Protecting New York's Drinking Water

  George A. Rodenhausen, AICP
  Session: Wednesday April 19, 2000 - 8:45 - 10:00 a.m. Author Info 

ABSTRACT

The New York City watershed is the country's largest, most populated and most developed watershed used as a source of municipal drinking water. Because the watershed lies outside New York City's boundaries, the resolution of the century old conflict between upstate suppliers and downstate consumers required creativity and flexibility. This paper examines the forces that brought the conflict to a crisis, the techniques used to reach consensus among the five principal parties, and how the comprehensive, three-part watershed protection program evolved from the consensus building process.

On January 21, 1997, in a ceremony covered by most major news media, an agreement was reached in New York City designed to end nearly a century of conflict between the City and the upstate communities from which it draws its drinking water supply. From a planner's perspective, the process used to turn conflict to consensus in this complex battleground is as important to understand as the comprehensive regulatory, land acquisition and infrastructure package that resulted from it. The 97 signatories to the agreement represented diverse and antagonistic constituencies. The agreement was far-reaching and ambitious. The process it established to guide future land use and water quality protection measures in the watershed is cautiously, but steadily, becoming institutionalized.

Watershed protection for surface drinking water sources and wellhead protection for underground drinking water sources will place increasing demands on planners over the next several decades. Recent well-publicized drinking water contamination emergencies have demonstrated that reliance on filtration and treatment facilities alone is not sufficient. (1) Source controls are a critical component of drinking water supply systems. Traditionally these controls have focused on "point sources," such as waste water treatment plants (WWTPs).

Whether technology based or water quality based, point source controls cannot address the substantial contamination problems resulting from nonpoint sources, principally stormwater runoff. New York City environmental engineers have estimated that more phosphorus contamination comes from runoff than from WWTPs in the New York City watershed. (2) Planning and land use controls are needed to reduce the contamination of waterways by a variety of nutrients, pesticides, metals, petroleum products, bacteria and other pathogens found in stormwater runoff associated with development. It was the City's decision to attempt to restrict development in its upstate watershed that escalated a long simmering alienation into a pitched battle.

THE HISTORY OF CONFLICT

The Water Supply System

The source water for New York City water supply system is located upstate of the City totally outside City boundaries on both sides of the Hudson River. It is one of the largest surface water storage and supply complexes in the world, including three main reservoir systems-the Catskill and the Delaware Systems West of the Hudson, and the Croton System East of the Hudson-with 19 reservoirs and three controlled lakes. (3) The land mass which supplies the surface water to the system covers1,968 square miles, including land in all or part of eight upstate counties, 61 towns, 11 incorporated villages, and a small portion of one town in Connecticut. Approximately 518,000 people lived in the watershed in 1990, including part-time seasonal residents--345,000 East of the Hudson and 173,000 West of the Hudson. Over 100 WWTPs discharge into the surface water used by the City. (4)

The system has a storage capacity of 550 billion gallons of water, and serves approximately eight million City and one million suburban residents. Approximately 95% of the water is delivered by gravity through a series of large aqueducts and tunnels. The nearest system to the City, the Croton, lies approximately 45 miles north of lower Manhattan; the furthest, the Delaware, approximately 125 miles northwest in the Catskill mountains. (5)

The City began taking water from upstate streams East of the Hudson in 1842, with construction of East of Hudson reservoirs continuing throughout the remainder of the nineteenth century. In 1905 the City decided to develop the Catskill mountains West of the Hudson as an additional source, and in 1927 to develop the Delaware River tributaries. The Delaware System was the last to be completed in 1965. (6)

The Watershed Communities

Just as the watershed communities are separated geographically from New York City, the East of Hudson communities are separated by the Hudson River and many miles from the West of Hudson communities. East of the Hudson, the watershed lies in parts of three counties which are closely tied to the City. Westchester County, the nearest the City, is the most densely populated and the most developed. Although many of the residents of Putnam and Westchester counties are commuters to the City, Westchester is a significant regional employment center in its own right. The portion of Westchester County in the watershed is both a supplier and a consumer of the City's water, and its residents and officials often side with the City in the desire to limit growth through planning. In 1990 over 25% of the households of Westchester County within the watershed reported income over $100,000. In the communities West of the Hudson, 25% of households had incomes less than $15,000 and only three percent exceeded $100,000. (7)

