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Environment Committee Update: Clean Water Infrastructure Act of 2017 (Article VII TED Part II) & Health Part M, Part R, and Part T

Introduction

Last week the State of New York finalized the 2017-18 spending plan. The final agreement includes a $2.5 billion Clean Water Infrastructure Act of 2017, which is aimed at helping municipalities upgrade their drinking and waste water treatment facilities, homeowners improve their septic systems, land trust to purchase watersheds, remediate solid waste sites, mitigate drinking water contamination and help farmers comply with Department regulations. The legislation is $500 million more than the $2 billion Gov. Andrew Cuomo proposed in his executive budget plan, and will be funded through appropriation.

Click here to view the final bill language:
Part M Emerging Contaminant Monitoring
Part R Drinking Water Quality Council
Part T Source Water Protection Projects (ECL 15-3301)

Executive Budget

Governor Cuomo’s State of the State included the announcement of the Clean Water Infrastructure Act of 2017. The highlight of the proposal was a plan to provide $2 billion in critical water infrastructure across New York State. The proposed budget did not contain specific appropriations for specific programs.

Contained in the executive’s budget proposal were a number of new statutory programs and amendments to current remedial programs not directly related to implement the Clean Water Infrastructure Act of 2017. The Business Council had some concerns with the proposal (see memo in opposition), including the following:

Legislative Response

Both houses of the legislature altered the Clean Water Infrastructure Act markedly.

Final Agreement on Funding

The final agreement for water infrastructure represents a $500 million increase over the executive proposal of $2.5 billion.

Final Agreement (S.2007B - A.3007B)

Part M Emerging Containment Monitoring

Part M adds a new section, 1112, to the Public Health Law, which requires the Commissioner of Health to promulgate regulations to identify and list substances as emerging contaminants that meet the following criteria:

When the Commission determines what substances shall be listed as emerging contaminants the Commissioner shall, at a minimum, consider:

The Commissioner by declaration may add any physical, chemical, microbiological or radiological substance to the list of emerging contaminants if the Commissioner determines that:

The Commissioner shall, however, promulgate regulations adding such new emerging contaminant or establishing such notification level within one year of such declaration.

Part R Drinking Water Quality Council

Part R establishes a Drinking Water Quality Council. The Council shall be tasked with developing a list of emerging contaminants for the Department of Health to consider. In addition, the Council will be tasked with the development of well testing material for the private homes, to work with other state agencies to oversee the pursuit of parties responsible for contamination, and a few other items listed below.

The Drinking Water Quality Council will include twelve members:

The Council will make recommendations to the Department of Health regarding the following:

In addition the Council is tasked with:

The Council is required before it advances any recommendation to the Department of Health to provide an opportunity for public and stakeholder comments.

Part T Source Water Protection Projects (ECL 15-3301)

The new Title 33 authorizes the DEC to provide state assistance to municipalities, not-for-profit corporations and soil and water conservation districts to undertake land acquisition projects for source water protection.

Provided no state assistance may be provided to fund any land acquisition project which is undertaken by eminent domain unless such process is undertaken with a willing seller.

In addition the Department shall not provide funding by a not-for-profit corporation, if any town, village or city within which such a project is located, by resolution, within ninety days of notification objects to such acquisition

The Department, when conducting evaluation of projects, shall give priority to projects which protect or recharge drinking water sources and watersheds including riparian buffers and wetlands and shall promote an equitable regional distribution of funds.  When evaluating individual land acquisitions projects the Department shall review:

Mitigation and Remediation of Certain Solid Waste Sites and Drinking Water Contamination (ECL Title 12 of Article 27)

The newly established Title 12 will provide the DEC with additional authority to address and remediate solid waste and drinking water sites. The final agreement reflects a significant reworking of the original language. The final Title 12 includes new definitions for solid waste site, drinking water site, mitigation, contaminant, and contaminant. 

Solid Waste Site Cleanup Program ECL 12-1203

The DEC is authorized to conduct preliminary investigations to determine if a solid waste site is causing or substantially contributing to imminent or documented drinking water source contamination.  Where the DEC has determined through a preliminary investigation conducted that a solid waste site is causing or substantially contributing to contamination of a public drinking water supply the DEC may mitigate and remediate a solid waste site or area which is necessary to ensure that drinking water meets applicable standards. To conduct mitigation and remediation of solid waste site the DEC shall have the following authorization:

Mitigation of Contaminants in Drinking Water ECL 27-1205

The DEC in conjunction with the Department of Health may undertake all reasonable and necessary additional mitigation measures to ensure that drinking water meets applicable standards, including maximum contaminant levels, notification levels, maximum residual disinfectant levels, or action levels established by the Department of Health. In any area of the state whenever the Commissioner of Health has required a public water system to take action to reduce exposure to an emerging contaminant or emerging contaminants and has determined that the concentration of the emerging contaminant constitutes an actual or potential threat to public health based on the best available scientific information pursuant to section eleven hundred twelve of the public health law the DEC and the Department of Health shall have the following authorization:

Conclusion

The final agreement on the Clean Water Infrastructure Act of 2017 will provide additional funding for needed water infrastructure projects throughout the State. While the final agreement contains some provisions that remain of a concern to the Business Council many of the Business Council’s recommendation were included in the final product.  Ultimately, the value of the Act will be judged upon the outcomes and it will be sometime until it is fully known how the DEC and Department of Health utilize the act. The Business Council will immediately begin working to advance individuals interested in serving on the Drinking Water Quality Council. In addition, the Environment Committee is collecting a list of technical corrections to the legislation; please feel free to share any technical amendments.