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SWIM opposes NY DEC's Proposal to Set Lax Water Quality Criteria for NYC's class I & SD waters

Updated: Mar 18

Important: DEC Public Hearing/Webinar March 23rd, 2021. Please attend! Scroll down for details and be sure to register by 3/22 10 AM.


In January 2021, the New York State Department of Environmental Conservation (DEC) issued a proposed rule-making that, on the surface, would appear to be a positive step forward in a direction that waterway advocates have long called for. IT IS NOT. Let's break this down and have a closer look:


First, as we reported last year, NY DEC attempted to roll back protective language for NYC waters that were designated for primary recreation uses (Class I and SD). Here is a link to our original post about this. If allowed to stand, this would mean that the state would no longer pressure New York City to make these waters suitable for swimming and other primary contact recreation activities. SWIM opposed the move. Here is a link to our public testimony last year. Some SWIM members have sued to stop the water protection rollback.


The new rule-making that DEC proposed in January of this year would establish Enterococcus as a fecal bacteria indicator in some areas of NYC's Class I and Class SD waterbodies, but set lax numerical threshold criteria for the new standard.

NYC waterway stewards and advocates have long called for the State to mandate that the City base its water quality improvement plans for reducing CSO on the EPA-recommended water quality indicator for fecal pathogens: Enterococcus. In fact, the Federal EPA mandated that the State do so by 2015 and as of today, DEC still hasn't complied with that mandate.


Now, it seems DEC is proposing that it will start using the Enterococcus standard to assess NYC Class I and SD waters BUT:


The proposed criteria DEC wants to use falls short of the standards recommended by EPA to protect human health. The EPA recommends a “Geometric Mean” of 35 CFU/100mL for primary contact recreation and a “Statistical Threshold Value” of 130. For 17 of the 49 waterways, DEC’s proposed criteria exceed EPA’s recommended Geometric Mean. Moreover, DEC has provided no Statistical Threshold Value criteria for any of the 49 waterbody segments. These values are based on what DEP expects to achieve through its LTCPs, not through any scientific or health-based analysis.


The proposed Geometric Mean criteria differ by waterbody, sometimes by nearly an order of magnitude. For instance, the proposed criteria for Coney Island Creek (315 CFU/100mL) is much less stringent than the 115 CFU/100mL standard for Flushing Creek, which, in turn, is much less stringent than the 35 CFU/100mL criteria for Harlem River, all Class I waterbodies. See table of waterbodies and criteria being applied to them here.


So, with the purported regulatory rollback made last year to remove the protective primary recreation use language, DEC is now attempting to hold the class I/SD waters to a corresponding lower water quality criteria. Even though the state will implement an Enterococcus standard in some waterbodies, it will not adhere to the more stringent numerical criteria that the EPA recommends, which means that many of our waterways would never be safe for primary contact recreation! We can't let this stand. Please see details below for how you can lend your voice to stop the State's actions:


1. Attend The hearing:

DEC is holding a public hearing/webinar on their proposed amendment at 2 P.M. on Tuesday, March 23rd, 2021. To attend the hearing/webinar and/or testify, you have to register by 10 A.M. on March 22 ! Click here to go to the DEC website for detail about how to register for the hearing.


2. Send Written Comments:

Written comments to DEC are due via email by 5 P.M. on March 29. SWIM will send out an Action Alert reminding the public to send in comment letters opposing the State's proposal. Click here to go to the DEC website for detail about how to send written comments.


3. Stay tuned for an Action Alert from SWIM

Immediately following the hearing, we'll send out an e-blast with talking points you can use for your comment letter in the alert. Sign up for SWIm e-blasts here.






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SWIM Coalition is sponsored by the NYC Soil & Water Conservation District and Riverkeeper, Inc. Your donations to SWIM's work are tax deductible under the IRS code170(c)3. 


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