This chapter considers one of the cornerstone components of the 1997 Memorandum of Agreement (MOA), the Land Acquisition Program, other land management and easement programs, and the New York City Department of Environmental Protection’s (NYC DEP’s) recreational access program. The Land Acquisition Program has been a controversial part of the Watershed Protection Program from the beginning, given its central importance to complying with the Surface Water Treatment Rule (SWTR), its large budget, and the necessary interactions between stakeholders that can pit NYC’s interests against local autonomy and control of the watershed. Perhaps more than any other, this program has the potential to affect community vitality.
Land acquisition is not about removing or mitigating a current pollution source, but about preventing a potential future one from developing. The purpose of land acquisition is to prevent activities or development that may have a deleterious effect on water quality, generally keeping lands in an undeveloped state, potentially redirecting development to less sensitive lands or slowing or preventing it altogether. Balancing the protection of the water resources with the goal of community vitality of the watershed communities requires continual attention to the inherent tension between the needs objectives of NYC DEP and those of local communities.
Programs to acquire land and easements to control pollutant-generating activities within a watershed are a key component of most watershed control programs developed to comply with the filtration avoidance criteria of the SWTR. As discussed in Chapter 3, the SWTR calls for a demonstration that the water system “through ownership or written agreements with landowners controls all human activities which may have an adverse effect on the microbiological quality of the source water.” At the time of the NYC DEP’s first request for a filtration avoidance determination (FAD), NYC DEP owned less than four percent of the land in the Catskill and Delaware system, far short of satisfying the U. S. Environmental Protection Agency’s (EPA’s) requirement under the SWTR (NYC DEP, 2009). In the years since the signing of the MOA and receiving the first FAD, NYC DEP has developed numerous programs to protect water quality through the acquisition of land in fee or control through easements and has made substantial progress. In those two decades, NYC DEP has cooperatively created programs to: (1) prioritize larger tracts of undeveloped land, (2) focus on vulnerable lands adjacent to tributaries, (3) assist communities in resolving flood risk, and (3) acquire easements on farmland to preserve it as part of the working landscape. Total City- and state-protected land within the west-of-Hudson (WOH) watersheds increased from 24 percent in 1997 to 40 percent in 2018, with over 154,000 acres acquired in fee or easement, at a cost of almost $500 million. In the near future, NYC DEP expects that the Land Acquisition Program will spend, on average, around $12.4 million per year between 2017 and 2025 (Tobias, 2018, slide 33).
Land acquisition programs, in contrast to many of the other programs discussed in this report, generally do not provide immediate improvements to water quality. As noted earlier, they are designed to maintain or enhance current water quality by preventing future development and deleterious activities. As such, their “damage avoided” benefits are more difficult to perceive in the short term. This also requires more attention to program design and evaluation to ensure that water quality protection outcomes are being met in a cost-effective manner without sacrificing other program objectives. Success needs to be measured not just in terms of land percentages acquired, but in terms of the types of land uses preserved, and the types of potential land uses avoided.
Table 7-1 provides a summary of spending and accomplishments of the programs discussed in this chapter. To put these numbers in context, the entire WOH region comprises 1 million acres (Table 4-2), while the area owned by New York State in the WOH watersheds is 206,945 acres as of 2017 (Warne, 2018).
For the various components of the Land Acquisition Program shown in Table 7-1, the following sections discuss the dates of implementation, the geographic extent, the funding, and how each program operates in detail, including how lands are prioritized for acquisition.
NYC DEP’s fee-simple program was NYC’s first land acquisition program after the FAD and MOA, and has been its largest in terms of parcels and acreage acquired and funding. Since 1997, the program has acquired over 97,000 acres in 1,361 parcels (see Table 7-1). Purchases under the program are made on a willing buyer-willing seller basis at fair market value. Only open, undeveloped land is considered for acquisition.
TABLE 7-1 Overview of All Land Acquisition and Easement Programs
|Program||Number of Parcels||Total Area (acres)||Average Parcel Size (acres)||Purchase Price ($)|
|NYC Fee-Simple Program||1,361||97,099||71||371,250,000|
|NYC Conservation Easements (CE)||170||25,933||153||72,236,000|
|Watershed Agricultural Council (WAC) Farm CE||156||27,895||179||41,149,000|
|WAC Forest CE||9||2,982||331||2,886,000|
|Enhanced Land Trust Program||None||None||-||-|
|Federal Emergency Management Agency Flood Buyout||64||74||1||454,000|
|NYC DEP-funded Flood Buyout||18||46||3||2,534,000|
|Streamside Acquisition Program||21||172||8||1,209,000|
SOURCE: K. Kane., NYC DEP, personal communication, November 2019.
The fee-simple program includes efforts to purchase lands both east and west of Hudson. For the WOH watersheds, the program prioritized land to be solicited using a system based on travel time from the parcel to the (1) Kensico Reservoir intake, (2) proximity to terminal reservoirs (Ashokan and Rondout), then (3) nonterminal reservoir watersheds, as well as water quality status. A higher percentage of parcels is solicited in higher-priority areas (Figure 7-1). The priority areas are (NYC DEP, 2009):
In priority areas 2, 3, and 4, parcels to be solicited were required to have the presence of certain natural features. These Natural Features Criteria were used in the NYC DEP geographic information system (GIS) to plan, evaluate, and prioritize willing buyer/willing seller land purchases. These criteria are:
- Presence of a perennial stream, defined as the U.S. Geological Survey perennial streams GIS layer with NYC DEP enhancements;
- Presence of a buffer zone adjacent to streams or NYC reservoirs (300 feet on both sides of streams, 1,000 feet along reservoirs);
- Presence of wetlands (using National Wetland Inventory Maps, with NYC DEP ground truth and supplemental mapping); and
- Land slope >15 percent (determined originally in GIS with a digital elevation model and, more recently, with high-resolution LiDAR topographic data).
