Watershed for Sale:
Explosive Development Threatens New York City's
Drinking Water Supply

by Robert F. Kennedy, Jr., Mark Sullivan & Mary Beth Postman, Riverkeeper, Inc.

November, 1999

Introduction

This is the second of five reports analyzing the performance of the New York City Department of Environmental Protection (DEP) in safeguarding the City's water supply and implementing the terms of the 1997 Watershed Memorandum of Agreement.[1] This report examines DEP's Bureau of Water Supply, Quality and Protection's Engineering Section, the branch of DEP charged with, among other things, reviewing new development proposals to ensure their consistency with water quality and regulatory controls. On July 21, 1999, New York City passed the halfway point in the five-year program that began with the historic signing of the 1997 Watershed Memorandum of Agreement. One of the most important aspects of that agreement was the opportunity it provided DEP to control irresponsible development in the City's watershed. In this respect, the City 's program has been a disastrous failure.

EXECUTIVE SUMMARY

The Croton, Kensico and West Branch watersheds of the New York City drinking water supply are suffering an onslaught of real estate development at a pace and scale never before witnessed. Largely due to lack of diligence by the Giuliani administration, developers are pushing into every remaining unoccupied corner of the watershed, building roads, strip malls, office complexes, apartment buildings and residential subdivisions. This accelerating destruction jeopardizes both the health of water consumers and the financial security of the city itself, as the possibility of a federally mandated $8 billion dollar filtration plant looms large.

Under the Giuliani Administration, the City agency charged with protecting the water supply, the New York City Department of Environmental Protection (DEP), has shown little willingness to fight the tough political and legal battles necessary to safeguard it. Following City Hall's weak signals, DEP engineering staff has capitulated to the powerful watershed real estate lobby on issue after issue. In a series of stunning policy decisions, DEP leadership recently has opened up thousands of acres of watershed land once-protected from the threat of development due to wetlands, steep slopes or restrictions on the construction of new sewage treatment plants.

Though DEP's Engineering Section employs some of DEP's most committed personnel, the ability of this unit to effectively control watershed development has been hamstrung. It is hampered by shoddy engineering practices endorsed by upper-level staff and by major policy decisions of high-ranking DEP and City Hall officials. As a consequence, the watershed that supplies 9 million New Yorkers with unfiltered drinking water is in jeopardy.

The Watershed Agreement gives DEP a fighting chance to control dangerous growth and minimize injury to water quality. But the regulations are not self-enforcing. They require strict application and aggressive enforcement against developers who pollute or contribute to the subdivision sprawl that threatens unspoiled areas outside of existing villages, towns and hamlets.

Tolerance of shoddy engineering practices by high-level DEP engineers also has played into the hands of the watershed's most rapacious developers. DEP engineers have used discredited and outdated stormwater models that encourage dangerous development; they have routinely failed to conduct site visits prior to issuing approvals; they have missed opportunities to steer development projects out of sensitive areas by failing to attend local planning board meetings. DEP has abandoned its powers to map and protect small wetlands or to use the State Environmental Quality Review Act to fight harmful projects and support positive watershed protection initiatives. Finally, preoccupied by crisis management, DEP has done almost nothing to prepare for 2002, when the City will sit down with the U.S. Environmental Protection Agency, the State Health Department, environmental groups and upstate communities to renegotiate the terms of filtration avoidance, a crucial opportunity to strengthen the watershed regulations.

Though staffed by some of the agency's brightest and most devoted employees, DEP's Division of Engineering has allowed itself to become an agent of destruction in the New York City watershed. This report outlines the major policy failures of DEP's Division of Engineering. It also makes a series of recommendations for strengthening watershed development review and for fighting the most harmful development projects. Among other things, DEP must:

  • Revoke its policy of allowing construction of new septic systems on steep slopes in the watershed.
  • Seek federal protection for wetlands, including small, isolated wetlands, within the watershed and use the City's own powers to safeguard these critical resources.
  • Reject the use of experimental sewage treatment technologies such as the Zenon System that allow developers to circumvent the watershed agreement.
  • Take advantage of a burgeoning anti-sprawl movement by assisting local watershed groups in fighting the most egregious developments.
  • Adopt new methods of analyzing stormwater pollution.
  • Utilize the full array of local, state and federal environmental laws, especially the State Environmental Quality Review Act, to combat harmful development projects.
  • Stand up to destructive policies by state agencies such as the Department of Health, the Department of Transportation, and the Department of Environmental Conservation.

In sum, DEP must marshal the talents of its staff and its substantial resources to act as an advocate for water quality and for the 9 million rate payers who provide the agency's budget.

