Testimony of Rohit T. Aggarwala Commissioner, New York City Department of Environmental Protection before the New York City Council Committee on Environmental Protection,[...]

October 28, 2024

Good afternoon, Chair Gennaro and members of the Committees on Environmental Protection, Resiliency, and Waterfronts. I am Rohit T. Aggarwala, Commissioner of the Department of Environmental Protection (DEP). I am joined today by Assistant Commissioners David Warne and Shilo Williams of the Bureau of Water Supply to talk about the Filtration Avoidance Determination (FAD) and the preservation of our water supply in general. I will also share DEP's perspective on the several bills being heard today.

The Filtration Avoidance Determination

New York City's water supply comes from a network of 19 collecting reservoirs upstate, ranging from Kensico in Westchester to Schoharie and Cannonsville, each more than 100 miles away from the City. (Two other reservoirs - Hillview in Yonkers and Jerome Park in the Bronx - are only holding reservoirs and do not collect runoff.) Typically, 10% of our annual water consumption comes from the Croton network of reservoirs in Westchester, Putnam, and Dutchess Counties, which are the oldest reservoirs and are the successors of the original Croton system of 1842. Croton water is all filtered at our Croton Filtration Plant in the Bronx, which opened in 2015. (As you know, due to the currently ongoing repair of the Delaware Aqueduct, roughly 30% of our water right now is coming from the Croton system.)

In normal periods, 90% of our consumption comes from the Delaware and Catskill watersheds, which are entirely west of the Hudson River. These two watersheds are covered by the Filtration Avoidance Determination, which allows us - as its name implies - to avoid filtering the water from these systems. The water is treated with both chlorine and ultraviolet light to disinfect it, but we rely on natural systems to keep the water clear.

Going back to the origins of New York City's water supply in the 19th century, state law had given New York City the authority to regulate certain polluting activities to keep the water clean. This gave us a head start when, in 1989, the US Environmental Protection Agency (EPA) promulgated the federal Surface Water Treatment Rule. The Rule required all surface water supplies, like New York City's, to be mechanically filtered unless the water supplier could demonstrate the water met certain health-based criteria and that there were controls in place to protect against contamination. In fact, all of New York City's water supplies - including the Croton system - met the Rule's health-based water quality standards. However, the level of development in the Croton watershed meant that DEP did not believe it would be possible to control future potential pollution sources. As a result, DEP moved to adopt filtration for the Croton system, and to seek a FAD for the Catskill and Delaware systems.

What is the FAD?

The FAD is a regulatory waiver that allows New York City to avoid the filtration requirement of the Surface Water Treatment Rule. It is based on the ability of New York City to convince the EPA (now, the New York State Department of Health (NYSDOH), under delegated authority from EPA) that there are controls in place to protect against future pollution. There are many tests and reports that are required to document that we are maintaining both water quality and ongoing pollution prevention, and there are key tests that we could fail, which would lead NYSDOH or the EPA to mandate that New York City immediately move to build a filtration plant. The FAD also requires us to develop contingency plans for such a situation.

When we speak of "the FAD," in fact we are speaking of several interconnected protocols. The FAD itself is a 10-year directive from the State Department of Health. The current FAD will be up for renewal in 2027. Following the issuance of the first FAD in 1993, DEP was a party to the NYC Watershed Memorandum of Agreement (MOA), which was signed in 1997. This agreement between the City, the State, EPA, watershed jurisdictions, and environmental stakeholders such as Riverkeeper, further codified DEP's land acquisition and Watershed Protection programs. In addition, DEP's land acquisition activities in the watershed in compliance with the MOA are authorized by a withdrawal permit which is granted by New York State Department of Environmental Conservation (DEC). This permit expires in 2025 and we are currently negotiation the next ten-year permit.

The FAD is a globally-recognized pioneering example of payments for ecosystems services. Ultimately, by protecting nature, and compensating watershed residents for the costs of those protections, New York City water ratepayers are paying to ensure that nature can filter our water, and thus avoiding the expense of building and operating a massive filtration plant. Since 1993, New York City has invested roughly $2.5 billion in the programs that make the FAD work. This is a sizeable investment, but one that continues to pay off and is far smaller than what a filtration plant would cost.

In 1993, when the first FAD criteria were implemented, the main risks to our water supply were human and agricultural. As a result, the FAD broadly includes three cornerstone programs.

The first was the land acquisition program, which preserves the pristine landscape that produces high quality source water and protects against excessive development. When the reservoirs were constructed, the City purchased about 78,000 acres of land - 35,000 for the reservoirs and an additional 43,000 acres around them. Since 1997, we have tripled our footprint, purchasing an additional 155,000 acres in the watersheds as buffer lands for water quality protection. By comparison, the entire land area of New York City is roughly 194,000 acres. We own more land in the watershed than there is land in the five boroughs.

