Hochul Vetoed Water Protection Bill Because New York Lacks the Staff to Enforce It

Two years ago, Andrew Cuomo vetoed a clean water bill, citing staff cuts. Last Friday, Kathy Hochul used the same argument to turn it down again.

Colin Kinniburgh   ·   December 15, 2022
The Hudson River seen from the city of Watervliet, Albany County. | Henry Bellagnome

THE CITY OF WATERVLIET, just north of Albany, traces its name to the Dutch for “water flows.” It’s fitting for a town along the Hudson, one of many in New York named after bodies of water.

Yet Watervliet’s own water supply is at risk: Its 2020 water quality report found that its reservoir faces a threat of contamination from upstream agricultural runoff, pesticides, and chemicals that feed algae. The city’s water is safe, the report said, but if the sources feeding into it are tainted, the reservoir could be too.

Since the report came out, Watervliet and neighboring Guilderland have had to issue several warnings to residents about drinking water contamination, as potentially hazardous chemicals spiked well above allowed levels.

In the spring, lawmakers overwhelmingly approved a bill aiming to protect upstream water sources by vastly expanding the state’s oversight over its waterways. But Governor Kathy Hochul vetoed it on Friday, arguing that the state’s Department of Environmental Conservation (DEC) doesn’t have the resources to enforce it.

The veto points to a deeper problem of understaffing at the agency, which advocates and some DEC staffers say has hampered its ability to make good on a growing list of climate and environmental mandates. Reeling from the 2008 financial crisis, former governors David Paterson and Andrew Cuomo slashed the department’s headcount by a full 20 percent, taking out a combined 750 jobs between them. Over his decade in office, Cuomo largely resisted calls to restore the positions.

Hochul’s explanation of her veto nodded to the upcoming budget, raising the possibility that she will be more receptive next year. A spokesperson for the governor noted last year’s budget already added 94 DEC staff, “the largest increase the agency has seen in several years,” but declined to elaborate on further hiring.

Assemblymember Steve Englebright, who sponsored the stream protection bill, said he was disappointed by the veto — he was “hoping that we would have a more thoughtful approach” under Hochul, he said — but optimistic that she would address the agency’s “yawning gap of need.”

“I do think that we have a governor who is really interested in rebuilding the strength of the department,” Englebright said, “as opposed to the previous governor who was often seen as unraveling the mission of the department by shriveling its staff.”

NEW YORK ALREADY enforces the federal Clean Water Act across all of its 70,000-plus miles of waterways. But federal law only governs what are known as “point sources”: pipes, drains, wells, or other outlets that flow directly into a body of water. More indirect sources of contamination, from stormwater running off industrial sites to pesticides from agriculture and landscaping, come under the state’s ambit. And the state’s Protection of Waters program, which regulates any digging or construction work that might introduce new pollution, covers less than half of its waterways.

New York has 41,000 miles of what are known as “Class C” streams, designated for fishing and boating but not for swimming (Class B) or drinking (Class A). The Protection of Waters program covers the upper two classes, but not Class C streams — which often feed into the other two. Environmental advocates say that puts both wildlife and downstream drinking water at risk.

“Water doesn’t recognize geographic boundaries,” said Senator Pete Harckham, who sponsored the vetoed bill. “So we’ve got to protect it at the source.”

Dan Shapley, director of the water protection program at the advocacy group Riverkeeper, said Watervliet’s case is instructive.

“There’s three reservoirs in the Capital District. Two out of three are protected, as well they should be for this program, and one is not,” Shapley said, referring to Watervliet. The streams feeding reservoirs in nearby Troy and Albany are protected, and they haven’t faced the same kinds of problems.

A DEC map shows that tributaries to the Watervliet reservoir feed through an industrial park, a shooting range, and at least three golf courses, as well as suburban neighborhoods.

“Let’s say a golf course wants to change the direction of a stream that flows through their golf course. If it is a C stream … they may not have to apply for a Protection of Waters permit,” said Jeremy Cherson, senior manager of government affairs at Riverkeeper.

The bill Hochul vetoed would have changed that, giving DEC a first look at any project that might disturb a Class C stream. Shapley said this could also help address issues with flooding, which urban sprawl has increased by paving over land that might otherwise have absorbed excess rainwater.

THOSE ARGUMENTS EASILY carried the bill through the legislature, overcoming pushback from a wide range of opponents. Trade groups including the Farm Bureau, the Independent Power Producers of New York, the Builders Association, and the Empire State Forest Products Association — which represents wood and paper companies — all lobbied against the bill. So did two associations representing town and county highway officials. Con Edison and Central Hudson Gas and Electric are also listed in filings, apparently lobbying against the bill, although they did not respond when New York Focus asked them to confirm.

