MEMORANDUM OF AGREEMENT

The NYC Watershed Memorandum of Agreement (MOA) was signed on January 21, 1997, after months of negotiation by NYC, communities in the Catskill/Delaware watershed, the EPA, New York State, and certain environmental organizations. The MOA launched a massive program of watershed management and payments to watershed interests in exchange for an EPA waiver from filtration effective until December 31, 2002. The waiver has been renewed in subsequent filtration avoidance determinations at five- and ten-year intervals.

The MOA is a remarkable, precedent-setting document (Platt et al., 2000) with six major sections (Articles I-VI)¹ and voluminous appendixes. Broadly speaking, its origins can be traced to (1) two centuries of interaction between NYC and the Catskills region; (2) nine decades of upstate-downstate conflict in relation to the construction of the Catskill/Delaware system; (3) the social, political, and economic changes of the post-World War II era; and (4) the emergence and evolution of the environmental movement and federal environmental and public health laws (1970s to present).

In a comprehensive first-hand account of the development of the MOA, Michael Finnegan—counsel to then-Governor George Pataki and convener and mediator of the dispute resolution and three-year negotiation process—memorializes the complex, politically charged circumstances and approach that culminated in this historic compromise and affirmation of shared responsibility (Finnegan, 1997). This review article should be read by anyone with substantive involvement with the Watershed Protection Program. It clearly and vividly recounts the “collision course” of historical animosity, property rights, Home Rule traditions, watershed protection, economic development, and public health …pressurized by the threat of long, costly lawsuits with likely “lose-lose” outcomes. These circumstances are by no means unique to the Catskills, NYC, and New York State, and are typical of many environmental and natural resource management controversies.

As noted above, the MOA has six major sections or “articles.” Article I has three parts: (1) naming the parties who negotiated and signed the agreement, (2) 12 clauses (core components and guiding principles), and (3) a customary set of definitions. All the clauses are important, but five of them (6, 7, 8, 9, and 12) embody the breakthrough compromises needed to complete the MOA, provide the framework for the Watershed Protection Program, and qualify for a series of filtration avoidance determinations. Clause 6 states “the Parties enter into a new era of partnership to cooperate in the development and implementation of a Watershed Protection Program that maintains and enhances the quality of the New York City drinking water supply system and the economic vitality and social character of the Watershed communities.” It clearly articulates the shared responsibility, mutual respect, and political parity that was—and still is—needed to ensure that the Watershed Protection Program would be effective and sustainable. Throughout this report, the economic vitality and social character of the watershed communities are collectively referred to as community vitality, enhancement of which is one of the two major goals of the MOA (the other being enhancement of water quality).

Clause 7 of Article I accepts, as legally enforceable, the 1994 Watershed Rules and Regulations, the Land Acquisition Program, and partnership initiatives described and referenced in the MOA. Clause 8 renounces the use of eminent domain (authorized in 1905) and specifies that the Land Acquisition Program shall be solely based on willing buyer–willing seller transactions. This concession by NYC was vitally important, especially in the Delaware system where the (then) relatively recent use of eminent domain to build the Pepacton and Cannonsville reservoirs in the 1940s and 1950s set a “never again” bargaining position by the Coalition of Watershed Towns on behalf of their constituents. Clause 9 anticipates and acknowledges what has, in fact, proven to be the challenging and controversial task of reconciling NYC’s land acquisition goals, as well as other programs and conditions, with the planning and development goals and needs of watershed communities. The final clause (12) formalized this landmark agreement, in which former adversaries became partners and a century of conflict was replaced (or at least minimized) with a pledge—”to act in good faith and to take all necessary and appropriate actions, in cooperation with one another, to effect the purposes of this [Memorandum of] Agreement.”