Putnam County, just north of Westchester County East of the Hudson, was often reported throughout the 1990's to be one of the fastest growing, if not the fastest growing, county in the state. Its location along commuter rail lines, comparatively low taxes, and beautiful landscapes laced with streams, lakes and reservoirs, make it an attractive site for families moving out of the City or north of Westchester. During the watershed controversy, its residents were often divided between those wanting to put a cap on future development and those wanting to realize healthy returns on their real estate investments. Many were concerned with the tax burden of residential properties unable to attract new commercial taxpayers. Although the construction of reservoirs in Putnam County occurred in the nineteenth century, some memories remained of the takings. The property rights issue found strong advocates in the County.

Although summer homes and tourism are important industries in the Catskills communities West of the Hudson, the year-round residents have had few happy ties to the City. The taking of land and the flooding of entire hamlets for the construction of reservoirs are vivid memories of City aggression for some West of Hudson residents. The restriction on development and the State's freedom from real estate taxation within the "blue line" of the Catskill Park is a similar reminder of State eminent domain authority. (8) The largest of the counties, Delaware, is predominantly agricultural, with a density of population in 1990 among the lowest in the eastern United States, 0.049 persons per acre. With an economy heavily dependent on dairy farming, median household income in Delaware County, among the lowest in the watershed, fell from 1980 to 1990 to approximately $24,000. (9)

Few West of Hudson communities had developed zoning or land use laws by the 1990's. Development had occurred principally along the main roadways which hugged the streams and rivers in the valleys draining the mountains. These were, of course, the very streams which New York City wanted to protect with buffer zones and restrictions on development. With no general acceptance of land use laws, a struggling economy, a history of takings by the City and State, and little cause to deal with the City, the West of Hudson communities were in no mood to negotiate when the City started its rulemaking process in earnest in 1990.

The Government Agencies

The prime mover, interestingly, was not New York City, but the federal Environmental Protection Agency. Amendments to the Safe Drinking Water Act in the 1980's required filtration and treatment of municipal drinking water drawn from surface water sources unless the municipality could demonstrate to EPA's satisfaction that it qualified for "filtration avoidance." (10) Facing an $8 billion estimated cost of filtration, the City opted for filtration avoidance for the Catskill and Delaware Systems, and set to work in 1990 to propose stringent land use controls for its entire watershed, including the Croton System, under authority of a unique state law that gave the City the authority to do so, with state approval. (11)

EPA indicated a willingness to work with the City early on, but its patience was tried. Several years after the statutory deadline for filtration had passed, the City still had no effective filtration avoidance program. Under increasingly forceful warnings from EPA that filtration avoidance would be denied, the City stepped up enforcement of long forgotten and antiquated regulations from 1954 as a surrogate until it could get its proposed regulations and land acquisition program adopted. This sudden enforcement, perceived by the regulated communities as arbitrary, brought howls of protest, as did the content of the proposed regulations and the prospect of land acquisition by eminent domain.

The environmental community in the early 1990's was closely aligned with the City's Commissioner of Environmental Protection, himself an active member of the local Audubon chapter before his appointment. The Riverkeeper, a Hudson River protection organization, had focused for several years on protection of the New York City watershed. With their encouragement, the City's proposals for control of the watershed grew increasingly stringent. The watershed communities, particularly West of Hudson, effectively drew up their drawbridges to keep out representatives of both the City and environmental groups.

The Coalition of Watershed Towns, an association of West of Hudson communities, filed preemptive litigation to overturn virtually all steps taken by the City before the regulations were adopted, and Putnam County joined the West of Hudson communities in demanding an adjudication of the City's request for a land acquisition permit. (12) Contemporaneously, a group of builders in Putnam and Westchester counties filed lawsuits demanding compensation for the alleged loss in their property values resulting from the stepped up enforcement of the old regulations and the proposal of the new. (13)

The State entered the fray at the critical time of a change of administration. The State Department of Health had ordered filtration of the Croton System in 1992, but the City was dragging its heels, hoping for filtration avoidance on the entire watershed. Some confusion existed on whether the State or EPA had the authority to make this decision. In 1994 the outgoing governor was rumored to have been asked by the Mayor, who had endorsed the governor for reelection, to approve the City's package of regulations and land acquisition plans before he left office, despite vehement protests from virtually all watershed communities. The incoming governor, himself from a watershed county, took on the watershed as a transition issue. With that step the City, EPA, the environmental groups, and the watershed communities all realized that there would be no quick deal between the City and the State, and true negotiations would have to begin.

