N.Y. Comp. Codes R. & Regs. tit. 10 § 128-8.2

Current through Register Vol. 46, No. 25, June 18, 2024

Section 128-8.2 - Watershed planning in the croton system

(a) Notwithstanding the prohibitions set forth in section 128-3.6 of this Part on new or expanded wastewater treatment plants with surface discharges within the 60-day travel time to intake or within phosphorus restricted basins, the department shall allow for the preparation and implementation of a Comprehensive Croton System Water Quality Protection Plan ("Croton Plan") and an accompanying phosphorus offset program and diversion credit program in accordance with this section. This section is independent of, does not govern, and is not governed by, section 128-8.1 of this Subpart.

(b)

(1) At the request of Dutchess, Putnam or Westchester County, and in partnership with Dutchess, Putnam or Westchester County, and the municipalities located in the Croton system watershed, the department shall prepare or assist in the preparation of a Croton Plan only in a participating county or counties which:

(i) identifies significant sources of pollution to the Croton system;

(ii) recommends measures to be taken by the department, the counties, and the municipalities which, in conjunction with other Federal, State, local and department water quality protection programs, will prevent degradation to, and improve, water quality, with the long term goal of attaining water quality standards in the Croton system; and

(iii) recommends measures to be taken to protect the character and special needs of communities located within the watershed.

(2) A county wishing to do so may, when joined by a majority of municipalities located within the county's watershed, choose to prepare the Croton Plan for the portion of the watershed located within the county. Such Croton Plan shall be prepared in partnership with the department.

(3) The Croton Plan shall be developed in the manner set forth in subdivisions (c), (d) and (e) of this section and may allow for new wastewater treatment plants with a surface discharge or for the expansion of existing wastewater treatment plants with a surface discharge, provided the additional flow is either offset by a diversion of wastewater off of the watershed pursuant to subparagraph (e)(4)(i) of this section, or the additional phosphorus load is offset pursuant to subparagraph (e)(4)(ii) of this section.

(4) Any data that would benefit the Croton Planning process that is in the possession of the department or one of the counties or municipalities participating in the development of a Croton Plan shall be shared among the participants and appropriately considered in developing a Croton Plan.

(c) The Croton Plan shall consist of the following three elements:

(1) Identification of water quality problems and community character needs. Such identification shall include the following elements:

(i) an identification of growth or development projected to occur under existing municipal zoning and master plans and allowed under existing land use controls, other than these rules and regulations, and including development necessary to maintain community character, public facilities and institutions and to serve local, regional or special needs;

(ii) an identification of specific existing water quality problem areas and specific sources of pollution to the Croton system, including areas of existing or imminent subsurface sewage treatment system failures, areas of concentrated point source discharges and substantial non-point source pollution, and areas in need of streambank stabilization;

(iii) an assessment of future water quality impacts related to growth or development identified in subparagraph (i) of this paragraph;

(iv) an identification of areas identified in subparagraph (i) of this paragraph where site constraints may prevent the siting of new subsurface sewage treatment systems in accordance with the requirements set forth in these rules and regulations; and

(v) an identification of areas identified in subparagraph (i) of this paragraph where these rules and regulations prohibit new surface discharges from wastewater treatment plants and site constraints prevent the siting of a new wastewater treatment plant with a subsurface discharge.

(2) Identification of investments to correct existing water quality problems in accordance with developed priorities. Such identification shall include the following elements:

(i) the identified investments may include investments (i.e., capital projects and best management practices) implemented during the development of the Croton Plan, investments that the participating counties and municipalities commit to implement, and an identification of priorities for future investments, without any commitment on the part of the counties and municipalities to implement such investments; and

(ii) proposed measures to address water quality problems identified in subparagraph (1)(ii) of this subdivision. Such measures may include subsurface sewage treatment system maintenance, rehabilitation and replacement programs, installation of community septic systems, the construction of sewer extensions or new sewerage systems, stormwater controls, and the permanent diversion of wastewater to a discharge point outside of the watershed.

