NEW YORK — The destruction along the city's waterfront caused by Superstorm Sandy was a wake-up call about the city's present and future as the ocean surged and whole communities were torn up.
Even so, very little of the discussion churned up by the storm has been translated into actual policies aimed at meeting the challenge of rising sea levels while balancing development and recreation along the coastline.
The Metropolitan Waterfront Alliance, a coalition of over 700 partners, hopes to change that.
Roland Lewis, the executive director of the alliance, said that before Sandy hit, it might have been easy to forget the geographic destiny of the five boroughs. "We were reminded that we are an island people and a coastal city," he said.
His organization hosted a conference yesterday at Hudson River Park's Pier 40 that brought together policymakers, industry officials and activists to talk about how New Yorkers and the coast can prosper together. Six candidates for mayor participated in a forum on a boat moored to the pier, answering questions on topics ranging from ferries to sustainability.
Predictably, given the seriousness of the debate, registration was up from last year with over 600 people expected to attend — about 100 more from the previous year.
The conference, besides bringing together stakeholders of the waterfront to discuss important matters of how to use the coastline for industry and recreation, served as an opportunity to showcase the alliance's "five-point strategy for the restoration, resilience and revitalization of the NYC waterfront."
The platform calls for creating a system of ferries integrated with the transit system and serving as a backup when disaster strikes; setting guidelines for developers to build according to the goals of making structures resilient against storms; exploring ways to enhance use of docks; reinforcing the role of the waterfront in industry; and establishing a Department of Waterfront that would take over for what more than a dozen agencies do.
Lewis said the platform was already in the works when Sandy struck. The alliance had scheduled a conference at the South Street Seaport Museum for Nov. 9 — just days after Sandy pummeled the city. The museum, though, was flooded, and the alliance was forced to move because the venue was washed out. There was an upside to the storm's timing: Sandy forced attention on the waterfront, and the conference attendees were together at the right time to give mutual support and reassess the issues.
"I think these issues would have been high-level and we would have pushed forward, but obviously Sandy has made it a multibillion dollar existential question," Lewis said.
The alliance has a track record of helping to shape debates surrounding the waterfront, Lewis said. He said its 2008 platform helped inform the city's comprehensive waterfront plan, which has been lauded as a national model.
Of the new platform, Lewis said that the alliance's partners don't all agree with the positions, but that there is a "consensus."
"They agree with the general idea of creating a vibrant, resilient waterfront," he said.
One subject left unaddressed in the platform is the question of waterfront communities, and plans being made to offer buyouts to homeowners.
Lewis said that was on purpose. "I think speaking broadly there will obviously be changes in the lives of waterfront communities," he said.
But he said the alliance was waiting to hear what the Bloomberg administration had to say about the matter. The city's Economic Development Corp., is expected to release a study soon.
The mayor, however, has made clear that the city would not pullback from developing the waterfront. Lewis was not as certain. "I'm not sure that's tenable as time goes on," he said. "I think there's going to be a more nuanced view of that."
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Photo of Long Island City, Queens, waterfront by Hanna Elise, used under Creative Commons license.
NEW YORK — New York is moving forward with a new policy that could transform the way polluting industries interact with state regulators.
Polluters across New York will be able to see penalties waived in exchange for reporting violations themselves, according to the proposed “self-audit” policy that Gotham Gazette first reported about last year before it was made public.
Under the proposed policy, any entities regulated by state law — such as chemical storage and industrial facilities, wastewater treatment plants, and farms — will be eligible.
The public has until April 22 to review and comment on the self-audit policy before it is finalized and put into place by the DEC:
The state says a more flexible approach to enforcement will lead to enhanced compliance with environmental regulations.
Similar policies have been enacted in other states, and at the federal level.
Pollution generators may also be able to secure more time to report and correct violations in exchange for making their operations more transparent to state environmental regulators. State Department of Environmental Conservation spokeswoman Lori Severino said it is likely the policy will be finalized this year.
The DEC maintains that the new policy would not impact how the state monitors sources of air, water, and ground pollution.
Severino said in an email that “all current means of scheduling inspections would continue.” She explained that “the scheduling of inspections varies by program and statutory or regulatory requirements … Certain facilities must be inspected on a regular basis … Other facilities may be selected for inspection randomly from a large universe of regulated facilities. Inspections may also be scheduled based upon a complaint from the public.”
One key aspect of the policy is that the state will offer increased incentives to companies in exchange for more substantive steps to control pollution.
