Kelles, Shimsky, Burdick, Gunther, Epstein, Glick, Gallagher, Levenberg, Simone, Simon, De Los
Santos
MLTSPNSR
Amd §§15-0109, 15-1503 & 15-1502, add §15-1508, En Con L; add §99-qq, St Fin L
Establishes the public water justice act; prohibits sale of waters of the state unless otherwise specifically authorized; establishes a public water justice fund for royalties and fees collected from persons or entities authorized to sell waters of the state.
STATE OF NEW YORK
________________________________________________________________________
5104
2023-2024 Regular Sessions
IN ASSEMBLY
March 2, 2023
___________
Introduced by M. of A. GONZALEZ-ROJAS, KELLES -- read once and referred
to the Committee on Environmental Conservation
AN ACT to amend the environmental conservation law and the state finance
law, in relation to establishing the public water justice act
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "public
2 water justice act".
3 § 2. Legislative findings and intent. The legislature hereby finds
4 that:
5 1. The waters of the state are held by the state as sovereign and in
6 public trust for the benefit of the people of the state of New York.
7 2. As trustee, the state of New York shall protect and sustain the
8 integrity of flows, levels, and quality of water, fish and aquatic habi-
9 tat for the use and enjoyment by citizens now and in the future.
10 3. As trustee, and based on the paramount public interest in the
11 waters of the state and public health of its citizens, the state shall
12 provide for and protect the right of access to safe drinking water,
13 water sources, public water supply, public waterworks and infrastruc-
14 ture, public health, and fishing, navigation, recreation, conservation,
15 and the reasonable use of water in connection with the ownership or
16 lawful occupancy of land, not limited to domestic, agricultural, commer-
17 cial, industrial and public utility uses.
18 § 3. Section 15-0109 of the environmental conservation law is amended
19 to read as follows:
20 § 15-0109. General jurisdiction.
21 The department shall exercise its powers and perform its duties in any
22 matter affecting the construction of improvements to or developments of
23 water resources for the public health, safety or welfare, including but
24 not limited to the supply of potable waters for the various munici-
25 palities and inhabitants thereof, the use of water for industrial,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00610-04-3
A. 5104 2
1 commercial, and agricultural operations, the developed and undeveloped
2 water power of the state, the facilitation of proper drainage and the
3 regulation of flow and improvement of the rivers of the state.
4 § 4. Subdivisions 13 and 16 of section 15-1502 of the environmental
5 conservation law, as added by chapter 401 of the laws of 2011, are
6 amended and fifteen new subdivisions 17, 18, 19, 20, 21, 22, 23, 24, 25,
7 26, 27, 28, 29, 30 and 31 are added to read as follows:
8 13. "Public water supply system" shall mean a permanently installed
9 water withdrawal system including its source, collection, pumping,
10 treatment, transmission, storage and distribution facilities used in
11 connection with such system, which provides piped potable water to the
12 public for potable purposes, if such system has at least five service
13 connections used by year-round residents, a system that consists solely
14 of customer site piping.
15 16. "Withdrawal" or "withdrawal of water" shall mean the removal or
16 taking of water for any purpose from the waters of the state, including
17 surface water or ground water.
18 17. "Affordability" means measures or other assistance to assure equal
19 access to adequate clean, safe water and sanitation, without discrimi-
20 nation, interference or inequitable or unjust termination of the right
21 of access to water by any person or household of persons with insuffi-
22 cient income from hardship or disability to pay the full rate or price
23 for access to a minimum water supply to protect health and sanitation
24 for their dwelling.
25 18. "Applicant" means a person, corporation, or other organization or
26 entity applying for a license under this section for the sale of bottled
27 water.
28 19. "Customer service connection" means the pipe between a water main
29 and customer site piping or building plumbing system.