(3) Strategies for prevention of future water quality problems and the consideration of future community character needs in conjunction with the water quality goals of the Croton Plan. Such strategies shall include the following:

(i) an assessment of the economic, water quality, community character, and special needs impacts of directing growth away from areas identified in subparagraphs (1)(iv) and (v) of this subdivision;

(ii) an identification of the economic, water quality and community character impacts of allowing growth within those areas identified in subparagraphs (1)(i), (iv) and (v) of this subdivision, if directing growth in accordance with subparagraph (i) of this paragraph is not feasible or practical;

(iii) an identification of potential areas for the construction of new or expanded wastewater treatment plants, as provided for in subdivision (e) of this section, either under a future permanent phosphorus offset program or utilizing the 10 percent credit provision for an implemented diversion project and a statement of the reasoning for the selection of such potential areas;

(iv) an identification of land use and local laws and regulations that the participating counties and municipalities have already implemented and/or agree to implement in the future which are intended, in combination with other measures in the Croton Plan, to mitigate the water quality impacts identified in subparagraph (1)(iii) of this subdivision;

(v) with respect to future land use issues, identification of mechanisms to ensure the improvement and protection of water quality is taken into consideration by the local government and that the local government agrees to use best efforts to implement such mechanisms; and

(vi) at the option of the local government, designation of village centers as provided for in section 128-3.9(a)(7)(i) of this Part.

(d)

(1) If a county requests, pursuant to subdivision (b) of this section, that a Croton Plan be developed within five years of the effective date of these rules and regulations, the department, in partnership with the participating counties and municipalities, and in consultation with the New York State Department of Health, shall complete a draft Croton Plan and release such draft Croton Plan for public review and comment. If a Croton Plan has been prepared by a county and its municipalities, the county and municipalities, in partnership with the department and in consultation with the New York State Department of Health, shall complete a draft Croton Plan within five years of the effective date of these rules and regulations and release such draft Croton Plan for public review and comment. The department, the participating counties and municipalities shall consider and respond to comments received from the public in preparing the final Croton Plan.

(2) Within six months after the release of the draft Croton Plan, the final Croton Plan shall be agreed to by the department and the counties and municipalities which participated in the preparation of the Croton Plan, and in consultation with the New York State Department of Health. In determining whether to agree to the Croton Plan, the department will consider the Croton Plan, including the level of commitments therein, taken as a whole and consistent with this subdivision, meets the overall goals of the Croton Plan, set forth in subdivision (b) of this section. The department will not approve or disapprove individual components of the Croton Plan. The department and the participating counties and municipalities shall make a reasonable effort to resolve any and all issues which preclude their agreement to the Croton Plan. The five-year period referred to in paragraph (1) of this subdivision, and/or the six-month period referred to in this paragraph may be extended by agreement of the department and the participating counties and municipalities. In addition, the participating counties and municipalities may, at any time, agree to discontinue the development of the Croton Plan.

(3) A failure of any participating county or municipality to agree to the Croton Plan shall not affect the ability of another participating county or municipality to agree to the Croton Plan and to site new wastewater treatment plants or to expand existing wastewater treatment plants with a surface discharge in accordance with subdivision (e) of this section.

(4) Once the Croton Plan is agreed to by the department and the participating counties and municipalities, the Croton Plan shall be considered valid and effective. The participating counties and municipalities agreeing to the Croton Plan may, upon 60 days written notice to the city, modify the plan at any time after it has been agreed upon. If the Croton Plan is proposed to be modified, the department shall make a determination within 60 days of notice of the proposed modification, whether the Croton Plan, as modified, shall continue to be valid and effective. In making such a determination, the department shall consider whether the Croton Plan, as modified and taken as a whole, is consistent with this subdivision and meets the overall goals of the Croton Plan set forth in subdivision (b) of this section. Any approved Croton Plan remains in effect pending any determination on a proposed modification and shall remain in effect until and unless either the department agrees to a modification or a local government modifies it without the department's approval or ceases to implement it.