Examples of meaningful steps that companies can take include compliance audits, and environmental management or pollution prevention systems that “reduce the adverse environmental impact of their (companies’) activities, products, and services.”
In a Feb. 22 statement on the draft self-audit policy, DEC Commissioner Joseph Martens noted: “This policy will encourage companies to audit their operations and quickly return to compliance before an inspection is scheduled and fines are levied for violations.” He added, “It will also reward companies who make a long-term commitment to beyond compliance performance in order to save money and protect the environment.”
The policy has been endorsed by the Business Council of New York State. It also has qualified support from some environmental groups.
Rob Moore, executive director of Environmental Advocates of New York, said that the draft policy is a significant improvement over an earlier version obtained by the Gotham Gazette in May 2012. He noted that repeat environmental offenders will not be able to take advantage of the new policy.
“They’ve done a really good job moving this in a positive direction,” he said, referring to state regulators. “It’s an incentive for people to report infractions … (and) they are also on a pathway for the DEC to take a look at the whole operation.”
The draft policy waives civil penalties for polluters that report infractions prior to a state-ordered inspection. Certain violations are excluded, including recurring violations, those involving criminal activity, and those categorized as “significant” or “high-priority” under the provisions of the Federal Clean Water and Air acts.
The draft document states that a violation entailing “serious actual harm, or one that may have presented an imminent and substantial endangerment to human health or the environment” is not eligible for penalty waiver under the new policy. But the draft also acknowledges that the new policy will pertain to “violations that negatively impact human health or the environment.”
The policy appears to give the DEC expanded latitude in determining how to approach a violation of environmental law, and in deciding whether penalties and other punitive actions should — or should not — be taken.
Lori Severino said in an email that “serious actual harm would be determined based on the particular circumstances of the violation, but could include illegal disposal causing contamination of surface or ground water, or intentional releases of carcinogens into the air.”
Richard Walka, a senior vice-president at D&B Engineers and Architects, which specializes in environmental projects and works with private firms on compliance issues, argued that the DEC would proceed with caution. “That latitude is always going to go to the conservative side … They’re not going to give up any power,” he said of the DEC. “They’d be foolish to stop that (use of enforcement capabilities).”
To be eligible for a possible penalty waiver, violations must be reported within 30 days, and “corrected” within 60 days. Correcting violations includes “remediating any environmental harm associated with the violations, as well as implementing procedures to prevent future violations.”
The draft policy notes that an alternate time frame may be established “as part of an environmental audit agreement.” As a further incentive, companies and other pollution generators that enter into self-audit agreements with the state will “not be prioritized for inspection during the limited audit period” if they meet certain conditions.
Severino said that audit agreements would generally be completed within a year or less. She explained that during that period “DEC would not prioritize (will not target) that facility for inspection to identify violations, since it would not be an effective use of DEC resources to inspect a facility that has agreed to undergo a compliance audit and report those findings to the DEC.”
But, she added, “That said, DEC always has authority to enter a facility, and conduct an inspection, if warranted, and will do so …”
Polluting facilities that enter into self-audit agreements with the DEC may also be able to secure additional penalty waivers, financial and technical assistance with implementing pollution control strategies, and public recognition under the DEC’s New York Environmental Leaders program.
The union that represents DEC’s professional and technical staff has argued in the past that the DEC does not have sufficient resources to properly monitor self-audit agreements with regulated polluters. The agency has lost several hundred staff members since 2008.
Moore agreed that this was an open question. “The situation with DEC staffing is troublesome,” he said. “(The DEC is) almost fully reliant on self-reported information … They don’t have the resources to collect information … That’s really shameful. The state has to correct that problem. Even people being regulated recognize that it’s a problem.”
He said the self-auditing program would be “most successful when it complements a robust enforcement program.”
Darren Suarez, government affairs director at the Business Council, concurred that the new policy was not intended to deal with bad actors. He agreed with Moore that DEC enforcement was still a critical tool for dealing with environmental offenders and, he added, to “put them out of business” if necessary.
Walka, who worked at the U.S. Environmental Protection Agency before entering the private sector, said that the EPA’s development of a self-audit program in the late 80’s led to a “tremendous increase in compliance. I see this (the new DEC policy) as an opportunity for compliance.”
He agreed that the policy represented a shift in philosophy. But he argued that it could actually be a more effective way to expand the DEC’s — and the state’s — regulatory reach, especially into new companies and growing industries. It could even be a way to attract companies into the state, he said.
