State officials say document clouded rules for drinking water

Loujane Johns

Ralph R. Van Houten, Regional Director of Environmental Health for the New York State Department of Health, called Fact Sheet #5 (Individual water Supply Sources) “the origin of a lot of confusion” when he met with local and state officials last week.

Around 40 people, including town officials, code enforcement officers, representatives of lake groups and others interested in water issues, gathered at the Penn Yan Village Hall Aug. 13 to hear five officials representing New York State Departments of Health (DOH), Department of Environmental Conservation (DEC) and Department of State (DOS) explain water system regulations.

The meeting was arranged to clear up questions raised about the document by Sen. George Winner and Assemblyman Jim Bacalles. The meeting did shine a light on the conflicts between regulations from different state agencies and how they impact local code enforcement and homeowners.

Robin Lattimer from Bacalles’s office began by saying Winner and Bacalles were alerted to the issue by property owners.  “This is the first meeting like this in our district, where state departments have been brought together to set misinformation straight,” she said.

Phil Palmesano from Winner’s office, said, “We received copies of Letters to the Editor and letters and calls from citizens, so we wanted answers and clarifications.”

A statement released by Winner’s office says that after Winner and Bacalles raised concerns about Fact Sheet #5 and the burdensome affects of its enforcement on property owners, the DOH amended the advisory and removed guidelines about surface water to prevent furuter confusion and misunderstanding of the fact sheet’s purpose.

Van Houten explained Fact Sheet #5 was issued by the DOH central office as a directive to give guidance to county public health offices on water sources that could be susceptible to contamination. 

“Our central office went too far with what the fact sheet was meant to do.  It was meant as field guidance,” he said.

Fact Sheet #5 was issued in February 2008 by DOH. 

The document dealt with individual water supplies.  What concerned citizens the most was discussion of the use of surface water.  Many lake residents have been drawing surface water from the lake for home use for years. 

Wording like the following in the document drew ire from lake residents: “Private homeowners typically don’t have the equipment, expertise and training to reliably provide acceptable drinking water. Surface water should not be used as a water source and is not eligible for approval via specific waivers or building permits issued  pursuant to the residential code.”

Residents said they were insulted by the wording, believing the state didn’t think they knew what they were doing with their water. They also interpreted the document was stating that building permits would not be allowed for properties where the water source would be from  surface water.

Additionally, the document talked about replacement water supplies. 

“A properly drilled well must be considered first before considering the use of a susceptible source,”  says one statement.

The document outlined methods for using  sources such as dug wells and shore wells, which are considered susceptible.

Concern arose about replacing old systems or construction on property where lakewater was the previous water source and the lot is too narrow to comply with regulations about the distance to a water source such as a drilled well.

Some property owners said they feared their property would be worthless because they used lake water.

Van Houten distributed copies of a new document, Fact Sheet #6.  He said the new version takes out all reference to surface water.  

He called it guidance for local code officers. “DOH still prefers the use of surface water only as a last resort, this has always been our position .  We appreciate the concern raised regarding Fact Sheet #5.  If the homeowner or developer calls our office and asks about using surface water, we will still encourage a well as number one, but if it is the only option, we will refer them to the local code enforcement officer for review,” he said.

Charles Bliss, regional representative from the Southern Tier Office of Codes Division fielded questions from officials and code enforcement officers, who represented not only Keuka, but many other lakes, as the documents pertain to the entire state.

Bliss said it is ultimately up to the homeowner to provide potable water. 

A new exception has recently been added. According to Bliss this addition was made to deal with hunting camps and Amish residences. 

The exception, the result of an amendment dated Jan. 1, 2008, reads:?“An owner-occupied one family dwelling shall not be required to be provided with a supply of potable water, provided that the code enforcement official shall have approved such exception for such dwelling, and provided further that if the code enforcement official shall have approved such exception for a dwelling, the other requirements of this shall apply with respect to such dwelling.”

He said a residence can have both potable and non-potable water, but the sources  have to be coded, so consumers know which is drinking water.

“My purpose today is to tell you what the code says.  If you don’t like the way it reads, you need to take it up with the state council,” Bliss said when code enforcers questioned some wording.

Pulteney Supervisor Bill Webber asked Van Houten what the history of waterborne illness is.  “I have used surface water for years and I haven’t been sick yet.”  

Van Houten said there have been outbreaks throughout the country.  Outbreaks in single family homes are not usually reported, he said they are usually attributed to bad food or the flu.

Canandaigua Watershed Inspector George Barden told of an Elmira family who contacted him about their children being sick at the lake.  When they went home they were fine.  After they brought drinking water from home as he suggested, they were no longer sick at the lake.

Barden questioned how code enforcement officers could issue certificates of occupancy according to the guidance.  He said the way it is written puts a lot of burden on the code officers. “It weakens the authority to make a decision,” he explained.

Richard Thompson, from the Finger Lakes Regional Office of Codes Division responded that it is the discretion of the C.E.O. to make the decision. He said a town board could make a determination on a local basis not to make exceptions.  He went on to say, “I will admit it’s a bad code.  It slipped through.  Any C.E.O. will tell you that he doesn’t want the decision left to his discretion.  They want it clearly written.”

Dixon Rollins, Regional DEC Water Engineer responded to a question about the water rating of Keuka Lake.  He said although Keuka has a good AA rating, the DEC still says it needs to meet regulations and be treated.

There was a discussion about the huge expensive homes being built with little land for a well.  Canandaigua ran into such an issue with homes built on steep slopes where well drilling rigs could not get in, but surface water had been used in the past.

Thompson posed the question, “Do you allow them to build these huge homes with no lands for well and risk the responsibility of illness or lose the taxes on the property?”

Peter Landre, executive director of Cornell Cooperative Extension of Yates County, asked for a definition of new construction. Deborah Babbitt of the Western New York office of Codes said if a three bedroom house burns and a five bedroom house is built, it is still a single-family house and the water source doesn’t need to change.

But Van Houten said the DOH has a 3-year-old regulation that if there is an increase in bedrooms and baths, a professional engineer must investigate the waste water system.  “We are trying to avoid two agencies regulating one thing,” he added.

Babbitt then held up a copy of the code book and said that CEOs should follow this. She said the fact sheet is meant for guidance.

Bliss put interpretation in simple terms for homeowners.  “If you don’t mess with it, you don’t have to bring it up to code. You only have to build to code what you are touching.”

Bill Hershey of the Canadice Town Board told the panel that Fact Sheet #5 had led to much confusion in his town and impacted the water regulations.  “It cost us money. Maybe it should be called something else,”  he quipped.

The meeting lasted nearly two hours and Palmesano concluded by saying, “I think we are moving closer to an agreement. We all want the same thing — safe water.”

“I am pleased by the outcome of this great collaborative meeting of state and local officials,’?said Bob Worden, past president of the Keuka Lake Association, adding, “Sen. Winner and Assemblyman Bacalles listened to the concerns of their constituents and acted quickly and effectively to address this issue on their behalf. This was a great example of how government should work. “