their authority.

Recommendation #4 City Engineers Should Not Restrict Themselves To Mechanical Applications Of Watershed Regulations But Should Use Every Tool To Derail Or Modify Developments That Are Inconsistent With Good Watershed Planning.

Probably the gravest threat to the New York City watershed is the philosophical reluctance of Project Review's high-level engineering staff to exercise agency authority beyond the mechanical application of the watershed regulations.

DEP's high-level engineering staff and political leadership tend to narrowly define the scope of DEP's responsibilities in the watershed and then to turn a blind eye to activities outside the mechanical formulations of the regulations. Ed Polese recently and simply described what he sees as the totality of his agency's duties as "to ensure that developers are in compliance with the City's watershed regulations."[57] So long as the developer demonstrates paper compliance with numeric buffer zone setbacks and formulaic septic regulations, the City will not exercise engineering judgment to question or disapprove the project regardless of the affect it will have on water quality.

This restricted "in the box" thinking ignores the enormous power that the City has to control development by exercising best engineering judgment under SEQRA and the federal environmental laws. But Polese, like others in DEP's leadership, has a fear of exercising his broader powers.[58]

In order to effectively control development, the City must not only enforce its own regulations but the entire body of federal, state and local environmental law for controlling pollution. Project Review should:

 Encourage its engineers to exercise their professional judgment to control developments which may cause harm despite paper compliance with rules and regulations and DEP should be willing to defend its engineers' judgments in court against developers and state agencies.  Utilize and enforce the State Environmental Quality Review Act (SEQRA) which developers frequently circumvent. The City should make itself an involved agency under SEQRA in every watershed development proposal, attend SEQRA hearings and submit detailed engineering comments on design aspects which may affect water quality.  The City should upgrade its intelligence and authority by mapping all wetlands - even the smallest wetland areas - and then regulating development in wetlands and adjacent buffer zones.  The City should reformulate its stormwater regulations to ensure that development practices do not destroy the watershed's natural filtration function.  DEP engineers should appear at every planning board meeting concerning controversial proposals and offer technical assistance to local citizen groups who seek to fight those proposals.[59]

In sum, DEP needs vigilance, energy, resourcefulness and a sense of mission. In order for the watershed agreement to work, and in order for the City to avoid spending crippling sums on the construction and maintenance of an enormous filtration plant, the City must ensure that all environmental laws, not just City regulations, are complied with in every proposed watershed development.[60] Furthermore, City regulators must go beyond the mechanical application of rules and regulations. They must use every tool in the regulatory toolbox and every resource at their disposal to derail or modify development proposals that are inconsistent with sound watershed planning. Recommendation #5 Contrary To Popular DEP Myth, Many Upstate Communities Want The City To Aggressively Exercise Its Regulatory Powers To Control Sprawl.

DEP's Deputy Chief of Water Supply, Quality and Protection Dr. William Stasiuk and Commissioner Miele often explain DEP's reluctance to challenge watershed developers as part of the City's new effort to form "partnerships" with upstate communities consistent with the watershed MOA. This posture spells disaster for drinking water quality. "The biggest problems facing DEP now, says former commissioner Al Appleton, "are the Mayor's political ambitions and the institutional issue that DEP thinks it should not be confrontational because that's not the spirit of the watershed agreement." This discredited policy of non-confrontation was principally responsible for the rapid decline in Croton water quality.

Ironically, many upstate communities are crying for City assistance in standing up to the powerful and well- financed developers who are liquidating community assets for cash. The generalization that upstate communities always resent intervention by the City is erroneous. Westchester County Executive Andrew Spano has recognized the popularity of stiff controls on new development with county voters. He made a key plank of his 1997 election platform his promise to keep development out of the watershed by concentrating it in the county's urban areas. Spano has appealed to State DEC to upgrade stream classifications in northern Westchester as a way of controlling development and has encouraged watershed localities to adopt innovative laws to control new development. He has an aggressive program in place to preserve open space and has announced that Westchester will reject the State DOH waiver of State regulations forbidding construction of septics on steep slopes.

However, the County Executive has very little control over most land-use decisions, which are made at the local level. Local development decisions are mostly made in forums dominated by wealthy real estate developers and their tax deductible attorneys and engineers - the local planning boards and town boards. Even in these venues, there is a demand by local planners for the City's assistance for controlling development. City intervention is welcome by many communities. According to recent polls, the majority of residents of Westchester and Putnam counties believe that greater regulation is necessary to control suburban sprawl.[61]

DEP has been castigated by editorial pages of watershed newspapers for its lack of diligence in protecting the watershed against development. For example, on April 3, 1998, an editorial which appeared in the Bedford/Pound Ridge Record Review lambasted City engineers for "decades of dragging feet and shirking responsibility." The editorial urged the City that it alone could lead the battle to save the watershed from the real estate lobby stating "(the DEP) must lead the way, then we should follow."[62]

Even the development friendly Gannett papers have expressed alarm over the breathtaking rate of watershed development. In October of 1997 and again in August 1999, Gannett devoted front-page headlines to a series of disturbing articles by writers Tom Andersen and Cathy O'Donnell focusing on the destruction of open space in the watershed.[63] Most recently, the Journal News published the results of polls it conducted, indicating that the majority of watershed residents would be in favor of higher taxes and stricter land-use regulation to preserve open space.[64] Such articles indicate that DEP's reticence to challenge development is not always justified by local opposition to City involvement.

Recommendation #6 DEP Should Attend Every Planning Board Meeting And Aggressively Oppose Projects That Contribute To Sprawl.

DEP's assumption that a project's approval by a local planning board evinces local enthusiasm for a proposed development is rarely correct. Of the most dangerous watershed developments identified in this report, almost all have encountered substantial local opposition, some of it well organized.[65] Furthermore, local planning boards and town supervisors in Westchester and Putnam Counties often make critical decisions about development based less upon its presumed community benefits than on the presumption that the developer will sue them if they cut too deeply into his projected profit margin. Planning boards members, who tend to be unpaid volunteers, are very susceptible to threats of litigation.[66] They lack the resources that can be mobilized by the powerful development industry in the watershed.

"Planning Board members are amateurs," says Jim Baker, a planning board member in Putnam County's Town of Kent. "We may be well intentioned, but we're amateurs. A good pro can talk circles around us anytime. They snow us with drawings and studies and we have no capacity to evaluate these things. DEP ought to be sending its own experts in to help us evaluate the wild claims we regularly hear from developers. We would like to see more of a presence." Ira Allen of Somers Planning Board in Northern Westchester echoes that sentiment: "It's not the legal experts that provide the most serious intimidation. It's their engineers and wetlands experts that really intimidate us."

Former DEP Commissioner Al Appleton believes the City is missing an important opportunity in refusing to confront the watershed real estate industry. "Developers and planning boards have all these resources including tax deductible lawyers. The local anti-growth groups have nothing. If the City had any brains it would mobilize the local muscle of upstate anti-growth constituencies and marry its technical resources for the sake of watershed protection."

According to Yorktown Supervisor Linda Cooper, "[i]t is true that the city has not had a strong presence and we've urged them to be more aggressive. People are looking to DEP to see a physical presence and they haven't seen it yet. We need to see them in the communities, going to site visits, and not just sitting behind their desks. We want to see DEP at Planning Board meetings and being vocal. Even if they can't show up at every one, they should pick the important ones and show up so that people are conscious that DEP is a presence." Like some other town officials, Cooper has high praise for the lower-level DEP staff when they do show up. When Cooper requested that city inspectors review groundwater testing by a Yorktown developer, "they generated a report that directly contradicted the applicant's report which put the groundwater depth at 6 feet. The DEP engineer said the true depth was 24 inches." Cooper called the report "helpful" and says that DEP has been better recently in reviewing stormwater applications.[67]

It is important to understand that planning boards almost never fully consider the impact of development patterns on water quality, assuming that New York City will defend those interests whenever a project threatens water quality. This assumption[68] leads planning boards to approve many projects which planning board members individually abhor because of their negative impacts on community character, taxes, traffic patterns, school costs, or aesthetic and environmental injuries. Many of Northern Westchester's planning boards, town governments and local citizens would welcome the threat of litigation by New York City to counterbalance the enormous power wielded by developers, their attorneys and consultants.

According to William Harding, Executive Director of the Watershed Protection and Partnership Council and former Republican Supervisor of Somers, "[m]ost of the other watershed town supervisors [in Northern Westchester], those from North Salem, Lewisboro, Pound Ridge and Bedford, have been hoping for a whole new aggressive approach to land management by New York City. The City ought to be the strongest arrow in our quiver against overdevelopment in the watershed." A neighboring town supervisor, who asked not to be named, said the reality was disappointing. "I am not seeing an enforcement level I like from DEP. I'm seeing stuff come back from DEP that I was hoping the agency would kill. Instead of killing it, it comes back marked `approved', so I'm kind of dismayed. I don't see the whole new process we were promised."

Harding also reluctantly admitted that the City has been a less than reliable ally in managing watershed growth. "I'd love to say to a developer, `we like this deal' but you'll never get it by New York City. But everyone knows it's not true - I've said it and I got laughed at." As town supervisor, Harding celebrated a victory against careless development when his own town prevailed in the Appellate Division against an unwanted commercial development in the Whitehall Corners section of Somers. "We'd been hoping for help from the City on this one," Harding mused, "but our papers came back from DEP with their big black `APPROVED' stamp."

"The name of the game now is not to be too hard on the developers, work with the developers to squeeze the proposals into the regulatory framework and don't use independent engineering judgment," says Jim Roberts who is one of DEP's most qualified environmental engineers. According to another DEP engineer, the people who do any more than the strict requirements of their job description get passed over for promotion.

The principal battleground today is Putnam County.[69] While Northern Westchester communities generally have had their fill of development, Putnam County is still governed by an "old boy" network of small-time developers and politicians who stand to make a fortune liquidating the County's landscape for cash and commissions. This powerful Putnam real estate lobby vigorously opposes any efforts by community leaders or politicians toward sensible land-use controls. Perhaps as a result of the pro-growth sentiments among Putnam's elected officials, DEP has been even more reticent to use its authority in the Putnam County planning process. Kent Planning Board member Jim Baker has actually seen DEP's presence waning in recent years. "For awhile they were coming to Planning Board meetings. (DEP Engineer) Angela Cataldi was a real presence, but we don't see her anymore. We haven't seen Angela for a year and Jim Roberts disappeared a year before that. Jim Roberts was the best. He was knowledgeable and he didn't pull punches. We believe that Jim Roberts is being locked up because he offended the big developers. They [DEP officials] don't let him out anymore." As a result of their efforts, Putnam is quickly going the way of Nassau County, Long Island. However, even in Putnam County, planning boards act responsibly wherever DEP aggressively promotes watershed protection.

The stalled Carmel corporate park project offers a recent example. The Carmel Corporate Park is an out-of- scale proposal for a commercial and industrial park in the Town of Carmel. If constructed, it would level 107 unspoiled acres on Michael's Brook, which leads directly into the Croton Falls reservoir.

DEP failed to press its concerns upon the Town of Carmel Planning Board during the preliminary environmental review of the project. Consequently, the Town determined that the project could go forward without preparing an environmental impact statement. In response, the City, at Riverkeeper's urging, challenged the proposed corporate park by filing an Article 78 petition against the Town of Carmel Planning Board. The Town did a 180-degree turn, rescinding its approval of the project without even bothering to file response papers.[70] The town's response demonstrates that the towns themselves, even in Putnam County, are committed less to development than to avoiding litigation. If the developers' threat to litigate is counterbalanced by a credible threat from City lawyers, the planning boards are more likely to apply appropriate scrutiny to water quality impacts and deny proposals for destructive development.

Recommendation #7 DEP Should Modernize Its Stormwater Review Program To Conduct State-Of- The-Art Stormwater Reviews And Abandon The Current Flawed System Which Favors Irresponsible Development.