Article II thoroughly described the terms of reference for the complex and inherently controversial (because of the balancing act with economic development) Land Acquisition Program. Article III linked the MOA directly to the revised NYC DEP Watershed Rules and Regulations, which, in turn, addressed state and federal mandates in the Safe Drinking Water Act and its amendments. Article IV describes the governance structures and co-management approach of the Watershed Protection and Partnership Council and other regional partnerships (e.g., Catskill Watershed Corporation, Chambers of Commerce and Planning and Economic Development Departments). Article V (66 pages + attachments) funded the Catskill Watershed Corporation and described and funded a host of other watershed protection programs and projects (e.g., WWTP upgrades). Article VI includes 20 pages of miscellaneous provisions to conclude the MOA.

Twenty-five years of direct engagement and operational experience have brought about a laudable change in the philosophy and awareness of the central entity—the NYC DEP—as well as the other signatories to the MOA.

The essence of watershed management—which is the process of organizing and guiding land and natural resource use to reflect the competing needs and priorities of all stakeholders—is to prevent contaminants from reaching water resources. With careful planning and communication, water quality can be protected while still serving multiple priorities.

In the New York City water supply watersheds, key stakeholders include the nine million urban consumers of the water supply, nearly a quarter-million residents of the older and more suburbanized Croton Watershed (East of Hudson), tens of thousands of residents of the rural Catskill/Delaware Watershed (West of Hudson), and the diverse flora and fauna of the entire watershed ecosystem. This complex web of multiple stakeholders means that watershed protection requires a delicate balance between urban/rural and upstate/downstate interests.²

More than 20 years after it was signed, it is fair to ask whether the MOA is working, from the perspective of all stakeholders. To be sure, the intervening years have brought unanticipated consequences, recalcitrant problems, persistent sources of friction, and new challenges (not least, global climate change). Nevertheless, the dedication of the partners, cumulative accomplishments of diverse programs, and the determination needed to sustain long-term accomplishments originate from the MOA. Hence, the MOA should continue to be regarded—and frequently consulted—as the founding document of the Watershed Protection Program and the many partnerships central to its success. The MOA is especially important as generational change occurs in leadership positions, field operations, technical support, and community outreach. New Watershed Protection Program participants and community members should think of the MOA as a living document rather than a relic of the late-20th century.

COMPONENTS OF THE WATERSHED PROTECTION PROGRAM

This report evaluates all programs listed in Table 1-1 that comprise NYC’s Watershed Protection Program, looking at such factors as program success, funding, how prioritization is accomplished within the programs, and the extent of any performance monitoring, among many other factors. The report also examines the current and future effectiveness of these programs in the context of likely future conditions and the wider portfolio of drinking water supply activities.

TABLE 1-1

Individual Programs Within New York City’s Watershed Protection Program Reviewed in This Report.

Although drinking water safety and cost are the first priorities for NYC and state and federal regulators, the impacts of watershed management on upstream communities and the environment also are major concerns. NYC’s unusual reliance on high water quality from upstream watersheds has brought considerable attention to, investment in, and regulation of human activities in the upstream watersheds. Some components of the Watershed Protection Program have been sources of concern and disruption, as well as investment and environmental improvement, for upstream watershed communities. This report also reviews these impacts in the context of the history, the present, and the likely futures of these upstream communities.

A brief introduction to the layout of Table 1-1, which in turn serves as an introduction to the full report and to the extensive Watershed Protection Program, is given below.

In Table 1-1, the first two columns give the broad program areas and the specific subprograms within those areas. As indicated by the chapter numbers in the first column, Chapters 5 through 12 are structured by these program areas; earlier chapters, including this one, give broader context to the efforts of the NYC DEP to provide safe drinking water to the approximately 9 million people they serve. Many program areas include several individual subprograms, each with its own history, budget, and goals. Several subprograms were initiated in the early 1990s and have operated continuously since that time. Indeed, although the MOA was not formally signed until 1997, many subprograms were initiated prior to that agreement and were instrumental in allowing the agreement to be reached.