Tax parcel maps, contour lines, and infrastructure (e.g., roads and structures) comprise the final GIS overlay to inform solicitation decisions. Figure 7-2 provides an illustration of how these criteria fit together for a given parcel of land.
Early in the Land Acquisition Program, virtually any large parcel (i.e., greater than 50 acres) was considered for acquisition even if only one of the Natural Features Criteria was present. As NYC DEP began to purchase substantial areas of land, concerns were raised by MOA signatories in the WOH watersheds about economic vitality, developable land (in full compliance with watershed rules and regulations) near hamlets, and the efficacy of this approach in protecting water quality. These concerns led to a modification of the Natural Features Criteria such that beginning in 2010, criterion 1 required that a minimum of 7 percent of the parcel had to be surface water. Furthermore, criterion 4 was modified to say that slopes must be ≥ 15 percent on more than 50 percent of the parcel. In 2018, even higher thresholds were proposed (e.g., >15 percent surface water on parcels that are not adjacent to NYC DEP land and additional considerations on parcels near designated hamlets). These were approved by the regulators and implemented in 2019. Nevertheless, persistent questions about the link between water quality protection and land acquisition have been a source of controversy and discord between NYC DEP and watershed partners and stakeholders (Delaware County Board of Supervisors, personal communication, December 2018).
The MOA and the current New York State Department of Environmental Conservation (NYS DEC) Water Supply Permit have maintained the same minimum size limits on the WOH Land Acquisition Program since program inception. These limits are at least 1 acre if inside priority area 1A, at least 5 acres in priority area 1B, and at least 10 acres in priority areas 2, 3, and 4 (NYS DEC, 2016). And yet, from a practical standpoint the program has continued to focus on larger parcels (Tobias, 2018). Shifting program focus to smaller parcels, and possibly reducing the minimum size limits, would provide the dual benefits of identifying additional areas that meet the minimum Natural Features Criteria percentages (with higher protection value and which would be missed if included within larger parcels) and of avoiding purchase of lands of lower protection value, which might allow local economic development.
In its 2018 Proposed Modifications to the Long-Term Acquisition Plan: 2012-2022 (NYC DEP, 2018b), NYC DEP added further prioritization to its solicitation process by designating areas in less-protected reservoir basins (Schoharie, Pepacton, and Cannonsville), critical sub-basins near reservoir intakes, and less protected sub-basins (with less than 20 percent protected lands) as higher priority. Areas meeting all three criteria were designated as “High Focus,” and others as “Focus” (see Figure 7-3). The “designated areas” shown on Figure 7-3 refer to areas designated under the MOA by watershed communities as restricted from purchase to “provide reasonable opportunities for growth in and around existing population centers” (NYC DEP, 2009).
Conservation Easement Programs
A conservation easement as defined by the NYC DEP (2010) is a legal agreement through which a landowner agrees to permanently limit the type and amount of development on a property while retaining ownership and certain other rights to use of the land. Landowners who sell an easement to NYC receive cash and property tax relief in return for limiting their development rights in perpetuity.
New York City Conservation Easement Program.
An adjunct to the fee-simple program with most of the same program elements is the NYC Conservation Easement Program, which provides a mechanism for NYC DEP to limit future development and restrict uses on watershed land without the landowner giving up ownership. With a NYC conservation easement, NYC DEP acquires certain perpetual deeded rights, while the landowner retains ownership. Initial costs are generally lower than fee-simple acquisitions, but require a long-term program of monitoring and enforcement to ensure that the requirements of the easement continue to be met over time, including with future ownership changes. From 1997 to 2016, NYC conservation easements represented about 17-18 percent of the acres protected by the Land Acquisition Program (NYC DEP, 2016; Table 7-1).
Farm Conservation Easement Program.
The Watershed Agricultural Council (WAC) Farm Conservation Easement Program uses NYC DEP funds to acquire permanent easements on farmland. These easements eliminate any development potential on agricultural lands for uses other than agriculture. Benefits of farm conservation easements include assisting in transferring a working farm from one generation to another, expanding the farm or purchasing additional equipment, supporting multifamily farm incomes, preserving the community’s rural character, and paying down debt. Easements can only be acquired on farms that have Whole Farm Plans, which specify farm activities to protect water quality (see Chapter 5) in place at the time of acquisition. These easements are intended to ensure that agricultural land remains in production; that is, the land is not retired, as it is with most easement programs. WAC justifies this on the belief that well-managed agricultural land is preferred over development.
WAC is now one of the largest land trusts in New York State, with an obligation to steward its conservation easements in perpetuity. The program metrics are based solely on the acreage of farms acquired for conservation easements (currently about 27,000 acres, Table 7-1). WAC estimates a total of 87,300 acres of priority farmland remain outside an easement in the WOH watershed (WAC, 2016.)
Forest Conservation Easement Program.
The Forest Conservation Easement Program provides funds for purchasing permanent easements on (1) lands enrolled in WAC’s Forest Management Program or (2) lands enrolled in NYS DEC’s Forest Stewardship Program or the Section 480A Forest Tax Act with an approved forest management plan. Other land important for watershed, water quality, and/or forestry conservation is also eligible. Easements are purchased by WAC on behalf of the NYC DEP. As with farm conservation easements, forest conservation easements limit the landowners’ development rights in perpetuity in exchange for cash and property tax relief. These easements involve the use of forestry BMPs but preclude most other types of development and require the development of Forest Management Plans to meet the goals of the Watershed Forestry Program (described in Chapter 10).