The second program addressed wastewater from the population of the watershed. DEP funded installation of high-level treatment technology on more than 30 existing wastewater plants in the watershed. This treatment, know as tertiary treatment, effectively eliminates pathogens from the plant effluent and also reduces nutrient discharge. Further, DEP paid to construct new centralized wastewater systems in more than twenty communities. DEP has ensured that more than 6.000 septic systems - serving homes and small businesses - have been repaired.

The third program has addressed agricultural runoff. The watershed is home to hundreds of small, family-owned farms that produce dairy products, beef and produce. Working with local partners, DEP subsidizes on-site evaluations of each farming operation and recommends tailored practices to reduce or eliminate polluted runoff. With DEP funding, thousands of Best Management Practices, or BMPs, have been installed on hundreds of farms in the past 30 years. These BMPs have the added benefit of often enhancing farm operations and profitability, thereby sustaining farming as a vital part of the watershed economy. These are voluntary programs, and today, 90% of the large farms in the watershed participate.

The FAD relies on a network of watershed partners, who receive funds from DEP and implement our programs. These partners include the Catskill Watershed Corporation, the Watershed Agricultural Council, four local Soil and Water Conservation Districts, the Cornell Cooperative Extension and the Catskill Center. These organizations are trusted in their communities and hence are often more effective at obtaining local support and participation than DEP would be directly.

The mid-term review of the FAD was completed and NYSDOH issued revisions in December 2022. As part of that review, the National Academy of Science undertook a review of the FAD so that all involved could benefit from impartial scientific analysis of the FAD and its programs. We are in the midst of applying for a new permit from DEC that will involve changes to our land acquisition program, including the focus on the highest priority areas that I mentioned above. The next FAD is due to be negotiated for 2027, and we are already assessing what will be required for the FAD to continue for the foreseeable future.

The new union representing the DEP Police are currently engaged in an effort to secure State and City approval for an appropriate law enforcement pension. DEP Police have a civil service pension plan, not a law enforcement one. This means that DEP Police cannot retire until age 63, while most police officers in New York State can retire after 25 years of service. Because our officers are fully trained and licensed - in fact, DEP has its own police academy - we are constantly losing our officers to other forces, in large part because of this massive disparity in the pension. We currently have nearly a 20% vacancy rate, despite doing everything we can to recruit and retain these important officers.

Being an esteemed presence

DEP's outsized role in the watershed - as a land owner, a major employer, a police force - makes it critical that we are a valued member of the community. I'm pleased to say that in fact we are held in high esteem by residents of the watershed. In fact, we undertook a Siena poll last year to understand how watershed residents west of the Hudson viewed DEP, and we were rated very highly. In particular, watershed residents appreciate that DEP makes so much of our lands available for recreation, which is a cornerstone of the quality of life in the area and a key aspect of its tourism and second-home economy. They also appreciate the benefits the DEP police bring.

It was less widely understood that - despite being a government entity - DEP pays taxes on its property in the watershed. In fact, we are the largest taxpayer in all of the west-of-Hudson watershed counties, and the second largest taxpayer in Westchester. In many school districts, DEP actually pays a majority of the school system's revenues. All told, we paid $165 million in taxes upstate last year.

More broadly, we have to be sensitive to the concerns of watershed residents, who are often concerned that land acquisition and land-use restrictions can hinder economic development. We incorporate public amenities into capital work where we can, just like we do around the city. For example, we recently broke ground on an infrastructure project that will include a new parking lot for a local school. Going forward, we need to ensure that we are always on the lookout for ways that our operations can also create benefits for our watershed neighbors. By being an "esteemed presence" in the watershed, we can ensure that there is the long-term support that will allow us to protect the FAD for generations to come - and for DEP to play a leading role in defining the future of the FAD.

Future of the FAD

As successful as it is, the FAD is not necessarily permanent. It can be revoked on fairly short notice if we fail to fulfill our obligations or if our water quality fails to meet standards, even if those failures are caused by storms or other factors beyond our control. There are only six water systems in the US that have FADs or their equivalents, and one of them - Portland, Oregon - recently lost their FAD because of the detection of naturally-occurring pathogens that had not been in their source water before and require filtration to eliminate. EPA gave Portland only 10 years to build their treatment plant - which, at 135 MGD, is less than one-tenth the size of a plant we would need - and their filtration plant will cost roughly $2 billion. This cost reinforces that we have to be vigilant.

It also reminds us that the FAD must be based on the science. The FAD has succeeded not because it was good environmental policy or good economic policy; it has succeeded because it was sound water quality policy.