The third and fourth columns in Table 1-1 indicate, respectively, the cumulative amount of money spent on each subprogram since its inception and the expected annual funding for those programs in the coming few to several years. Values in those columns indicate the different scales of the subprograms, as well as the fact that some programs have largely met their goals and will have little future funding compared to earlier expenditures. In some cases, details or breakdown of the overall funding is also given. Note that salaries of NYC DEP employees are not included in any of the table entries (there are currently 140 full-time employees in the NYC DEP Watershed Protection Program—K. Kane, personal communication, 2020). Nonetheless, when NYC DEP contracts with the Catskill Watershed Corporation or the Watershed Agricultural Council to run one of the subprograms, part of that money is spent on staff time (not including city employees) and is represented in the table.

Although the distinction is blurry in some cases, column 5 in Table 1-1 indicates whether a subprogram is meant to remediate an existing problem (or one that existed at the start of the program) or to prevent a water quality problem from occurring in the future.

The sixth column in Table 1-1 reflects the subprograms’ roles in achieving the primary objectives elucidated in the MOA: protection or enhancement of the water quality in the reservoirs and ultimately in NYC drinking water, and enhancing the vitality of the communities in the upstream watersheds. The primary water quality objectives of the Watershed Protection Program are to avoid, prevent, and mitigate (in that priority order) pollutants of concern including (1) suspended solids and turbidity associated with erosion, (2) nutrients (especially phosphorus and nitrogen), (3) toxins (e.g., metals, hydrocarbons, algal toxins, and pharmaceutical compounds), and (4) pathogens (e.g., Giardia, and Cryptosporidium). Almost all of the subprograms aim to protect water quality goals by focusing efforts on managing one or more of the pollutants of concern.

Along with the goal in the MOA of protecting water quality is the goal of enhancing community vitality in the watershed region. Community vitality can refer to a variety of different metrics that assess the economic and social well-being of groups of people, as described in Box 1-2 and Chapter 13. As shown in Table 1-1, many of the subprograms of the Watershed Protection Program have obvious community vitality benefits, and yet these benefits are rarely, if ever, measured, unlike the water quality benefits of many of the subprograms.

BOX 1-2

Measures of Community Vitality.

Although not specified in the MOA, ecosystem protection is a secondary goal found in the FAD, under the principle that well-functioning, intact natural ecosystems are critical for maintaining and enhancing water quality (Stern, 2018). Subprograms that target ecosystem protection lay out plans and best management practices to (1) avoid or prevent short-term water quality impacts, (2) maintain or reinforce ecological integrity, and (3) guard against land use changes that will have a negative impact on the quality of NYC drinking water.

The last column of Table 1-1 delineates which compounds and contaminants each subprogram is primarily designed to address, and includes only the four major types: microbial pathogens, nutrients, turbidity, and DOM (see Chapter 4 for in-depth discussion of these pollutants and their sources). Details of all of these subprograms are given in Chapters 5 through 12, but Table 1-1 serves as an overview of the entire Watershed Protection Program and the relative scales of the individual programs, at least in terms of overall past and present budgets.

One might consider it nearly axiomatic that an unfiltered water supply would try to own all of the land in the watershed and allow minimal use thereof, but the NYC water supply does not follow that model. The reasons include the massive scale of the watersheds that need protection to supply the huge population of NYC with clean drinking water, as well as that the region was already well-developed, even if sparsely populated, when the first reservoirs were built. Nevertheless, the Land Acquisition Program and the Land Management Programs are a central and expensive part of the overall program. These programs attempt to protect water quality while maintaining and enhancing community vitality, a balance that is not always easy to strike and can be a source of friction between NYC DEP and upstate communities.

Some parts of the overall Watershed Protection Program are far less controversial. For example, upgrading existing wastewater treatment plants in the 1990s was an obvious way to reduce contamination into the reservoirs and, given that the funding would come from NYC, was not controversial. Although expensive on a unit-cost basis, it has been effective and has eliminated an important and obvious source of human pathogens. Looking to the future, one might ask whether similar treatment could be established for the wastes from domesticated animals (at least where the animals are confined to small areas). Collection and treatment of these wastes is a complex and costly task, but could be an appropriate use of NYC watershed protection funds.

