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(a) "Adequate" means sufficient to accomplish the purpose for which something is intended, and to such a degree that no unreasonable risk to health or safety is presented. An item installed, maintained, designed and assembled, an activity conducted or act performed, in accordance with generally accepted standards, principles or practices applicable to a particular trade, business, occupation or profession, is adequate within the meaning of this Article.
(b) "Approval" means an authorization, permit, certification or equivalent determination issued pursuant to requirements promulgated by the Department.
(c) "Aquatic Supervisory Staff" means an individual possessing the qualifications of Supervision Level I, Supervision Level IIb, or a supervising lifeguard, as defined in 24 RCNY Health Code § 167.19(c).
(d) "Bathing" means recreational activities where any part of the human body may come in direct contact with water to the point of complete body submergence. Bathing includes, but is not limited to, swimming, diving, and wading. Bathing does not include any activities where contact with the water is minimal and where ingestion of the water is not probable, such as fishing and boating.
(e) "Bathing Beach" means any waterfront area of the City with associated bathing beach facilities not specifically restricted by the by the provisions contained in 24 RCNY Health code § 167.05(d), where bathing is permitted regardless of whether it is recommended in accordance with the classifications given in 24 RCNY Health Code § 167.17. Bathing beach facilities include, but are not limited to, buildings, equipment, lavatories, toilets and showers or dressing facilities containing toilets and showers, if any, and the land areas used in connection therewith.
(f) "City" means the City of New York.
(g) "Department" means the New York City Department of Health and Mental Hygiene.
(h) "E. coli" means Escherichia coli a bacteria species which is a member of the family enterobacteriaceae which are the predominant facultative anaerobes in humans and warm blooded animal fecal material.
(i) "Enterococci" means enterococci bacteria, a subgroup of fecal streptococci that includes Enterococcus faecalis, Enterococcus. faecium, Enterococcus avium, and their variants. Enterococci bacteria are commonly found in the feces of humans and other warm-blooded animals. Although some strains are ubiquitous and not related to fecal pollution, the presence of enterococci in water is an indication of fecal pollution and the possible presence of enteric pathogens.
(j) "Fresh Water" in the City means any pond, lake or river in the City, including the Hudson River.
(k) "Geometric Mean" means the antilog of the summation of the logarithms of the values for samples examined divided by the number of samples.
(l) "Major Alteration, Renovation or Modification" means substantial physical changes to the bathing beach structure, enclosure, and electrical system or to the wastewater system. It does not include normal maintenance or repair.
(m) "Marine Water" means ocean and estuary water bodies. In the City, it means water bodies immediate to The Long Island Sound, Atlantic Ocean, and The New York Bight.
(n) "Preemptive Standards – New York City Wet Weather Advisory." A preemptive standard is a threshold level of precipitation that, when exceeded, can cause combined stormwater and sewage runoff to bypass the waste water treatment plants and overflow onto nearby receiving beach water bodies and may pose a public health threat. Based on hydraulic modeling of City waters, the Department issues Wet Weather Advisories each year for those bathing beaches directly impacted by wet weather.
(o) "Public Health Hazard" is any condition which poses an imminent threat to the health or safety of the public.
(p) "Qualified Lifeguard" means an individual possessing the qualifications of Supervision Level I and IIb as defined in 24 RCNY Health Code § 167.19(c).
(q) "Responsible Person" means a competent individual, at least 18 years of age, employed by the owner or operator of the bathing beach, who is capable of exercising control over the patrons and is trained in the use of lifesaving and safety equipment, in emergency procedures and the Beach Safety Plan.
(r) "Standard Method" means the most recent edition of the publication entitled Standard Methods for the Examination of Water and Wastewater, as published by the American Public Health Association, the American Water Works Association, and the Water Environment Federation.
(a) No person, group of persons, firm, corporation, association, organization or institution shall construct, operate, modify, maintain or grant permission for the use of any bathing beach without a permit issued by the Department. No bathing establishment shall be constructed nor shall any major renovation or modification be made to any bathing establishment unless a completed application for construction, alteration or addition is submitted to the Department for review and approval prior to commencement of work. The permit shall be posted conspicuously at the facility. The Department may order any bathing beach operating without a permit to close and remain closed until the bathing beach has obtained and displays a valid permit issued by the Department.
(b) Application. Application for a permit shall be made to the Department at least 30 days prior to the opening of any bathing beach. The application shall include appropriate fees, application forms and other supplemental information as required by the specific circumstances.
(c) Renewal. A bathing beach permit shall be renewed at least 30 days before reopening for the season. A bathing beach may be closed by the Department for failure to renew a bathing beach operating permit before reopening.