PARTI. PAVING THE WATERSHED

A. An Unprecedented Development Boom Is Devouring The Croton Watershed

Fueled by low interest rates and unemployment, a booming stock market, and corporate relocations, New York City's Croton watershed is in the throes of an unprecedented development boom.[2] Like mushrooms after a rainstorm, shopping malls, office complexes, movie theaters, self-storage facilities, religious compounds, apartment buildings, manufacturing centers and sprawling housing developments are sprouting up in virtually every unoccupied corner of the watershed.[3] Accompanied by armies of tax lawyers and consultants, developers are flocking to planning boards, clamoring for permits and threatening to sue if their plans are not approved. This watershed real estate bonanza poses an immediate threat both to water quality in New York City's reservoirs and to the region's last vestiges of rural charm.

The pace and scale of destruction in the Croton System is breathtaking. Developers and state highwaymen are paving wetlands with parking lots and roadways, filling fragile streams, excavating hillsides and clearing forest land. Residential real estate transactions in Westchester reached record levels in 1995, 1996, 1997, and 1998.[4] According to Westchester Realtors, there is no sign of a slowdown for 1999.[5] In fact, the first quarter of 1999 has seen an acceleration of the demand for new housing.[6] Over 8,000 houses and apartments have been proposed or have commenced construction in Westchester and PutnamCounties.[7] This is up from 2,300 building permits issued in 1991-92 and almost matches the record 1985-86 construction boom when 8,900 permits were issued.[8] This housing growth accompanies a population explosion in the Croton watershed. Between 1990 and 1998 PutnamCounty was, by a long shot, the fastest growing county in New YorkState, with a population increase of 11.2%.[9] Putnam's population has risen from 56,000 in 1970 to approximately 94,000 today.[10]

The county has had the fastest job growth in the region during the 1990s as growing numbers of small manufacturers and service companies abandon New York City for the lure of suburbia.[11] Almost 6-1/2 million square feet of new commercial space is proposed in Westchester and PutnamCounties to provide jobs and services for the watershed's burgeoning population.

New construction is devouring the watershed's remaining open space. The last Putnam and Westchester farms are rapidly converting to subdivisions and asphalt.[12] According to a December 1997 inventory by the Westchester County Department of Planning [Land Use Trends in WestchesterCounty 1988-1996], Westchester's watershed towns had 46,580 undeveloped acres in 1988. But by 1996, just eight years later, 26% (11,630 acres) of that land had been developed. That pace has since accelerated with record-breaking years of 1997 and 1998.

Surveying the astounding growth in August 1999, Putnam's Republican County Executive Robert Biondi asked, "[s]hould the county be black topped from the Hudson River to Connecticut? That could happen!"[13]

B. Explosive Growth Is Making Anti-Sprawl Advocates Out Of Growing Numbers Of Watershed Residents

The encroaching sprawl has spawned a powerful anti-growth movement in the watershed communities of Northern Westchester and PutnamCounties, providing local allies for the City's regulatory program. Many longtime residents resent the effects of suburban sprawl: traffic snarls, overcrowded schools, higher taxes, and environmental degradation.[14] Highly motivated grass-roots citizens groups have formed in all of Westchester's and Putnam's watershed towns, protesting uncontrolled growth. A recent Journal News/Manhattanville College poll indicates that a majority of watershed residents think stronger regulations are needed to control growth, and would be willing to pay higher taxes to set aside money for the protection of open space.[15] Surprisingly, such sentiments were strongest in PutnamCounty where local political leadership is still tightly controlled by the most shortsighted elements of the county's real estate industry.

C. Every Foot Of Pavement Brings More Pollution

The Croton system construction boom is particularly disturbing in light of new evidence that links development of impervious surfaces to the occurrence of pollutants, including phosphates and cryptosporidium, in the City's reservoirs. Pursuant to the mandates of the U.S. Environmental Protection Agency's (EPA's) May 1997 Filtration Avoidance Determination, DEP has conducted extensive research into the sources, transport and fate of Giardia, cryptosporidium and enteric viruses within the New York City watershed. The City published the first phase of this pathogen study on July 31, 1997.[16] The study demonstrates what environmentalists have long suggested: that the largest source of pathogens to the watershed is not agricultural runoff, undisturbed lands or even sewage treatment plants, but suburban and urban landscapes.[17]

For many years, DEP's official position has parroted that of the State's notoriously developer-friendly Department of Health (DOH): that wild animals are a co-equal culprit with subdivision development and that therefore there is no preference between undisturbed areas and developed landscapes. In 1993, when New York City attempted to gain regulatory authority over road expansions, former State Department of Health Deputy Director Dr. Bill Stasiuk, today the Deputy Commissioner of DEP, blocked the regulations, arguing there was no proof that road expansions were connected to increased pollution loads. Now that proof exists. DEP's pathogen studies demonstrate clearly that cryptosporidium cysts were most often found in discharges from urban landscapes and Giardia Lamblia cysts were most often found in discharges from sewage treatment plants, followed by urban landscapes.[18]

D. The New Development Boom Is Threatening the City's Ability to Avoid Filtration

Moreover, the building boom in Westchester and PutnamCounties threatens not only the Croton system, which lies entirely east of the Hudson River, but also the Catskill/Delaware systems. Although the majority of the Catskill/Delaware system lies west of the Hudson River in the rugged Catskill Mountains, its waters flow through the West Branch and Kensico reservoirs, which are both located in Putnam and Westchester Counties respectively.[19] A decline in water quality within the West Branch or Kensico reservoirs would trigger an EPA filtration mandate, requiring the City to build a fantastically expensive filtration plant (estimates range from $6 to $8 billion dollars to construct and $500-800 million per year to operate the plant). If water quality does not appreciably decline, EPA could still mandate filtration based on DEP's inability to control human activity (development) in the watershed.

