WTNY Interview with Riverkeeper Program Director, Dan Shapley

On the 50^th Anniversary of the Clean Water Act, Reacting to the Draft 2020-2022 Impaired Waters List

Jan 4, 2022

WTNY: Hello Dan, thanks for being here. First off, I want to congratulate Riverkeeper for so many accomplishments in 2021. What was the highlight for you, of all the Riverkeeper successes in 2021?

Shapley: Personally, the most significant thing, and I am proud to have seen it happen, is the rollout of the state’s Drinking Water Source Protection Program (DWSP2). That is something that had its roots back in advocacy that we were a part of, that I was a part of back in 2016 when the city of Newburgh’s water supply was contaminated with PFAS. One of the things we strongly advocated for at that time was to apply a lot of the lessons learned from protecting New York City’s drinking water supply through watershed management and apply them to other water bodies throughout the state in a much more robust and sophisticated way.

This program, now five years later, is finally out and being used. Communities are now starting their own planning processes, developing programs for their own water supplies. It's just a step, nothing is ever “done”, but this is a really significant step and will have a lasting impact on so many of our communities and improve and preserve water quality in so many places. There are many watersheds that fill the state’s drinking water supplies. If we can start to really think of them that way and to culturally, socially, and politically treat them that way, this will have a really profound effect over time.

WTNY: This is good news, from a watershed point of view, sometimes the least populated areas have the most trouble with water, but these don’t get much attention from politicians. I understand that your main work is directly on behalf of the Hudson, so are you are saying Riverkeeper efforts and results are extending out, applying to the other watersheds in the state?

Shapley: Yes.

WTNY: Can you help me understand, this new draft Impaired Waters list is “2020-2022”, but I see that Ohio’s 2020 list was approved in August 2020. Is New York behind in this?

Shapley: Yes. This is a Clean Water Act requirement where there has to be a new list published every two years and approved by EPA. Our 2018 list was just approved finally, I think, in 2021. So, they were so far behind, they are calling this list the “2020-2022” list, basically just skipping 2020.

WTNY: The public response period is to run until January 28, 2022, and the DEC is to submit their final list to EPA on April 1, 2022, with the approval expected 30 days after, is that right?

Shapley: Well, I don’t expect that. I'm sure the comment period will end on the 28^th, and then everything else will be subject to the same sorts of delays that have affected the past lists. I have only just started to look at this list, our partners are just digging in and we have a lot of questions. I would guess EPA would have a lot of questions as well. Thirty days? It’s a nice goal. We will see.

WTNY: Looking at the new list here, and I am counting an impaired water body once, even if it has several impairments, in the Upper Hudson there are 26 water bodies listed, with 15 suggested for some form of de-listing, in whole or in part, due to “flaws in original analysis". All the PCB impairments are suggested for de-listing, what do you make of that?

Shapley: This is one of the concerns I have as well on my first run through the list, that all the PCB impaired waters are proposed for removal. I don’t think it’s the original lab results that were flawed, but over the years the state has been revising protocols for listings. In the same announcement, the Consolidated Assessment for Listing Methodology (CALM) was published. My suspicion is that DEC said, now that we have updated protocols for monitoring water quality and these old data sets don’t conform (to the new protocols and standards), so we should throw them out.

There is certainly some value in consistency and standardization, in high-quality data, and applying that to the list. On the other hand, there are obvious impairments that don’t need more data or a specific type of data to just know, just a basic human understanding will get this. We know the Hudson has PCB problems, to say that it's not impaired for PCBs doesn’t pass the sniff test. You can’t eat the fish, and you won’t be able to eat the fish for 50 years based on current projections, because of PCBs, and that’s an impairment. To delist PCBs for any reason would be absurd. It will be interesting to hear the DEC rationale.

Others are also concerning. For instance, Wappinger Lake, which is here in the mid-Hudson region, is fed by Wappinger Creek. There's been a decades-long, mostly stalled, “fits and starts” effort to implement a watershed plan to address phosphorous and sediment, which are impairing the lake. The Village of Wappinger Falls had to move drinking water wells at great expense. Now DEC is proposing to remove sediment as an impairment for Wappinger Lake. What is the impact of that on the community’s attempt to come up with a plan and get something implemented to really restore water quality?