Poison stormwater is the the greatest threat to resevoir water quality and the authority to regulate stormwater is the Cityy's single most important power for controlling watershed development in the wateshed regulations. Every rain carries stormwater laden with pollutants such as oil and grease, phosphorous and sediments from watershed roadways, parking lots and buildings into the City's veolicites and reduces flows of purified groundwater to our reservoirs. Tragically, DEP is using badly outdated and discredited methodologies in reviewing stormwater permit applications.

Tom Schueler, Executive Director of the Center for Watershed Protection and perhaps the nation's foremost expert on stormwater treatment and control has recently suggested that the loss of as little as 10% of a watershed's land to impervious causes irreversible damage to water quality. [71] The current development boom is creating hundreds, if not thoudands of new acres of impervious surfaces every year in the City watersheds, straining reservoir capacity to absorb pollutants.

The watershed rules and regulations give the City's engineers the authority to regulate new development through controls on these stormwater discharges. Under the watershed regulations, a wide variety of development projects are required to prepare a stormwater pollution prevention plan (SPPP), and obtain City approval prior to construction.[72] Unfortunately, the City's engineers use inconsistent, antiquated and unreliable methodologies to estimate the generation of runoff and non-point source pollution by new development. The City's official guidance documents recommend two models for assessing stormwater effects, both of which are largely discredited. Both models, the "Simple Method" and the "Pollutant Loading Coefficient Method," substitute simplistic formulas and generalized data for the more rigorous and time- consuming site-specific analysis necessary to accurately predict stormwater effects. These two models are primitive, off-the-shelf techniques that fail to consider topography and geology in estimating the generation and composition of stormwater. In addition to adopting these highly imprecise formulas, DEP has invited applicants to choose between the methods, or invent their own, on a case-by-case basis.[73] Consequently, most applicants apply the model or formula that minimizes their regulatory burden. The Department is therefore unable to accurately assess stormwater impacts from new development, to determine when such projects pose unacceptable threats, or to ensure that developers install adequate controls where possible. Given the preeminence of stormwater as a source of watershed pollution, this failure is a significant setback for the Department's program.

For more than two years, Riverkeeper has pleaded with DEP technical staff to reassess its use of these models in light of their demonstrable deficiencies. In April of 1997, Riverkeeper submitted extensive comments on the City's "Draft Applicant's Guide to Stormwater Pollution Prevention Plans, Individual Residential Stormwater Management Permits and Crossing, Piping, or Diversion Permits" (the "Draft Guide").

Dr. Stasiuk responded to Riverkeeper's concerns by letter dated May 27, 1997, plainly acknowledging that serious flaws exist in the City's chosen methodologies. Nonetheless, Dr. Stasiuk stated that "the Department will permit the use of these methods until better tools are developed." More than two years later, the City has done nothing to advance the science of stormwater analysis and continues to use these dated methodologies.

Recommendation #8 DEP Should Require Developers To Submit Stormwater Pollution Prevention Plans Prior To The Expiration Of The SEQRA Process.

By refusing to fully deploy its powers under the State Environmental Quality Review Act (SEQRA), city engineers are missing a critical opportunity to enlist the substantial anti-growth movement within the City's watershed in their efforts to control dangerous development and to make up for DEP's own deficiencies in evaluating stronger plans. City engineers in Project Review have told us that they believe their jobs have been accomplished so long as they simply enforce the buffer zones and other incremental controls in the City's watershed regulations. With this limited vision of the City's role, DEP is missing the opportunity to use the SEQRA process, its most powerful weapon for controlling dangerous watershed development. Moreover, DEP's policy for reviewing stormwater control applications has thwarted attempts by Riverkeeper and other members of the public to review the Stormwater Pollution Prevention Plans (SPPP) submitted by developers, as required by the watershed rules and regulations.

In a twist that gives a new advantage to development interests, DEP has elected to not require developers to submit their plans until after the close of the SEQRA process. Very often, therefore, a planning board issues a negative declaration of significance for a particular project, thereby ending the SEQRA process, only to have the developer subsequently hand in a SPPP revealing unacceptable stormwater impacts. This sequence forecloses meaningful review of the stormwater impacts by members of the public and local planning boards and allows developers to remove the stormwater plans from the scrutiny of the SEQRA process.

A typical example occurred at the Heritage Hills, "Condo 27," a development which calls for 76 units on 21.2 acres of steep, rocky terrain in the Muscoot watershed in the Town of Somers. At a public hearing regarding the project, Riverkeeper and other members of the public called for an SPPP and encouraged the Somers Planning Board to work with DEP before issuing a negative declaration or granting site plan approval. With DEP expressing no interest in the process, the planning board issued site plan approval and a negative declaration of significance on December 17, 1997, before an SPPP had been submitted. The negative declaration closed the SEQRA process and foreclosed any opportunity for public review. Next, DEP granted stormwater and wastewater treatment approvals on February 27, 1998, without any opportunity for public review of the all-important stormwater plan. The files at the Town of Somers reveal a watered-down "Stormwater Management Plan," but it appears that no SPPP has ever been submitted to the town's engineers, which would allow public review of the plan.

The same disastrous sequence allowed DOT to escape public review of its plans to widen Route 120, adjacent to the Kensico Reservoir. State DOT declared that there would be no negative impacts from the project but deferred its stormwater plan until a later date, when, it said, it would work those details out with DEP. In the face of overwhelming opposition and an almost certain lawsuit from the environmental community (but not DEP), DOT agreed to do a supplemental EIS on the subject prior to the close of SEQRA review. At Westchester County Airport, General Electric (GE) similarly took advantage of DEP's policy during the public review of its proposed 90,000-square-foot airplane hangar, just across I-684 from the Kensico reservoir. GE submitted reams of documentation to support a negative declaration under SEQRA, over the strident objections by Riverkeeper and a host of other environmental organizations. However, despite the volume of materials, the company's plans did not include any hard analysis of the stormwater effects associated with the hangar facility. They were devoid of any analysis of the pre and post-construction pollutant loadings for fecal coliform bacteria, phosphorous or any other pollutant, as required by the Watershed Rules and Regulations. DEP was again AWOL, making no request for the documentation prior to the Westchester County Board of Legislators' determination of significance. Since no environmental impact from the project was apparent, the Board issued a negative declaration, meaning GE would not have to prepare an EIS. The stormwater impacts of the proposed hangar therefore would have escaped public scrutiny had Riverkeeper and eight other environmental groups not successfully sued GE and Westchester County.

Upon request from Riverkeeper, Commissioner Miele submitted an affidavit in Riverkeeper's action against GE, belatedly asserting that the stormwater impacts of the proposed project warranted the preparation of an EIS. Had DEP raised its voice during the SEQRA process, rather than waiting for Riverkeeper to sue, it is doubtful that the Board of Legislators would have issued a negative declaration. In fact, County Legislator Katherine Carsky, expressed surprise upon learning of DEP's opposition to the project, and told environmentalists that her vote may well have been different had she been made aware of DEP's concerns. DEP must play a more active role in the SEQRA process.

Recommendation #9 DEP Must Exercise Diligence And Professionalism In Conducting Stormwater Reviews Of New Developments.

Like other sections of development review, DEP's stormwater section is said to be weak on field work and even its high-level staff are regularly criticized for being chronically unprepared. On August 26, 1997, DEP convened a meeting with members of the Croton Watershed Clean Water Coalition,[74] to discuss its strategy for addressing the planned extension of Route 120 through the Kensico watershed. As discussed above, the 120 expansion is the most pernicious of all the current developments planned for the Croton watershed because of the importance of the Kensico in the water supply.

The meeting occurred eight days before the only scheduled public hearing on the project in New York State. Dr. Bill Stasiuk introduced Project Management Supervisor Jim Benson, who is not a professional engineer, as his "guru" on the Route 120 project. After Stasiuk left the room, Benson cavalierly announced to his stunned audience that he had not yet read the EIS for the project. With eight days remaining before the hearing, he hardly had enough time to read and digest a highly technical five-volume document and prepare effective comments. The EIS contained no stormwater remediation plan. Without the intervention of environmental groups who have succeeded in temporarily derailing the project, the DOT proposal would have flown through stormwater review with potentially disastrous impacts on the City's water supply.

Recommendation #10 DEP Should Forbid Its Engineers From The Dubious Practice Of Approving Projects Without Making A Site Visit.

Field inspection is a critical component of engineering assessment of the sustainability and preferred location of septic fields on a particular site. According to the New York State Department of Health's 1996 Septic Systems Handbook,[75] the supervising engineer should conduct the field inspection early in the process. Among the features that might be discovered only by field inspection are "low areas likely to be flooded every ten years or more frequently; steep slopes, rock outcroppings, shallow or unsuitable soils, seasonal groundwater changes, separation distances from other septic systems, property lines, wells, wetlands, water courses, buildings, utilities pipelines, adequate space for future reserve septic fields and other hybrid geological or man-made features which might not appear on written engineering reports but which might dramatically impact the success or failure of the proposed system." This is true both for DEP's septic system permitting and stormwater pollution prevention roles.

In their applications to town boards and DEP, developers often misrepresent physical conditions on the site. For example, the engineers for the proposed Christian Herald subdivision in New Castle originally submitted to DEP, the Westchester County Health Department and the town planning board, a septic siting plan in which slopes were misrepresented or miscalculated by as much as 13%. Many of the septic systems were on slopes exceeding 20%, with at least one on a slope of more than 30%. DEP was prepared to approve the septic systems had not a citizens group hired a professional surveyor and engineer who visited the site and uncovered the discrepancy.

Ira Allen, Planning Board member from Somers, complains, "[s]ometimes we get environmental memos from DEP without a field inspection. We've gotten a couple from Ed Polese that I guarantee you nobody ever went to the site." Other DEP personnel and many town officials complain that Polese's group's failure to perform site visits is routine for construction proposals that are outside the city's buffer zones for watercourses and reservoirs. According to Dave Klaus, Chair of the Yorktown Conservation Board, the problem goes beyond Polese to his crew. "The comments we get often give the impression that they'd never been out to the site. They need to get up from their desks and start looking at these landscapes." Recommendation #11 DEP Should Impose Standard Controls On Stream Gravel Mining Operations.

DEP's regulation of watershed gravel mining is another example of the engineering section's cultural affinity for work avoidance. New York State DEC routinely issues mining permits to construction firms to mine gravel and dirt from watershed streambeds in the Catskills. These permits typically include no provisions for erosion control and no restrictions on how the gravel is mined. The permits allow mining companies to drive into the stream beds with bulldozers, dump trucks and front-end loaders and create conditions that may aggravate erosion problems and sedimentation that already threaten Catskill water quality. No one at DEP ever objects to the issuance of these permits. The lack of involvement is not for lack of authority but simple unwillingness to perform the task.

Recommendation #12 DEP Should Exercise Its Own Authority To Protect Smaller Wetlands.

It is less clear why DEP officials have failed to exercise the City's own authority to map and protect smaller watershed wetlands. For years, DEP personnel have promised to map all watershed wetlands, and to petition the State DEC for their designation as wetlands of "unusual local importance,"[76] which gives such wetlands the full protection of New York's Freshwater Wetlands Act. During the watershed negotiations, New York State DEC committed to adjust its own maps to reflect the smaller wetlands designated by DEP within the watershed. Working in conjunction with the U.S. Fish and Wildlife Service, DEP has now completed such a survey and can identify wetlands throughout the watershed down to one acre. Unfortunately, the City has failed to nominate these critical wetlands for protection under the Wetlands Act, leaving watershed wetlands with only the weak protection of the U.S. Army Corps of Engineers' nationwide permits.

The City's watershed rules and regulations prohibit the construction of new septic systems only in or near state-mapped wetlands.[77] Therefore, developers frequently apply for and receive approval from DEP to construct septic systems in wetland areas which do not meet the state' arbitrary 12.4-acre threshold. However, the scientific basis for forbidding construction of septic systems or impervious systems near or upon wetlands is applicable to all wetlands, not just those that meet the state criteria. DEP must seek protection for all wetlands within the watershed to prevent the construction of septic systems in watershed wetlands, regardless of their size.