As shown in Table 7-1, from 2013 to 2019, WAC executed nine contracts for forest easements, which comprised 2,982 acres. This relatively small number and slow ramp-up of forest conservation easements suggest that the Forest Conservation Easement Program has faced significant implementation challenges.
Funding for Both Farm and Forest Easements.
As of July 2018, $130 million had been committed to WAC for acquisition and stewardship of farm and forest conservation easements. This includes a $70 million commitment to the Farm Conservation Easement Program since 1999 and an additional $11 million as required by the 2017 FAD, as well as $6 million to the Forest Conservation Easement Pilot Program as required by the NYS DEC 2010 Public Water Supply Permit. The total also includes $43 million to the WAC Conser-
vation Easement Stewardship Endowment Fund, an endowment created by NYC DEP to sustain the Farm Conservation Easement Program in 2016. An additional $8 million commitment to the Forest Conservation Easement Program is possible, pending a future determination of the FAD regulators based on an evaluation of the pilot program.
Enhanced Land Trust Program
The Enhanced Land Trust Program allows the NYC DEP to work with locally authorized land trusts in acquiring properties. The program is designed to allow flexibility for the trusts to acquire parcels and subdivide off the portion most suitable for protection, while allowing use of the remaining portion for local development. Potentially, this approach will have fewer bureaucratic constraints than if NYC DEP managed the entire process. Five communities have opted into the program, although no acquisitions have yet been made. NYC DEP does not expect this program to result in any projects at least through 2021, when towns will have a third opportunity to opt in or out (NYC DEP, 2018c).
Flood Grant Buyout Programs
Two programs in the Land Acquisition Program purchase properties and limit their future use for the purposes of flood protection. The U.S. Federal Emergency Management Agency’s (FEMA) Flood Buyout Program purchases properties that have experienced repeat flood damages and deed-restricts the properties against future development. This program is only available in the aftermath of a federally declared flood disaster. It funds 75 percent of the cost of property acquisition, with local municipalities and/or the state contributing the remaining 25 percent. After Tropical Storms Irene and Lee in 2011, NYC DEP assisted the watershed communities wishing to participate in the FEMA program by agreeing to fund the required 25 percent local matching funds, regardless of whether the municipality or NYC DEP took title to the property. In 2014, NYC DEP developed the NYC DEP-funded Flood Buyout Program (NYC FBO), enabling homeowners in the watershed to participate in a buyout even if their properties were not eligible for the FEMA program or they did not meet the deadlines for the Irene and Lee FEMA program (NYC DEP, 2018d). A primary distinction is that while the FEMA program only operates as part of an immediate response to a flood event, the NYC FBO is (proactively) operational between flood events. Further, the NYC FBO focuses on both the flood hazard and water quality impacts of the buyout.
Both programs are voluntary and must be initiated by municipalities and property owners. Municipalities must identify the properties, which have to meet eligibility requirements related to risks to the property and potential contributions to flood resiliency (by converting the property to open space or using it as part of a flood resiliency project). Properties are purchased from the owner at the pre-flood fair market value. Municipalities in the watershed may choose to own and manage the properties after they are purchased or they may deed the property to NYC DEP, or NYC DEP can purchase the property directly from the landowner. Conservation easements are placed on the property and given to the NYS DEC (CWC, n.d.).
Once the property has been purchased, the land must be dedicated to open space, recreation, or wetland management uses that help support flood resiliency. With the exception of public restrooms and open-sided structures (such as pavilions or gazebos), structures are not allowed on bought-out properties and any existing structures on the property are demolished (CWC, n.d.; NYC DEP, 2018d). For properties purchased through the NYC FBO, portions of the property located outside of the “100-year” (1 percent annual exceedance frequency) floodplain are not subject to the easement and can be used by municipalities for development.
As of June 2018, 33 properties had been identified in municipalities (via town resolutions) as potential properties for buyout through the NYC FBO. Twenty-two appraisals had been ordered, and 16 offers for buyout have been accepted. These 16 properties were appraised for a total of $3.89 million (NYC DEP, 2018d). As of late 2019, 18 properties, encompassing 46 acres, were under contract (see Table 7-1).
Streamside Acquisition Program
The Streamside Acquisition Program is narrowly focused on lands along streams with forested buffers. It is run by the Catskill Center in conjunction with the NYC DEP’s Land Acquisition Program and currently operates in the Schoharie basin (although the center would like to expand the program to the entire WOH watershed). This program differs from the NYC DEP Land Acquisition Program in that priority parcels are generally less than 10 acres and hamlet exclusion areas may be waived by the town or village board (although none have opted to do so as of 2018). The Catskill Center solicits the land, but the title goes to the NYC DEP. Since the program began operations in 2015, 265 parcels have been solicited and 42 parcels have been appraised, with a median size of seven acres. To date the program has resulted in the acquisition of 172 acres under 21 contracts (see Table 7-1).
Land Acquisition Program Effectiveness
As conceived and mandated in the MOA and FAD, the program metrics for the fee-simple program focus solely on the number of acres solicited for purchase with specific dollar commitments by the NYC DEP. With each successive FAD, the acreage goals and dollar commitments have been increased, as shown in Table 7-2. In addition to acres solicited, the 2017 FAD includes specific funding requirements to support the NYC DEP-funded Flood Buyout Program, the Streamside Acquisition Program and the Forest Easement Program.