The scientific review by the National Academy that I mentioned found that our land acquisition program could use adjustment. The region is divided into four areas - priority areas 1 through 4 - based on their potential to impact water sources. Most important are the lands bordering our reservoirs and their tributaries, and these are priority areas 1 and 2; further away are lands in priority areas 3 and 4. Until now, we have sought to acquire land in all of these areas. But the National Academy found that continued purchases in areas 3 and 4 would have no more benefits to water quality, while land in priority areas 1 and 2 remain as important as ever, if not more so. As a result, we recently altered our land acquisition practices to focus more on priority areas 1 and 2 and to end programmatic purchases in areas 3 and 4.

Going forward, we must continue to ensure that the FAD evolves as threats to water quality evolve. Increasing water quality standards mean that there are limits to how much chlorine we can use to disinfect water after a major storm. Climate change means that intense storms are more frequent. While we have traditionally worried about human and agricultural contamination, the massive rebound in wildlife populations, particularly around the Kensico Reservoir, means that these are also a source of potential contamination, especially after severe storms and after the short-term extreme droughts that climate change may bring. The new FAD in 2027 will need to continue to protect against historic threats, and also guard against these new ones. What is certain is that the FAD will need to evolve; if it does not, it is far more likely to fail. And if it does not evolve based on the science, it will certainly fail.

This is one more reason that DEP must be an esteemed presence in the watershed and that we have to invest in our own research: we need to ensure that DEP has the standing to play a leading role in defining the future of the FAD.

We also must plan for the possibility of full filtration at some point in the future, even as we seek to avoid it. The current FAD requires DEP to maintain contingency plans for filtration, and the experience of Portland - which was given only 10 years by the EPA to build its filtration plant - demonstrates the importance of such plans.

As I mentioned, the FAD has been a point of pride for DEP and the City for many decades. It is a credit to our staff and to the generations of dedicated civil servants who preceded us and laid the groundwork for the system we manage today.

Legislation

Before concluding, I will take a few minutes to speak about each of the bills on today's agenda.

Intro. 33 would require DEP to notify Council Members and community boards 48 hours before any work that would cause discolored water or loss of water pressure.

Currently, our community affairs team notifies community boards as soon as we confirm locations for emergency construction. They also update impacted community boards and elected officials during water main breaks in real time. Prior to water shut offs, our contractors and field operations teams post notices in neighborhoods and on doors with information on potential impacts and instructions. We are committed to keeping constituent, robust communication with elected officials and residents. We have recently created the position of Borough Commissioner in our community affairs unit, specifically to strengthen lines of communication. We welcome discussions about how we can make additional improvements.

Because this bill would codify and refine current DEP practice, we would like to work with the council to ensure that it does not unnecessarily add cost or complicate operations. For example, we currently schedule work the day before it is done, so could not send notifications 48 hours before. As a result, we agree with the objectives of this bill but would seek to collaborate on the language.

Intro. 225 would require DEP to establish a website with schedules and other information on a broad range of our operations. We currently provide a great deal of information both in real time and through NYC Open Data, which includes fully 43 datasets which DEP provides and updates. We offer real-time information on our website on a variety of topics, ranging from reservoir levels and the source of water to each part of the city to whether the Newtown Creek gas-to-grid facility is operational. In addition to the MMR, we publish annual reports on water quality, on the state of the sewers, and of course on our finances.

The bill as written is breathtakingly broad and the information it seeks would, I believe, be essentially impossible to convey in the way the bill seems to intend; further, it would require significant cost and headcount to attempt to do. We have several ongoing internal efforts that map our work that could be made public, and we would be happy to work with the Council to narrow the bill's scope and understand what information is needed, for what purpose, and by whom.

Intro. 816 would require DEP to notify, by first class mail, all owners of property with water or sewer service when the City requests a rental payment, on a strict timeline.

I certainly agree that people should understand what their water rate payments are spent on. I would like to work with the Council, though, on the details. For example, a dedicated first-class mailing would cost about $1 million. Further, under the City's lease to the Water Board, we do not actually always know when the City will request a rental payment. Above all, DEP does not set water rates; rather, the rates are set every year by the NYC Water Board though a legally prescribed process that requires public hearings and public notice requirements. The Water Board is a state entity that is legally separate from the City and DEP.

It is also important to note that the rental payment, if there is one, is not the only factor that is included in the rate setting calculation, as illustrated in this chart from the FY25 water rate hearings earlier this year.

We have already been exploring the potential to let New Yorkers know how their water bills are being spent, as many other utilities do. An example of what that might look like is below ¹. If ratepayers understand what their payments are going to, they would have context to be more informed when looking at rate proposals for future years.