DEP should immediately petition the DEC for designation of these wetlands under the Wetlands Act and should complete the process of mapping and designating all watershed wetlands down to the smallest vernal pools.

Recommendation #13 DEP Should Appoint A Scientific/Legal Team To Monitor Watershed Development That Is Inconsistent With The Objectives Of Watershed Protection And To Develop Scientific And Policy Justification For Improved Regulations.

During the first meeting between watershed activists and Commissioner Miele in July 1997, Commissioner Miele promised to step outside of DEP's crisis management mentality and to develop a proactive five-year strategy for the next round of watershed negotiations. Nothing has been done. DEP still has no program to systematically prepare for the next round of negotiations.

DEP should create a scientific/legal team consisting of at least one attorney and one scientist solely to monitor watershed development projects. The team should work closely with DEP Project Review staff in analyzing individual projects, identifying regulatory gaps and generating scientific data required to substantiate the need for tougher watershed rules and regulations. This team should conduct post-mortems on each watershed development and analyze where regulations need to be strengthened during the next round of watershed negotiations to prevent such occurrences in the future. The team should assemble scientific tests and useful data to justify these regulatory changes. Where such data does not exist, it should be collected by DEP laboratories in a timeframe that will be useful during the negotiation process.

DEP counsel should work with this scientific/legal team to develop new tougher revised regulations that deal with shortcomings of the current regulations. DEP took the position during the watershed negotiations that it would never again wait 30 years to update its regulations. Instead, it would regularly upgrade the regulations every few years. DEP should be building a library. DEP's watershed Project Review attorney should assemble examples of watershed protection strategies and regulatory actions taken by other cities around the United States, Canada and Europe. Proof of the existence of such programs elsewhere would help persuade upstate communities and opponents of strong watershed protection of their reasonableness. For example, Adirondack communities have strict restrictions on septic systems on steep slopes. Glen Cove, Long Island and Boulder, Colorado have developed and enforced stormwater restrictions in their watersheds far stricter in some respects than those employed by City DEP. DEP should gather the scientific and policy data to justify such restrictions. This library of data also should include assessments of the myriad new technologies for treating stormwater runoff and sewage. The DEP laboratory should create a unit to evaluate these technologies and recommend the useful ones to engineering staff. The best of these technologies should be mandated in the new regulations.

During the watershed negotiations, on issue after issue, Dr. Stasiuk and Ron Tramontano of the state Department of Health argued on behalf of upstate development interests that there was no scientifically proven connection between impervious surfaces, septic systems, sewer plants, commercial gallery septics and reservoir deterioration. DEP's weak stable of technicians were unable to produce data to prove otherwise. If DEP begins to plan now, assembling the data needed to address these issues, then it will have a leg up in the next round of negotiations.

Recommendation #14 DEP Must Support Local Efforts To Control Suburban Sprawl, Including Proposed Upzoning In Watershed Towns.

DEP should actively support efforts of watershed towns to control sprawl through the use of zoning powers. For example, a number of watershed communities have embraced the idea of rezoning their watershed lands from one-acre residential zoning to two-, three- or even four-acre densities. Unfortunately, DEP has frustrated such efforts with ill-conceived policy statements and letters of opposition. DEP must proactively support local zoning initiatives aimed at protecting the City's reservoirs.

The general lack of commitment among high-level DEP appointees toward controlling watershed development is illustrated by an astonishing DEP memorandum, issued on August 3, 1993, opposing a rezoning proposal for the Hunter Brook area of Yorktown. Yorktown had tried to rezone 12% of the town from 2-acre lots to 4-acre lots, a measure that would clearly reduce density and benefit water quality. The zoning upgrade specifically was intended to protect the sensitive area around Hunter Brook, just upstream from the Croton Reservoir, from intensive and harmful development. DEP environmental planner[78] Dale Borchert authored a bizarre letter to Yorktown's Town Planner Magnus Sjoberg on DEP letterhead opposing the upzoning unless a full Environmental Impact Statement was first conducted.[79] Borchert must have realized that completing the EIS would seriously delay and likely kill the upzoning. The town proceeded with the upzoning in disregard of Borchart's letter. Predictably, a local developer sued the town to have the rezoning overturned. A March 19, 1997, decision by State Supreme Court Judge James Crowley invalidating Yorktown's rezoning effort, cited Borchert's letter.[80] Much of that area is now being subdivided for intensive development.

Commissioner Miele has since privately stated that Borchert's memorandum was not in keeping with DEP policy and that DEP is "unequivocally" in favor of upzoning. The Commissioner promised that this mistake would not be repeated and that the city would support upzoning in the future. Unfortunately, DEP has not followed up on this promise.

Just this past spring, the town of Somers, 97% of which is located in the watershed, moved aggressively to upzone all of the remaining 9,500 acres of undeveloped land within the town's borders. The Somers proposal will preserve the town's rural characteristics and protect water quality by greatly reducing the amount of impervious surfaces within the town upon full build-out. Westchester County has criticized the proposed rezoning, arguing erroneously that it will prevent the construction of affordable housing in the town.[81] Watershed developers have announced their intention to sue the town to derail the rezoning. Their strongest weapon will be DEP's indifference to Westchester County's opposition.

DEP, as usual, is sitting by the sidelines. DEP already has lost a critical opportunity to support the Town's efforts by failing to submit detailed engineering commentary outlining the water quality benefits of reducing the amount of impervious surfaces in the watershed. Instead, the City has been AWOL in the contentious SEQRA hearings conducted on the matter. DEP should publicly support the Somers zoning proposal. To her credit, Somers Town Supervisor Marbeth Murphy has courageously advanced the rezoning proposal despite litigation from developers and lack of support from the City. The City should intervene in the developer's lawsuits, supporting the upzoning as an important step in preserving water quality.

Recommendation #15 DEP Should Monitor And Fight The Following Large Development Proposals.

Dozens ofd indiviudal prrojects, from roadway expansions to strip malls, threaten to degrade water quality. The performance of DEP's Project Review personnel on these projects has been laudable in certain instances, and fallen short in others. Some of the more deplorable projects, and DEP's performance in reviewing them, are discussedd below.

Route 120 Expansion. DEP should oppose the New York State Department of Transportation (DOT) 1997 proposal to widen rural Route 120 in Westchester County. (See supra Recommendation #8)

Hoyt's Cinema. Developers have proposed to construct Hoyts Theatre, a 10-screen, 2,000 seat multiplex theater a stone's throw from the East Branch Reservoir in the Town of Southeast. In 1997, after the Southeast Planning Board gave its initial approval, Frederick Kincheloe, an outstanding DEP engineer, performed an extensive review and found deficiencies in both stormwater and sanitary sewage plans submitted by the project sponsor in its Final Environmental Impact Statement. Kincheloe found flaws in the manner in which the project applicant had calculated stormwater pollutant loadings, numerous design flaws in the proposed stormwater detention facilities, the possibility of erosion problems offsite, and an inadequate erosion control plan. Local residents, many of whom have struggled for years to reduce the size and impact of the proposed theater, cheered Kincheloe's strong comments.[82] In an opinion piece printed by the Putnam Courier, Mike Caputo, president of the Concerned Residents of Southeast, a grass-roots anti-sprawl group, wrote, "we are heartened that an independent technical agency such as the NYC DEP now doubts the appropriateness of the project . . . .[83]

The project has been stalled for over two years due to site constraints and DEP's stringent Project Review. In January of 1999, the Southeast Planning Board signaled that it would not approve the Hoyts Cinema prior to DEP approval of the applicant's stormwater and sewage treatment plans. DEP's strong performance has not flagged, despite the departure of Kincheloe. In February of 1999, DEP project engineer Penny Kelly submitted extensive comments requiring the applicant to clarify and modify its project proposal.

Lake Carmel Factory Shoppes. The Lake Carmel Factory Shoppes project is a dramatic illustration of unwise land-use planning. Developers are proposing to construct a more than 500,000-square-foot mall with 2,100 parking spaces in the Town of Kent in Putnam County. The project will decimate a 103-acre parcel of relatively pristine land straddling the Middle Branch of the Croton River. More than 81 acres of forested land will be cleared and replaced by a barren, sterile concrete desert. The project will entail the physical manipulation of land on a scale never before witnessed in the Town of Kent. Eighty-six of the 103 acres on site will be disturbed, with ten more acres set aside for future development. An astonishing 1.1 million cubic yards of earth will be excavated in order to regrade the site's steep hillside. Thirty-eight percent of the site will be forever locked inside impervious concrete and asphalt. The Factory Shoppes project will have a grave impact upon the Middle Branch of the Croton River and, ultimately, the Middle Branch Reservoir, a phosphorous-restricted segment of the Croton Reservoir system under intense development pressure. The construction phase of the project has the potential to deposit huge amounts of sediment and debris into the Middle Branch. The decimation of forest cover will lay the land bare, permitting rainwater to carry soil and debris into the river and removing the ecological guarantor of clean water recharge to the river.[84]

After the construction phase is over, increased surface water pollutant loads will cause a dramatic rise in the amount of biochemical oxygen demand (BOD) and water temperature, threatening prime trout-spawning habitat.

At a public hearing before the Town of Kent Planning Board, Penny Kelly, a rising star within the DEP's Project Review engineering team, submitted detailed comments on the Factory Shoppes proposal. Environmentalists and local opponents cheered as Kelly enumerated the numerous areas in which the mall proposal violates the watershed regulations and the many technical deficiencies in the project applicant's stormwater and sewage treatment plans. Among other things, Kelly pointed out that the project failed to adequately store and treat stormwater runoff generated on site, violated the ban on impervious surfaces within 100 feet of a watercourse (the Middle Branch Croton River), failed to specify how sedimentation and erosion would be controlled, and greatly underestimated the amount of sewage that would be generated by the mall. Kelly's strong commentary received a rousing ovation at the planning board meeting, attended by more than 300 local residents and area environmentalists.

Fleischmanns Junkyard. The Village of Fleischmanns, a tiny, scenic Catskills community, has recently come under pressure to allow the siting of an automobile junkyard in the now vacant former Bailey Manufacturing Company building. The building lies on a delta between two mountain streams, squarely within the flood plain ravaged during a 1996 flood. It also sits adjacent to two village-owned drinking water wellheads. It would be hard to imagine a more inappropriate site for a junkyard from a water quality perspective.

The Watershed Rules and Regulations prohibit the siting of a junkyard within 250 feet of a watercourse.[85] Nevertheless, the project applicant, VW Parts, Inc., sought approvals from DEP to allow it to use the Bailey's site, which lies less than 250 feet from not one, but two watercourses, as an indoor junkyard. VW wished to store hundreds of vehicles, in varying states of disrepair, both inside and outside of the existing building. Cars would have been constantly added and removed, crushed and stacked, shuffled around the parcel, in and out of the structure in violation of the 250-foot setback requirement. VW asserted that junked vehicles would only be stored indoors, where they would not be exposed to stormwater, while only cars slated for rehabilitation and parts recycling would be stored outside, and that therefore the definition of junkyard within the watershed regulations did not apply to their proposed operation.

Incredibly, by letter dated August 12, 1997, DEP approved the project, provided that the junkyard activities be confined to the manufacturing building. Through a tortured legal analysis, DEP's assistant counsel, Stephen J. King (recently promoted to head the DEP police to the amazement of environmentalists) determined that junkyard activities conducted indoors would not be considered a junkyard under the definition contained in the watershed rules and regulations. This interpretation had no support in the rules themselves and little justification from a watershed protection perspective. In no uncertain terms, section 18- 41(a) of the watershed rules and regulations prohibits the "siting or horizontal expansion of a junkyard . . . within the limiting distance of 250 feet of a watercourse or wetland."[86] The prohibition contains no qualification or exception for indoor junkyards as contemplated by VW.

The Coalition for Junkyard Enforcement, a grass-roots organization in Fleischmanns opposed to the illegal siting of the VW facility, battled DEP over its interpretation of the regulations and enlisted the support of Riverkeeper in its fight. After a flurry of correspondence, DEP agreed to reexamine the issue. On March 15, 1999, Edwin Polese, Chief of DEP's Engineering Section determined that King's position was untenable and reversed the earlier determination. In a strongly worded letter, Polese finally informed VW Auto Parts that, regardless of whether the junkyard was located inside or out, its facility could not be permitted under the regulation.