The FADs did not include benchmarks for the number of acres purchased or for the protection value of land purchased. As such, while the Natural Features Criteria and NYC DEP’s High Focus and Focus designations (see Figure 7-3) will tend to preferentially direct solicitation letters to landowners whose properties contain higher-protection value lands, the landowner’s willingness to sell and prevailing market conditions will dictate which lands are ultimately purchased. Nonetheless, the percentage of lands in the WOH watershed that are protected because they were acquired under the Land Acquisition Program or they were already owned by City, state, and other protective entities, has risen from 24 percent in 1997 to 40 percent in 2018 (Figure 7-4). This figure also shows that the acquired lands have not necessarily been in the highest-priority basins (red-hatched = areas of High Focus).
TABLE 7-2 Fee-Simple Land Acquisition Program Goals
|Policy Document||Area to Be Solicited (acres)||Funding Commitment ($)|
|1997 FAD (EPA, 1997)||355,050||250,000,000|
|2002 FAD (EPA, 2002)||Continue with 1997 goal||50,000,000|
|2007 FAD (EPA, 2007)||50,000 annually||241,000,000|
|2007 revised FAD (NYS DOH, 2014)||300,000||65,000,000|
|2017 FAD (NYS DOH, 2017)||350,000||99,300,000|
Land Acquisition Program Concerns and Suggestions for Improvement
Metrics for the Fee-Simple Program
The current metrics for the fee simple program, the largest component of the Land Acquisition Program, do not necessarily result in the protection of the highest-value lands and have, in some cases, unnecessarily resulted in impediments to developing or relocating key community facilities. The FAD uses the primary metric of the number of acres that NYC DEP solicits for purchase within each two-year window, with additional requirements for the specific amount of funds designated for each component of the Land Acquisition Program. The use of the metric “acres solicited” is not closely linked with useful outcomes and it seems to contribute to unnecessary friction with watershed communities (as discussed in more detail below). NYC DEP has created various criteria to improve the cost-effectiveness of the fee-simple program by focusing on areas within watersheds that have less current protection and lower costs per acre (see Figure 7-5; NYC DEP, 2009, 2018a), but this does not address the disconnect of having the overall program metric be based on acres solicited.
The objectives of the Land Acquisition Program would be much better served if the primary metric was based on the acres acquired within priority areas. Additional metrics could focus on current deleterious activities removed (e.g., lands changed from tilled acreage to hayfields, or from livestock grazing to another lower-intensity agricultural use) or removing from future development land that is zoned for uses potentially deleterious to water quality. This would allow NYC DEP to focus acquisition on the most valuable lands for water quality protection. A tighter focus on these high-priority acquisitions could also reduce pressure on lands that might be suitable for appropriate economic development. As discussed in Box 7-1, this is the approach taken by the Massachusetts Water Resources Authority, which supplies drinking water to Boston, another large unfiltered supply.
Minimum Parcel Size
Prioritizing acquisition on the highest-protection-value land would be facilitated by relaxing both the program’s apparent practice of focusing on larger parcels, and the programmatic minimum acreage requirements contained in the Water Supply Permit. Smaller parcels and portions of larger parcels with physical attributes that create a risk of water quality degradation can be important contributors to long-term protection of the water supply.
The structure of the Land Acquisition Program is directly responsive to the initial concerns raised by the watershed communities when NYC first proposed its watershed protection program in 1993. Communities were concerned that to avoid filtration NYC DEP would— through voluminous regulations and the use of eminent domain (see Chapters 2 and 3)—completely deter economic development within the watersheds. To address these concerns, the MOA included requirements for willing buyer-willing seller transactions, restrictions in the vicinity of existing community centers, acreage minimums, and other program attributes, as was the partnership structure with the watershed communities, with NYC DEP funding local community-based groups to implement aspects of the Watershed Protection Program. While these agreements were sufficient to bring the parties to the point of signing the MOA, the actual experience of program implementation has contributed to some level of continued concern. The number of landowners interested in selling to NYC DEP appears to have been higher than some in the watersheds assumed. And federal and state regulators have continued to include additional area goals and funding requirements in each successive FAD.
There are continuing stakeholder concerns about the degree to which the Land Acquisition Program restricts the ability of communities to maintain or enhance their economic vitality. Given watershed topography,
with narrow areas of more level land within stream corridors and steeper lands less suited for development farther away (as discussed in Chapters 2 and 4), the lands most suitable for development frequently are the same land that are closest to tributaries and sensitive areas (e.g., wetlands and stream buffers). The original MOA recognized this challenge, providing for areas around hamlets to be designated for exclusion from the Land Acquisition Program. Despite these exclusions, there are community concerns that NYC DEP’s land purchases have made it difficult for certain activities to be developed or relocated away from flood zones and that there are no viable parcels left for development (with the grocery store in Margaretville being a prime example of this quandary).
In response, NYC DEP has proposed to raise the percentage of land that must meet Natural Features Criteria within a half mile of designated hamlets, based on progress toward the purchase projections contained in NYC DEP’s December 2010 Final Environmental Impact Statement (FEIS) on the “Extended New York City Watershed Land Acquisition Program.” As NYC DEP approaches the projections in the FEIS, solicitations by NYC DEP would be limited, and only owner-initiated transactions would be allowed. In addition, NYC DEP has been working with local governments to subdivide certain purchases, separating off and reserving the gently sloping, well-drained, upland portions to allow local development while protecting more sensitive areas of the parcels. These are steps in the right direction for both watershed protection and community vitality.