(d) Restriction. No person shall operate, construct or maintain and no permit shall be issued for a bathing beach within 750 feet of the point of discharge of the outlet of any sanitary sewer, the flow of which would contribute in any way to the pollution of the waters used by the bathers, and located outside the boundary delineated for primary contact recreation as defined by applicable regulations of the New York State Department of Environmental Conservation (see 6 NYCRR § 700.1; see also, 6 NYCRR Parts 890, 891). "Primary contact recreation" shall mean recreational activities where the human body may come in direct contact with raw water to the point of complete body submergence. Primary contact recreation includes, but is not limited to, swimming, diving, water skiing, skin diving and surfing.
(e) Requirements for Permit Approval. All bathing beaches shall be designed, constructed and completed in accordance with the requirements of this Article. For permit applications for new bathing beaches, the following must be submitted to the Department:
(1) A completed and approved Beach Safety Plan, as required by 24 RCNY Health Code § 167.23.
(2) Certificate of Occupancy for the bathing beaches from the City Department of Buildings including certificate of inspection for electrical work and plumbing.
(3) Copies of Aquatic Supervisory Certificates, as required by 24 RCNY Health Code § 167.19.
(f) Change in Ownership. In the event of change in ownership of any bathing beaches permitted under this Article, the owner shall file an application with the Department for a change in ownership within 30 days after such change has occurred.
(g) Exemption. No permit is required for operation of a bathing beach or for the construction or maintenance of a bathing beach facility by a State or Federal agency.
No major alteration, renovation or modification shall be made in a bathing beach unless a written description of the alteration or repair or addition is submitted to and approved by the Department in writing prior to commencing work. Repair or remodeling of an existing permitted bathing beach shall be in compliance with the design and construction requirements in this Article. Prior to adapting a water body for use by siting or constructing a public bathing beach, and prior to major renovation or modification of a existing bathing beach, the Department shall review and approve the following:
(a) Engineering Plans, Specifications and Engineering Reports. Every owner, personally or through his or her engineer or architect, shall submit to the Department engineering plans, specifications and engineer's report covering construction, major alteration or modification of the bathing beach prior to the start of construction. Plans, specifications, and reports shall be prepared by an engineer or architect licensed to practice in the State of New York, and shall include at least the following:
(1) A Scope of Work Letter. The letter shall include a detailed discussion of the proposed work to be performed;
(2) Engineering plans. Three identical sets of engineering plans each bearing the seal and signature of an engineer or architect licensed to practice in the State of New York. The plans shall include the layout of the bathing beach, including, but not limited to: dimensions, bathhouses, access roads, parking, building, water supplies, sanitary and storm sewers, electrical and telephone services; and
(3) Specifications. One set of complete specifications for the construction of the bathing beach.
(b) Supplemental Information. An application shall be accompanied by any supplemental information, evidence, or documentation that the Department deems necessary.
(c) Proposed Bathing Beaches. In addition to the requirements set forth in subsections (a) and (b) of this section, an application to locate and/or construct a public bathing beach shall include, but not be limited to, the following:
(1) Site Assessment. A site assessment must include the following information:
(A) Watershed Map. A detailed map depicting the waterbody and watershed, including but not limited to existing wastewater treatment plant discharge points, combined sewer overflow discharges, septic systems, storm sewer outfalls, agricultural runoff, landfills, commercial or industrial drainage, or other facilities that may have an impact on water quality, adjacent land use and major physical contour, highways, etc. The extent of the watershed to be mapped should be based upon knowledge of the characteristics of the watershed. All potential sources of pollution and wastewater discharge points must be shown on the map.
(B) Plot Map. A map drawn to scale, showing bathing beach location, dimensions, contours, existing land use and wastewater discharge points within 10,000 feet of the proposed beach unless otherwise required by the Department.
(C) Water Level. Seasonal or anticipated water level variation. If auxiliary water to augment low flow is planned, source, location and flowrate shall be described.
(D) Sources of Contamination. Evaluation of:
(i) type and size of existing and potential sources of contamination, volume, occurrence and concentration level of materials in the effluent that may be of potential hazard to the bathers, and
(ii) the potential for additional contamination after a significant rainfall event.
(E) Weather and Topographical Influences. Prevailing wind direction during the bathing season, rainfall, topography, or environmental factors including current measurements.
(F) Water Quality. A history of the bacteriological quality, pH, and the turbidity of the proposed body of water shall be researched from all possible sources. The results of at least one set of representative bacterial samples, each week for a period of eight weeks shall be included. Eight sets of samples shall include at least one set after heavy rains consisting of daily samples for a five-day period.