(5) Any Croton Plan agreed to shall be reviewed by the participants to the plan 15 years after the Croton Plan becomes effective in order to determine whether the Croton Plan has met and will continue to meet its goals, and to determine whether new goals are appropriate.

(6) The counties and the municipalities agreeing to the Croton Plan shall submit to the department an annual report each year the Croton Plan is in effect. The annual report shall be submitted on the anniversary of the date the Croton Plan became effective and shall include:

(i) a statement of the status of the development or implementation of measures proposed in the Croton Plan;

(ii) a statement of expenditures incurred by the counties and municipalities in implementing, and administering measures proposed in the Croton Plan; and

(iii) An identification of the financial, personnel and other resources needed to continue implementation and administration of the measures proposed in the Croton Plan.

(e) The Croton Plan may allow for the siting of a new wastewater treatment plant with a surface discharge or the expansion of an existing wastewater treatment plant with a surface discharge in the Croton System within a phosphorus restricted basin or a basin located within the 60-day travel time, but not within a coliform restricted basin, pursuant to the following conditions:

(1) site constraints prevent the proposed new wastewater treatment plant or the expanded existing wastewater treatment plant from discharging subsurface;

(2) the municipal government and the county in which the wastewater treatment plant would be sited, confirms in writing that the proposed new wastewater treatment plant or the expansion of an existing wastewater treatment plant is consistent with the Croton Plan;

(3) the department, in consultation with the New York State Department of Health, determines that the proposed new wastewater treatment plant or expansion of an existing wastewater treatment plant is consistent with the water quality objectives of the Croton Plan; and

(4) the discharge from the new wastewater treatment plant or the expansion of an existing wastewater treatment plant complies with one of the following conditions:

(i) the total volume (or flow) of surface discharge from such new wastewater treatment plant or expansion of an existing wastewater treatment plant, together with the total volume of surface discharges from all other new wastewater treatment plants and expansions of wastewater treatment plants which have been permitted in the subject county pursuant to this subparagraph, shall not, in the aggregate, exceed 10 percent of the total volume (or flow) of surface discharge from wastewater treatment plants located in the Croton system, within the subject county, which previously discharged into the Croton system but have been permanently diverted, since the effective date of these rules and regulations, to a discharge point outside of the watershed. The department may approve applications to construct new wastewater treatment plants with surface discharges pursuant to this subdivision prior to the permanent diversion of wastewater, and allow construction to begin on such new wastewater treatment plants, provided that the wastewater treatment plant may not commence operation until the diversion for which the credit is received has actually occurred; or

(ii) in phosphorus restricted basins located outside of the 60-day travel time, provided that the department has determined pursuant to section 128-8.4 of this Subpart, based upon the results of the pilot programs set forth in subdivision (g) of this section and section 128-8.3(a) of this Subpart, or of other studies conducted within the watershed, that the phosphorus offsets sought by the pilot programs have been achieved, the department may require that each one kilogram of projected increase in the phosphorus load resulting from the proposed new wastewater treatment plant, together with any accompanying non-point source runoff, is actually offset by at least three kilograms of reductions in phosphorus loading within the basin within which the proposed project is located, including reductions from measures identified in and implemented in accordance with the Croton Plan pursuant to paragraph (c)(8) of this section, and otherwise eligible for an offset hereunder, whether the source of the offsets is in the same basin or within an upstream, hydrologically connected phosphorus restricted basin; and

(5) with respect to any new or expanded wastewater treatment plant allowed pursuant to this subdivision, the department will not impose additional requirements on the siting of such new or expanded wastewater treatment plant other than the requirements specifically set forth in these rules and regulations applicable to all wastewater treatment plants, the requirements of this subdivision, and, with respect to new or expanded wastewater treatment plants in phosphorus restricted basins relying on phosphorus offsets, the requirements of any phosphorus offset program pursuant to subdivision (g) of this section, and sections 128-8.3(a) and 128-8.4 of this Subpart.