The fee-simple program design has allowed local governments to designate areas around existing hamlets as off-limits to NYC DEP solicitation. These hamlet designations have allowed development in areas where infrastructure already existed, and the exclusion areas have increased in acreage over time. In 1997, 33 towns could exclude solicitation from a total of 21,310 acres; in 2010, an additional 26,709 acres were ex-
cluded. In 2018, NYC DEP proposed allowing up to an additional 100 acres for each town (NYC DEP, 2018b). Owner-initiated transactions are not included in the restrictions on NYC DEP solicitations.
Selling Lower-Priority Lands to Acquire Higher-Value Lands
While the more recent land acquisition planning documents provide a somewhat greater emphasis on acquiring higher-value lands and limiting acquisition of lands more suitable for community development, the early years of the program focused on demonstrating success by simply increasing the percentage of land purchased. A potential resolution of both community concerns about developable land, and to facilitate focusing the Land Acquisition Program on the highest-priority lands, would be to use provisions of the Water Supply Permit that allow the sale of lower-value properties under certain circumstances. These provisions could be expanded to allow lower-value lands to be sold back to communities in order to acquire lands with a higher protection value. NYC DEP could work with watershed communities to identify NYC DEP-owned parcels with lower protection value, based on existing Natural Features Criteria and other hydrological and terrain modeling (Chapters 5 and 12), that offer development or relocation potential.
Section 21 of the 2016 Water Supply Permit, titled Land Held in Perpetuity for Watershed Protection, provides that the NYC DEP grant a conservation easement to NYS DEC to ensure that all land acquired in fee under the Land Acquisition Program be held in an undeveloped state in perpetuity. Section 21 also indicates that the NYS DEC easements on lands in Priority Areas 3, 4 or C (see Figure 7-1) will allow the NYC DEP to sell those properties free of the easement in order to purchase replacement lands located in higher-priority areas, with EPA and NYS DEC approval. (Note that conservation easements acquired by the NYC DEP do not have a similar provision and must be held in perpetuity.) While Section 21 does require that the lands first be offered to NYS DEC, coordination between local communities, NYC DEP, and NYS DEC could identify parcels on which community development would be appropriate and consistent with watershed protection and water quality objectives—allowing purchase by the community or private landowners. NYC DEP would be required to use the sale proceeds to purchase additional higher-value lands. Although the Water Supply Permit current provisions are limited to Priority Areas 3 and 4, with the addition of appropriate limitations focused on parcels (or subparcels), the provisions could be broadened to allow wider use of the provision without sacrificing protection attributes.
Better Identifying High-Value Lands for Acquisition
Any of the diverse methods discussed below for using additional, more detailed spatial data and analytical techniques would add substantially to NYC DEP’s ability to identify and prioritize land acquisition purchases to get the most water quality protection for the least acreage. This would make investments more efficient and reduce the area of land unnecessarily removed from benign local uses.
Improvements to the Natural Features Criteria.
The Natural Features Criteria approach could be augmented by leveraging relatively recent improvements in (1) GIS spatial modeling capabilities (e.g., flow-path analysis, flow accumulation and contributing area algorithms, and landform attributes), (2) spatial data availability (e.g., NRCS National Soils data, USGS seamless DEM and National Land Cover data), and (3) other mapping and prioritization methods (e.g., Barten and Ernst, 2010; Barten et al., 2013; NRC, 2008). This would also help to address stakeholder concerns about efficacy and unintended consequences. For example, in addition to proximity to streams and land slope, the potential water quality benefits associated with the permanent protection of each tax parcel could be evaluated using: (1) soil permeability to assess the likelihood of Hortonian (infiltration-limited) overland flow, (2) depth to seasonal high water table to assess the likelihood of saturation (storage-limited) overland flow, (3) soil erodibility, (4) landform attributes (i.e., concave, planar, convex), and (5) contributing area (i.e., what is the watershed area “above” the parcel). These topographic and soil attributes, similar to the topographic index defined in Chapter 5, represent the key features of the saturated source area for
streamflow and can be determined using high-quality, commonly available spatial data. The evaluation system is also amenable to scenario or sensitivity analyses (e.g., weighting schemes) to actively engage stakeholders.
Raster-based scoring methods (e.g., scores derived for every 30-meter pixel and then totaled for the tax parcel) and subsequent statistical analyses (such as the percentile evaluation process already used by NYC DEP) can help to identify critical parcels that may fall below default thresholds (Barten et al., 2013). Enhancing the current Natural Features Criteria approach in order to differentiate relatively small, hydrologically important parcels (e.g., steep slopes, shallow, erodible soils, concave landforms, and immediate proximity to perennial streams) from larger, hydrologically nondescript parcels (e.g., gentle slopes, deep, well-drained soils, with large areas distant from streams) could effectively balance the water quality concerns of the program stakeholders (NYC DEP, New York State Department of Health, EPA, and environmental organizations) with watershed community concerns about future development prospects and long-term economic vitality. In addition, the recent riparian area protection initiative with the Catskill Center (and the Catskill Streams Buffer Initiative, see Chapter 6) could also benefit from this GIS-based analysis and prioritization approach.
A Role for Watershed Modeling.
