Relates to the regulation of the use of the state's water resources; repealer

Summary of specific provisions

Section 1 of the bill would amend Environmental Conservation Law (ECL) § 15-1501 to simplify the existing water supply permit program and to expand the program to require permits for the most significant water uses. Specifically, ECL § 15-1501 would be amended to: (1) require that, once DEC promulgates regulations, all persons that. operate or propose to operate a water withdrawal system with a capacity equal to or greater than the "threshold volume" of 100,000 gallons per day (gpd) obtain a permit from DEC; (2) confirm that a supplier of public water may not install or construct a public water supply system until it has received approval from the New York State Department of Health (DOH); (3) require DEC to, promulgate rules and regulations to implement a permitting program for. water withdrawals equaling or exceeding the threshold volume; (4) authorize DEC to consolidate existing public water supply permits for administrative efficiency; and (5) exempt certain withdrawals from permitting requirements.

Section 2 of the bill would amend ECL § 15-1502 to add definitions for the following terms which the bill would add to Title 15 of ECL Article 15: "compact basin commission," "environmentally sound and economically feasible water conservation measures," "interbasin diversion," "person," "potable," "public water supply system," "threshold volume," "water withdrawal system" and "withdrawal."

Section 3 of the bill would amend ECL § 15-1503 to: (1) make conforming amendments necessitated by other amendments to Title 15 made by the bill; (2) clarify the information that must be provided with a permit application; (3) require that, in making its permit decisions, DEC shall determine whether a proposed withdrawal takes into consideration other sources of supply that are or may become available, will be adequate for the proposed use, is just and equitable to all affected municipalities and their inhabitants, cannot be reasonably avoided through efficient use and conservation of existing water supplies, is limited to quantities that are considered reasonable for the purposes for which the water use is proposed, and will be implemented in a manner that ensures it will result in no significant individual or cumulative adverse impacts,

incorporates environmentally sound and economically feasible water conservation measures, and is consistent with applicable municipal, state and federal laws and regional and international agreements; and (4) provide that a new permit for a water withdrawal system and a permit renewal will be valid for a period not to exceed ten years.

Section 4 of the bill would add a new section, 15-1504 to the ECL relating to water withdrawals for agricultural purposes. 1) Requires applicable persons who make water withdrawals for agricultural purposes to register annually or report the withdrawal to the Department; 2) Defines "great lakes Basin" and "Great Lakes water"; 3) relates to registration for Great Lakes water; 4) Requires a report from any person who withdraws more than 100,000 gallons per day in any consecutive 30 day period; and 5) Relates to compliance with other articles of ECL.

Section 5 of the bill would amend ECL § 15-1505 to: (1) provide that no person may make a new or increased interbasin diversion of water which results in a diversion in excess of one million gpd until the person has registered the diversion with DEC; (2) provide that no later than one year from the bill's effective date, all existing diversions in excess of one million gpd must be registered with DEC; (3) provide that no person shall make a new or increased interbasin diversion which results in a significant adverse impact on the water quantity of the source New York major drainage basin; and (4) authorize DEC to assess an annual registration fee of $200 for all persons required to register an inter- basin transfer, unless the diversion is part of a water withdrawal system for which DEC has issued a permit pursuant to Title 15,

Section 6 of the bill would amend ECL § 15-1521 to make conforming amendments necessitated by other amendments to Title 15 made by the bill and to make technical amendments.

Section 7 of the bill would amend ECL § 15-1529 to provide that, in lieu of DEC inspection and approval, the construction of any water withdrawal system will be supervised by a licensed professional engineer that will certify to DEC and the owner that the system has been fully completed in accordance with the approved engineering report, plans and specifications, and the permit.

Section 8 of this bill would repeal, effective December 31, 2014, Title 16 of ECL Article 15 (Title 16), related to Great Lakes water conservation and management, because the provisions of Title 16 will be incorporated, into the permitting requirements of Title 15 as amended by this bill.

Section 9 of the bill would repeal, effective December 31, 2014, Title 33 of ECL Article 15 (Title 33), which was added by Chapter 59 of the Laws of 2009 to enable the State to gain information about large water withdrawals, given that the information collected pursuant to Title 33 will be incorporated into the permitting requirements of Title 15 as amended by this bill.

Section 10 of the bill would amend ECL § 71-1127 to increase the maximum civil penalty for violations of ECL Article 15 from $500 to

$2,500 per violation and from $100 to $500 for each day during which the violation continues.

