Title: Section 128-8.2 - Watershed planning in the Croton System

Section 128-8.2 Watershed planning in the Croton System.

(a) Notwithstanding the prohibitions set forth in section
128-3.6 on new or expanded wastewater treatment plants with surface
discharges within the sixty 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 128-8.2. Section
128-8.2 is independent of, does not govern, and is not governed by, section
128-8.1.

(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) below 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), or the additional
phosphorus load is offset pursuant to subparagraph (e)(4)(ii).

(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 paragraph (i) above.

(iv) An identification of areas identified in paragraph (i)
above 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.

(v) An identification of areas identified in paragraph (i)
above 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.

(ii) Proposed measures to address water quality problems
identified in paragraph (c)(1)(ii) above. 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 paragraphs (c)(1)(iv) and (v) above;

(ii) An identification of the economic, water quality and
community character impacts of allowing growth within those areas
identified in paragraphs (c)(1)(i), (iv) and (v) above, if directing growth
in accordance with paragraph (c)(3)(i) above 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 (e) below, 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 subsection (c)(1)(iii) above;

(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 these rules
and regulations.

(d)(1) If a County requests, pursuant to section 128-8.2(b),
that a Croton Plan be developed within five (5) 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 (5) 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 (6) 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 subsection (d) of this section, meets
the overall goals of the Croton Plan, set forth in subsection (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
(5) year period referred to in paragraph (1) above, and/or the six (6)
month period referred to in this paragraph (2) 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).

(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 sixty (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 subsection (d) of this section and meets the overall goals
of the Croton Plan set forth in subsection (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 fifteen (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 (i), 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
sixty day travel time, provided that the Department has determined pursuant
to section 128-8.4, based upon the results of the pilot programs set forth
in sections 128-8.2(g) and 128-8.3(a), 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 (1) kilogram
of projected increase in the phosphorus load resulting from the proposed
new wastewater treatment plant, together with any accompanying nonpoint
source runoff, is actually offset by at least three (3) 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)
above, 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.

(5) With respect to any new or expanded wastewater
treatment plant allowed pursuant to this subdivision (e), 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 (e), 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 sections 128-8.2(g), 128-8.3(a) and
128-8.4.

(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) above, 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), 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 thirty (30) days after receipt of a notice as
described in subdivision (f)(1) above, 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 subdivision (b)(2) above, the Department
shall, within thirty (30) days of receipt of a notice as described in
subdivision (f)(1) above, 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 the County and
municipalities in generating the data and information reasonably necessary
to address the Croton Plan elements identified in subdivision (c) above.

(4) The provisions of subdivision (e) above 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 (f)(1) above 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) above, 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 (5) 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 (1) 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 (3) 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 these rules and
regulations;

(4) No more than three (3) 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 (3) 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.