“It’s a little bit of a paradigm shift. The state has always been a rigorous enforcer. They would not have done this before. They have realized they have had some changes in resources … They are focusing on the new owners in this policy. These are the new low hanging fruit.”
Could a more flexible approach to compliance lead to less pollution of New York’s air, soil, and waterways?
“Will it work? Time will tell. The next step will be metrics. How do we track this? That will be the next challenge. They can pull the plug on this if they need to,” said Walka.
OXFORD, N.Y. — The remains of abandoned farm houses mark the rolling hills and woodlands of the Town of Oxford in the southern tier of upstate New York.
It is here, and in other rural communities in the state, that the most hard-fought regional environmental battle of this generation is playing out — whether to allow the contentious form of natural gas drilling, known as hydraulic fracturing or fracking.
Hydraulic fracturing entails the pressurized injection of hundreds of thousands of gallons of fresh water mixed with sand, lubricants and other chemicals deep below the surface of the earth, in order to “fracture” shale formations and release gas.
Because the shale is located below underground water sources, some scientists —including those affiliated with the City of New York — have questioned whether methane or drilling fluid could be inadvertently released and cause water contamination. Drilling proponents maintain that drilling technology and well construction continue to advance; they also say that fracked natural gas could help the U.S. obtain energy independence.
Gov. Andrew Cuomo has signaled that southern tier communities like Oxford may be able to decide whether to allow the practice, even as the state continues a multi-year review of the impacts of hydraulic fracturing in the gas-rich Marcellus Shale and other formations upon which much of New York sits.
This past Tuesday, the small village of Oxford — located within the town of Oxford and alongside the Chenango River between Binghamton and Utica — became the first community in Chenango County to effectively ban activities related to high-volume hydraulic fracturing. But along the way to making the decision, divisions were brought to the fore over the promise that natural gas drilling holds for reinvigorating the tepid local economy and the potential environmental hazards.
Those divisions — between residents, residents and farmers, farmers and other landowners, and even between the village and the town itself — threaten to tear apart the community.
The decisions being made by upstate communities like the Village of Oxford regarding fracking could also have consequences that lead all the way to New York City. Oxford is only 40 miles from the western border of the city's watershed that supplies nine million people — half the state — with unfiltered drinking water.
Though the city has asserted that the watershed is protected through an agreement with state environmental officials that probhibits drilling within it, concerns still remain about how fracking could impact drinking water supplies downstate. The city is also set to increase its dependence on natural gas through the construction of new pipelines that would bring fracked fuel to the metropolis.
The difficulty of deciding whether to allow hydraulic fracturing at the local level is one of the few points on which those opposed, and those in favor of drilling, can agree.
“This isn’t just a risk to one water well," said Oxford landowner and anti-drilling activist Trellan Smith. "This is not a small decision, it’s not a light decision … It’s not a decision that one person can make on their property for themselves.”
Bryant LaTourette, a member of a local group of landowners and a drilling proponent, said: "On something this critical, and this important to our national security, I don’t think that’s a good idea at all." He said the governor had "put everybody on the hook at this time to figure out what it is that the state is supposed to be figuring out. And to come up with our own set of rules and regulations that back if we can do this or not.”
The state Department of Environmental Conservation’s review is focused on the potential impacts of horizontal drilling and high-volume hydraulic fracturing in the Marcellus Shale, which until the technology became widely used was inaccessible because of its depth. The shale stretches from West Virginia and Ohio northeast into Pennsylvania and southern New York. A draft environmental impact statement was released on Sept. 30, 2009. After the receipt of tens of thousands of public comments, subsequent drafts were released in 2011, along with draft drilling regulations.
However, environmental groups maintain that if the state does not release a finalized impact statement to the public by Feb. 13, the agency may be required to re-start the review process. The state health commissioner has also been charged with reviewing existing studies related to public health impacts from hydraulic fracturing.
The village of Oxford, population 1,700, advertises itself on its website as "a community of beautiful old homes, churches and well-kept parks." There are arts-and-crafts galleries, a folk music center, a golf course. "The surrounding countryside is a haven for everything from White-Tailed deer to Pheasant, Turkey and Geese, and our streams, lakes and rivers provide some of the best sport fishing in NY state," the website reads.
The bucolic village is a jarring setting for an increasingly impassioned, complex debate over U.S. energy policy, environmental protection, local economic development and how responsibility for the public’s welfare is shared — or not shared — across jurisdictions.