Section 11 of the bill would provide for an effective date of April 1, 2012, except that sections 8 and 9 of the bill, which would repeal Title 16 and Title 33, would take effect on December 31, 2014.

Existing law

ECL Article 15 sets forth New York's water resources program. Title 15 sets forth then provisions related to regulating water supply, ECL § 15-1501 requires public water suppliers to obtain a permit from DEC. ECL § 15-1502 provides the definitions applicable to Title 15. ECL, § 15-1503 sets forth the criteria applicable to DEC's decision to grant or deny a permit, ECL § 15-1505 requires a permit for supplying water to other states, ECL § 15-1521 authorizes DEC to require, that an applicant for a water supply permit make provisions for and supply water to other areas of the state if the areas should be supplied by the water source sought by the applicant. ECL § 15-1529 requires DEC approval of completed construction before a project may be operated. ECL § 71-1127 establishes the maximum civil penalty for any person who violates the provisions of ECL Article 15 or any rule, regulation, order or permit issued thereunder. ECL Article 72 establishes various environmental regulatory program fees.

Justification

New York State is fortunate to have plentiful water resources. The preservation and protection of these resources is vital to New York's residents and businesses, who rely on these resources for drinking water supplies, and to support agriculture, manufacturing and other industries and recreation in the State. Aquatic and terrestrial flora and fauna are also dependent on these critical resources to maintain healthy populations. Good policy and sound natural resource management practices are critical to assuring long-term supplies of water to meet these needs.

Pursuant to the ECL, DEC has been entrusted with the responsibility to conserve and control New York State's water resources for the benefit of all the inhabitants of the State. However, the water supply provisions of Title 15 derive primarily from statutes written in the first half of last century, and therefore are outdated. Under the provisions of Title 15, DEC generally only has authority to regulate public water supplies to ensure adequate quantities of potable water. As a result, consumptive uses of water for agricultural, commercial, and industrial consumptive uses remain largely unregulated.

Moreover, since the provisions of Article 15 were enacted, population growth, pressures to keep water instream for fisheries and the environment, and increased use of water for commercial, industrial and other purposes have resulted in substantially increased demands on the State's water resources, In addition, potential impacts from climate change, and proposals to export vast amounts of water from New York to other states and abroad could pose new threats to the State's water supply. These issues have served to highlight the limitations on the State's water resources program and DEC's limited ability to regulate water withdrawals for many purposes. In contrast, neighboring states of Connecticut, New Jersey, Rhode Island, and

Massachusetts all have programs that regulate industrial, commercial and agricultural water withdrawals.

Another important recent development is enactment of the Great Lakes-St. Lawrence River Basin Water Resources Compact (Compact) which includes a number of provisions to preserve and protect the water resources of the Great Lakes-St. Lawrence River Basin (Great Lakes Basin). The Great Lakes Basin is home to 20 percent of New York's population and covers approximately 50 percent of New York State by area. A key provision of the Compact requires that New York regulate all water withdrawals occurring in the New York portion of the Great Lakes Basin. Once the provisions of the Compact are fully implemented in New York, a significant portion of the. State's water resources will be protected.

These developments, and the potential adverse effects of climate change, support the need to implement more effective measures as proposed by this bill to protect and conserve all of New York's water resources.

This bill, by authorizing DEC to implement a statewide permitting program for all water withdrawals of equal or greater than 100,000 gpd, would allow New York to meet one if its significant responsibilities under the Compact: implementation of a regulatory program for water withdrawals in the Great Lakes Basin. Further, this bill would result in a strengthening of the water conservation elements of the current permitting program and encourage water reuse, consistent with the Compact and sound resource management.

Finally, by focusing DEC's jurisdiction on significant withdrawals which exceed 100,000 gpd, DEC would no longer be required to issue permits for smaller public water supplies. This change would allow DEC to focus its attention on large withdrawals that have the potential to have significant impact on the quantity and quality of the State's water resources, while relieving smaller communities of the regulatory burden of obtaining a permit from DEC. Although small public water supplies would be exempt from. DEC's permitting process, DOE would continue to regulate these smaller withdrawals to ensure their adequacy and the protection of public health.

Prior legislative history

S.8280A Passed Senate in 2010

Fiscal implications

This bill would not have any significant fiscal impact on the State because DEC would implement the new requirements with existing resources

Effective date

This Act shall take effect April 1, 2012; provided, however, that section four of this act shall take effect immediately; and provided further that sections eight and nine of this act shall take effect December 31, 2014.