Much less obvious to the general public, either in NYC or in the upstate watersheds, is the importance of support activities such as monitoring and modeling. Monitoring water quality, evaluating the data in terms of progress toward watershed protection goals, modeling the expected impacts of proposed watershed protection actions, and communicating those results to a full range of stakeholders (i.e., program managers, watershed residents, regulatory agencies, NYC water users, public officials, and other interested parties) are crucial to the success of the Watershed Protection Program.

Monitoring, assessment, and modeling are also key elements of adaptive management—a purposeful approach of systematic scientific improvement, management assessment, and hypothesis testing that can increase knowledge of a system (often represented in system models) and reduce the uncertainty of management outcomes over time (Holling, 1978; Walters, 1986, 1997). In the context of a conservation or restoration program, adaptive management is an iterative process: assumptions are tested and improved systematically as actions are implemented to achieve desired outcomes. It is the information from monitoring that leads to modification, or adaptation, of assumptions, models, and management actions. By explicitly documenting what is learned about the system (failures and successes) through this iterative approach, managers can improve future decisions even under uncertainty and in the face of climate change. Throughout this report, adaptive management is called on to enhance various elements of the Watershed Protection Program.

PROGRESS OVER 20 YEARS

Some key findings of the 2000 National Academies report (NRC, 2000) are summarized here, along with some overarching commentary on the changes and accomplishments that have been made through the combined efforts of the NYC DEP and the upstate communities in the Catskill and Delaware watersheds. Ongoing challenges also are indicated, as the processes and dual goals of protecting water quality and enhancing community vitality are necessarily dynamic. As discussed below, the NYC DEP has made a major and good-faith effort to address several aspects of the sources of contamination to the upstate reservoirs, including substantial reduction in the inputs and treatment of some of these contaminants before distribution of the water to NYC residents.

ORGANIZATION OF THE REPORT

This report begins with three introductory chapters that provide context for understanding NYC’s Watershed Protection Program. Chapter 2 discusses the physical, ecological, historical, and cultural antecedents in the NYC watershed region. This chapter illustrates that the NYC watershed region has undergone many human-made changes for centuries and has not been pristine forestland since well before European colonization. Chapter 3 reviews the massive, complex, and flexible NYC water supply system with source areas in the upstate Catskill, Delaware, and Croton watersheds. It also discusses the laws, regulations, and policies that guide the provision of safe water to NYC from these watersheds, including the unique agreement between the state and federal regulators, the City, and upstate communities that allows NYC’s water supply to remain largely unfiltered. Chapter 4, the final introductory chapter, discusses present threats to the NYC water supply, which have evolved over the last 20 years since the previous National Academies’ review, although the primary pollutants of concern remain the same.

Chapter 5 is the first of eight chapters that cover different program areas within NYC’s Watershed Protection Program, organized according to Table 1-1. All of these chapters describe their respective program area, demonstrate the extent to which the program is meant to achieve specific objectives of the MOA, discuss the programs’ effectiveness to meet these objectives as well as a variety of other metrics, and provide constructive criticism of the programs, including conclusions and recommendations. Chapter 5 discusses the Watershed Agricultural Program, Chapter 6 is about the Stream Management Program, Chapter 7 examines land management, including the Land Acquisition Program, and Chapter 8 discusses wastewater programs. These four programs are the largest elements of the Watershed Protection Program in terms of past and future funding. Chapters 9, 10, and 11 review stormwater programs, ecosystem programs including forestry, and programs that protect public health, respectively. Chapter 12 reviews the monitoring and modeling programs of the NYC DEP intended to support the Watershed Protection Program, while Chapter 13 discusses measures of community vitality that might be made a more integral, quantitative part of the Watershed Protection Program. The report concludes with Chapter 14, which addresses overarching issues such as the balance among programs, future directions for the Watershed Protection Program (and the water supply), and the importance of better coordination among programs. Each chapter ends with conclusions and recommendations that synthesize more technical and specific statements in the body of each chapter. The most important conclusions and recommendations from Chapters 2 through 14 are compiled in the Summary.