Easement programs typically work based on factors including the willingness of landowners to participate and the distribution of financial incentives. In addition, some programs cannot or do not identify and credit treatment of high-impact areas. Yet, prioritizing land acquisition purchases or easements to areas of the landscape that produce the majority of the nonpoint source pollution could help to achieve pollutant reduction goals given limited funding. Studies have noted that areas of high nutrient loss are site specific and highly localized, suggesting that between 5 and 20 percent of the land area generates 50 to 90 percent or more of runoff and nonpoint source loads, particularly for pollutants such as phosphorus and sediment (Heathwaite et al., 2000; Qui, 2009; Rao et al. 2009; Wagena and Easton, 2018; White et al., 2009; Xu et al., 2019). Nutrient losses may be confined to relatively small areas (Easton et al., 2008) that with accurate identification and incentives may be readily addressed.
Numerous studies have found that accurately identifying sites with higher pollution potential can improve cost-effectiveness of pollution reduction efforts (Giri et al., 2012; Khanna et al., 2003; Xu et al., 2019; Yang and Weersink, 2004). For instance, developing a land retirement payment program using flow paths, subwatershed, soil erodibility, or other land and soil characteristics instead of uniformly retiring land can reduce costs of meeting a given water quality goal (Yang and Weersink, 2004).
In light of the analytical tools that NYC DEP is using (or currently developing) in the watershed modeling program, there are opportunities to leverage this capacity in the Land Acquisition Program. For instance, the Land Acquisition Program could prioritize acquisition of watershed areas that the SWAT-HS model (Chapters 5 and 12) predicts as critical pollution source areas (areas that generate the largest pollutant loads). For this to be effective, from both a water quality improvement and economic standpoint, the Land Acquisition Program would need to allow for smaller minimum acreage requirements for purchases (as noted above often only 5-20 percent of the land generates the majority of the pollutant load).
NYC DEP should explore and evaluate multiple options to prioritize land acquisition. While the Committee does not specifically recommend any particular tool or method, any of those discussed above would provide valuable information to guide land acquisition. As with the simpler geographic data analysis tools discussed in the previous section, a more finely focused program using modeling tools would allow NYC DEP to acquire only the land likely to provide the most water quality benefit, reducing costs and acres purchased.
Farm Conservation Easement Programs
The Farm Conservation Easement Program is modeled after the USDA Agricultural Conservation Easement Program (USDA NRCS, 2019). The USDA does not restrict farming practices on acquired parcels although some landowners are required to implement soil and water conservation plans as part of the easement contract (varies by state). WAC requires a Whole Farm Plan to be in place on land taken into the program. However, other federal cost-share programs use easements to remove or restrict agricultural activities on ac-
quired lands, such as the USDA’s Environmental Quality Incentives Program and the Conservation Easement Assistance Program—particularly in areas thought to be critical water quality concerns (e.g., near stream areas). Hence, the Committee questions the utility of the Farm Conservation Easement Program in addressing water quality concerns, while recognizing the community viability component of the program is clearly valuable in maintaining agriculture in the region. This is a case where the water quality protection and community viability goals of the MOA are in conflict, and should be reconciled whenever possible. While some parcels would likely present a low water quality risk, other parcels may constitute a much more obvious threat to water quality. Thus, there should be a comprehensive evaluation of the relative risk that each potential easement parcel represents to water quality, and those parcels with a high risk should be removed from production, or the intensity of production should be reduced. Ideally, this would be coupled with a more flexible Land Acquisition Program, which would allow land taken out of production to be balanced by land swapped from NYC DEP’s current holdings that constitute a lower water quality risk.
Flood Buyout Programs
Success of the NYC FBO program depends on its ability to meet the needs and address the transactions that involve private landowners, municipalities, and NYC DEP. Critical factors influencing the willingness of property owners to participate in buyout programs include relocation potential, costs associated with relocation, duration of the buyout process, and the social and cultural implications of the move (Baker et al., 2018; NYC DEP, 2018d). Property owners eligible to participate in the buyout program who cannot find a suitable parcel for relocation or have concerns about the viability of their business at a new location may choose not to participate in the program or choose to leave the watershed, and at times, the county altogether. For example, in Margaretville, New York, the grocery store (Freshtown) owners have chosen not to participate, because there is no suitable alternative location available within the municipality for relocation (Tetra Tech, Inc., 2014). County planners say that when major flood damage occurs again, the owners do not plan to repair or rebuild—leaving the municipality and many small towns without a local grocery store (Delaware County Board of Supervisors and the Catskill Watershed Corporation, personal communication, December 2018).
The length of time to complete the buyout process, and the uncertainty regarding that timeframe, also influence participation. If the property being purchased is uninhabitable, property owners need to find interim housing or make interim repairs, both of which require additional expenditures. In most cases, property owners need to complete the buyout process in order to obtain the financing needed to purchase the relocation property. Delays in the buyout can lead to loss of the opportunity to purchase the relocation property. To date, there have been some delays in implementation of contracts. One reason for the delays was the need to develop the standardized program documents including the three-party (property owner, municipality, NYC DEP) purchase contract and development of the terms for the NYS DEC conservation easement (NYC DEP, 2018d).
Municipal support is also a critical factor influencing implementation of the program, as municipalities must approve and request the buyout. Some members of local communities are concerned about the impact of buyouts on the viability and economic well-being of the municipalities in which they occur. For example, in Boiceville there was substantial disagreement between the Town Board and the Planning Department regarding the impacts of the property-by-property approach to buyouts, which some saw as undermining the long-term needs of the community (Snow, 2019).
Lastly, key to success of the program will be stewardship of any properties it acquires through the program. Properties purchased through the buyout program tend to be small and located in hamlets or more developed areas. Where municipalities acquire the properties, stewardship responsibility falls to them, with NYC DEP oversight. However, where NYC DEP acquires the properties, it adds to the complexity of NYC DEP’s land management, as it must routinely inspect and manage many dispersed properties (NYC DEP, 2018d).
