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The Safe Drinking Water Act (SDWA) amendments of 1986 required the U.S. Environmental Protection Agency (EPA) to develop criteria under which filtration would be required for public surface water supplies. In 1989, EPA promulgated the Surface Water Treatment Rule (SWTR), which requires all public water supply systems supplied by unfiltered surface water sources to either provide filtration or meet a series of water quality, operational and watershed control criteria. These criteria are referred to as the filtration avoidance criteria, and are comprised of three main areas:

  • Objective Water Quality Criteria – the water supply must meet certain levels for specified constituents including coliforms, turbidity and disinfection by-products.
  • Operational Criteria – a system must demonstrate compliance with certain disinfection requirements for inactivation of Giardia and viruses; maintain a minimum chlorine residual entering and throughout the distribution system; provide uninterrupted disinfection with redundancy; and undergo an annual on-site inspection by the primacy agency to review the condition of disinfection equipment. 5
  • Watershed Control Criteria – a system must establish and maintain an effective watershed control program to minimize the potential for contamination of source waters by Giardia and viruses.

In New York State, EPA delegated primary enforcement responsibility (primacy) for the SWTR to the New York State Department of Health (DOH) for all public water supply systems in the State, except the City’s Catskill/Delaware system.

The City first applied for a waiver for the Catskill/Delaware system from the filtration requirements of the SWTR in 1991. This first application was filed with DOH, because at the time the City and DOH believed that DOH had primacy for all systems in New York State. DOH granted a one-year filtration waiver. Subsequently, it was determined that EPA had retained primacy for the SWTR for the Catskill/Delaware systems. In mid-1992, DEP submitted a thirteen-volume application to EPA, describing in detail the City’s plans for protecting the Catskill/Delaware supply. On January 19, 1993, EPA issued a conditional determination granting filtration avoidance until December 31, 1993. The waiver incorporated many elements of the program the City had described in mid-1992, and was conditioned upon the City meeting 66 deadlines for implementing studies to identify potential pollution sources, developing programs to ensure long-term protection of the watershed, and addressing existing sources of contamination in the watershed. EPA also imposed substantial reporting requirements on the City, to monitor the City’s progress.

DEP submitted a second application for avoidance to EPA in September 1993. This application was based upon the knowledge gained by the City through initiation of its watershed studies and programs and laid out a long-term strategy for protecting water quality in the Catskill/ Delaware system. Again, EPA determined that the City’s program met the SWTR criteria for filtration avoidance, although they did express concerns about the program’s ability to meet the criteria in the future. On December 30, 1993, EPA issued a second conditional determination, containing 150 conditions related primarily to enhanced watershed protection and monitoring programs. EPA also required that the City proceed with design of a filtration facility for the Catskill/Delaware supply, so that no time would be lost should EPA decide that filtration was necessary in the future.

Two critical pieces of the watershed protection program that DEP described in September 1993, and that EPA incorporated into the December 1993 Determination, were implementation of a land acquisition program and promulgation of revised watershed regulations. Primarily due to the objections of watershed residents over the impact that those programs might have on the character and economic viability of their communities, DEP was unable to move forward with implementation of those key program elements. It was against this backdrop that Governor Pataki convened a group of involved agencies and parties to try to come to an accord. The negotiations involved the City, the State, EPA, representatives of the counties, towns and residents of the watershed, and representatives from environmental groups. In November 1995, the parties reached an Agreement in Principle that put forth the framework of an agreement that would allow the City to advance its watershed protection program while protecting the economic viability of watershed communities. It took another 14 months to hammer out the details of an agreement, and in January 1997, the parties signed the Memorandum of Agreement (MOA). The MOA supplemented the City's existing watershed protection program with approximately $350 million in additional funding for economic-environmental partnership programs with upstate communities, including a water quality investment program, a regional economic development fund and a regional advisory forum for water quality initiatives and watershed concerns. The State issued a land acquisition permit, which allows the City to purchase land in the watershed and approved a revision to the City Watershed Rules and Regulations governing certain aspects of land use in the watershed. The City also secured a 5-year waiver from the filtration requirements for the Catskill/Delaware system. The City agreed to fund these programs, including significant funding to be used to maintain the character and economic viability of watershed communities.