(f)

(1) A county or municipality wishing to participate in the preparation of the Croton Plan shall indicate its intention to participate by written notice to the department given within one year of the effective date of these rules and regulations. Such notice shall include a commitment by the subject county or municipality to cooperate with the department in generating and analyzing the data and information reasonably necessary to address the Croton Plan elements identified in subdivision (c) of this section, and an agreement to minimize the use of offsets as a basis for new wastewater treatment plants or expansions of existing wastewater treatment plants pursuant to subdivision (e) of this section, to the extent that the economic and social needs of such county or municipality can be reasonably addressed without the use of such offsets.

(2) Within 30 days after receipt of a notice as described in paragraph (1) of this subdivision, the department shall notify a county or municipality of its inclusion in the preparation of a Croton Plan.

(3) If a county and its municipalities wish to prepare a Croton Plan, in accordance with paragraph (b)(2) of this section, the department shall, within 30 days of receipt of a notice as described in paragraph (1) of this subdivision, authorize the county and municipalities to begin preparation of such a Croton Plan. Such authorization shall include a commitment by the department to cooperate with county and municipalities in generating the data and information reasonably necessary to address the Croton Plan elements identified in subdivision (c) of this section.

(4) The provisions of subdivision (e) of this section shall not apply in any county or municipality which fails to participate in the preparation of the Croton Plan, fails to cooperate with the department in the manner described in paragraph (1) of this subdivision in preparing the Croton Plan; fails or ceases to implement any water quality protection measures which such county or municipality has committed to implement as part of the final Croton Plan agreed upon by the county, municipality and the department; or where a previously agreed upon Croton Plan is no longer valid and effective.

(g) In Putnam County, provided that Putnam County has committed in writing to participate in the development of the Croton Plan pursuant to subdivision (d) of this section, the department shall allow for a pilot program to evaluate the effectiveness of phosphorus offsets as a potential basis for allowing construction of new wastewater treatment plants within phosphorus restricted basins in the Croton system. Such pilot program shall be limited to a term of five years, commencing on the effective date of these rules and regulations and expiring on the fifth anniversary thereof. During the term of the pilot program, the department may approve within a Putnam County municipality which has committed in writing to participate in development of the Croton Plan, the construction of a new wastewater treatment plant with a surface discharge within a phosphorus restricted basin in the Croton system provided that the following conditions are met:

(1) the applicant proposing a new wastewater treatment plant demonstrates that the county or municipality agrees to the plant's inclusion in the pilot program;

(2) the applicant demonstrates, and commits to take action to insure, that for every one kilogram of projected increase in the phosphorus load resulting from the new wastewater treatment plant and accompanying non-point source runoff, there will be an offset which achieves at least three kilograms of reduction in phosphorus within the basin in which the new wastewater treatment plant is located, whether the source of the offset is in the same basin or within an upstream hydrologically connected phosphorus restricted basin;

(3) all new wastewater treatment plants proposed to be constructed pursuant to this pilot program shall be reviewed and approved by the department in accordance with section 128-3.6 of this Part;

(4) no more than three wastewater treatment plants with surface discharges may be located in the Croton system in Putnam County pursuant to this pilot program. The total capacity, as constructed, for the three proposed wastewater treatment plants shall not exceed a maximum of 150,000 gpd aggregate surface discharge; and

(5) any wastewater treatment plant constructed pursuant to this pilot program shall be designed and operated to meet a total phosphorus effluent limit of.2 mg/l.

(h) Nothing in this Subpart is intended to constrain, limit or preclude an applicant from seeking, or the department from issuing, approval of or a variance for a proposed regulated activity under any other applicable provision of these rules and regulations.

(i) Nothing in this section or in the Croton Plan is intended to constrain or limit the authority of local governments under State law to make local land use and zoning decisions, and nothing in this section or the Croton Plan should be construed to have the effect of transferring such local land use and zoning authority from the participating local governments to the department or any other entity.

N.Y. Comp. Codes R. & Regs. Tit. 10 § 128-8.2