30 20. "Customer site piping" means an underground piping system owned or
31 controlled by a customer that conveys water from such customer's custom-
32 er service connection to building plumbing systems and other points of
33 use on lands owned or controlled by such customer. "Customer site
34 piping" shall not include any system that incorporates treatment to
35 protect public health.
36 21. "Disadvantaged community" shall mean such communities as identi-
37 fied pursuant to section 75-0111 of this chapter.
38 22. "Diversion" means the transfer of water by any means, including in
39 a container intended for an immediate or end-use consumer from its
40 source in one lake or watershed to another lake or watershed.
41 23. "Permittee" means the holder of a license under section 15-1503 of
42 this title.
43 24. "Royalty fee" means compensation to the state for the authori-
44 zation of a permit to allow a withdrawal, diversion or transfer by any
45 person from the sovereign waters of the state for the purpose of produc-
46 ing and packaging water for the sale of bottled water under subdivision
47 two-a of section 15-1503 of this title.
48 25. "Sale of water" means the production, packaging or delivery of
49 water from a water source or public water supply system in containers or
50 by any other means in exchange for money or other consideration.
51 26. "Sale of bottled water" means water withdrawn from a water source
52 or public water supply system and transferred or diverted to a plant or
53 other facility for the sale of water in a container or package of not
54 more than 5.7 gallons.
55 27. "Spring water" means spring water as defined in 21 C.F.R. 165.110
56 for bottled water.
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1 28. "Watershed" means the watershed of primary rivers and the sub-wat-
2 ersheds of their tributary streams and creeks.
3 29. "Water main" means a pipe owned or controlled by a supplier that
4 may convey water to a customer service connection or to a fire hydrant.
5 30. "Waters of the state" means groundwater, lakes, rivers, and
6 streams and all other watercourses and waters, including the Great
7 Lakes, within the territorial boundaries of the state, and shall include
8 water withdrawn from the waters of the state and delivered through
9 public water supply systems. Waters of the state shall not include
10 drainage ways and ponds designed and constructed solely for wastewater
11 conveyance, treatment, or control.
12 31. "Public water justice fund" means such fund established pursuant
13 to section ninety-nine-qq of the state finance law.
14 § 5. Section 15-1503 of the environmental conservation law is amended
15 by adding a new subdivision 2-a to read as follows:
16 2-a. Where an applicant for a permit under this section is seeking
17 such permit for the purposes of withdrawing, taking, removing, divert-
18 ing, and/or transferring from the waters of the state for the sale of
19 bottled water the provisions of this subdivision shall apply.
20 a. The department shall not issue a permit pursuant to this section to
21 a person or entity who proposes to engage in the sale of bottled water
22 unless all of the following conditions are met:
23 i. Before issuance of such permit, the department shall provide writ-
24 ten notice of the application for such permit with conditions and
25 proposed royalty fees as provided in paragraph b of this subdivision, at
26 least sixty days prior to such approval: to any local unit of govern-
27 ment, any public water supply system district, authority or department,
28 any recognized tribal sovereign government, and to the applicant; to be
29 published in a prominent newspaper with general circulation in the
30 locale of the water source or supply; and to be posted on the depart-
31 ment's website in a conspicuous manner. The department may on its own
32 or upon request of an interested person provide for a public hearing,
33 which shall be given the same public notice as provided in this subpara-
34 graph. Such public notice shall provide at least a forty-five day
35 comment period before issuance of the permit. Upon request of a local
36 unit of government or recognized tribal sovereign government in which
37 the water source or supply is located, the department shall meet and
38 consult with the local unit of government or tribe not less than fifteen
39 days before issuance of the permit.
