For the past couple of years, the NY State Department of Environmental Conservation (DEC) has attempted to remove important protective language for NYC’s Class I and SD waters. Specifically, the State is arguing that the definition of Class I and SD waters must be revised to remove language protecting primary and secondary contact recreation of these waterways. We originally wrote about the DEC action in a blog post here.
Even though the public has strongly opposed DEC's action, and the Federal Environmental Protection Agency (EPA) does not agree with the premise upon which the action is based, DEC has attempted to moved forward with the action anyway.
Waters that would be impacted by the State’s removal of protective language are:
Alley Creek & Little Neck Bay, Arthur Kill and Kill van Kull, Bronx River (tidal portion),
Coney Island Creek, East River, Flushing Bay and Creek, Gowanus Canal, Harlem
River, Hudson River (below the Bronx), Jamaica BayTributaries, Newtown Creek & its Tributaries, and Westchester Creek. We need to stand up for our waterways to ensure that they are protected and safe for all New Yorkers to access.
Why the State's Removal of the language Matters:
In many cases, the City's Class I and SD waters are already being used for primary and secondary recreational activities. Removing the protective language would mean the State would not require that these waters be cleaned up enough to meet federal health standards for primary and secondary recreation such as fishing and swimming. The language that the State wants to remove is directly related to the federal Clean Water Act, which dictates the water quality standards for our waterways across the country.
To meet compliance under the federal Clean Water Act, which requires that all waters of the State be “fishable and swimmable,” water bodies are classified based on their best use (fishing, primary recreation, etc.) and the standards are set to protect those uses. All waters in New York State are assigned a letter classification that denotes their best uses.
Standards set by the State dictate the allowable levels of water quality indicators such as fecal indicator bacteria, which are often present when disease-causing pathogens found in sewage are present; and dissolved oxygen, which can be depleted by sewage and other pollutants, but which is essential for the survival of fish and other wildlife.
Water Quality Standards (WQS) are the foundation of the US Clean Water Act (CWA), passed in 1972 to reverse the steep decline of the nation’s waterways. New York State Department of Environmental Conservation (NYSDEC) uses water quality standards as the basis for programs to protect the State’s water resources. They are used to assess and monitor water quality and further serve as the regulatory targets for permitting, compliance, and enforcement of water quality improvement programs such as the City’s vitally important CSO Long Term Control Plans.
Definitions of Class I and SD waters in New York City:
Class I saline surface waters: These waters shall be suitable for fish, shellfish, and wildlife propagation and survival. In addition, the water quality shall be suitable for primary contact recreation, although other factors may limit the use for this purpose.*
Class SD saline surface waters: These waters shall be suitable for fish, shellfish, and wildlife survival. In addition, the water quality shall be suitable for primary and secondary contact recreation, although other factors may limit the use for these purposes.*
Note: “Other factors” like strong currents and/or waters that are active
shipping channels would limit primary or secondary contact uses but that
doesn’t mean they shouldn’t meet the Federal Clean Water Act’s requirement
that all waters of the U.S. be clean enough for safe contact.
*The language in orange is what the State wants to remove.
Definitions for Primary and Secondary Contact Recreation:
Primary contact recreation includes: swimming, bathing, surfing, or similar water contact activities where ingestion of the the water is probable
Secondary contact recreation means activities in or on the water where the potential for immersion or ingestion of water is low, such as wading or boating.
Additionally, and directly related to the DEC's attempt to roll back protective language for our Class I and SD waters, it is important to note that the State has also assigned a lax water quality assessment standard for limiting Enterococcus in these many of these waters. Our working group is addressing this matter as well. Here is a link a recent SWIM blog post about this.
What We’re Doing About This:
1. In response to the State’s actions, SWIM has formed a citywide stakeholder working group to call on DEC to retain the protective language for Class I and SD waters and the EPA to enforce the regulations that require these waters to be made safe enough for primary and secondary recreational contact.
2. We're developing a fact sheet on the issue and will share it widely with a broad array of community stakeholders to help them understand the impacts of the state's actions on our local waterways.
3. In our Summer 2021 e-blast, we alerted our constituents that SWIM Coalition has formed a working group and provided a brief introduction to the wonky world of waterbody classifications and the language that dictates the designated uses of a waterbody type.
4. We will send a letter, signed by all the stakeholders in the working group, to the State DEC and copy the EPA Region 2 Director as well as our City, State, and Federal elected officials calling out DEC's actions and requesting that Class I and SD waters be designated for primary recreational contact. We will ask elected officials to send letters to DEC and EPA as well and will provide them with a letter template.
5. We will call on the EPA to enforce the inclusion of the protective language so that regulatory oversight and enforcement of water quality improvement measures can ensure that the waters are made safe for primary contact.
6. We will request a stakeholder meeting with the DEC to review our concerns with them.
Stakeholder Actions Already Taken:
12 public letters opposing the proposal were sent to the state DEC from environmental advocates, citizens, city council members and other stakeholders,
Several members of the working group testified at public hearings on this matter. You can see the letters and testimonies in the SWIM Library here.
SWIM Coalition member, Riverkeeper, has filed suit in state court to block the rollback.
If you have any questions about the working group please reach out to us at swimmablenyc@gmail.com