Inexplicably, on September 13, 1999, DEP reversed its position again by granting VW Parts a variance from DEP regulations. Riverkeeper sought access to DEP records to understand the basis of DEP's conflicting positions. At the time of this report's publication, DEP has thus far refused to allow Riverkeeper access to these records.

Other Projects. The above projects represent a tiny sampling of the vast array of development proposals within the City's watershed. In the above three instances, DEP's engineering staff has performed well. However, dozens of other proposals threaten to degrade water quality in the City's reservoirs. Each project presents its own unique challenges and threats. They include:

 The Highlands Retail Center, a 384,000-square-foot shopping center with parking for over 2,000 cars in the town of Southeast.  Brewster's Southeast Putnam Exposition Center, a 115,000-square-foot conference center and exhibition space with 1,500 parking spaces.  The 150,000-square-foot Mt. Kisco A & P Save-a-Center, which will result in the loss of 3.7 acres of wetlands.  A 40,000-square-foot supermarket planned for the Whitehall Corners section of Somers.  The Yorktown Retail Center, an 80,000-square-foot retail facility which will destroy two acres of wetlands and the headwaters of Hunter Brook, tributary to the Croton reservoir and fine trout habitat.  The Jehovah's Witnesses Circuit Assembly Hall proposed for the Town of Kent. This sprawling facility will include a 73,000-square-foot assembly hall, a dining hall, a maintenance garage, a conference center and parking for 670 cars.  The Route 202 Yorktown Self-Storage project, which will fill 1.5 acres of wetlands and degrade water quality in Hunter Brook.  The proposed nine-acre parking lot expansion at IBM's world headquarters in the Town of Somers.  The Campus at Fields Corner, a mixed-use proposal with 330 residential units and 300,000 square feet of office space in the headwaters the Middle Branch Croton River also in the town of Southeast.  The Highgate Corporate Park and residential development in North Salem, which includes 250,000 square feet of commercial space with parking for 700 cars as well as a 49-lot residential subdivision.  The Carmel Corporate Park, a huge light-manufacturing center proposed for a steep, 110-acre-site along Michaels Brook in Carmel. If approved, the corporate park could include over 1.6 million square feet of commercial space.  The proposed Clancy Moving and Storage facility in Patterson including a 54,000-square-foot office and 17,000-square-foot mini-storage facility.  The 27-unit Astro Realty Subdivision, in the town of Patterson abutting the Great Swamp.  The 82-lot Burdick Farms subdivision on a spectacular hilltop in Patterson, utilizing dozens of illegal septic systems.  The Avalon Bay Communities 300-unit apartment complex proposed for the Hunterbrook area of Yorktown. The sensitive site has a large wetland area.  The 43-lot Pegglesworth Subdivision in Brewster.  The Links, a 100-unit cluster subdivision comprising 35 single-family homes, 35 townhouses and 30 condominiums on a 92-acre site in Carmel.  The Meadows at Dean's Corner, a 139-unit cluster subdivision in Southeast.  Abee Rose Estates, a proposed 28-unit subdivision slated for a spectacular parcel in the Town of Cortlandt atop Dickerson Mountain.  The Christian Herald subdivision in the Town of New Castle, a 12-lot subdivision with septic systems on steep slopes in areas of high groundwater adjacent to a tributary of the Kisco river.  The Farm, a 31-lot subdivision proposed for the Town of Somers which will require access across a state-mapped wetland.  Willow Ridge, a 71-unit subdivision adjacent to the West Branch Croton River, unquestionably the finest trout spawning river in the lower Hudson Valley.  The 50-unit Hunter's Knoll subdivision in Mt. Kisco.  The 14-unit Hunterbrook Subdivision, in a wetland and steeply sloped area along Hunterbrook in Yorktown.  Donald Trump's proposed 18-hole golf course on the French Hills site in Yorktown.  The 628.5 acre (nearly one square mile), 170-unit Eagle River subdivision project straddling Angle Fly Brook, a trout spawning tributary to the seriously impaired Muscoot reservoir in the town of Somers.  The Granite Pointe subdivision, also in Somers, on a peninsula jutting into the Amawalk Reservoir.  The five-story, 300-room Embassy Suites Hotel proposed in the town of Southeast.  Hardscrabble Lake, a 95-unit tract development in Mount Pleasant.  Heritage Hills, an existing sprawling multi-family development with 800 more units left to be built.  Horsepound Ridge, a 104-acre, 35-lot subdivision in the West Branch basin.  The 76-acre Brandywyne subdivision on steep slopes in the town of New Castle.  Chiselhurst, a residential subdivision in New Castle on 100 acres featuring two small lakes and several tributaries to the Kensico reservoir.  Lakepoint Woods, a 102-lot subdivision on 513 acres in the critical West Branch reservoir basin.  The 25-lot Michaels Glen Subdivision, also in the West Branch basin.  The 12-lot Templand subdivision in Carmel, hard against the banks of the West Branch Reservoir.  Guard Hill, a proposed 24-lot subdivision in Bedford which intends to use a community septic system adjacent to a large wetland area.  Baldwin Meadows, a 40-lot subdivision on 68 acres in Mahopac.  Twin Knolls, a 61-unit, 197-acre subdivision in the Town of Somers, the first phase of which is presently under construction.  The 17-unit Oakview Subdivision on a steep hillside in the Town of Southeast  The 13-unit Ferrovecchio Subdivision in the Town of New Castle  The 46-unit Deer Wood Subdivision in Patterson.

These are the most critical development projects currently proposed in watershed towns. The list does not include the dozens of other projects which have already received approvals from local planning boards and DEP and are either under construction or will be soon. Nor does it include the dozens of smaller subdivisions (between two and ten units) which presently clog planning board agendas across the watershed. The projects listed above are the ones that the City still has a chance to fight. The City's conduct regarding these projects will indicate to the development community the level of the City's commitment to challenge developments that would have deleterious effect upon the quality of New York City drinking water. In each case, the City's signals will be closely watched by the development community as well as municipal governments.

Recommendation #16 DEP Should Create A Pesticide Hotline.

In July 1997, Commissioner Miele promised that DEP would take action to institute a consumer-awareness hotline, whereby DEP would provide Croton watershed residents with information regarding, for example, environmentally benign lawn-care services in order to reduce the amount of pesticides and phosphate based fertilizers that enter the reservoirs.[87] No action has ever been taken.

Commissioner Miele would be hard pressed to point to a single proactive watershed initiative by his administration. There are many opportunities for DEP to adopt non-controversial initiatives to protect water quality. While the City has discussed many of these, none have actually been implemented.

PART V. DEP MUST ACT AS AN ADVOCATE FOR CLEAN DRINKING WATER BEFORE OTHER STATE AGENCIES.

In addition to its role as watershed regulator, DEP must be an advocate for the nine million water consumers who pay 90 percent of the agency's budget.

There are plenty of agency culprits at which to point fingers of blame for the decline of the New York City water supply: federal EPA, state DOH, DEC, the Army Corps, state Department of Transportation and county and municipal governments and planning boards. But the City is universally recognized as the agency with prime responsibility for protecting its drinking water. Other agencies often adopt the attitude that "if it's okay with DEP, it's okay with us." DEP must take the lead.

DEP officials often blame other agencies for decisions or actions that imperil water quality, but are rarely willing to challenge those actions. That unwillingness reflects City Hall's desire for political peace with the governor's office. It also reflects the leadership of Dr. William Stasiuk, DEP Deputy Commissioner. Dr. Stasiuk has strong personal and professional connections to the State Department of Health, and a philosophical discomfort with regulations that impede development and a bureaucrats' reluctance to embarrass sister agencies.

While Dr. Stasiuk's strengths lie in his managerial competence and his ability to force his bureaucracy to respond to top-down control, his weakness is his lack of a firm sense of mission and his personal reluctance to wield that bureaucracy to control watershed development. Dr. Stasiuk no doubt has the professional competency and technical capacity to control development if he were so inclined. However, two forces have bedeviled him: (1) a DEP commissioner less interested in water protection than in political promotion of the Mayor's statewide ambitions, and (2) his unwillingness to stand up to a State DOH bureaucracy determined to facilitate watershed development. Dr. Stasiuk's willingness to control watershed development is key to avoiding filtration, but Dr. Stasiuk will not use the power voluntarily. Only a strong commissioner with vision and the capacity to ask the right questions and set a strong agenda could employ Stasiuk's administrative talents on behalf of true watershed protection.

Dr. Stasiuk spent many years in the DOH bureaucracy defending and facilitating development. His legacy still looms over that bureaucracy. The agency is run by personnel Dr. Stasiuk trained and hired and, in a unique financial agreement with City officials, Dr. Stasiuk's paycheck still comes from DOH. These connections, combined with his long history sculpting the DOH policies that now threaten water quality, make it difficult for Dr. Stasiuk to stand up to DOH as a champion for the water consumers. Dr. Stasiuk's history is described in Appendix A. This section provides recommendations for actions by DEP to redress the actions by state agencies that adversely impact water quality.

Recommendation #17 DEP Should Stand Up To State DOH Decisions That Threaten Water Quality.

DEP has shown no willingness to stand up to edicts and proclamations by state DOH and the County Health Department officials who often favor watershed development.[88] Although the public generally assumes that the DOH has a clear and unambiguous mission - safeguarding public health - the reality is more complicated. Partially due to Dr. Stasiuk's leadership, State DOH, over which he once presided as Deputy Commissioner, has evolved in recent decades as an apologist for developers and a champion for the interest of the upstate real estate lobby. Today, Stasiuk's inability or unwillingness to stand up to pro- development bullying by State DOH infects almost every aspect of DEP's watershed development review practices. The State DOH regularly makes determinations that reverse DEP engineering decisions in favor of watershed development, yet Stasiuk has elected to never publicly and legally challenge his old agency cronies.

According to City DEP's Engineering Chief Ed Polese and others, DOH routinely overrules DEP determinations about development permits. Polese cited as an example DEP's recent decision to reject a septic permit to a Bedford developer due to soil percolation rates that violated state standards. State standards prohibit the siting of new septic systems in areas where percolation rates are faster than 1 minute/inch.[89] New York City's slightly more restrictive watershed regulations prohibit percolation rates that are faster than 3 minutes/inch.[90] The Bedford project's water drained through the perc hole at a rate of 1 inch in 44 seconds, making the site ineligible for a septic system even under state law and much faster than DEP regulations allow. Nevertheless, according to Polese, DOH ordered Polese to permit the development and Polese did as he was told. "Every time we go up to DOH, we lose," Polese told us. He explained that he hadn't considered challenging the order or litigating the case against DOH because, according to Polese:

"You can't win when you're fighting the Health Department. We went by the State and City regulations which disallowed that septic system. The developer took it up to Albany to DOH and DOH told us no, you've got to give it to him. We lost the fight. So when we go up to DOH with the law on our side, it doesn't matter, we always lose."

The S.A.L. Builders subdivision project located in the town of Carmel[91] is another example of DEP capitulation to state DOH's and Putnam County's knee-jerk pro-development bias on permitting issues. DEP Senior Staff Engineer Danny Shedlo disapproved the builder's application to construct a subsurface sewage treatment system based on site constraints that included a 17% grade and insufficient separation distances between the septic system trench bottom and a hardrock ledge. The site was simply inappropriate for a septic system and Shedlo properly rejected it. Six months later, on January 2, 1998, Putnam County DOH visited the site and made an independent determination that the distance to the ledge was sufficient and that no fill would be required for the system. Just three days later, responding to pressure from DOH, DEP's Engineering Deputy Chief Lynn Sadoski summarily overruled Shedlo and approved the system with no mention of the steep slopes or the shallow bedrock. DEP never even calculated the separation distance or the site grade. It simply approved the system based on pressure from DOH.