Intro. 900 would require DEP to install 500 drinking fountains around the city by 2030. While we support any effort that encourages more people to drink our tap water, we, unfortunately, do not believe that this proposal is feasible. Installing 500 fountains would cost about $20 million. DEP does not currently maintain any water fountains, so maintaining these new fountains would require hiring a new, dedicated team of staff. We do not currently have sufficient staff or even the appropriate staff to do so. It is not clear that this would be a legitimate use of water rate funding, so we would need appropriations from general tax levy funding. We are happy to work with you to develop programs to ensure access to drinking water around the city, but we strongly believe that this proposal is not the best way to achieve that goal.

Finally, Intro. 1067 would require DEP to hire Community-Based Organizations (CBO) to identify properties that have been damaged by groundwater flooding, connect those property owners to assistance programs, and provide case management support to the property owners. The bill also creates a taskforce focused on Southeast Queens flooding adaption assistance.

We have been very seriously focused on the overall problem of flooding and on the challenges of Southeast Queens. For several years, as you all know well, one of DEP's top priorities has been to implement better flood management around the city. This has included assistance to property owners through the Rainfall Ready program and the more recent townhall-style flooding information sessions that DEP has been hosting this past year, which included a flood preparation kit.

We have also been focused on groundwater flooding. We have an ongoing effort with the US Geological Survey to map and monitor groundwater levels across the City, which is of interest as sea level rise has been raising groundwater levels across the Eastern Seaboard. We have also been focused on those experiencing flooding in Southeast Queens. That part of New York City has $2.5 billion in the current capital plan for stormwater management, which means that it is receiving more investment than any other part of the city. We have also been working to clarify the groundwater flooding issue, and we find that some residents may be conflating groundwater flooding with other forms of flooding.

We welcome the opportunity to work with the Council to expand this work. We do not think, though, that the program laid out in this legislation is the best way that DEP can support residents. DEP does not provide the sort of case management assistance to homeowners that would be required by this bill. Rather, one approach we are exploring is whether the NYC Accelerator, which provides precisely this kind of direct advice and assistance to building owners around energy efficiency, could be expanded to offer advice to homeowners on flooding issues.

We and the Mayor's Office of Contract Services (MOCS) also have concerns about the contracting requirements in the bill. The Law Department is reviewing, so we would like to discuss these issues in the near future.

Today's hearing covers a number of important areas. I am joined by several colleagues, sitting here with me and behind me in the audience. We are happy to answer any questions that you have.

¹Cost of construction and construction debt includes cost of paying for debt on water and wastewater bonds and funds to provide cash for construction work in place of issuing bonds. Administrative costs include the costs of running the Water Board and Water Finance Authority. Rental payment to the city is the rental payment. Operations and maintenance costs agency costs of running the water and wastewater system.

Appendix: DEP-provided data to NYC Open Data

1. DEP Green Infrastructure
2. DEP - Cryptosporidium And Giardia Data Set
3. DEP's Citywide Parcel-Based Impervious Area GIS Study
4. DEP Demand Management Projects
5. NYCDEP Citywide Hydrants
6. Water Consumption in the City of New York
7. Municipal Separate Storm Sewer System (MS4) Data
8. NYCDEP Citywide Catch Basins
9. Citywide Outfalls
10. Current Reservoir Levels
11. Certified Asbestos Investigators
12. NYCDEP Recreation Area Maps
13. Drinking Water Quality Distribution Monitoring Data
14. Wastewater Treatment Plant Performance Data
15. Significant Noncompliance List
16. Water and Sewer Permits (Historic)
17. Compliance at-the-tap Lead and Copper Data
18. Work Order Management Module
19. Land Acquisition Statistics
20. Clean Air Tracking System (CATS) Permits
21. Free Residential at-the-tap Lead and Copper Data
22. Watershed Water Quality - Sites
23. Water and Sewer Permits
24. Recreational Boating Permits
25. Watershed Water Quality - Hydrology
26. Recreational Boating Permits
27. Watershed Water Quality Data
28. Watershed Water Quality - Wastewater Qualifiers
29. Watershed Water Quality - Limnology Qualifiers
30. Watershed Water Quality - Hydrology Qualifiers
31. Distribution Sites LCR Monitoring Results
32. Entry Point LCR Monitoring Results
33. Watershed Water Quality - Limnology
34. Watershed Water Quality - Keypoint
35. Watershed Water Quality - Keypoint Qualifiers
36. NYC Stormwater Flood Maps
37. Harbor Water Quality
38. Summary of DBP Quarterly Report
39. Asbestos Control Program (ACP7)
40. Dewatered Solids and Biosolids Allocations per Biosolids Management Practice Site
41. Lead Service Line Location Coordinates (Map)
42. Wastewater Co-digestion and Biogas-to-grid Performance Indicators
43. Lead Service Line Location Coordinates

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