Relates to the regulation of the use of the state's water resources; requires permits for interbasin diversions of water and approval of modification to existing systems

Summary of 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 adopts 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, except that a water withdrawal for agricultural purposes would require a permit if it exceeded an average of 100,000 gpd over any 30-day period; (2) provide that all valid public water supply permits or approvals issued by DEC or its predecessors remain in full force and effect for purposes of satisfying the new permit requirement; (3) provide that existing water withdrawals would be entitled to an initial permit based on their maximum water withdrawal capacity reported to DEC on or before February 15, 2012 pursuant to existing law; (4) clarify 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) as may be required by the State Sanitary Code; (5) require DEC to adopt regulations to implement a permitting program for water withdrawals equaling or exceeding the threshold volume; (6) authorize DEC to consolidate existing multiple public water supply permits covering a single existing water withdrawal system for administrative efficiency; and (7) exempt certain water withdrawals from permitting requirements, including withdrawals for agricultural purposes that have been registered or reported to DEC on or before February 15, 2012.

Section 2 of the bill would amend ECL § 15-1502 to add definitions for the following terms: "agricultural purpose," "compact basin commission," "environmentally sound and economically feasible water conservation measures," "interbasin diversion," "person," "potable water," "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, 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 any renewal thereof will be valid for a period not to exceed ten years.

Section 4 of the bill would add a new ECL § 15-1504 to make the provisions in existing Titles 16 and 33 of ECL Article 15, which would be repealed by sections 8 and 9 of the bill, applicable to water withdrawals for agricultural purposes that are registered or reported to DEC under such titles on or before February 15, 2012. While such existing agricultural withdrawals would not require a water withdrawal permit, they must continue to be registered and reported under the new ECL § 15-1504 in the same manner as required under Titles 16 and 33.

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 February 15, 2013, all existing diversions in excess of one million gpd must be registered with DEC; and (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. This section would exempt from the registration requirement an interbasin diversion which is part of a water withdrawal permitted by DEC or its predecessors.

Section 6 of the bill would amend ECL § 15-1521 to provide that the Public Service Commission has jurisdiction to set the rates for the supply of water by one public water supply system to another and make technical and conforming amendments necessitated by other amendments to Title 15 made by the bill.

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 must be supervised by a licensed professional engineer that will certify to DEC 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 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 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, because 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 February 15, 2012, except that section 4 of the bill would take effect immediately, and sections 7 and 8 of the bill, which would repeal Title 16 and Title 33, would take effect on December 31, 2013.

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. BCL 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 maybe 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.

Legislative history

A similar bill, 2010 Governor's Program Bill 51, passed the Senate (S.8280-A) and was introduced in the Assembly (A.11436-B).

Statement in support

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 now and into the future.

Pursuant to ECL Article 15, 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's regulatory authority is largely limited to public water supplies to ensure adequate quantities of potable water. As a result, consumptive uses of water for agricultural, commercial, and industrial purposes remain largely unregulated by the State.

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 New York to regulate all water withdrawals occurring in the New York portion of the Great Lakes Basin.

This bill, by authorizing DEC to implement a permitting program for all water withdrawal systems with a capacity equal to or greater than 100,000 gpd, would allow New York to meet its Compact obligation to implement a regulatory program for water withdrawals in the Great Lakes Basin. Moreover, application of the program statewide assures consistent requirements throughout New York and creates an even regulatory playing field while at the same time protecting the State's finite water resources. 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, 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, DOH would continue to regulate them to ensure their adequacy and the protection of public health.

Budget 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 bill would take effect February 15, 2012; provided, however, that section 4 would take effect immediately; sections 8 and 9 would take effect December 31, 2013; and that any proceeding commenced prior to February 15, 2012 pursuant to ECL § 15-1521 shall remain under the jurisdiction of DEC.