Recommendation #18 DEP Should Stand Up To Other State Agencies In Favor Of Clean Water.

The State DOH and the New York City DEP are not the only government agencies that have failed to protect water quality. The story of the decline of New York's drinking water quality is a chronology of a massive failure of government: federal, state, city and local. But DEP has primary responsibility and it is DEP's unwillingness to challenge other government agencies that is most responsible for the water supply's continuing decline. Under Commissioner Miele's leadership, DEP has not emerged as the champion of the New York City water supply. In private conversations, Commissioner Miele and other DEP officials often blame state agencies for various failures to protect the watershed. But City officials never act as watershed advocates by publicly pointing the finger at another agency. Public finger pointing is one way to break the logjam of agency paralysis. It creates pressure on agencies that are foot-dragging on watershed protection. Until DEP publicly protects dangerous policies promoted or protected by sister agencies, the public must assume that DEP also is acquiescing or supporting these policies.

Recommendation #19 DEP Should Urge DEC To Upgrade State Classifications Of Watershed Streams.

Watershed advocates, fishing and community groups have been urging New York State Department of Environmental Conservation for more than eight years to reclassify watershed streams to give them the protection the law requires. Under the current classification system, New York State streams are rated AA- Special, AA, A, B, C and D. Streams are rated according to their best use with streams that flow into unfiltered drinking water supplies entitled to the highest possible classification - AA-Special. However, most reservoir streams suffer C or D ratings. (In contrast, all streams that flow into Connecticut drinking water from New York State enjoy "AA-Special" designation, a DEC courtesy to the Nutmeg State.) It has been over 20 years since many of the reservoir streams were reclassified, a process that under the Clean Water Act § 303(c)(1) and state law is supposed to be performed every 3 years.[92]

Astonishingly, in contrast, almost half of New York City's watershed streams are still classified as "D", the lowest possible classification. The "D" designation allows waterbodies to be used for activities that are otherwise forbidden in drinking water sources. For example, D-rated streams are unprotected from physical destruction.[93] In September 1997, DEP police arrested a developer for knowingly dumping construction and demolition debris in two streams in Mahopac, Putnam County. Remarkably, because of the streams' D- rating, neither DEP nor DEC can prosecute these actors for the destruction of the streams.

In response to petitions from various environmental, fishing and civic groups (but not from City DEP which has been silent on this critical issue), DEC's Division of Water Director, N.G. Kaul has promised several times, often in writing, to complete the reclassifications. In each case, Kaul broke his promise.[94] Instead of hastening to reclassify, as the law requires, Kaul, seems to have done everything in his power to sidetrack the upgrades. Where delay alone would not suffice, he has constructed arbitrary policy obstacles to reclassification.[95]

DEC's incredibly slow progress on this issue and DEP's reluctance to push DEC are especially puzzling since there is strong local support for the upgrade, not just by trout fishermen and property owners, but by municipal governments. On February 20, 1998, Michael Savioli of the Westchester County Planning Department and Soil and Water Conservation Department, writing at the behest of Westchester County Executive Andy Spano, stated "[i]t is the Planning Department's and the District's opinion that the reclassification is of highest priority in light of strong development pressures as a result of corporate and residential expansion in the northern part of the county . . . ."[96]

In 1998, DEC held preliminary public informational meetings to announce its planned upgrades. Environmentalists and watershed residents reacted with outrage when Kaul unveiled a meager proposal to upgrade some watershed streams from D to C rather than to A or AA as the public expected. Angry environmentalists met with Erin Crotty, the DEC's Assistant Commissioner, on June 25, 1998, to complain about the Kaul proposal and to urge DEC to upgrade all reservoir streams to AA except those for which there was some compelling reason to do otherwise. Crotty promised to return with a proposal after the November election. No formal proposal has materialized. Crotty did float a disappointing trial balloon in early November, suggesting that DEC would upgrade only the reservoir feeder stream segments to AA and institute discharge restriction categories for other reservoir tributaries, while the remaining tributaries would receive only the upgrades proposed by Kaul. Incredibly, as an excuse, Crotty explained that any higher upgrades mandated by state law might allow the City of New York to escape paying for sewer retrofits and other environmental improvements it had agreed to in the watershed MOA and local communities might instead have to shoulder the burden. As she described it, the State's policy is that the City of New York ratepayers should have to pay for as much as we can stick them with. Federal law requires these upgrades. Crotty's rationale is not a legitimate justification for the state to continue to evade its responsibility to protect the environment and public health. And DEP should be acting as advocate for its 9-1/2 million ratepayers.

DEC's continued failure to reclassify watershed streams is an embarrassment to the state and city governments and a threat to the Croton watershed. DEP should earnestly and energetically push DEC to fulfill this long overdue commitment. New York City residents should be entitled to the same protection that New York State has provided for decades to the water consumers of Connecticut.

Recommendation #20 DEP Should Challenge State Department Of Transportation Projects Which Threaten Water Quality Or Induce Watershed Development And Should Work With DOT To Retrofit All Watershed Roads With State-Of-The-Art Storm Drain Controls.

DEP also has shown itself unwilling to challenge another state agency, the New York State Department of Transportation (DOT), which is behind much of the degradation of the watershed. DOT projects such as the construction of Route 684 in the 1960s and the expansion of Route 35 in the early 1990s helped subsidize sprawl type watershed development, which accelerated declines in raw water quality. The Watershed Agreement (MOA) has done little to change attitudes at DOT. DEP continues to be reluctant to challenge DOT, the darling agency of the state's real estate lobby.[97]

DOT's 1997 proposal to widen Routes 120 and 22 in Westchester County outraged environmentalists and watershed residents. DOT proposed to expand rural Route 120 from a quiet, gently curving two-lane road into a four-lane highway and to reconfigure and expand several nearby exits off I-684. Route 120 runs along the shores of the Kensico Reservoir, which, as terminal basin for the Catskill and Delaware supplies, is the City's most pivotal reservoir. The expansion would cause effects beyond the destruction of forested lands and wetlands. In addition to direct discharges of storm runoff contaminated with sediments, road salts, and motor fluids, the new road will directly facilitate burgeoning commercial real estate development in the Route 120 corridor, including the expansion of giant corporate colonies by Swiss Re, IBM and Travelers Insurance. It also will provide a new cross county access route to Westchester Airport, Greenwich and the Merritt Parkway and will dramatically increase traffic and its attendant pollution. In fact, DOT specifically cites the growth of commercial office parks in the corridor (adjacent to Kensico) as the driving force behind the road expansion.

Instead of vigorously challenging this project, DEP has supported it. On December 15, 1997, the New York Times quoted an astounding assertion by Commissioner Miele in response to public alarm over this project, "[w]hat we're talking about with [the Kensico road construction project] is an improvement."[98] Miele has welcomed the Kensico project as a cheap way to remediate existing runoff problems from poorly designed storm drains along Route 120 into the Kensico. [99]

Miele's idea that the expansion is a "good" deal for city ratepayers because of DOT's theoretical promise to fix its defective storm sewers along the existing route is another example of his lack of leadership and vision. Water consumers should not have to accept a four-lane highway and intensive new development in the most important reservoir basin in order to remediate existing runoff problems caused by DOT's malfeasance. Even a single poorly designed or maintained roadside storm drain can impose devastating impacts on receiving waters.[100]

Instead, DEP should urge DOT to move quickly to install sedimentation basins and pollutant traps to remediate the existing discharges, as part of the state's commitment to consumers and the MOA parties to clean up the Kensico. Additionally, DEP should request DOT to create a comprehensive plan for remediating all watershed storm systems. DEP should also request that DOT publish all current plans for road widening and other construction in the watershed. Doing so would give the public and interested agencies an early opportunity to review those proposals for consistency with the MOA.

There are now over $100 million worth of highway projects under consideration in the watershed towns in Westchester and Putnam counties.[101] Each of these projects has the potential to negatively impact reservoir water quality. Runoff from the larger projects should be collected and either treated or diverted. DEP must take the lead in ensuring that such projects do not threaten the City's fragile reservoir system. Recommendation #21 DEP Should Not Use The Cannonsville Reservoir When The West Branch Reservoir Is Off Line.

DOH's cozy relationship with DEP watershed director Bill Stasiuk, a former DOH Deputy Commissioner, [102] deprives City water consumers of a layer of oversight important to their public health. As the former DOH official who trained and appointed DOH Director Ronald Tramontano, Stasiuk's activities naturally receive much less critical scrutiny by State DOH than is healthy.

One example of Dr. Stasiuk's cozy "see no evil" relationship with his old colleagues at DOH is their willingness to overlook his illegal use of the Cannonsville Reservoir during winter months. The City has, in recent years, bypassed Putnam County's West Branch Reservoir in the autumn and winter months when autumn leaves aggravate pollution in the West Branch. When the West Branch is off line, the City draws water directly from the Cannonsville. This practice, however, violates the 60-day travel time rule, a critical provision of Federal EPA's Filtration Avoidance Determination. That 60-day rule requires that no sewage be dumped into the reservoirs whose waters will reach City consumers in less than 60 days. The rule is meant to keep pathogens including cryptosporidium and Giardia from entering the distribution system alive.

EPA requires that the Cannonsville, which hosts eight sewage treatment plants, be taken off line whenever the West Branch is shut down. When the West Branch and Cannonsville are shut down, the rule requires the City to draw directly from the higher quality Neversink and Pepacton Reservoirs. The State Department of Health recognized the gravity of this mandate when, in December 1991, it ordered then DEP Commissioner Al Appleton to never use Cannonsville waters when the West Branch was off line. The signature on that letter was DOH's then Deputy Commissioner Dr. William Stasiuk. Ironically, Stasiuk now regularly violates his own order with the knowledge and acquiescence of his old colleagues at DOH. "If there is a problem at DEP, Stasiuk can squash it and if it gets up to DOH, he can squash it there too," says a law enforcement official who has investigated DEP, "[s]o the idea that there is oversight is really a charade."

Recommendation #22 DEP Should Explore New Methods For Controlling Turbidity In The Kensico Reservoir.

Another of Dr. Stasiuk's illegal practices that is routinely overlooked by State officials is his aggressive use of alum treatments to reduce turbidities in the Kensico Reservoir. This practice was declared illegal by a federal judge in 1990.[103] Yet, in 1996, DEP dumped 1,236 tons of alum into Kensico. Again in January of 1997, another 118 tons of alum were dumped in the Kensico.[104] There are far less damaging methods for controlling turbidity. The Kensico's turbidity is principally attributed to erosion on the Esopus Creek and siltation from the Schoharie Reservoir basin which is transported to the Ashokan via the Shandaken tunnel and Esopus Creek. Unlike the City's other reservoirs, the Schoharie valve has only a single intake, which is buried in mud at the bottom of the reservoir. These problems might be solved with less environmental disruption by stream stabilization efforts in the Schoharie basin and construction of a new gatehouse at the Schoharie reservoir, allowing the City to choose less turbid waters from the upper strata of the Schoharie.

CONCLUSION

In order to avoid filtration its Catskill and Delaware water supplies, and protect the health of water consumers, DEP must rein in runaway development of its Kensico, West Branch and Croton basins. DEP must exercise its authority to control watershed development, using every tool at its disposal to ensure that each and every project is scrutinized and adverse water quality impacts eliminated. Though individual DEP engineers have performed admirably in battling some of the most dangerous watershed developments, their laudable efforts have been largely overshadowed by an administration unwilling to tackle the problem of accelerating sprawl.