In sum, the NYC FBO program offers another opportunity to simultaneously address community needs and watershed protection. In doing so, it provides a financial mechanism to support retreat from high-flood-risk and high potential water quality impact areas. The program is unavoidably intertwined with broader
issues of land availability, community well-being, and economic vitality within the watershed. Further, the issue of private ownership, of not just the properties being purchased but also the relocation properties, is a substantial challenge to navigate. For the program to achieve its intended goals, the following are needed:
- Support greater communication within municipalities about existence, benefits of, and procedures associated with the program;
- Encourage municipalities to address buyouts as part of their comprehensive planning;
- Streamline the buyout process and aim to reduce uncertainty in the duration of the process as much as possible; and
- Evaluate the possibility of providing additional support to property owners to help with the relocation process, including transitional assistance with relocation costs.
Between 1911, when the Catskill system was completed, and 1997, when the MOA was signed, the NYC DEP’s recreational access program could be described as minimal. Access was strictly limited to a permit system for shore fishing and fishing from rowboats (which had to be left at the reservoir) and walking along reservoir dikes and other infrastructure (e.g., the Ashokan Reservoir Aerators and Dividing Weir). All other reservoir buffer land was fenced, posted, and subject to trespassing enforcement by the NYC DEP Bureau of Water Supply Police. Before the Land Acquisition Program greatly expanded the NYC’s landholdings, this management regime applied to relatively small areas around the six reservoirs. At the same time, outdoor recreation enthusiasts and groups took note of more extensive programs developed in the 1980s by comparable water supply agencies in the northeastern United States (e.g., South Central Connecticut Regional Water Authority1 and the Massachusetts Water Resources Authority2).
When the Land Acquisition Program was negotiated as part of the MOA, local residents and leaders voiced serious concerns about substantial areas of land being withdrawn from traditional rural uses, specifically, hunting, fishing, and trapping. In addition, the opportunity costs associated with prohibiting recreational access to more than 100,000 acres of newly acquired NYC land were at cross purposes with core principles of balancing water quality protections with community vitality at the center of the MOA negotiations. Local residents and leaders had long argued that many recreational uses (e.g., hiking, snowshoeing, Nordic skiing, hunting, fishing, and trapping) were either benign or potentially beneficial with respect to water quality. Hiking, snowshoeing, and Nordic skiing on designated trails, sited to prevent water and sediment movement to streams, would have no measurable effects on water quality. Deer hunting (while opposed by some animal rights organizations) has the beneficial ecological and public health effect of reducing (1) browsing damage to tree seedlings and most herbaceous plants in forests, (2) crop and orchard damage, (3) damage to ornamental plantings near homes and businesses, (4) tickborne illnesses, and (5) the number of deer-vehicle collisions. In the absence of large predators (long extirpated from the Catskills), a white-tailed deer herd can expand very rapidly, especially if there are large areas (about 10 percent of the Catskills) that serve as refugia during the annual deer hunt—a cultural tradition dating back to early settlement (de Freytas-Tamura, 2020). It had long been observed that many deer jumped the fence onto NYC land on the first day of rifle and shotgun season. The nearly complete lack of woody vegetation in the understory of forests on NYC DEP land, tame behavior of deer, and expansive areas of hay-scented ferns (the only plant deer will not eat), clearly show the cumulative effect of high deer densities. In contrast, the more diverse forests (tree species, heights, and ages) on private lands show how hunting pressure reduces deer density and changes their behavior.
The tragic events of September 11, 2001 and heightened security concerns led the NYC DEP and all other water utilities across the United States to limit public and vehicular access near critical infrastructure. These limited, essential, and commonsense restrictions notwithstanding, the extensive recreational access program
now supported by the NYC DEP clearly meets the spirit and the letter of the MOA and equals or exceeds programs offered by many other water utilities in the northeastern United States. Although the effects of the program in recent decades on community vitality have yet to be documented or quantified by a systematic user survey or other socioeconomic studies (see Chapter 13), it is clearly having a positive influence.
The most recent and impressive addition to the program—the Ashokan Rail Trail, a partnership between Ulster County and the NYC DEP—is the marquee example of the post-MOA transformation of the recreational access program (Figure 7-7). A comprehensive website for this describes trailhead parking, permitted uses, interpretative signs, and other relevant information3. The notable success of projects such as The High Line4 (a repurposed subway line) in New York City and the Walkway over the Hudson (a repurposed railroad bridge) between Poughkeepsie and Highland, New York, demonstrate the full potential and complementary nature of the Ashokan Rail Trail. Its proximity to the recently opened Congressman Maurice D. Hinchey Catskills Visitor Center5 should also encourage visitors to explore other recreational, cultural, and historic opportunities in the central and western Catskills.
In broad outlines, the post-MOA recreational access policies and programs on NYC DEP lands6 (City of New York, 2019) centers on non-motorized forms of recreation sited and managed in a conservative manner to avoid adverse impacts on water quality. This includes hiking, snowshoeing, Nordic skiing, and biking, along with traditional uses such as hunting, fishing, and trapping (with all required NYS DEC training and licenses). Boating programs—with designated parking and launching areas and documentation of steam cleaning by an approved vendor—have been expanded on some reservoirs. Shore fishing, stream fishing, and boat fishing opportunities have been substantially expanded. Prohibited uses include all-terrain vehicles and trail bikes and horseback riding. The NYC DEP maintains a comprehensive, intuitive, and user-friendly website to disseminate accurate and timely information to prospective users. The spatial database developed by the NYC DEP GIS group has four levels, beginning with the interactive systemwide map shown in the upper panel of Figure 7-8. Using the zoom feature on this interactive map allows the user to explore recreational opportunities at a larger scale (e.g., the vicinity of the Pepacton Reservoir shown in the lower panel of Figure 7-8).