THE CONSENSUS BUILDING PROCESS

Negotiation of the New York City watershed agreement took two intensive years, from January 1995 to January 1997. That effort followed several years of unsuccessful bilateral meetings, involving separately the City and the Coalition of Watershed Towns, Putnam County, Westchester County, EPA, the State, or environmental groups. It was clear from this history that the demands of each party could not be resolved unless all critical stakeholders were at one table.

The process used to reach the watershed agreement was in some respects unconventional. Although a formal negotiated rulemaking procedure existed in the State's policies, it was not used in this case. Instead, decisions were made by political leaders to engage in what could be called "political dispute resolution," or perhaps "political rulemaking." The word "political" is used here in its best sense, to mean the resolution of issues through an ad hoc controlled political process with the participation of many diverse interests in a representative capacity. The process was political in that it dealt withe fundamental social issues ranging beyond the text of watershed regulations. Indeed it was only because the process included the broader social and economic issues underlying the conflict that it was possible to reach agreement on the regulations and the land acquisition program.

Confidentiality of the Process.

Confidentiality was a critical element of success for every party at the table, and the single most controversial aspect. The conflict was initially so polarized that no party at the table could publicly back down from his or her position without losing the support of his or her constituency. On issues of great controversy for all parties, the fact that confidentiality was maintained was evidence that the parties themselves realized its importance.

Although many of the public officials and the environmental representatives were uncomfortable making commitments and disclosures outside of the normal public participation process, frustration with the previous five years of deadlock encouraged participants to experiment. Initially confidentiality seemed a small concession if it lasted only a few months before going public. As a few months stretched into two years, however, calls for public participation grew. The builders and the outside environmental groups in particular demanded that the process be abandoned and traditional public participation be resumed. As the outcry grew, the achievements at the table that could be lost also grew. The pressure for a public process was resisted.

Each representative had to deal with pressures for disclosure from his or her constituency. When constituencies were briefed on positions taken and tentative agreements reached, maintenance of confidentiality was particularly difficult. The initial successes, however, reinforced the process to the point that all participants began to realize that future success demanded continued confidentiality. The two years of negotiation passed with only slight and harmless disclosures, usually by members of a constituency unhappy with a tentative position taken at the table and reported to them in a briefing.

Given the two years of confidentiality, it was critical that full public participation be allowed for the product of the negotiations. At the end of the negotiations, over one hundred public hearings were held throughout the City and the watershed communities. None of the agreement was considered final until it went through traditional public hearing, comment and environmental review. The draft agreement provided that if substantial changes were proposed as a result of the public and environmental review processes, however, the primary parties would reconvene negotiations. No substantial changes were made.

Stakeholder Selection.

The parties to the negotiation were not self-selected, but were invited by the Governor or his Counsel. It was made very clear from the beginning that the Governor wanted to resolve the controversy, and that he was taking the risk of getting directly involved. The participants were therefore all responding to his invitation. The initial primary stakeholders selected by the Governor were the watershed communities, represented by the West of Hudson Coalition of Watershed Towns, Putnam County, and Westchester County; the key State agencies; New York City; and EPA Region II. It was soon realized that if the final agreement was to be politically "sellable," it would have to have the participation and support of the environmental community. Thus several months into the discussions, representatives of five environmental groups were asked to join, and they did. (14)

The builder group posed a sensitive issue. Having filed litigation they had made their position on the "takings" issue clear. Whether they would participate constructively or seek to destroy the process was unknown. Some of the watershed communities had serious concerns that the presence of the environmental groups without the builder group would create an imbalance and make the final package unsellable. In the end it was determined to hold a series of briefings for the builders to get their comments on issues, but not to bring them into the negotiations. The burden was placed on the watershed communities and the State to effectively represent the economic develop needs of the watershed.

