Water Watch NYC

Everything you need to know about water in NYC.

Monthly Archives: April 2009


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The Blog Would Like to Recognize Council Member Vacca

City Council Member James Vacca

City Council Member James Vacca

There was a lot of outrage directed toward the DEP and the Water Board at the recent City Council hearing over numerous issues that we have discussed at length on this blog. Among the more prominent issues were the lease agreement, a lack of accountability and the new “Denial of Access” and “Theft of Services” charges.

One member who I would like to single out (in a good way) for his comments is Council Member James Vacca from the Bronx. His questions were tough, direct and well-researched. He called out Acting DEP Commissioner Lawitts regarding his claim that the DEP has been supporting the efforts of conservation for years. The essence of his question boiled down to the fact that the DEP blames much of the need for such a high rate increase on the fact that revenue has gone down 6% because of conservation. How can you claim support for conservation when your answer to those that conserve is to go ahead and charge them more for it?

Councilman Vacca put it more succinctly: A New Yorker could be saving water to the point where they’re dying of dehydration and their water bill would still go up.

Well said, Councilman. Well said.


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My Testimony to City Council

The following is the text of the testimony I presented earlier today at the City Council hearing regarding the proposed rate increase:

As a result of soaring costs, the Water Board is faced with yet another 14% rate increase. It is also stymied by its inability to gain access to water meters and the minuscule number of customers who are intentionally stealing water from the system. To solve this management problem and raise revenue the DEP is proposing new penalties termed “Denial of Access” and “Theft of Services.” These penalties, called rates, will subject innocent consumers to multimillion dollar fines. The following are a few examples:

  1. The owner of a three family home who has paid every water bill on time but has an obstructed meter or a cut meter seal, quite possibly cut a long time ago, will be liable for a four-year back bill in the amount of $19,751.52, even though there has been no theft of water and no attempt to steal water.
  2. The owner of a warehouse with two 8” mains and an annual water bill of $500.00 who has paid all charges on time and whose tenant inadvertently backed his truck into a water meter and destroyed the meter would be liable for a $3.6 million dollar charge. The property owner would have no way to defend herself. The fine would be the same amount if the tenant just obstructed the meter.
  3. The third case is an example of actual theft but the fine is clearly excessive. A 1,500 unit Mitchell-Lama subsidized housing complex whose superintendent opened a fire hydrant for neighborhood children or whose tenants used the building’s sprinkler system to wash their cars would be liable for a back bill in the amount of $9.3 million. The housing complex could reduce the charge if it could prove that this was the first time a fire hydrant or a sprinkler system was used for domestic purposes. For some perverse reason it would be the guilty party’s responsibility to prove it did not steal water at any earlier time. Of course when defending itself it could not offer any evidence beyond the DEP inspector’s report. Simply put, the Mitchell-Lama may not provide any evidence that is not created by the party prosecuting it.

I honestly believe that it is not the DEP staff’s intent to punish innocent people, but they believe that they need onerous regulations to convict the guilty few. That is not the way the law is supposed to operate in this county. Laws and regulations are supposed to protect the innocent and it is the DEP’s responsibility to prove guilt before defaming a customer’s character with charges of “Theft of Services,” and the accused should have the opportunity to defend himself. I respectfully request that the DEP rewrite these regulations to require the DEP to present conclusive evidence that one is guilty of theft before issuing a verdict of “Theft of Services.” Furthermore the taxpayer must have the ability to refute any charges.


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What No One Else is Telling You About Next Year’s Water Rate

Every year the Water Board raises our water rates at the request of the DEP. All the news outlets, even if they don’t bother covering the Water Board meetings during the year, attend the meeting in April when the rate hike is discussed. They make a note of how much the rates are going up by and then go to press. This is why most news outlets missed the really big news about next year’s new rate schedule.

After the DEP and Water Board discussed the 14% rate hike and all the journalists pocketed their pads and left, Steve Lawitts (Acting Commissioner of the DEP) and Alan Moss (Chair of the Water Board) rolled out two of the most anti-consumer documents ever written by the DEP. The DEP has actually been quite clever (read: devious) in putting these documents together. They’ve published the regulations governing two penalties in three different amendments, each of which on its own seems pretty harmless but all of which, when taken together, paint a pretty grim picture for New Yorkers. (Even the names they chose for these amendments–Denial of Access and Theft of Services–appear to be clever tricks. Who wouldn’t want to punish thieves? Unfortunately, actual theft has very little to to do with the Theft of Services regulations.)