The lobbying push continued well after the bill passed in May, as opponents pressed their case to the governor — ultimately successfully.

“We’re already having to permit across 36,000 miles of streams. It takes months to get through the permit process,” said Andy Avery, public works commissioner for Chemung County and president of the New York State County Highway Superintendents Association. Doubling that scope “would really hinder our ability to protect public safety as we rebuild bridges and culvert projects.”

DEC normally aims to issue stream permits for road work in 45 days, but in some cases it’s taken as long as four months, Avery said. That difference means a lot when a road needs urgent repair, and it comes down to whether “they have enough people in the office to look at the permit.”

“So imagine if you more than doubled their workload, and weren’t adding employees, it just would really exacerbate an already existing issue,” Avery added. Even if DEC did staff up, he said, the law would also increase the burden on local authorities, who are in charge of putting together the permits that DEC reviews and are themselves often understaffed.

Timothy Foley, CEO of the Westchester trade group Building and Realty Institute, argued that the stream protection bill would have been redundant with federal regulations and those already required by county Soil and Water Conservation Districts. The additional permitting hurdles would have increased developers’ costs and imposed yet another barrier to much-needed housing construction in the region, he said.

Foley, too, echoed Hochul’s main reason for vetoing the bill: a doubling of DEC’s enforcement responsibility over streams without a corresponding increase in staff.

“While the intent of this bill is laudable, it would have significant regulatory impacts on related projects and will carry substantial cost,” Hochul wrote in a veto memo released late last week.

Hochul’s argument mirrored the one then-Governor Andrew Cuomo made when he vetoed the same bill in 2020. “While well-intentioned,” Cuomo wrote, “this bill would have a tremendous fiscal impact.”

AS HOCHUL WRAPS up her decisions on this year’s legislation, all eyes are turning to next year’s budget. She’s due to outline her legislative agenda in January and present an executive budget by February 1. Her answer to current staffing shortfalls will shape the state’s environmental future.

Stream protection isn’t the only area where DEC is falling behind on clean water enforcement due to lack of staff, according to environmental advocates.

Shapley noted that understaffing has led to a “tremendous backlog” in reviewing permits for facilities that discharge pollutants into the state’s waterways. It has also led the state to fall behind in regulating PFAS chemicals, with one DEC team stretched thin between an enormous range of water protection duties, he said.

Two longtime DEC staffers who spoke to New York Focus on the condition of anonymity voiced similar concerns about the agency’s lack of capacity, saying that its sharp decline in staff since the 1990s has led the agency to rely more on self-reporting from the companies it regulates, as well as on volunteers and nonprofit organizations to fill in the gaps.

Riverkeeper is one of those organizations: It uses online research to identify industrial facilities that may be illegally allowing contaminants to run off into waterways when it rains. It then alerts the facility owners and DEC, forcing them to take action.

That shouldn’t be its responsibility, Shapley said. “The state should have capacity to do these things,” he said, while crediting the agency’s staff for its responsiveness under current constraints.

A DEC spokesperson said the agency “rigorously enforces” water pollution permits, noting that the number of facilities violating federal clean water laws in New York has been cut almost in half over the last five years, dropping from 14 percent in 2018 to 8 percent today.

Still, important gaps remain, and proponents of the legislation say the cost of beefing up enforcement pales in comparison to the cost of cleaning up contamination.

“It’s much cheaper to protect water at the source than to remediate after contamination,” Harckham told New York Focus.

Last year, DEC shelled out $3.6 million to the Hudson Valley town of New Windsor after PFAS contamination forced it to shut down its new wells and buy more expensive water from elsewhere.

Senator Rachel May, chair of the Legislative Commission on Rural Resources and a hopeful to chair the chamber’s environmental conservation committee, said she was “frustrated” by Hochul’s decision to veto the bill but was determined to see it through next year.

“Now we have to make sure that it gets in the budget, and we get the staff … but also do better oversight to make sure we’re actually enforcing environmental laws,” May said. “It’s a challenge to us.”

Correction: December 16, 2022 — This story previously mischaracterized the scope of the Protection of Waters program. The program regulates digging or construction work that might pollute waterways, not any nonpoint water sources.

Colin Kinniburgh is a reporter at New York Focus, covering the state’s climate and environmental politics. Over a decade in media, he has worked in print, television, audio, and online news, and participated in fellowship programs at CUNY’s Graduate School of Journalism and… more
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