40 ii. Before approval and issuance of the permit, the department shall
41 evaluate, assure, and duly establish that all of the following are met:
42 (A) The applicant has complied with the provisions of this section;
43 (B) The applicant has shown, based on clause (A) of this subparagraph
44 and all other available information, including public notice, hearing,
45 participation and comments or consultation with local government, sover-
46 eign tribes recognized by treaty with the federal government or other
47 interested persons as required by subparagraph i of this paragraph, that
48 the diversion, withdrawal and/or transfer of the waters of the state for
49 the sale of bottled water is substantially in the public interest and
50 shall not impair the public trust and public health, safety, and
51 welfare;
52 (C) The applicant has complied with the application and royalty fees
53 required by paragraph b of this subdivision;
54 (D) Any conditions the department shall have required as a condition
55 for issuance of the permit for the protection and promotion of the
A. 5104 4
1 waters of the state, public trust in such waters, and the public health,
2 safety, and welfare of citizens and local community.
3 b. i. Before processing an application for a permit under this section
4 for the purposes of withdrawing, taking, removing, diverting, and/or
5 transferring from the waters of the state for the sale of bottled water,
6 an applicant shall pay an application fee of five hundred dollars and a
7 fee of five thousand dollars or more as determined by the department for
8 reimbursement of the department's expenses for processing and evaluating
9 such application.
10 ii. A permittee shall pay a royalty fee for the right to divert, with-
11 draw, remove and/or transfer the sovereign waters of the state or public
12 water supply system for purposes of the sale of bottled water in accord-
13 ance with the following:
14 (A) The permittee shall pay a royalty fee of not less than twenty-five
15 cents per gallon for the right to withdraw, take and/or transfer the
16 waters of the state for the sale of bottled water. Subject to public
17 notice, hearing and comment as provided for in paragraph a of this
18 subdivision, the department may promulgate a higher fee per gallon based
19 on a reasonable evaluation and determination of fair and adequate
20 economic value for the right of sale of bottled water from the waters of
21 the state.
22 (B) The permittee shall file on the first day of each month, beginning
23 thirty days after the date of the issuance of the permit, a written
24 summary and report, with supporting data and information, the total
25 volume of water withdrawn. The permittee shall pay the royalty fee
26 required by clause (A) of this subparagraph on a quarterly basis, begin-
27 ning with the first day of the quarter of the year after the date of the
28 approval and issuance of the permit. The department may impose a late
29 fee according to a schedule of fees, payment, or interest established by
30 the department pursuant to rules promulgated by the department.
31 iii. The department shall deposit the royalty fee collected from each
32 permittee pursuant to subparagraph ii of this paragraph into the public
33 water justice fund in accordance with all applicable laws and regu-
34 lations.
35 iv. The department's expenses, including all reasonable expenses
36 related to collection and management of fees under this subdivision,
37 shall be paid and a net royalty fee payment made to the public water
38 justice fund on a quarterly basis, beginning with the third quarter
39 after the effective date of this subdivision or the issuance of the
40 first permit under this subdivision, whichever occurs first.
41 v. Where the water is from a water source that is from the waters of
42 the state, the net proceeds from each permittee shall be deposited in
43 the public water justice fund.
44 vi. Where the water is from a public water supply system or water-
45 works, which withdraws and distributes the waters of the state as a
46 public service within its lawful territory, the net proceeds from each
47 permittee shall be deposited in the public water justice fund, and the
48 department shall allocate an amount up to twenty-five percent of the net
49 proceeds of the public water justice fund in any calendar year to public
50 water supply systems, from which the water is withdrawn, taken, diverted
51 and/or transferred for the purpose of the sale of bottled water.
52 vii. For the purposes of this subdivision, the term "net proceeds"
53 shall mean net proceeds from royalties under this subdivision, minus
54 costs and expenses.
55 c. i. In addition to all other requirements of this section, a person
56 or other entity shall not be permitted to withdraw and transfer more
A. 5104 5
1 than fifty thousand gallons a day for the sale of bottled water as
2 spring water unless it is established by the permittee and determined by
3 the department that:
4 (A) there is sufficient existing actual data and information that
5 characterizes to the fullest extent possible the hydrological and
6 geological conditions required to accurately measure and calculate the
7 effect on the flows, levels and other physical conditions of the ground-
8 water, springs, wetlands, creeks, streams, lakes or ponds that have a
9 direct hydrological connection to the spring water source; and
10 (B) based on the actual data and information established under clause
11 (A) of this subparagraph, the withdrawal and transfer of spring water
12 shall not measurably diminish and impair the flow, level and other phys-
13 ical parameters of the wetlands, creeks, streams, lakes or ponds, fish
14 and other wildlife and plant habitat or the public trust in such
15 features, wildlife and habitat.