Apparently the DEP has had trouble getting access to many buildings in the city and feels it necessary to set up penalties for denial of access. They’ve also defined fifteen items that qualify as “Theft of Service.” For both “Theft of Services” and “Denial of Access” (during the last water board meeting they explained that they equate denial of access with theft of service because if you don’t allow them access it must be because you are stealing water and don’t want them to know about it) stiff penalties, ranging from just over $3,500 to just under $2,000,000 annually, will be imposed. For the actual language used by the DEP in these new regulations, please see the three amendments that I have linked to below:

  1. 20090403_proposed_rate_schedule_denial_of_access_-_theft_of_service_charges_web_draft.doc,
  2. 20090406_denial-of_access_regulation_web_draft.doc,
  3. 20090406_theft_of_service_regulation_web_draft.doc

Here are the main problems with these new regulations:

  1. The DEP equates suspicion with actual guilt. There is no requirement for the DEP to prove that any theft is taking place. Theft of Services is not defined as someone stealing water but rather as a violation of one of a series of actions unrelated to actual water consumption, like breaking a meter’s DEP seal or moving or obstructing a meter. The DEP doesn’t even need to prove that the owner performed any of these actions. If they were done, it doesn’t matter who did them–a disgruntled tenant, an uncaring vandal–the owner is responsible.
  2. The magnitude of the penalty doesn’t even come close to fitting the supposed crime. The charge is based on the size of the building’s main or mains and is entirely arbitrary and is designed to bring maximum revenue to the DEP. It doesn’t reflect any form of water consumption actually used or assumed to have been stolen.
  3. In order for “Denial of Access” to apply, the DEP must simply send a letter to the owner that they have on file. For such a large penalty shouldn’t the DEP be required to go a little bit out of their way and ensure that whoever is listed as the owner on their records is actually the owner and then send the actual owner a notice of demand via certified mail with a read receipt?

To go into more detail on item number 2, the DEP published a very confusing chart detailing the penalties for both Denial of Access and Theft of Services (by their definitions). Here it is:

Meter Size –       Annual Attributed Consumption Rate (Gallons per Year)

5/8″ and less                                                                              400,000
3/4″ or more and less than 1.5″                                              1,000,000
1.5″ or more and less than 3″                                                 3,000,000
3″ or more and less than 4″                                                    5,000,000
4″ or more and less than 6″                                                  10,000,000
6″ or more and less than 8″                                                  25,000,000
8″ or more and less than 10″                                                50,000,000
10″ or greater                                                                     200,000,000

You’ll notice that the Annual Attributed Consumption Rate is given in Gallons per Year. Anyone who has ever examined their water bills will also know that the DEP charges for water based on hundred cubic feet (hcf) of water consumed not gallons, thus making it difficult to determine how much the DEP actually intends to charge for these violations. Let me make it easier by converting annual attributed consumption in gallons to an annual cost in dollars. Please note that the figures that I’m about to set forth are different than the figures presented at the last Water Board meeting. The costs that we were told about at the last Water Board meeting were given at the fiscal year 2009 water rates. These regulations go into effect in fiscal year 2010, when the rates are likely to be 14% higher. Here are the charges of the annual attributed consumption rate by meter size for fiscal year 2010:

Meter Size –                                                          Annual Attributed Cost

5/8″ and less                                                                   $        3,641.64
3/4″ or more and less than 1.5″                                                9,104.22
1.5″ or more and less than 3″                                                 27,312.79
3″ or more and less than 4″                                                    45,521.37
4″ or more and less than 6″                                                    91,042.74
6″ or more and less than 8″                                                  227,606.84
8″ or more and less than 10″                                                455,213.83
10″ or greater                                                                    1,820,855.00

That’s right, if you own a building with two 8″ mains and the DEP determines that you have denied them access for one year, you owe them just under a million dollars. What’s more, if they decide that you’re stealing water (lets say some thug broke the seal on your meter) you are going to be charged these rates going back four years unless you can prove that the violation occured more recently.