PART II. DEP NEEDS A COMMISSIONER WITH A STRONG COMMITMENT TO WATERSHED PROTECTION.

Riverkeeper's 1997 report, ACulture of Mismanagement,[20] questioned the competence of several DEP personnel in key leadership positions. Ultimately, however, DEP's failure to control destructive watershed development is due less to incompetence than to lack of leadership. Commissioner Joel Miele occupies DEP's highest office during the most critical transition in the agency's history. Sadly, his administration has failed to implement the Giuliani administration's promises of reform.

Mayor Rudolph Giuliani appointed Joel Miele to replace Marilyn Gelber as DEP Commissioner in July 1996. Miele, a civil engineer and partner in a Queens real estate development company,[21] was an unlikely choice to reform a City department whose corrupt institutional culture is rooted in its historical domination by an insular clique of civil engineers with close relationships to the watershed construction industry. Miele served as Mayor Giuliani's Buildings Commissioner between 1994 and 1996, and according to Giuliani's First Deputy Mayor Peter Powers, Miele had broken up the ossified and inefficient institutional culture at the City Housing Department.

Powers thought Miele was ideally suited to changing the notoriously intransigent bureaucracy at DEP. He recommended Miele as the person to brace the backbones of lower-level DEP bureaucrats who earnestly want to protect the watershed but lack the confidence that their efforts will be supported by a strong commissioner. Only by sending strong signals of support from City Hall and DEP's LefrakCity headquarters could the agency deploy the technical and administrative talents of its staff on behalf of science-based watershed protection.

Unfortunately, Commissioner Miele has at best exercised a hands-off approach, which empowers DEP's old-boy engineering network.[22] At worst, Commissioner Miele has stressed the importance of testing political waters before acting. Acting on behalf of the Giuliani administration, Commissioner Miele has at times shown more interest in placating upstate developers and their political allies than in protecting City water quality. Commissioner Miele's weak agenda will almost certainly cause DEP to miss the historical opportunity to save the New York City watershed.

PART III. DEP SHOULD BASE ITS WATERSHED POLICIES ON SCIENTIFIC RATHER THAN POLITICAL CONSIDERATIONS.

Since signing the Watershed Agreement in January 1997, this Administration has routinely capitulated to upstate real-estate interests and undermined the efforts of DEP low-level engineering staff to fight unwise development. Indeed, three critical decisions by Commissioner Miele and his high-level staff have effectively opened up thousands of once protected watershed acres to new development. Each of these decisions was the result of political pressure from the watershed's powerful real estate industry. The land affected is the most sensitive land in the watershed: steep slopes, wetlands and the last undeveloped basins in the Croton system. This report discusses each of these decisions in detail below beneath a bold headline framed as a recommendation for remediating the damage and preventing any further damage.

Recommendation #1 DEP Should Revoke Its Policy Allowing Construction Of Septic Systems On Steep Slopes In The New York City Watershed.

A prime example of DEP's willingness to put the priorities of the upstate real estate lobby ahead of its own duties as watershed advocate is the recent action to open steep slopes in the City watershed to new development despite state regulation that forbids it. Appendix 75-A of the Public Health Regulations forbids construction of septic systems on slopes that are steeper than 15% in order to safeguard against septic system failures and to protect water quality.[23] During the 1970s, DOH apparently adopted an unwritten policy allowing developers to construct septic systems on slopes as steep as 20%, so long as they bulldozed the hill or imported fill to flatten the slope to 15%. In 1996, DOH formally published this interpretation in a Septic System Design Handbook[24] used by developers and county health department engineers but not generally known to the public. DOH nowhere made the scientific and technical justification for this rule change as required by state health regulations.[25] Neither DOH nor the Counties published any public notice of the deviation from the published regulations. No agency performed environmental review required by law under the State Environmental Quality Review Act.[26] Neither EPA nor any of the other signatories to the New York City Watershed Agreement were informed by DOH of the interpretation. No public hearings were held. DOH offered no studies to support the rule change and has since cited only the flimsiest anecdotes from biased sources to justify its action.

Perhaps most dismaying of all was the timing of the publication - five months after the finalization of the Watershed Agreement in Principle in November 1995, and at the outset of discussions on the final Memorandum of Agreement. In a piece of textbook bad faith, the environmental parties and many of the other parties to the MOA, while in the act of negotiating the terms of that agreement, were kept in the dark while DOH secretly altered a critical substantive requirement of the watershed regulations.