It’s the same with Upper Esopus Creek and Ashokan Reservoir where sediment is proposed to be removed as a known impairment. We just saw months on end of thick, muddy water being discharged from the Ashokan Reservoir because the mud flowing into it from the Upper Esopus Creek was impairing it. This went on from this time last year to April (‘21). New York City, in order to preserve its drinking water quality, was following protocol that we don’t think is adequate, but which calls for dumping that (mud) water into lower Esopus Creek. To recognize that the lower Esopus is impaired for sediment but to try to say the Upper Esopus and reservoir are not, flies in the face of logic and obvious facts on the ground. DE-listing this is hard to see from my perspective.

WT: I was looking at Esopus Creek USGS streamflow data, Mount Marion station, and Allaben. There was a huge spike in turbidity on Christmas Day 2020, but before and after that day the turbidity shows low and level the rest of the year. What was the cause of the upstream erosion?

Shapley: I would encourage you to look at our Riverkeeper “Stop the Mud” page on our website. It’s a complex issue with a lot of history, going back to the creation of the Ashokan Reservoir about a hundred years ago, the first reservoir in the Catskills. It's situated at a lower elevation relative to other reservoirs built subsequently, so it’s subject to more erosion in its watershed, in the creeks above, the Upper Esopus watershed. That’s a product of the natural geology of the reason, coupled with whatever causes erosion, living in the landscape. It's clay soil that takes a long time to settle once it's in suspension. Ashokan Reservoir is about 40% of NYC water supply. There are two basins within it, the Western basin that directly receives the Upper Esopus water, you can see in some aerial images, after a big storm event such as the one you referenced Christmas Day 2020, you can see the chocolate brown water flowing into the West basin, and the Eastern basin is clear. What NYC used to do, going back a couple of decades, they would discharge the water down the aqueduct to the Kensico Reservoir, closer to NYC. They were dumping alum to settle out the sediment there, and doing that without a <i>Clean Water Act</i> permit. This is illegal, it is something that Riverkeeper challenged them on. And so, as a result, they have to have a permit for the use of alum in the Kensico Reservoir.

That turns out to be really the only legal trigger in place to try to influence how they are managing the Ashokan Reservoir. Their solution so far has been to just discharge that West basin muddy water right to the lower Esopus Creek. That big discharge you see at Christmas (’20) is significant because it’s the start of the turbid discharges, but those discharges stayed at a highly elevated level of turbid water with only a couple of breaks all the way into April of 2021, so we are not talking about a short event or something that comes and goes quickly. This (discharge) is a management decision that influences the lower Esopus Creek with impacts that last several months at a time whenever there is a big storm event.

The permit is the main tool we used to influence the city’s management. There was an Environmental Impact Statement that took many years, that the city finally released concurrent with that Christmas storm and a public comment period, and we are still waiting for DEC to respond to NYC, to all the comments. What we are hoping to see is a Supplemental Impact Statement required, to address several deficiencies, and interim measures put in place, to the extent possible, to reduce impacts in the short term. But what we really want to see is an aggressive look at engineering solutions that could reduce and mitigate impacts to the lower Esopus Creek at the same time that the drinking water is protected.

This is a complex challenge, it’s made more complex by climate change, more extreme storms that are already hitting the Catskills, and will continue to pummel them. It's a dynamic problem getting harder to manage. So far, they say dumping mud into Esopus Creek is the only option. We say it's inadequate and they need to put the great minds of their great engineers on the task of addressing this complex problem.

WTNY: What is the impact then, of de-listing because the original analysis was flawed, but the problem remains, if silt and sediment remain, it’s still mud. What is the impact on the goal of clean water, having these water bodies taken off the list?

Shapley: It's a case by case. In the case of PCBs, we deal with PCBs through Superfund, not <i>Clean Water Act</i>, at least there is another process to deal with it, so (PCB delisting) may be less consequential than the sediment concern we just talked about. If the Upper Esopus is impaired for sediment, then where is the management plan and the management response to reduce the erodibility of the stream banks, to do the stream bank repair. You undercut the management options if you remove the water body from this list.

The impact of (de-listing impairments) is case-by-case. In some cases, it could potentially be a really severe impact, really limiting the tools the community has, the state has, and that citizens have as a group to advocate for and improve water quality.