The third level of the recreation program website (a relational database) is accessed by clicking on a parcel of interest (e.g., the parcel in the upper panel of Figure 7-9). This actuates a table showing the permitted uses along with a link to the parcel map (i.e., the lower panel), the fourth and most detailed level of the website and
6 See https://www1.nyc.gov/assets/dep/downloads/pdf/recreation/dep-rules-recreation-water-supply-lands-amendments-publicnotice.pdf and http://library.amlegal.com/nxt/gateway.dll/New%20York/rules/title15departmentofenvironmentalprotecti/chapter16nycdeprulesfortherecreationalus?f=templates$fn=default.htm$3.0$vid=amlegal:newyork_ny$anc=JD_T15C016
interactive map series. This map can be downloaded and/or printed to take in the field. It also includes a longitude/latitude for GPS navigation to the primary access point. The figure captions contain weblinks to the NYC DEP Recreation Program site. The no-cost permit system for most uses has logged nearly 200,000 users to date.
In its current form, the NYC DEP Recreation Program is an excellent example of a partnership approach to watershed protection that transformed a pre-MOA source of conflict into a valuable and manageable asset for the city, state, and the Catskills region. Expanded access, especially by consumers of New York City water, has the additional benefit of enhancing awareness and appreciation of the irreplaceable supply of the most essential natural resource—clean water.
In light of the substantial progress made in the Land Acquisition Program since the signing of the MOA and initial FAD, it is appropriate to review and update the objectives and structure of the now-mature program to (1) match current conditions, (2) focus more closely on water quality improvement and protection goals, and (3) minimize unnecessary conflicts with local communities. Making the Land Acquisition Program more flexible and cooperative would allow NYC DEP to focus acquisition on the most valuable lands for water quality protection while recognizing legitimate concerns for community development.
During the next 10- to 20-year phase of the Watershed Protection Program, a refocused program could concentrate on purchases that protect the riparian zone, while maintaining the ability to respond to development pressures that pose risks to water quality in headwater tributaries (e.g., areas with steep slopes and shallow soils). Recent advances in GIS technology and watershed modeling discussed in this chapter and Chapters 5 and 12 would help to better characterize the protection value of parcels. This presents the opportunity to create program metrics that focus directly on watershed protection functions and values of parcels being considered for acquisition. This approach would replace total expenditures and acres solicited as measures of program effectiveness with hydrological and ecological performance metrics and objective ranking of parcels. Increased program flexibility (within the FAD and NYC DEP) and a sharp focus on critical parcels would allow effective control of potentially deleterious land uses while reducing program expenditures and the total area of new land acquired.
The metrics of the Land Acquisition Program should focus on acquisition of the most valuable lands for water quality protection. The current FAD metrics that focus on acres of land solicited for purchase, but do not directly contribute to any water quality objective, should be eliminated. Metrics of the Land Acquisition Program should be the amount of land valuable for water quality protection actually preserved, current deleterious activities eliminated, or future adverse environmental and water quality impacts (if forest or farm land is converted to another land use) prevented from occurring.
The current practice of focusing on acquiring larger parcels in the fee-simple and New York City conservation easement programs should be reconsidered. Having the flexibility to focus on smaller, higher-priority parcels, and the key portions of larger parcels with more critical features when they become available for sale, would enhance program effectiveness. This would allow NYC DEP to make strategic investments that prevent deleterious land use change on sensitive sites without unduly impeding economic vitality in the WOH region.
The New York City Department of Environmental Protection (NYC DEP) should work with watershed communities to identify parcels now owned by NYC DEP with lower protection value that offer development or relocation potential. These parcels could be sold or swapped for higher-protection-value lands, serving both watershed protection and community vitality objectives. The provisions of the Water Supply Permit allowing such “swaps” have stringent requirements designed to evaluate the net water quality benefit of a proposed change. In other words, the new configuration should result in more, not less, watershed protection (e.g., a sensitive floodplain parcel protected in exchange for a hydrologically non-descript upland parcel made available for appropriate development). Working collaboratively with the Catskill Watershed Corporation and local communities to develop a viable land swap program could also foster more successful implementation of the Flood Buy-Out programs while directly addressing long-term concerns about community viability.
Land acquired under the Farm Conservation Easement Program should be retired from intensive agricultural production (or at the very least be managed under a less intensive agricultural production system). Typical easement programs (e.g., USDA’s Environmental Quality Incentives Program) provide funding to remove agricultural land from production and convert it to some more natural land cover (e.g., riparian forest buffers), thus reducing the source and mobilization of pollutants. Such a change in the Farm Conservation
Easement Program might be coupled with swaps of land deemed to be of lower water quality protection value, so that the total agricultural acreage is maintained with the same, or greater, net benefit to water quality protection.
The New York City Department of Environmental Protection should shift funding and emphasis to acquiring riparian lands on critical areas of tributary streams through the Flood Buy-Out and Streamside Acquisition programs. This flexibility appears to be permitted in the FAD, and the reduction of program funding “silos” would allow program managers to respond more quickly to land acquisition opportunities and changing circumstances.
The partnership approach and subsequent improvements in recreational access on New York City Department of Environmental Protection land is an excellent example of mutually beneficial collaboration by New York City, county governments, and watershed communities. The recreation program exemplifies the spirit and the letter of the MOA.
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