Hopefully now you understand what the DEP actually intends. To ensure that you are protected  from these unjust penalties, it is important that you join us in fighting the Water Board on this. There will be a city council hearing on Tuesday, April 28 at 10:00 am in the Council Chambers of City Hall. We hope to see you there. Additionally there will be one Water Board hearing in each of the five boroughs for citizens to express their concern over the proposed rate schedule. We expect the meeting in Manhattan on Thursday, April 30 at 5:30 pm (St. John’s University – Manhattan Auditorium, 101 Murray Street, New York, NY 10007) to be the best attended. For the most effective protest, we urge all New Yorkers to show up to this hearing. For more info regarding the hearings in the other four boroughs, click here.


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Another 14% Rate Increase… and That’s Not All!

On Friday (April 3, 2009) the Water Board held its once-yearly meeting to discuss the upcoming year’s rate schedule. Here are the highlights:

  1. The DEP asked for a 14% rate increase, which would take the cost of water and sewer combined to nearly $7 per hundred cubic feet. Remember, this comes after last year’s 14.5% percent increase and 2007’s 11.5% increase, when we were assured by the DEP that 11.5% would be sufficient for the next two years (2008 and 2009). Clearly, that didn’t happen.
  2. Frontage was not discussed at all. You may remember that the Water Board initially told us that this year would be the last year for frontage. Then they extended it for one year only. By not mentioning it this year, they’ve essentially kept the extension in place another year. A source close to the situation tells me that they plan on extending it at least another two years after that.
  3. They finally put a number on their proposal to penalize New Yorkers who do not allow access to their meters. If this plan makes it into next year’s rate schedule, building owners who don’t allow DEP inspectors to read their meters will be charged, depending on the size of the water main, anywhere from $3,198 to $1,598,930 per year. And that is not a typo.
  4. One nice thing that was mentioned at the meeting was that they are attributing a 6% reduction in consumption over the last year to the efforts of conservationists. Of course, they also use this statistic to justify the magnitude of the rate increase.


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A Brief Overview of the Water Board

The Water Board is one of three governmental bodies responsible for water and sewer in NYC. (The other two are the DEP, which is in charge of system operation and maintenance, and the Municipal Water Finance Authority, which is responsible for debt service.)

The Water Board has three primary oversight functions, all relating to the DEP. These three functions are:

  1. To review and regulate the DEP’s operations and costs.
  2. To set the rates for water and sewer service in New York.
  3. To arbitrate and respond to customer complaints about the DEP.

Now let’s briefly discuss what the Water Board actually does as it relates to these three functions.

  1. The Water Board rarely gives any notice to the DEP’s budget or operations. Recently, they’ve been more concerned with their own budget, which, by the way, is less than 0.001% of the DEP’s budget. The only time they discuss the DEP’s budget and operations is when the DEP asks them for money to fund a project that they don’t want to send out for bidding. Their answer whenever the DEP asks them for money is either to immediately and without deliberation say yes or to put it off until the next meeting, at which time they immediately and without deliberation say yes.
  2. Every year the DEP must determine how much money it needs to operate and how much it needs to charge for water in order to raise that amount of money. They then ask the Water Board to set the water/sewer rate at some number that will help them achieve their goals. The Water Board is meant to examine the DEP’s current and projected expenditures to determine whether or not the rate that the DEP asks for is appropriate. The Water Board never examines; they simply approve, no questions asked. In the rare case that the Water Board does start doing its job, like when members Jim Tripp and Marilyn Gelber started asking tough questions last year, those members find themselves off the Board.
  3. There is an appeals process when one has a DEP billing complaint. Part of that process is to appeal to the DEP Commissioner, Steve Lawitts. If denied, you must later turn to the Water Board, where your complaint is reviewed by the Water Board’s Executive Director, the same Steve Lawitts (Lawitts is also on the Municipal Water Finance Authority) or his Treasurer, William Kusterbeck. To my knowledge, no complaint has ever reached the desk of any Water Board member. How many governmental agencies do you know of that have no third party oversight committees and are instead overseen by the same people making the mistakes in the first place?