The newly passed “ban” on hydraulic fracturing in the village, which was enacted by the village planning board with a super-majority vote of four-to one, is actually an amendment to the local zoning code, clarifying that gas drilling-related activities are not permitted in the village. The village’s first attempt to pass the ban was rejected by the county planning board, which had raised a number of questions, including how it could impact the regional economy. The village's mayor has asked for clarification from the county board.
It remains to be seen whether bans like the village's can survive legal challenges from property owners or larger jurisdictions.
LaTourette claims 68 percent of the land in the greater town is already leased for drilling. Another 20 percent could eventually be leased as well.
The village's decision also conflicts with the stance taken by the Town of Oxford, which amended its zoning laws to permit hydraulic fracturing.
Village of Oxford Mayor Terry Stark said that the village planning board took action because the impact of any local ground water contamination would be felt most deeply there,due to the concentration of residents. At the same time, Stark acknowledged that he could not control drilling in the larger town.
“I’m simply trying to run a process that gives everybody an opportunity to be heard,” he said.
The village initially passed a moratorium on drilling in the fall, which Stark said he had hoped would give all sides a chance to look at the issues and reach some common ground. But Stark said that it became clear that a clarification of the zoning code itself was necessary in order to respond to possible lawsuits from landowners.
"I didn’t do this to pick a fight," he said, adding that he received a petition with over 300 signatures of the village's 1,000 possible voters that said hydrofracking within the village was "not compatible with what the village should be."
Some in the greater town have pushed for a 24-month moratorium on fracking.
A group of Oxford residents say that so far they have collected signatures from at least one-third of the town’s adults (and almost half of the town’s registered voters) supporting the idea. One member, Trellan Smith, stressed that, to date, the group had only canvassed half the town’s adult residents. The signatures were presented to Town Supervisor Lawrence Wilcox on Nov. 1, 2012.
In a recent interview, Wilcox said that the town was waiting for the DEC to release its final environmental impact statement and drilling regulations before making a determination on how to proceed. Chenango County records show that Wilcox has a gas lease with Norse Energy that was renewed in 2009. Wilcox is also chair of the Chenango County Board of Supervisors.
Asked if having the gas lease posed a conflict-of-interest, Wilcox said that the town attorney had advised that if town board members who had land leased for drilling were to recuse themselves from the decision, there would be no quorum.
“The positive things that safe gas exploration could bring to upstate New York are phenomenal,” Wilcox said. But, he said he was still awaiting the results of the state review. “I don’t want to have it unless it can be done safely. That’s the feeling of most of the community. They don’t want to see the land ruined.”
Chenango County, where Oxford is located, had the fastest private sector job growth in the southern tier between 2010 to 2011, largely due to a spike in manufacturing. Much of that is because of the boom in demand for Greek-style yoghurt produced by Chobani, which has a large facility in New Berlin with 1,200 employees.
Nevertheless, it remains a largely rural county, with agriculture still the number one industry, according to Donna Jones, director of planning for the county. The 200 or so mainly dairy farms in Chenango are about half the number that existed there in the 1970s and 1980s. Per capita income in Chenango is $22,500, Jones said. Fourteen percent of residents live under the poverty line, mirroring the state.
“It's very difficult for farmers to make a living,” explained Jones. She said the loss of manufacturers like Proctor & Gamble had walloped the economy. “We desperately need a boost,” she added.
How much wealth for upstate localities could be unlocked by drilling in the Marcellus Shale? To put it in perspective: Estimates of the amount of gas that exists within the formation range from 84 to 489 trillion cubic feet. State regulators say New York uses about 1.1 trillion cubic feet of natural gas a year. A DEC analysis in 2011 found that “over the 30-year life of a typical horizontal well, a total of $1.45 million in (local) tax revenue could be generated.” The state has estimated that as many as 40,000 wells could be drilled.
Jones said that the Village of Oxford was within its rights to restrict activities related to hydraulic fracturing in its boundaries. “They have the right but they still have to have it reviewed.” But a pending court decision on similar bans enacted by the towns of Dryden and Middlefield could have an impact on the ability of other upstate communities to restrict drilling.
The county rejected the village’s first attempt to ban hydraulic fracturing — in part — “because we were looking at it regionally.” Jones added, “We’re going to see how this affects the county.”
She said that home rule gives local municipalities the power to put regulations in place that will protect their town or village.
Residents on both sides of the fracking debate see the importance that gas drilling could have to the local economy. Some drilling proponents say the opposition is coming from newer residents, and advocacy groups with financial ties to New York City.