Every effort was made to keep the group small so that discussion would be efficient. With five groups of stakeholders represented-the State, the City, EPA, the watershed communities, and the environmental groups--periodically an effort was made to keep the number at the table down to 15 people, including the Governor's Counsel and his staff. From time to time specialists were invited from each group to address issues that demanded expertise otherwise not present at the table. Each representative at the table was instructed to report back to his or her constituency to assure that each step of the agreement was acceptable. Selectively limiting participation to five primary interests through this pyramidal structure significantly facilitated the process.

With few exceptions, subcommittees or breakout groups were not used. The general rule was to conduct all discussions in the presence of all other parties. Years of failed bilateral talks had taught the parties that an agreement as complex as the watershed MOA required that all parties be aware of the give and take involved in all aspects of the agreement, even where the party was not directly affected. The table parties acted only as a committee of the whole.

Defining the Scope.

The scope set by the Governor and accepted by the parties was termed "universal agreement." Piecemeal agreement was considered impractical, as the balancing of interests could only be fully realized if the package dealt at one time with all conflicting concerns of the stakeholders. The City's proposed land use and environmental regulations and the land acquisition program were the two issues on the table when negotiations began. The City needed both to convince EPA that it qualified for filtration avoidance. The watershed communities did not object to the City having its clean water, but did not want to see their economies shut down, their "home rule" taken away, and their land taken against their will. EPA continued to insist on the most stringent of controls. The State became the mediator. At times the City was the party in the middle.

The sharp conflict on the regulations and land acquisition eased when the City and State proposed funding infrastructure improvements in the watershed. Once the scope broadened sufficiently to include grants for projects that could help both the City and the watershed communities, solutions began to appear. The concept of a comprehensive watershed protection program thus evolved from a negotiating process that needed the third monetary element to work. Combining regulations, land acquisition and infrastructure improvements (later referred to as "partnership programs") gave the parties room to trade. It also justified the position taken later by the table parties that the program had to be judged in its totality. That is, to judge only at the regulations or only the land acquisition program was unfair. The combination of regulations, land acquisition and partnership programs together provided the protection the City needed. EPA adopted this view, and embodied it in the Filtration Avoidance Determination ultimately issued to the City.

In addition to having three elements to work with, the rule that the scope was "all or nothing" made progress possible. Probably no party at the table will ever be able to reconstruct all the give and take that resulted in the specific provisions of the agreement. In some cases a mitigation measure was balanced against a regulatory change, in some cases a land acquisition step against a partnership program. In many cases the precise trades were not conscious, not disclosed, or not perceived in the same way by different parties. "Universal agreement" meant that nothing was considered final until it was all final.

Equally important to the broad scope was elimination of some issues that could not be dealt with. For example, the compensation of property owners for a taking was considered a matter of statutory interpretation beyond the authority of the assembled parties. Since this was the main demand of the builders in pending litigation, it was another reason not to include them in the negotiations.

Strong Political Leadership.

The strong leadership shown by the Governor and his Counsel in bringing the parties to the table was critical. It had become clear to the watershed communities that they needed the Governor's help, as the course the parties were charting on their own promised endless litigation in a war of attrition which would exhaust communities financially. The public rulemaking process from 1990 to the end of 1995 had resulted in escalating anger and polarization. Although some isolated attempts had been made at negotiation in 1994, it was clear that the constituencies did not trust the process, and separate discussions could not command "universal agreement."

The initial meetings of the parties were held in the Governor's conference room, and periodically returned to that room. The most effective whip to the negotiating process quickly became the threat that if the parties did not continue to make progress, the Governor would send the parties home. As each party invested more in the process, that outcome became progressively unthinkable.

Importance of Staff.

The Governor provided not only the leadership for the process, but the staff as well. Either the Governor's Counsel or his staff were present at every meeting and acted as facilitator. Confidential drafts of the agreement were recorded by the Governor's staff or senior state agency staff and circulated at meetings. When scientific or technical information was needed to break a logjam, staff from State, City or federal agencies were called in. Rooms were arranged by the Governor's staff at locations throughout the watershed and in New York City and Albany for the convenience of parties. At one point a delegation was flown to Washington to lobby for federal support of a key provision. Although the process took two years, the parties' representatives and the facilitators remained the same throughout, providing needed continuity and memory.

In the final phases of the negotiations, the City recognized that the watershed communities had incurred substantial expenses to support the negotiation process with their own legal and engineering representatives. Accordingly, as part of the final settlement the City agreed to reimburse Putnam County, Westchester County, and the Coalition of Watershed Towns for the professional fees incurred in the course of the negotiations. (15)

Timing and Pace.