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[1] The first report, released in February of 1999 and entitled "Cops In Cuffs," outlined the City's failure to adequately staff and support the Bureau of Water Supply Policy, the DEP's enforcement and security arm. [2] See Monte Williams, The Eve of Construction: Refugees From City Fear They've Started a Boom, N.Y. TIMES, Oct. 6, 1997, at B1. [3] See the list of 44 separate commercial and residential development projects found in the "Development Review" section of this report, infra. [4] There were 8,504 sales of homes, condominiums and co-op apartments in 1997, shattering all prior records, according to Westchester County Board of Realtors Report released January 26, 1998. [5] See Jay Loomis, House for sale? Not for Long, JOURNAL NEWS, Jan. 26, 1999, at 1A. See also, Jeff Mangum, Home Sales are Surging, JOURNAL NEWS, Oct. 28, 1998, at 1A; Eric Gross, Putnam Leads Valley in Economic Growth, PUTNAM COUNTY COURIER, Dec. 23, 1998, at A1; Ken Valenti, Putnam Leads State in Growth, JOURNAL NEWS, Mar. 12, 1999. [6] See Jay Loomis, Housing Sales Soar, JOURNAL NEWS, Apr. 29, 1999, at 1A. The Journal News reported that Putnam's housing sales surge outpaced a record first quarter in Westchester. "The sizzle shows few signs of cooling," writes Loomis, "[r]eal estate agents in Westchester County sold a record 2,002 residences during the first quarter, a 13 percent jump from the year earlier. In Putnam County, sales rose at an even faster pace of 36 percent." Id. [7] See Tom Anderson, Some Worry Rash of Development May Hurt Environment, JOURNAL NEWS, Oct. 19, 1997. [8] That year was the peak of a 15-year construction boom in the City's watershed. Between 1970 and 1985, the population of the City's watershed shot up by a third. More than 300,000 people now live in the East of Hudson watersheds and 90,000 in the Catskill/Delaware watershed. [9] See Leah Rae & Tim Henderson, Putnam Leads State in Growth, JOURNAL NEWS, Mar. 12, 1999, at 1A. [10] See id. at 2A. [11] See Jay Loomis, Putnam Takes Bite of Big Apple, JOURNAL NEWS, Apr. 19, 1999, at 1A. Putnam's job growth rate of 11.6 percent far outstripped the 2.4 percent growth rate statewide. Putnam is attractive to small manufacturers due to its convenient locations, affordable housing, transportation network and attractive communities. See Kathy Moore & Melissa Klein, Suburban Sprawl Brings New Affluence to Putnam, JOURNAL NEWS, Apr. 12, 1999, at 1A. [12] Eighteen Putnam County farms have disappeared over the past 20 years. [13] See Cathy O'Donnell, Development Fight Looms in Putnam, JOURNAL NEWS, Aug. 9, 1999. [14] See Kathy Moore & Melissa Klein, For Many `Woodchucks,' Putnam's Boom is a Bust, JOURNAL NEWS, Apr. 12, 1999, at 1A. [15] See Tom Anderson & Rob Ryser, Many Would Pay More Taxes to Save Open Land, JOURNAL NEWS, Apr. 18, 1999, at 1A. [16] See DAVID A. STERN, DEP PATHOGEN STUDY OF GIARDIA SPP., CRYPTOSPORIDIUM SPP., AND ENTERIC VIRUSES (July 31, 1997). This report was prepared in accordance with condition 308e-1 of the EPA Filtration Avoidance Determination issued in May of 1997. [17] See id. at 2. The report states that: "Cryptosporidium spp. Oocysts are detected most often in the discharge of urban watersheds followed by agricultural watersheds, and least detected in the discharge from undisturbed watersheds and wastewater treatment plants. Giardia spp. Cysts are detected most often in the discharge of wastewater treatment plants, followed by urban watersheds, agricultural watersheds and than least (sic.) detection in undisturbed watersheds." Id. [18] See id.; See also David A. Stern, Initial Investigation of the Sources and Sinks of Cryptosporidum SPP. And Giardia SPP. Within the Watersheds of New York City Water Supply System, in WATERSHED RESTORATION MANAGEMENT: PHYSICAL, CHEMICAL & BIOLOGICAL CONSIDERATIONS 111-121 (1996). [19] Almost 1 billion gallons of Catskill/Delaware system water pass under the Hudson River and through the Kensico reservoir each day on its way to New York City consumers. Pollution from the surrounding watershed, which is under perhaps the most intensive development pressure, threatens New York City's entire water supply system. Kensico is the keystone of water supply protection. If the Kensico is polluted, the entire system must be filtered. [20] Robert F. Kennedy, Jr., A Culture of Mismanagement: Environmental Protection and Enforcement at the New York City Department of Environmental Protection, 15 PACE ENVTL. L. REV. 233 (1997). [21] Commissioner Miele's development company is known as Miele Associates. See Wayne Barrett, Giuliani's Suicidal Connection, VILLAGE VOICE, Oct. 14, 1997, at 52.

[22] Miele consistently parrots the exact phrase used by generations of DEP engineers to justify their failure to enforce. "DEP policy is to obtain voluntary compliance which is easier, faster and less confrontational than litigation. When we work with [watershed sewer plant] operators," he boasts in the old engineering ideal, "educating them and recommending appropriate technological or operating improvements, deficiencies are corrected within hours or days instead of months and years that may be the result of litigation." See Joel A. Miele, Sr., DEP Vigorously Protecting Its Reservoirs, REPORTER DISPATCH, Oct. 5, 1997. This is virtual reality as contrived by generations of DEP's civil engineers. Real life, of course, is quite different, polluters, including 30% of the watershed sewer plants have consistently and openly violated permits for decades without facing enforcement action.

[23] The state public health law provides unambiguously that construction of septic systems on "slopes greater than 15% are unacceptable." 10 N.Y.C.R.R. §75-A(4)(1). [24] See DIVISION OF ENVIRONMENTAL PROTECTION, NYS DOH, INDIVIDUAL RESIDENTIAL WASTEWATER TREATMENT SYSTEMS DESIGN HANDBOOK (1996). [25] See 10 N.Y.C.R.R. §75.6. [26] N.Y. ENVTL. CONSERV. LAW §§8-0101 - 0117. The retreat from the 15% maximum slope standard also violates the Watershed Memorandum of Agreement (MOA). The MOA provides that new septic systems in the watershed must meet standards that are at least as restrictive as `the most stringent" rules promulgated by New York City DEP, the State Department of Health and the code of the applicable county. The state health code provides explicitly that "[s]lopes greater than 15% are . . . unacceptable [for on-site septic system]." 10 N.Y.C.R.R. §75-A.4. Therefore, under the plain terms of the MOA, fifteen percent is the maximum slope permitted for septic systems. [27] Septic system failure is often cited as a principal cause of declining water quality in the Croton basins. Applications for, and placement of, septic systems on steep slopes is a growing threat in the Croton watershed due to disruptions to landscapes and vegetative cover, the use of imported soils and experimental technologies and the increased risk of failure. There is abundant anecdotal and empirical evidence that septic systems placed on slopes higher than fifteen percent fail at greater rates, and therefore, pose heightened threats to water quality. We have not been able to find any study that justifies relaxation of the existing standards. [28] Only five years before publishing its new cut and fill policy, DOH had threatened New York City with a filtration order for its failure to promulgate and enforce watershed regulations which were tough enough to permanently protect its water supply from polluters and adverse development. When they finally learned of the published interpretation, environmentalists were baffled that the same agency, five years later would perfunctorily amend the regulations to make them even weaker. These parties were particularly concerned about DOH's role in creating this new loophole for developers at a time when census data shows Putnam County to be the fastest growing (and the wealthiest) county in New York State. [29] New York City's approval authority over SSTS is derived from the DOH regulations found at 10 N.Y.C.R.R. app. 75-A.2. [30] See 18 R.C.N.Y. §38(a)(5). [31] See 18 R.C.N.Y. §38. [32] See 10 N.Y.C.R.R. §75.2. [33] Advocates of unrestrained sprawl look at the green vistas and wooded hills of Putnam County and see a commodity that can be liquidated for cash. This strategy might produce a short-term illusion of prosperity and longer-term loot for the county's boom-crazed real estate industry, but it hardly benefits the cultural and spiritual values of small-town America. Not all growth is bad, but unchecked growth of the kind we are seeing in Putnam damages the entire region. Many Putnam residents are watching in horror as sprawl wastefully and relentlessly pushes development into the open countryside, destroying the soothing aesthetic of its working landscapes, devouring wetlands and wildlife habitat, causing traffic, air and water pollution, raising taxes, increasing flooding, killing town centers and eroding civic life. Through unplanned growth, we are inexorably building a Putnam County that contrasts with our idea of what makes a place worthwhile. Instead of fixating on quick profits, Putnam's leaders must do the hard work of planning a physical setting that will support a healthy economy and that is worthy of the affections of county residents. This can be done through the creation of urban boundaries that force towns to grow upwards, not outward, and encourage us all to live within the existing infrastructure for sewage, schools, police and fire, and to maintain population densities within towns sufficient to support downtown business and to preserve property values and the environment.

[34] Wetland and stream filling is now epidemic in the Croton and Kensico watershed. The Westchester/Putnam construction boom has resulted in the annual loss of dozens if not hundreds of acres of smaller wetlands due to careless development. Last year, for example, the headwaters of Putnam County's Secor Brook, one of the state's premier trout streams, were filled by a developer to construct tract housing. The developer neither applied for nor received a permit for this fill activity. There was no remedy under wetlands law since the developer claimed the then-existing 3-acre exemption under Nationwide 26.

Some Catskill communities are particularly in need of individual permitting that would allow the public to comment on the common and often destructive practice of damming or rip-rapping the region's famous trout streams (which are also reservoir tributaries). City engineers and community members must have the authority and opportunity to steer developers away from these critical assets whenever possible. Individual Corps permitting for smaller fill projects would give watershed communities and the general public the control they need to safeguard their most important natural resources.

[35] Under Clean Water Act §404, the Corps is authorized to regulate the discharge of fill into wetlands. Pursuant to this authority, the Corps developed a controversial nationwide system of virtually automatically permitting which applies nationwide and which authorizes certain construction activities within wetlands (including those involving less than 10 acres of fill activity) without site-by-site review. Under the nationwide permit, the country has witnessed the loss of hundreds of thousands of acres of wetlands critical to the maintenance of water quality. [36] Corps regulations define "above headwaters" to mean any wetlands with stream flows of less than 5 cubic feet per second (5 cfs). [37] In a letter to the Corps dated August 31, 1998, New York State DEC's Chief Permit Administrator, William R. Adriance, acknowledged the devastating impact of this rollback on the state's wetlands. Adriance warned the Corps that: "The new nationwide permits (NWPs) are no longer constrained to isolated and above headwaters waters and wetlands. This results in hundreds of thousands of acres of additional waters and wetlands in New York that would now become subject to incremental alteration . . . ." He warned that the change would have the "potential for adverse impacts, both individually and cumulatively." [38] NEW YORK CITY DEP, QUARTERLY REPORT ON THE STATUS OF IMPLEMENTING PROJECTS DESIGNED TO REDUCE NONPOINT SOURCE POLLUTION (Oct. 1, 1998 - Dec. 31, 1998). This document, prepared in accordance with the EPA's filtration avoidance determination, indicates that prior to Commissioner Miele's retreat, enhanced wetlands protection was a central component of the DEP's strategy for controlling non-point source pollution. [39] Two other permit-specific regional conditions, which we also heartily support, affect the New York City watershed. The first states that Nationwide Permit A - Residential, Commercial and Institutional Activities, will not apply in Schoharie Creek or its directly contiguous wetland areas. The second states that Nationwide Permits A, C, D and F will not be available for activities within the Great Swamp in Putnam and Dutchess Counties. [40] See Senator Vows to Fight New York City, CATSKILL MOUNTAIN NEWS, Feb. 17, 1999; Bonacic Drops a Bib Bombshell Re: DEP, MOUNTAIN EAGLE, Feb. 11, 1999.

[41] The City, in its most recent comments to the Corps following its dramatic reversal, has suggested that it has adequate capacity to protect watershed wetlands through its own regulatory program so long as the Corps provides notification to the DEP and copies of all applications for Individual Permits, Nationwide Permits and Pre-Construction Notifications. Commissioner Miele argues that the City has adequate authority in its own watershed regulations to prevent destruction of smaller wetlands so long as it is notified in advance and that the Corps need only notify the City "to allow DEP to identify activities that may pose a threat to the water supply." Letter from Commissioner Miele to U.S. Army Corps of Engineers (Mar. 15, 1999). However, this is patently untrue.