WTNY: DEC has been promoting its Drinking Water Source Protection Program (DWSP2) program, offering technical support to communities. So, if the water body is de-listed, no supports or interventions are available, no mitigation is available, is that what you are saying?

Shapley: The basic way the <i>Clean Water Act</i> works, determine how the water is used, what standards you need to meet to ensure that use is unimpaired, then you monitor to figure out whether it is meeting standards or not, and then you identify the impairment(s). This is now several steps down the list. The next step is, where you have an impairment, deal with it. The Total Maximum Daily Limit (TMDL) or 9 Element plan is for dealing with an impairment, like sediment or erosion. If you have the impairment, that opens up the state resources or EPA funding options for the engineering, for the modeling to define the cost-effective solutions and also the money to implement those.

It’s so hard to get watershed-based work done in any case, but where there is an impairment, at least it starts to open up funds for solutions, to start to reach for solutions.

On the flip side, look at the length of this list! The resources are not flowing to most of these now; there are no good management plans in place now. Our waters are so impaired, we have wrecked so much of our water in all these various ways. There are obviously way more problems than there are resources right now to try and address them. Certainly, that is not a good argument for pretending there is no problem when there is an obvious problem.

We can acknowledge that we have too many problems to solve without pretending there are fewer problems. Some amount of trimming and revising here is probably totally warranted and rational, I want to make sure that impacts are avoided that would really undercut legal, technical, or funding solutions that would otherwise be available.

WTNY: The total number of impaired water bodies has gone from 152 on the final 2018 list to 686 on the new draft list, with 197 proposed de-listings. The de-listing won’t take the whole water body off the list, in some cases, just certain impairments. This is a huge increase, is it not?

Shapley: That is, on its face, a real credit to the DEC. In the same way, I was just saying, we need to recognize where there are problems. Here we see a DEC data backlog is resolving. DEC is getting efficient in their listing office, they have also done intensive monitoring around the state in recent years, now being reflected in some of these impairments. This is a credit to the listing methodology and the standardization. Now they can say “this creek has too much aluminum, put it on the list". Maybe this wasn’t happening previously. This is evidence, points to the quality of this revision, that DEC is getting some significant positive momentum, balancing out some of the criticisms.

WTNY: The Atlantic Long Island Sound list went from 50 to 200, reads like an inventory list, none missing. I see very few on this list are a vision priority. How did they come up with priorities? I would have thought the Ashokan Reservoir or other drinking water sources would be a priority?

Shapley: There is a document on the DEC website, the vision document for impaired waters, I think it was updated in 2014, I don’t know if an update to this has come out as part of this list. I don’t know all the story on this, it might have been nationwide, but between DEC and EPA, they realized we have all these impaired waters, how do we measure success, how do we prioritize them? So this vision plan came out, where DEC said they would prioritize drinking water supplies, nutrient impairments, and fecal coliform, saying “we are going to look at our programs and try to align around these problems. "The Long Island bays named are probably shell fishing bays, addressing an important public health need.

Another prioritized body is Cayuga Lake, a big Finger Lake, which is a drinking water source. You would want to really look and cross-reference the vision document to see what other drinking water supplies should maybe be identified as priorities. Presumably, the DEC has done that and assigned the vision priorities. It is shocking to see how few drinking water supplies are prioritized.

This explains what the vision column is referencing, it’s another document to become familiar with.

There are a few bays prioritized in Long Island Sound, maybe those are prioritized for recreational use, possibly swimming beaches. There has been a big effort in Long Island Sound through this regulatory process on nutrient reduction because of harmful algal blooms, low dissolved oxygen, and fecal bacteria, not good for swimming beaches or shellfish.

WTNY: Is there anything else that you want to add, about the list or your outlook for 2022?

Shapley: This list is the start to getting cleaner water, for any community living next to a lake or stream, reservoir, or river that has a problem with water. It is one of these arcane, wonky, difficult-to-understand processes.

Here we are, 2022 is the 50^th Anniversary of the<i> Clean Water Act</i>.

We can see from the length of this list, we have NOT met the “swimmable/fishable” goal -- by far-- we were to have met for the mid-’80s, obviously, we have not done that. We still have a lot of water quality problems. Many of these are exacerbated by extreme storms, by climate change.