The process began with a high level of intensity and sense of urgency. Not only was EPA continuing to threaten a filtration order for the Catskill and Delaware Systems, but each of the parties knew it could not afford to delay the process. That intensity continued throughout, largely because each of the participants made the negotiation their highest priority, and the Governor's staff and EPA kept up the pressure to meet frequently. During some weeks meetings occurred daily, with an occasional all night session to hammer out difficult language. This was an advantage of the limitation on the size of the group. Seldom were meetings put off because of the unavailability of parties. It was generally understood that the parties would make themselves available. Breaks between meetings were arranged primarily to allow representatives to meet with their constituencies, research their positions, or draft agreement language.

THE PRODUCT.

Joining as signatories of the final Memorandum of Agreement ("MOA") were the Governor, the heads of four State agencies, the Mayor and the Commissioner of Environmental Protection of the City, the Regional Administrator of EPA, the chief elected officials of all watershed towns and villages, the chief executives of all but one watershed county, and representatives of five environmental organizations. The MOA comprises three bound volumes totaling approximately 1,500 pages, including among other things comprehensive land use and environmental regulations for the watershed, a land acquisition program to more than triple New York City's land holdings in the watershed, and a commitment by the City and State to spend over $1 billion in water quality and "green" economic development projects in the watershed. (16)

The MOA also resulted in a ground-breaking Filtration Avoidance Determination (FAD) by EPA, allowing the City to continue using water from the Catskill and Delaware systems without filtration. As a mark of the uncertainty of watershed protection, particularly in a living watershed, the FAD requires the City to prepare plans for filtration on a second track while it implements the protection measures of the MOA. Should the MOA prove inadequate, the City will be required to filter promptly.

The Three-Part Package.

The process produced an intricately interrelated set of watershed partnership and protection measures. The combination of land acquisition, regulatory controls, and infrastructure development, taken together, provided the basis for the FAD. Although the City and State investments in the watershed communities certainly helped change attitudes in those communities, virtually all of the investments are specifically limited to water quality measures. The one direct economic development measure provided to the West of Hudson communities, the Catskill Fund for the Future, is restricted to economic development projects that are environmentally compatible with the delivery of clean water to the City.

To the extent that the regulations were "weakened" as some environmental groups have charged, the gap, if there is one, was intended to be balanced by more aggressive land acquisition and infrastructure improvements. It was generally agreed that no one could accurately measure the effect of the trade-offs, that only time will tell if the total package will accomplish its goal. Partly to perceive early warnings of trends, an enhanced monitoring program was part of the final package. (17)

Innovative Land Acquisition Program

The stiffest opposition to land acquisition came from those who feared the City would take their land under its statutory eminent domain powers, as it had initially proposed to do. The willingness of the City and EPA to switch to a "willing-buyer willing-seller" program made agreement possible and in some parts of the watershed turned opposition into strong support. In New York State, although the City may acquire land outside its boundaries pursuant to State permit for watershed protection purposes, it must pay local real estate taxes on all such land. Once the eminent domain issue was resolved, some communities saw the land acquisition program as an excellent way to preserve open space without taking property off the tax rolls.

The next step was to get EPA to agree to a program that did not require the City to acquire a fixed number of acres, which to watershed communities the City would likely resort to eminent domain to avoid filtration. Rather, EPA was persuaded to accept a required solicitation process that would assure that ultimately, through the willing-buyer willing-seller program, the City would acquire the acreage EPA wanted. The City is thus required to make a certain number of solicitations each year, and is obligated to close if the owner accepts the City's offer. (18) Based on historical experience it was determined that one out of three offers would be accepted. In fact the acceptance rate is higher, and the City is acquiring more than planned.

Areas reserved for local commercial development were excluded from the program to preserve the communities' prospects for economic development. The City also agreed not to challenge the tax assessments on acquired property for twenty years, and agreed to consider opening such lands to recreational use. (19)

In the end, this divisive issue, which had once brought the communities into litigation with the City, became one of consensus and support. The East of Hudson communities demanded that the program apply to the Croton System as well, despite the City's reluctance (as the Filtration Avoidance Determination does not apply to the Croton). The State and City are now obligated to spend $17.5 million for land acquisition in the Croton System. (20) The City also agreed to review its policies forbidding public use of its watershed lands, and as a result thousands of acres of City land have been opened to recreational uses. (21)

Regulatory Measures.