Commissioner Miele was apparently referring to section 18-39 of the Watershed Rules governing the creation of impervious surfaces within 100 feet of a watercourse or wetland. Under this section, the City enjoys authority to review stormwater pollution prevention plans for a variety of projects within the watershed. [18 RCNY §39 (b)(3)] However, Miele's suggestion that this provision protects smaller wetlands is erroneous. The Watershed Rules narrowly define wetlands to include only those wetland areas "mapped as a wetland by the New York State Department of Environmental Conservation pursuant to the Environmental Conservation Law, which is at least 12.4 acres in size, or has been designated as a wetlands of unusual local importance." [18 RCNY §16 (a)(115)] Thus, the City is not empowered to prevent the creation of impervious surfaces in wetland areas not mapped by the DEC, which includes all wetland areas of less than 12.4 acres. Nor is the City empowered to prevent the countless other types of fill activity which, though they do not involve the creation of impervious surfaces, nonetheless adversely affect water quality.

Consequently, the regional condition proposed by the Corps is necessary to protect wetlands from disturbance activities of greater than 1/3 of an acre within the watershed, most of which are not regulated by the DEP or any other regulatory body.

[42] See Politics and the Watershed, N.Y. TIMES, Apr. 8, 1999. [43] See Safe Drinking Water, DAILY NEWS, Apr. 8, 1999. [44] See Wayne Barrett, Watershed Waffle, VILLAGE VOICE, Mar. 30, 1999. [45] The City Council's Committee on the Environment passed Resolution No. 764-A, calling upon the Corps of Engineers to "prohibit the use of Nationwide Permits in the New York city Watershed . . . . " [46] 19 Members of the State Senate and 10 members of the State Assembly signed letters to the Corps of Engineers asking for stringent regional conditions upon wetlands permitting in the New York City watershed.

[47] On May 11, 1999, the City's Congressional delegation sent a letter to the Corps' urging it to "act in accordance with your Clean Water Act responsibilities by designating the remaining New York City watershed wetlands as critical resource waters and establish special permit conditions to safeguard such wetlands to protect the drinking water supply." [48] See 40 C.F.R. §141.71. [49] See 40 C.F.R. §141.71(a)(2). [50] See 40 C.F.R. §141.71(a)(1). [51] 40 CFR §141.71(b)(2). [52] Riverkeeper first raised concerns with DEP about its planned approval of the Zenon system by watershed developers at a June 1997 meeting and then in a letter of October 15, 1997. Riverkeeper and other environmental partners attended a seminar on Zenon sponsored by DEP in Valhalla on January 12, 1998, and reiterated this concern in detail in a subsequent letter to Commissioner Miele on January 22, 1998. In these communications, Riverkeeper repeatedly urged DEP to prepare an environmental impact statement and to conduct public hearings on the use of Zenon in the watershed. During a telephone conversation that followed our January 22, 1998 letter, Miele promised that DEP would adopt no policy for these systems without first notifying Riverkeeper and giving us an opportunity to discuss the issue. However, on February 25th, DEP engineer Penny Kelly, at a public meeting before the Kent Planning Board, unveiled DEP's planned policy guidelines for approval of Zenon systems in phosphorus restricted basins. The meeting was attended by approximately 300 watershed residents (90% of whom were opposed to the project) as well as many watershed developers who were undoubtedly gratified by DEP's pronouncement.

[53] Some examples are:

 The 550,000 square foot Emgee Highlands Mall in Southeast at the intersection of I-84 and Route 311.  The proposed 2,000 seat Hoyt's Cinema, a stone's throw from the East Branch Reservoir in Southeast (Putnam County).  The 300,000 square foot, 103-acre Lake Carmel Factory Outlet Mall on the Middle Branch River in Kent.

None of these sites would be developable at anywhere near proposed densities with conventional septic or sewage treatment. As a result, even if the projects' sewage were to be properly treated by Zenon, increased stormwater pollution threatens the reservoirs. [54] The DEP policy pretends to mitigate the uncertainty of the Zenon system by requiring the applicant to provide space and bonding for a new conventional sewer plant which would be activated should the Zenon system fail to perform as designed. In reality, this allows developers a back door route for building new sewer plants (and developments) while avoiding the all-important 3:1 phosphorous removal requirement provided in the MOA for construction projects within phosphorous restricted basins. The 3:1 removal rate does not simply apply to phosphorous contributions by the sewer plant itself. The regulations require a developer to calculate and demonstrate its ability to remove 3 times the phosphorous that will be added to the watershed by all aspects of his development, including paved surfaces and the growth associated with his development. The conditional approval policy flies in the face of the MOA, which only allows a developer to construct a model sewer plant on the completion of these calculations and their inclusion as enforceable permit provisions in the SPDES permit. The policy requires an applicant to plan for construction of a new sewer plant and allows the development to proceed before the developer makes any phosphorous calculation or demonstrates before a public hearing that such calculations and such removal of phosphorous is even possible. The developer knows that once a mall or corporate center is constructed, the DEP cannot very well shut down operations if you subsequently learn that the Zenon system has failed. Furthermore, the regulations provide a limit on the number and the volumetric capacity of the new sewer plants which this new policy ignores. DEP should refuse to permit these systems for new developments in phosphorous restricted basins until after the systems have been proven and negotiations commence on the new MOA in 2-1/2 years. [55] Each of these projects also has sought to reduce the amount of phosphorous they must offset under the program by lowering their DEC-issued SPDES permit limitations. The offset calculations are based upon SPDES permit limitations. The current DEC permit limitation for new sewage treatment plants is .02 mg/L of phosphorous. Believing they can exceed this standard, the applicants have requested that the DEC apply a seemingly more stringent .01 mg/L permit limitation, which will cut in half the amount of phosphorous they must first eliminate within the basin. [56] In total, the Engineering division employs 67 people. Project Review is staffed by 29 individuals, many of whom are professional engineers. [57] Despite the fact that the City, with strong law on its side, invariably wins its legal contests against watershed developers, high-level DEP staff have a near phobic fear of lawsuits. "What, do you want me to get sued?" Ed Polese recently asked a watershed resident who called to ask why the City was not taking a stronger stand against a disastrous development at Granite Pointe in Somers. [58] The City, under Polese's leadership, is taking a far more restricted view of its authority than did the parties during the watershed negotiations. On several occasions, DEP proposals for stronger regulations were argued down by attorneys for the state and the Coalition of Watershed Towns who reasoned that the City "already had that authority under SEQRA." Clearly, all the parties fully expected the City to exercise its full powers under SEQRA. [59] City lawyers should not only use environmental statutes but tort law to seek natural resources or economic damages against polluters like Anglebrook Golf Course and the IBM headquarters in Somers, each of which caused massive sedimentation in the reservoirs and local watercourses. This will help preserve the system and force polluters to internalize the costs of their activities. [60] During the watershed negotiations, Coalition of Watershed Towns attorneys repeatedly pressed the City to drop its request for more authority to regulate development by arguing that the City already had significant authority under SEQRA. If the City fails to utilize its SEQRA authority, it will be relinquishing the principal tool for controlling watershed development and degradation. [61] See Tom Anderson & Rob Ryser, Many Would Pay More Taxes to Save Open Land, JOURNAL NEWS, Apr. 18, 1999, at 1A. See also Cathy O'Donnell, Development Fight Looms in Putnam, JOURNAL NEWS, Aug. 9, 1999; Cathy O'Donnell, Growing Pains Grip State's Hottest County, JOURNAL NEWS, Aug. 8, 1999. According to a Journal News/Manhattanville College poll, the majority of watershed residents would support the enactment of tough regulations to control development and would be willing to pay a small increase in property taxes to set aside money for open space preservation. [62] The Whims and Woes of Water, BEDFORD/POUND RIDGE RECORD-REVIEW, Apr. 3, 1998. [63] O'Donnell's articles on August 8 and 9, 1999, supra, focus on the declining quality of life in Putnam County caused by uncontrolled growth including exploding school taxes, traffic choked roads, destroyed landscapes and impacts to air and drinking water. Growing Pains Grip State's Hottest County, JOURNAL NEWS, Aug. 8, 1999. [64] See Tom Andersen & Rob Ryser, Many Would Pay More Taxes to Save Open Land, JOURNAL NEWS, Apr. 18, 1999, at 1A. [65] Opponents of Hoyts Theater in the Town of Southeast hired a full-time campaign manager to coordinate legal, public relations and grassroots opposition to the project and have visited Commissioner Miele to enlist DEP's help in opposing the project. A list of projects for which citizens have asked and have been refused DEP aid includes Anglebrook Golf Course and Kent Manor on Michaels Brook. In many cases, the developer could have been stopped dead if the City had intervened in time. [66] In 1988, developer Joseph Ciccolanti sued Kent Planning Board and each of its members, individually, for $23 million when they reduced density of his proposed Michaels Brook development. Faced with hiring their own attorneys to defend themselves against Ciccolanti, the Planning Board immediately reconvened and approved his project. When a local group, PLAN Kent, sued the planning board for its arbitrary reversal, Ciccolanti sued PLAN Kent for $64 million. In the face of the lawsuit, the group dissolved and the approvals stood. [67] Fred Kincheloe was the DEP engineer who discovered the discrepancy. Kincheloe, who has since left his position at DEP, actually visited the site and produced data to support the discrepancy. Kincheloe has been praised by town officials and environmentalists alike for his solid work in reviewing development projects, including the Hoyts Cinema proposal in Brewster. However, other local officials complain about the quality of DEP's technical work. Dave Klaus, Chairman of the Conservation Board of the Town of Yorktown and Yorktown's representative on the Westchester County Environmental Management Council, said "[a] lot of comments we've received from them in the past were not useful and they were often so late that the decision had already been made." [68]In a recent Bedford Planning Board meeting, a Bedford resident raised a question of the impact of the placement of septic systems near Howland's Lake, a tributary to the Croton Reservoir. The Planning Board dismissed the concern suggesting that if it were a valid worry, the City would certainly have raised itself. Little did they know that the City's policy is to almost never raise these issues before planning boards because of its policy of maintaining a "friendly partnership." [69] There also is a growing appreciation among the shrewdest leaders of the desperately needy Catskill communities that development around the Catskill holding reservoirs in Westchester and Putnam is the biggest threat to their hopes for economic revitalization provided by the long term watershed partnership. If the Putnam County real estate lobby succeeds in freezing controls meant to halt the steady decline of the West Branch Reservoir, the City will be ordered to filter and all future payments to the Catskills will cease. For that reason, it is not in the interest of Catskill leaders to defend the Westchester and Putnam development cartels. [70] According to New York City's attorneys, the Town withdrew both its SEQRA negative declaration and its preliminary site plan approval, bringing the project to a halt. DEP engineers and lawyers are now in consultation with the developer regarding management practices which the City will likely insist on if the developer intends to go forward with the project. [71] 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

[81] The Somers' rezoning initiative almost exclusively affects existing single family zones, the vast majority of which have two-acre minimum lot sizes. The increase to a three acre minimum lot size will not have any appreciable impact on affordable housing opportunities in the town. No one has seriously suggested that the reducing the current or prospective availability of two-acre single family lots in Somers adversely affects the opportunity for affordable housing. Instead, Somers' comprehensive plan attempts to encourage a greater concentration of housing density in hamlet centers, preserving the remaining rural, open areas of the Town. This is precisely the vision embodied in the 1997 Watershed Memorandum of Agreement, as well as the Planning Department's own Patterns blueprint. The proposed rezoning will substantially further this objective.

[82] See Mike Caputo, DEP Says Hoyts Plan is Still Oversized, PUTNAM COURIER, Oct. 30, 1998. [83] Id. [84] The Lake Carmel Shoppes project truly runs the entire gamut of possible environmental impacts. Some additional impacts include: * Traffic. The project will bring a tremendous amount of traffic into the Town of Kent, forever altering the quiet, bucolic nature of the area with its attendant noise, air pollution, and hazards.