16 ii. Any decision or determination required by this subdivision shall
17 take into account and be conditioned on the potential for, or occur-
18 rences of, increased intensity and frequency of weather events due to
19 changes in climate.
20 § 6. The environmental conservation law is amended by adding a new
21 section 15-1508 to read as follows:
22 § 15-1508. Use of public water justice funds.
23 The department shall direct the administration of the public water
24 justice fund in accordance with the provisions of subparagraph vi of
25 paragraph b of subdivision two-a of section 15-1503 of this title and
26 section ninety-nine-qq of the state finance law. In directing the
27 administration of such fund, the department shall consult with public
28 water authorities in the state including local water districts and water
29 agencies, as well as environmental justice groups and other environ-
30 mental justice experts as determined appropriate by the department.
31 § 7. The state finance law is amended by adding a new section 99-qq to
32 read as follows:
33 § 99-qq. Public water justice fund. 1. There is hereby established in
34 the joint custody of the state comptroller and the commissioner of taxa-
35 tion and finance a special fund to be known as the "public water justice
36 fund".
37 2. Such fund shall consist of all revenues received by the state,
38 pursuant to the provisions of subdivision two-a of section 15-1503 of
39 the environmental conservation law, including but not limited to all
40 bonuses, rentals, delayed rentals, royalties, penalties or fines for
41 non-compliance collected by, or reserved by, the state under the
42 licenses for the sale of bottled water established pursuant to such
43 title.
44 3. (a) The moneys in such fund shall be expended for the following
45 purposes:
46 (i) assistance for water affordability plans or other measures,
47 including income affordability, assured low-cost minimum water use and
48 conservation, innovative pricing, rates, tiers of water use and conser-
49 vation, to assure equitable and affordable access to clean, safe water
50 and sanitation;
51 (ii) protection, conservation, efficiency, sustainability and cleanup
52 to assure safe, clean and adequate groundwater and surface water sources
53 for drinking water and water supplies within the state, including but
54 not limited to, new technologies, green infrastructure and enhanced
55 resiliency and adaptability to predict extreme weather events or climat-
56 ic changes;
A. 5104 6
1 (iii) protection of public health and individual health needs directly
2 related to investigation, medical examination and water quality and
3 medical monitoring; and
4 (iv) repair, improvement or replacement of any line that is determined
5 to be a health risk to those who occupy any single or multi-family resi-
6 dential dwelling unit that connects to the public water main or pipeline
7 system.
8 (b) Any interested municipal public water supply department, district,
9 authority, or local government, or any person who lives within the
10 territory or is served by a public water supply system may apply for a
11 grant for one or more of the dedicated purposes of the public water
12 justice fund under this section. The application, process, public
13 notice, meetings, and decisions shall be processed by the department.
14 The department shall apportion and allocate the grants of available
15 funds in any given hearing in a fair and proportionate manner among
16 applicants that in the discretion of the department best meets the
17 intent and dedicated purposes of title fifteen of article fifteen of the
18 environmental conservation law and any rules or regulations promulgated
19 thereto; except that there shall be a preference for at least thirty-
20 five percent of the funds to be distributed to disadvantaged communi-
21 ties.
22 § 8. This act shall take effect on the one hundred eightieth day after
23 it shall have become a law. Effective immediately, the addition, amend-
24 ment and/or repeal of any rule or regulation necessary for the implemen-
25 tation of this act on its effective date are authorized to be made and
26 completed on or before such effective date.