The watershed regulations agreed to in the MOA were promulgated by both the City and the State without significant changes. They are stringent and highly detailed, and have significantly changed land use procedures in the watershed. Some innovative measures resulted from the negotiation process.

Offsets and Trading. Phosphorus is a key contaminant of concern to the City, as it nourishes algae which affects taste, color and odor of the water. Most of the reservoir basins in Putnam County and one in Delaware County exceed the State's phosphorus guidance value, and the regulations as initially proposed would have prohibited all new or expanded surface discharging WWTPs in these basins. The phosphorus offset and trading pilot program allows up to six new surface-discharging WWTPs to be built in phosphorus restricted basins over the first five years, three in Putnam County and three in Delaware County. Each new plant must ensure that for every kilogram of phosphorus resulting from the new WWTP and accompanying stormwater runoff from the new development served by the WWTP, at least three kilograms of reduction in phosphorus will occur within the same basin. (22) The State has agreed to support the pilot program, offering up to $100,000 to each of the six potential pilot plant developers to be used to design, engineer, construct, and maintain equipment, facilities, or other measures necessary to achieve the phosphorus offsets, to monitor their effectiveness, and to evaluate the effectiveness of the program in protecting water quality. (23)

TMDL Implementation. Under the federal Clean Water Act, states are required to adopt water quality standards and, where technology based effluent limitations are not adequate to attain those standards in a particular body of water, to develop more stringent water quality based limits determined by the maximum amount of pollutants the water body can absorb without violating the standard. (24) This maximum amount is known as the Total Maximum Daily Load ("TMDL"). Although states were to have identified and prioritized water quality limited segments and established applicable TMDLs by 1979, it was unclear to at least on Federal district court whether New York had indeed adopted any TMDLs. (25) The MOA resolved this issue for the City's watershed. Under the MOA it was agreed that the entire surface water supply system for New York City is water quality restricted and that TMDLs will be developed. (26)

Filtration Avoidance Criteria.

One of the most significant aspects of the MOA is the fact that EPA issued a five year Filtration Avoidance Determination for the Catskill/Delaware System. The criteria for filtration avoidance are part of the federal Surface Water Treatment Rule, and include water quality, operational, and watershed control standards. One of the most difficult to adapt to the New York City watershed is the criterion that the water system "demonstrate through ownership and/or written agreements with landowners within the watershed that it can control all human activities which may have an adverse impact on the microbiological quality of the source water." (27)

With approximately seventy percent of the watershed in private hands, a land area of 1,900 square miles, and a watershed population of half a million people, the requirement of controlling "all human activities" had to be read liberally. The MOA was not a written agreement with "landowners," but a comprehensive agreement with the local governments. Through the three-pronged program of regulations, land acquisition and partnership programs, the MOA provided both carrot and stick to minimize the adverse microbiological impact on water quality of human activities in the watershed. EPA's decision is precedent setting, to say the least.

Watershed Protection Studies.

A major impact of the MOA on water systems outside the City watershed may result from the data on treatment systems and pollutant transport developed in the many studies being conducted pursuant to the MOA and of the MOA.
 

Local Planning Initiatives.

The MOA funds a local planning effort called the Croton Plan, designed to reevaluate land use plans throughout the portions of Putnam and Westchester counties lying within the Croton system. (31) The goals of the Plan are to improve water quality and to protect the character and special needs of watershed communities. The Plan should include identification of water quality problems and community needs, prioritization of investments to address problem areas, and strategies for simultaneously achieving water quality and protection of community character. One of the strategies to be studied is changes in local land use plans and laws. These plans being prepared by the local governments, with funding from the City of $1 million for each county. (32)

Putnam and Westchester counties also received City funding for diversion feasibility studies, the goal of which is to determine whether it is technically and economically feasible to divert some or all wastewater to water bodies outside the watershed. If feasible, the counties have $68 million to use to pay for diversion. If not, the money can be used for other water quality infrastructure projects at local discretion. (33)