The data and information gathered by the Committee to support its conclusions and recommendations came from a wide variety of sources: the primary and secondary literature; detailed data and information requests to the NYC DEP and other Watershed Protection Program participants; formal presentations made to the Committee; open-mic sessions at Committee meetings where the public was invited to share their thoughts; written comments submitted to the Committee; and countless conference calls. With respect to in-person engagements, the Committee held four formal public meetings in the watershed region, each accompanied by full-day field trips to observe various watershed protection programs in action, including the Watershed Agricultural Program (twice), the Stream Management Program (twice), and the wastewater programs. Public participation grew from 45 attendees at Meeting 1 (Saugerties, NY, September 2018) to 89 attendees at Meeting 4 (Hunter, NY, May 2019). The Committee visited most of the reservoirs and waterworks in the Catskill/Delaware system, including Kensico and Hillview reservoirs and the UV disinfection facility. Two other extended trips were made to the West-of-Hudson watershed region to learn more about the Watershed Forestry Program and forest products industry and to observe public outreach by the Stream Management Program. At the Committee’s request, two special meetings were organized and hosted (including the agendas and visit schedules) by the Catskill Watershed Corporation; the Delaware County Board of Supervisors; the Delaware County Planning, Economic Development, Public Works, and Watershed Affairs Departments; and the Delaware County Chamber of Commerce. These extensive, face-to-face interactions over a two-year period provided invaluable insights into the perspectives of watershed residents and enhanced the Committee’s understanding of the MOA and the Watershed Protection Program. They fostered a thorough understanding of the complex challenges and opportunities noted by residents, business owners, elected representatives, local government departments, nongovernmental organizations, NYC DEP, NYS DOH, and EPA. In sum, the Committee was proactive in seeking the comprehensive information needed to address the Statement of Task (Box 1-1).

REFERENCES

• Beckley T, Parkins J, Stedman RC. Indicators of forest-community sustainability: The evolution of research. Forestry Chronicle. 2002;78(5):626–636.
• Finnegan MJ. New York City’s watershed agreement: A lesson in sharing responsibility. Pace Environmental Law Review. 1997;14(2):577–644.
• Haas CN, Trussell RR. Frameworks for assessing reliability of multiple, independent barriers in potable water reuse. Water Science and Technology. 1998;38(6):1–8.
• Holling CS. Chichester, UK: John Wiley and Sons; Adaptive Environmental Assessment and Management. 1978
• NASEM (National Academies of Sciences, Engineering, and Medicine). Washington, DC: The National Academies Press; Review of the New York City Department of Environmental Protection Operations Support Tool for Water Supply. 2018
• NRC (National Research Council). Washington, DC: The National Academies Press; Water Management for Potable Water Supply: Assessing the New York City Strategy. 2000
• Parkins J, Stedman RC, Varghese J. Moving towards locally defined indicators of sustainability in forest-based communities: A mixed-method approach. Social Indicators Research. 2001;56(1):43–72.
• Platt RH, Barten PL, Pfeffer MJ. A full, clean glass? Managing New York City’s watersheds. Environment. 2000;42(5):8–20.
• Stern I. Natural Resources. Rhinebeck, NY: Presentation at Meeting 2 of the NASEM Committee to Review the NYC Watershed Protection Program. 2018 [October 24-26];
• Walters CJ. New York: Macmillan; Adaptive Management of Renewable Resources. 1986
• Walters CJ. Challenges in adaptive management of riparian and coastal ecosystems. Conservation Ecology. 1997;1(2):1.