* Infrastructure. Increased traffic will tax existing town infrastructure, ultimately requiring the reconstruction and repair of town roadways. * Possible spills. With the removal of underground storage tanks, the project may result in spills to soils, surface water or groundwater. * Off-site impacts. The project will also result in significant off-site environmental impacts due to the relocation of the Town of Kent's Highway Garage to a site off Route 52. That site is particularly sensitive due to its proximity to New York State Wetland LC-9. The new garage site is also characterized by steep slopes - 60% of the garage site has greater than 15% slopes. Runoff from this site will adversely impact the wetland area and the on-site streams. * Groundwater levels. Important questions were raised at the Public Hearing regarding the veracity of the groundwater testing performed by the developer. The project may cause wide fluctuations in existing groundwater levels, adversely affecting nearby residents' drinking water wells. * Sewage treatment. The developer proposes to utilize the Zenon system as a substitute for secondary sewage treatment on site. Riverkeeper is opposed to the use of this experimental membrane-filtration system within the New York City drinking water supply watershed. The Middle Branch Reservoir is located in a phosphorous-restricted basin and therefore the possibility of system failure has catastrophic implications for nine million water consumers.

[85] See 18 R.C.N.Y. §41(a). [86] 18 RCNY §41(a). [87] There is strong support even for mandatory pesticide controls in Westchester and Putnam Counties. In 1999, the Town of Greenburgh implemented the first ban on pesticide use on town property in New York State. Westchester County residents, in particular, have shown strong support for pesticide controls and have clamored for more information on pesticide use. A pesticide notification bill currently working its way through the state legislature would provide 48 hours notice of a neighbor's intended pesticide use to adjacent homeowners. State Senator Nicholas Spano, of Westchester County, received over 150 phone calls in one day supporting a strong bill for Westchester County. [88] DOH has long been regarded as a casualty of the "capture phenomena" in which regulatory agencies become the spokesmen and defenders of the community they regulate. This relationship is especially strong at DOH where state and county engineers enjoy cozy and often mutually lucrative relationships with upstate real estate and construction industries. For example, county health department engineers routinely moonlight for watershed developers. Of particular note, Westchester and Putnam Department of Health engineers have represented developers in each other's counties. Former Putnam County Health Department Director John Karell operated an office and represented developers in Westchester County. In 1994, under pressure from environmental parties and New York City, Karell reluctantly abandoned his position with the county health department to maintain his private practice and signed on instead as the Town of Carmel engineer. Additionally, Westchester health engineers John D'Aquino and Dan Donahue maintained a joint practice in Putnam County. Last year, D'Aquino dropped his private practice but Donahue remains. Second, DOH's governing bureaucracy is dominated by civil engineers whose training, philosophy and orientation revolve around crafting engineering solutions of bricks and mortar to solve environmental problems. That institutional culture explains DOH's legendary bias toward engineering and chemical solutions over ecological ones. These civil engineers feel more comfortable building mechanical filtration plants than implementing watershed protection programs. In 1988, DOH's Director of Environmental Protection, Leo Hetling, under Dr. William Stasiuk, declared DOH policy on development of the watershed to Long Island Newsday, "[t]o keep existing water quality, you have to stop development. I have yet to see a government anywhere in the world stop growth." According to a former DOH official, Al Buff, who was then in charge of issues affecting the New York City watershed, "[t]hey fought me from doing anything to protect the watershed." The Safe Drinking Water Act gave federal funds to State Health Departments to protect the state's water system. The money was to be used to hire engineers in each region of the state to monitor implementation of the Safe Drinking Water Act programs. According to Buff, DOH's Deputy Commissioner, Dr. Stasiuk, "made sure that the City never got a penny to monitor water supply or for watershed protection. DOH cut off all financing for the City to monitor pollution in the watershed." When Hetling retired, Stasiuk appointed DOH Toxics Unit Chief Ronald Tramantano to replace him. In 1990, State DOH announced its intention to order New York City to build a filtration plant for the Catskill/Delaware System. DOH later backed down from this position following a clamor by city officials and environmentalists but high level engineers at DOH still quietly speak of filtration as inevitable. [89] See 10 N.Y.C.R.R. §75-A.8. [90] See 18 R.C.N.Y. §38(b)(6). [91]DEP Project # 7077. [92] Under the Clean Water Act, 33 U.S.C. §303(c)(1), "once at least each three year period," all stream classifications are to be reviewed and upgraded to higher classifications. [93] Article 15 of Title 5 of the Environmental Conservation Law, entitled "Protection of Water" does not even include Class D waterbodies within the definition of streams. See N.Y. ENVTL. CONSERV. LAW §15- 0501(2). That section states that no person may "change, modify or disturb the course, channel or bed of any stream" without a permit granted by the DEC. Id. This fundamental protection does not apply to the majority of watershed streams due to their Class D designation. [94] For example, in a letter of October 25, 1996, Kaul's assistant, Colby Tucker, predicted that "we will be holding hearings on reclassification sometime in the spring of 1997 dependent on review of the reclassification proposal by the Governor's Office of Regulatory Reform and others." Kaul's group, the Division of Water, did submit a package to GORR in April 1997. GORR rejected the submission since it did not contain the documents required by law prior to publication. GORR repeatedly contacted Kaul's office to inquire about the whereabouts of the stream packet but DEC ignored the inquiries. [Kaul, who claims to have already completed reclassification of streams in 14 of the 17 DEC designated watersheds across New York State, might be assumed to know the proper documentation necessary for GORR review]. In a letter dated January 30, 1998, Kaul again promised that the DEC "will be holding public hearings on the Lower Hudson reclassifications in the spring of 1998." Those hearings also did not occur.

[95] For example, Kaul recently announced that DEC will not process any petition for reclassification received after the apparently arbitrarily chosen year of 1986. Provision for such a cutoff date is found nowhere in the statute or regulations which impose on DEC the straight and simple mandate to upgrade review of all waterbody classifications every three years. When Kaul's division finally got around to actually proposing reclassifications for the lower Hudson in 1997, its original proposal did not include any petitions which were submitted after 1986. Kaul even omitted upgraded proposals by DEC's own fishery biologists that were completed after that date. Kaul cited "reduced resources" available to the Division of Water and reasoned that it was Mario Cuomo's first DEC Commissioner Henry Williams and not he who had originally proposed the 1986 cutoff date. It does not seem to matter to Kaul that Williams' proposal was made thirteen years ago at a time when upgrades were pending. Thirteen years have passed and the DEC has failed to reclassify a single lower Hudson region stream!

The cutoff date also excluded from review dozens of petitions generated by the hard work performed by DEC's own fisheries division. Many watershed streams are entitled to the coveted "T.S." (trout spawning) sub-designation which requires an even higher level of care and protection. DEC's fisheries division had conducted surveys upon dozens of watershed streams, catalogued trout and trout spawning habitat and submitted petitions for reclassification to the Division of Water. However, when Kaul finally submitted his upgrade reclassifications to the Governor's Office of Regulatory Reform (GORR) in April of 1997, Kaul had ignored the solid science, substantial research and multiple hours of labor, stream testing and field studies by DEC's own biologists, recommending lower classifications in one quarter of the streams recommended for upgrade. Kaul's group arbitrarily stripped all these streams of their T.S. classification without any science or even an explanation to support the change. DEC claims that it will correct this error in its forthcoming reclassification proposal. However, that proposal has itself been slow to materialize - perhaps due in part to a delay requested by the DEP so that its fisheries expert, Tom Baudanza, could complete his survey of Croton watershed streams for trout and trout spawning designation to augment the announced reclassification. Baudanza found native trout spawning in dozens of Croton system streams and the DEP has recommended trout spawning and trout classifications for those streams. Baudanza and the DEP submitted their list to Kaul in December. Another three months have passed and still no reclassification proposal has materialized. One exasperated DEC employee, who has spent well over a decade of his career working in part on stream reclassification, recently told us, "I hope to see this happen before some us old guys are forced to retire." [96] See Letter from Michael Saviola, , to John Keane, President, Croton Watershed Chapter Trout Unlimited (Feb. 20, 1998). See also Letter from Dr. M. Rose, President, Croton Watershed Clean Water Coalition to George Pataki, Governor, New York State (Jan. 28, 1998); Letter from Michael Saviola, Westchester County Planning Department and Soil and Water Conservation Department, to George Niktovich (Feb. 10, 1998); Letter from George Klein, Chair, Lower Hudson Group Sierra Club, to George Pataki, Governor, New York State (Feb. 20, 1998); Letter from John Keane, President, Croton Watershed Chapter Trout Unlimited, to N.G. Kaul, (Feb. 23, 1998); Letter from George Niktovich, to N.G. Kaul, Director, Division of Water, NYSDEC (Feb. 6, 1998). [97] DOH's support of DOT's shoddy environmental practices is another black mark for that agency. For example, in 1993, soon after the City proposed draft watershed regulations, state DOH Deputy Commissioner went to bat for DOT winning the agency a major exemption at the expense of watershed protection. Mayor Dinkins' administration had submitted proposed regulations giving DEP permitting authority over new road construction and expansion, a power that watershed experts regard as critical to guarding a watershed against careless and unplanned development. But DOH exercised its own authority to veto this provision. [98] Elizabeth Kolbert, Will Water Mix Well With Asphalt?, N.Y. TIMES, Dec. 15, 1997, at B1. [99] Miele's faith in DOT was based upon a memorandum of understanding (MOU) that the Department of Transportation promised to sign with DOT in 1997 to resolve their conflicting objectives on watershed projects such as Route 120. The move was necessary since DOT is not bound by the Watershed Agreement. In fact, the MOU was not finally signed until March 11, 1999, almost two years after Miele promised, and it does not bind DOT to any particular action. The DOT is not bound by the Watershed Rules and Regulations. While the MOU provides that the DOT will assemble stormwater pollution prevention plans for projects within the watershed, the MOU does not bind DOT to actually comply with the rules and regulations. It states that the DOT comply with the regulations "to the maximum extent practicable." See Memorandum of Understanding Between the New York State Department of Transportation and the New York City Department of Environmental Protection Concerning Transportation Projects in the Watershed of the New York City Water Supply.

[100] In March, Riverkeeper and Trout Unlimited filed a 60-day notice letter of intent to sue DOT under the Clean Water Act for illegal discharges from a storm drain adjacent to the Route 6 bridge over the West Branch of the Croton River in Putnam County. The storm drain vomits sediment into the West Branch Croton River. According to DEC's fisheries division, the stream segment that is now endangered as a result of this discharge may be the most productive wild brown trout stream in New York State. DEC found trout populations in the stream to be 700 percent higher than the average for other New York State trout streams.

[101] These projects are listed below. The date indicates when contract bidding could take place. Putnam: July: Resurface Route 311 from Cross Road to Route 22, Patterson. September: Replacement of Route 6 bridge over west branch of Croton River, Carmel. October: Construction of Putnam bikeway, stage 2. November: Replacing County Route 60 bridge over Middle Branch Croton. Westchester: May: Drainage improvements on Route 117, Bedford. May: Resurface I-684 from Tamarak Swamp to Harris Road, Bedford. July: Replacement of Route 22 bridge over Muscoot Reservoir. July: Intersection improvement on I-684 at Hardscrabble Road. September: Maintenance Repairs on Route 22 bridge over Rye Lake, North Castle. December: Intersection improvement, Route 121 at Staysail Farm, North Salem. January 2000: Resurface Route 133 from Vails Lane to Route 100, New Castle. March: Resurface I-684 from Harris Road to Route 35, Bedford According to the Department of Transportation, other projects under consideration include bridge painting, drainage improvements, and tree removal. [102] Stasiuk is still on DOH's payroll. [103] Hudson River Fishermen's Association v. City of New York, 751 F. Supp. 1088 (S.D.N.Y. 1990). The fishermen's association was the predecessor of Riverkeeper, Inc.. [104] NEW YORK CITY DEP, 1997 ALUM POST-TREATMENT OPERATIONS REPORT 10 (March 1997).

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