West of the Hudson the planning effort has an economic development focus, but is still keyed to water quality protection: "a comprehensive study . . . of community and economic development goals and opportunities for the West of Hudson Watershed . . . which will assist the WOH communities to achieve their economic, social and environmental goals which are consistent with the City's water quality objectives and the watershed regulations." (34) The study will include an evaluation of specific opportunities to "build a stronger base for regional employment . . . with particular attention placed on the retention and expansion of existing businesses within the Watershed," consistent with the City's water quality objectives and the watershed regulations. (35)

The New York Department of State is authorized to establish a Master Plan and Zoning incentive award for WOH municipal parties that successfully develop and implement community development tools. (36)

Lastly the $60 million Catskill Fund for the Future, established by the City, may be used to make loans and grants to "projects which encourage environmentally sound development and which encourage the goals of watershed protection and job growth in the Watershed communities located West of Hudson." Criteria to define qualified projects are being developed by the Catskill Watershed Corporation. (37)

Ongoing Oversight Structures

The parties to the negotiation agreed that the massive undertaking embodied in the MOA would require joint oversight and a structure for ongoing communication. Accordingly the Watershed Protection and Partnership Council (WPPC) was formed. It consists of 27 members, of which 16 constitute an executive committee. While the Council is designed principally as a communications forum, the Executive Committee has specific responsibilities under the MOA, including the conduct of a public review at the fifth anniversary of the MOA to determine whether the watershed program is working properly and, if necessary, to make recommendations for changes. (38)

A second important committee of the WPPC is the Technical Advisory Committee, which is charged with advising the WPPC and Executive Committee on scientific and technological developments in the field of water quality, recommending research needs within the watershed, and analyzing specific technical issues. This committee has already been called upon to study the water quality impacts, if any, of installing septic systems on slopes of 15 to 20%, and on slopes modified to be less than 15%. (39)

To manage the many partnership programs West of the Hudson, the MOA provided for the formation of a not-for-profit corporation called the Catskill Watershed Corporation (CWC). (40) It is an independent corporation locally based and locally managed, with a board of directors including representatives from the City and State but with a majority of local residents. CWC now has a substantial staff and is the principal administrative body for partnership program decisions in the West of Hudson watershed.

Communication and Trust

One of the important products of the process was the communication network and trust that developed among many of the participants. After two years of wrangling and arguing over intractable issues and resolving most, a certain respect developed among many who were previously opponents. Each participant had to understand the needs of each of the stakeholders, and was permitted to explore those needs in confidential discussions. Each party was also aware that each was taking some risk in going back to his or her constituents with less than the constituents wanted.

The greatest transformation occurred in the West of Hudson delegation, which represented a constituency ready in some cases to pull rifles down off the wall. Years of distrust resulting from construction of the reservoirs, cultural conflicts, and administrative excesses, were overcome in two years of hard work. The establishment of CWC, the generous funding of infrastructure programs West of Hudson, and the willing-buyer willing-seller program were all key, but the good faith bargaining over 24 months may have played an even larger role. At the signing on January 21, 1997, hand shakes and compliments were given all around.

CONCLUSION

The success of the watershed protection program will be measured in future years by the requirements of the Filtration Avoidance Determination and the Executive Committee's fifth anniversary review. Within the first five years certain quantitative implementation actions will be measurable, such as acres of land acquired and number of septic systems repaired or replaced. It is doubtful, however, that significant changes in contaminant levels in the reservoirs would yet be observable. More likely a judgment will be made on the relative success of the program based on implementation steps and the practical working of the MOA and the regulations. Suggestions for some changes are likely.

The future is likely to be influenced by the strength of the original negotiations and the survival of the communications network and trust. With the WPPC and CWC in place there will be institutional continuity to carry the discussions through the next phase. If new negotiations are needed, it may not be necessary or possible to return to the original intensive format. In those original negotiations, all sides were able to win something: the City got a better land acquisition program than it had originally proposed, it was able to promulgate its regulations, and it received its FAD; the watershed communities won freedom from eminent domain takings, respect for home rule, and massive infrastructure grants to assist in water quality protection and, West of Hudson, economic development. All parties attained a level of mutual respect unimaginable three years before.

