Amendment of Watershed Rules

Adopted Rules: Closed to Comments

Effective Date: 
Friday, November 29, 2019

Statement of Basis and Purpose of Rules
The purpose of the Watershed Regulations is to protect public health by preventing contamination to and degradation of the City’s surface water supply. The amendments incorporate changes in federal and state law and address issues that have arisen during administration and enforcement of the Watershed Regulations.
The amendments to the Watershed Regulations include revisions to replace the existing approach for evaluating alterations and modifications of subsurface sewage treatment systems (“SSTS”) – and for determining whether systems that have been discontinued for five years or more years can be brought back into service – with an approach that focuses primarily on how well the SSTS will serve the proposed use, consistent with public health and water quality concerns. These amendments also provide that where certain ancillary, non-residential use of a residence does not change the nature or rate of flow of sewage to its SSTS, the use is not subject to DEP’s review and approval, allowing for example, a home office use or certain transient guest overnight accommodations.
These amendments also include various revisions which relate to the incorporation of the NYSDEC 2015 State Pollutant Discharge Elimination System (“SPDES”) General Permit for Stormwater Discharges from Construction Activity. Additionally, the revisions establish a category of small, limited impact projects for which stormwater pollution prevention plans can be simpler, similar to the existing framework for individual residential stormwater permits. The amendments also eliminate the description of the phosphorus offset pilot program, which had a limited term and was completed.
These amendments revise the definition of “new” and “existing” regulated activities. As defined in prior versions of the Watershed Regulations, the term “new” applied to all regulated activities undertaken, constructed, installed, or implemented after May 1, 1997, and the term “existing” applied to those activities prior to May 1, 1997. The amended definition preserves the meaning of the terms “new” and “existing” as they are used in the current regulations with regard to certain non-complying regulated activities — i.e., storage of hazardous substances, storage of petroleum products, and the siting of junkyards and solid waste management facilities which, if discontinued for two or more years, must comply with the Watershed Regulations or permanently desist. For other regulated activities, the word “existing” is used in its more conventional sense to refer to activities that exist or are in operation at the time they are being considered under the amended regulations.
These revisions incorporate standards for holding tanks and portable toilets. DEP will not review and approve holding tanks or portable toilets; rather, these revisions establish standards consistent with applicable State guidance. The amendments remove the term “service connection” and clarify the definition of a “sewer connection” relieving past confusion in administering the existing regulations and expanding its definition to include the conveyance all sewage, industrial and other wastes and update the design standards used for sewer connections.
In addition, these amendments eliminate the “hardship” criterion necessary for obtaining a variance from the Watershed Regulations, which has not proven to further water quality goals. These amendments improve due process provisions for applicants when DEP seeks to modify, suspend or revoke an approval. This includes new procedures on how to seek a hearing, and how to appeal a DEP determination, before the City’s Office of Administrative Trials and Hearings (“OATH”).
These amendments include re-issued watershed maps included in Appendix 18-A, based upon updated information from DEP’s LiDAR survey of the watershed. In addition, Appendices 18-B and 18-C are combined and certain revisions are incorporated to clarify the standards used for analysis of water quality samples.
The amendments include technical corrections such as substituting more recent versions of publications cited in the Watershed Regulations, updating certain technical terminology, and modifying or changing the order of certain text to improve clarity and intelligibility. Some of the plain language and clarification revisions were identified as part of the retrospective rules review conducted by the Mayor’s Office of Operations.
In addition to these amendments, DEP intends to work closely with NYSDEC as it updates its SPDES General Permit for Stormwater Discharges from Construction Activity, the current version of which will expire in January 2020, and NYSDEC’s related Stormwater Management Design Manual. DEP intends to further amend these rules to incorporate NYSDEC’s 2020 Construction General Permit, and potentially to include other related changes at that time to ensure appropriate stormwater controls based on sound scientific information.