“We’ve struggled with this area for a long time now economically," said Will Bradley, a local landowner who supports permitting hydrofracking. "Why does NYC have so much control over upstate? We would just as soon they didn’t … Benefit is not infinite, and risk is not zero."
Referring to the ongoing state DEC review of hydraulic fracturing, Bradley said, “Part of what we’re dealing with here is people that are not willing to accept that (state review). That’s part of the division in the village and in the town. ‘We don’t trust the state. We don’t trust the [city’s Department of Environmental Protection]. We don’t trust the DEC. We don’t trust anybody. … That’s what’s tearing people apart here.”
For Mina Takahashi, who maintains a small organic farm in Oxford, the question of water safety was what first led her to join with other residents in opposition to hydraulic fracturing.
“We irrigate with stream water, we cultivate our mushrooms with stream water, we have a spring well that’s up in the woods that we also drink from … If you have animals you have to water them — you’re going to use what you have … If your water is contaminated and you’ve got a hundred head, what do you do?” she said.
Oxford already has experience with low-volume hydraulic fracturing. Landowner Paul Romahn, who also sits on the town’s planning board, has a well on his property that he says was fracked once in the mid-2000s. He said the drilling company was on his land for seven days of extraction, and that he had his wells tested afterward.
“All the tests came back perfect," he said, looking out at his herd of cattle. "This spring I had the water tested again — there was no contamination. When they were drilling, the cows were in this field, watching the operation.”
Romahn explained that his 5,200-foot well was vertical, not horizontal. Eighty thousand gallons of fresh water were needed to frack it. The type of drilling that is currently under review by the state entails horizontal drilling below ground, and a significantly higher volume of fracking fluid.
Romahn noted that not all of the drilling fluid had been pumped out of his well. “Give me an industry that doesn’t have any type of pollution," he said.
An issue of great concern to Oxford property owners on both sides of the drilling question is the degree of control that they have over their land now that companies have leased the mineral rights of most of the town.
State law enforces the concept of compulsory integration, which means that once 60 percent of a “spacing area” is leased for drilling, all mineral rights in that spacing area are available to the drilling company, whether property owners consent or not. LaTourette and other landowners said that all property owners have the right to enter into an agreement with the drilling company to share in royalties, and new wells would not be drilled on the remaining forty percent without an owner’s consent. But owners cannot restrict access to their property via below-ground horizontal drilling.
John Knapp, who operates a local woodworking company, said he regrets his decision to lease the mineral rights on all 268 acres of his property to Chesapeake Appalachian in 2007. Knapp said he received a one-time payment of $35,000, and that the lease on his property had just expired. But he has since learned that making sure that his lease is not automatically renewed could be complicated.
“Hopefully I’ll get out of it.” he said. “It gets very confusing for someone like me … You feel like you’re alone when you come up to these big companies — you feel like there’s nothing you can do. To me, this is a life or death situation. I don’t want to move.”
Norway-based StatOil, which Knapp says now holds his lease, confirmed that they “bought into” one-third of Chesapeake’s Marcellus Shale holdings in 2008. StatOil referred questions on New York State operations to Chesapeake.
A representative for Chesapeake did not respond to questions about its New York holdings.
More than 150 upstate communities had enacted moratoria or bans on hydraulic fracturing as of Jan 24, according to Fractracker, a project which collects data on local actions relative to drilling. Movements for some sort of a prohibition exist in 92 other upstate communities — including 11 in Chenango County. Fractracker also reports that numerous New York communities have passed resolutions indicating they are open to the practice. Fractracker’s map of these communities does not indicate a total number, but there appear to be at least 40.
As hundreds of communities wait for a signal from the state, New York stands at a historic juncture. Mayor Stark commented that gas development will have a “very dramatic” effect on the region, especially if it means “thousands” of wells across upstate New York.
“They do affect the nature of the rural character of the area when you have that many of them for such a long period of time," he said.
Abbie Tamber, who owns five acres in Oxford, was an early member of the Central NY landowners coalition, a pro-drilling group, but then left to join the opposition.
Tamber said that the original steering committee of the coalition was ousted two to three years ago. She said land speculators were now dominating the group. "Unfortunately, it's going to come down to greed," she said. "It's not about jobs. And, it's really not about farmers."
She said that concerns about water safety have made her fundamentally opposed to hydraulic fracturing. “We don’t know what’s going to happen," she said. “You can live without fuel. You can’t live without water.”
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Image of land leased for natural gas drilling in Oxford, N.Y. Photo credit: Sarah Crean.