As a model of conflict resolution, the New York City watershed negotiation may be difficult to replicate. An important lesson of this experience may be that success depends on flexibility and the ability to tailor the process to the specific needs and circumstances of the parties. Some traditional rule breaking--such as the long period of confidentiality and the lopsided representation without builders--was needed in this case, but might not be needed elsewhere. No one model will fit all crises.
 

1. See Okun, Daniel A., et al., Report of the Expert Panel on New York City's Water Supply, March 24, 1993, prepared for the United States Environmental Protection Agency. This report recommended against filtration avoidance, and instead recommended the "multiple barrier" approach of source controls and filtration. Copies of the report are available from EPA, Region II, New York, NY. See also, Okun, Daniel A., New York City's Drinking Water: What is the Risk?, Environmental Engineer (1993).
2. See generally, New York City Department of Environmental Protection, Methodology for Calculating Phase II Total Maximum Daily Loads (TMDLs) of Phosphorus for New York City Drinking Water Reservoirs , March 1999.
3. Draft Generic Environmental Impact Statement for the Draft Watershed Regulations, August, 1993, prepared by New York City Department of Environmental Protection (DGEIS), Vol. 1, pp. II.A-3,4.
4. See DGEIS, Vol. 1, section VII.A for more complete description of land use, and section VII.B for socioeconomic conditions.
5. Ibid.
6. DGEIS, Vol. 1, pp. II-16, 17.
7. See DGEIS, Vol. 1, section VII.B for socioeconomic conditions.
8. See New York Environmental Conservation Law, § 15-1729.
9. See DGEIS, Vol. 1, section VII.B for socioeconomic conditions.
10. 42 U.S.C. § 300g-1(b)(7)(C); 54 Fed. Reg. 27386 (6/29/89).
11. New York State Public Health Law, § 1100 et. seq.
12. Coalition of Watershed Towns v. City of New York. (Supreme Court, Albany County), Index No. 1800-94. This suit was withdrawn as part of the watershed settlement.
13. The suit was dismissed by the Appellate Division and leave to appeal to the Court of Appeals was denied .Loft Corporation v. City of New York. 260 AD2d 549 (2d Dept. 1999).
14. The five participating environmental groups were Hudson Riverkeeper Fund, Inc., New York Public Interest Research Group, The Catskill Center for Conservation and Development, Inc., Open Space Institute, Inc., and The Trust for Public Land.
15. New York City Memorandum of Agreement (MOA), ¶ 146.
16. An overview of the MOA is available on the Internet at www.ci.ny.us/html/dep/html/agreement/html.
17. MOA ¶ 164.
18. MOA ¶ 60.
19. MOA ¶¶ 72, 73, 79.
20. MOA ¶¶ 74, 76.
21. MOA ¶ 73.
22. 15 Rules of the City of New York [RCNY] §§ 18-82(g), 18-83(a); 10 NYCRR §§ 128-82(g), 128-83(a).
23. MOA ¶ 152.
24. See 33 U.S.C. § 1313(d).
25. Natural Resources Defense Council, Inc. v. Fox, 909 F.Supp. 153, 158 (S.D.N.Y. 1995)("The Court, like plaintiffs, is left wondering "where are the TMDLs?").
26. MOA ¶ 162.
27. 40 CFR § 141.71(a)(2).
28. MOA ¶ 170.
29. MOA ¶ 169.
30. MOA ¶ 168.
31. 15RCNY §§ 18-82; 10 NYCRR §§ 128-82.
32. MOA ¶ 138.
33. MOA ¶ 139.
34. MOA ¶ 134(a).
35. MOA ¶ 134(b)(ii).
36. MOA ¶ 152(b)
37. MOA ¶ 135.
38. MOA ¶ 98.
39. The Riverkeeper brought a court challenge to the policy of Putnam County, Westchester County, NYCDEP, and NYS Department of Health, allowing installation of septics on modified slopes. The TAC study was conducted in an effort to resolve the dispute.
40. MOA ¶ 120.
 

Author and Copyright Information

Copyright 2000 By Author

George Rodenhausen is a certified planner and attorney, Co-Chair of the Water Quality Committee of the New York State Bar Association and a partner in the Poughkeepsie and Hudson, New York law firm of Rapport, Meyers, Whitbeck, Shaw & Rodenhausen, LLP. Mr. Rodenhausen served as special counsel to Putnam County in the New York City watershed negotiations. His email address is Grodenhausen@rapportmeyers.com.