(G) Physical and Chemical. The physical and chemical quality of bathing water, including color, odor, floatable debris, oils and greases, high turbidity and other substances that can potentially present a public health threat. Except at ocean beaches, it shall be possible to see an eight inch black-and-white disk in four feet of water. Clarity tests should be performed at four-foot depth in the bathing area at a minimum of three different locations. A map depicting test locations, dates of sampling, and current conditions should be submitted.
(H) Biological. The biological quality of the bathing water, including vegetation types, infectious snails, bird nesting areas, and poisonous or dangerous aquatic organisms.
(I) Fishing, Boating and Canoeing. Location and level of boat traffic, number of vessels with marine sanitation devices, marinas or boat dockage areas, and any canoeing activity or fishing.
(2) Bathymetry. Bathing area boundaries, bottom slopes and material including high and low tide lines, and depth lines at mean high tide on a 5-foot contour.
(3) Emergency Services. Location relative to service facilities, such as medical, fire and police protection and communication.
(4) Capacity. Maximum and average bathing loads.
(5) Any other information that may impact the health or safety of bathers.
(d) Certification. Prior to operation of a new facility or equipment, the applicant must submit to the Department a construction compliance certificate prepared and signed by a professional engineer or architect licensed to practice in New York State. This certificate must include a written statement that the bathing beach and the building(s) and all appurtenances have been constructed in accordance with plans and specifications approved by the Department.
(e) Construction Compliance Inspection. The applicant shall notify the Department of the completion of construction, modification, alteration or addition in order to schedule a required compliance inspection. Approval for a construction compliance inspection will be granted when all of the required items are completed to the Department's satisfaction.
(f) Permit Conditions. Approval certificates or permits from other permit issuing agencies, if applicable or required by the Department.
(a) Public Health Hazards and Closing Criteria. Where a public health hazard condition exists, including one or more of the following, and said hazard(s) is(are) not immediately corrected, the bathing beach may be immediately closed in whole or in part by the Department and shall remain closed until such conditions are corrected to the satisfaction of the Department and in accordance with the provisions of this Article. The bathing beach in whole or in part shall remain closed until the Department has authorized reopening. Public health hazards shall include, but not be limited to, any of the following:
(1) Failure to provide adequate supervision of the beach as prescribed in 24 RCNY Health Code § 167.19;
(2) Failure to provide all lifesaving and safety equipment as prescribed in 24 RCNY Health Code § 167.21;
(3) Water quality inadequate as specified in 24 RCNY Health Code § 167.17(c);
(4) Failure to post public notification signs or advisories as prescribed in 24 RCNY Health Code § 167.27 indicating a potential health hazard or hazardous conditions, when water quality exceeds prescribed standards, in the event of sewage spills and pollution events, or when medical waste/hazardous materials are observed;
(5) Failure to provide adequate signs indicating that swimming and bathing are prohibited when lifeguards are not on active duty as prescribed in 24 RCNY Health Code § 167.19(a)(4), or when the bathing beach is closed;
(6) Medical waste, sewage, petroleum or other hazardous materials observed in beach area as prescribed in 24 RCNY Health Code § 167.13(a)(2);
(7) Use of unapproved or contaminated water supply sources for potable water use as prescribed in 24 RCNY Health Code § 167.31(f);
(8) Overhead electrical wire within 20 feet horizontally of the bathing beach as prescribed in 24 RCNY Health Code § 167.37(g)(2);
(9) Operating a bathing beach without a valid permit issued by the Department as prescribed in 24 RCNY Health Code § 167.05(a), (c);
(10) Operating without an approved Beach Safety Plan as prescribed in 24 RCNY Health Code § 167.23(a);
(11) Failure to provide depth markings, safety lines and diving requirements as prescribed in 24 RCNY Health Code § 167.29(b)(4), (5);
(12) Failure to provide appropriate safety and warning signs as prescribed in 24 RCNY Health Code § 167.37(f)(1), (f)(2)(B), (C); and,
(13) Any other condition determined to be a public health hazard by the Department.
(b) Inspection availability. The most recent inspection report shall be available at the facility at all times and shall be presented for inspection upon request by the Department.
When the strict application of any provision of this Article presents practical difficulties, or unusual or unreasonable hardships, the Commissioner in a specific instance may modify the application of such provision consistent with the general purpose of this Article and upon such conditions as, in his or her opinion, are necessary to protect the health or safety of bathers. The denial of a request for modification by the Commissioner shall be deemed a final agency determination.
(a) All bathing beaches shall meet the following water quality standards:
(1) Bacteriological. The water quality in a bathing beach shall be determined through the collection and analysis of water samples for the presence of Enterococci and/or E. coli bacteria using the Standard Methods for the determination of Enterococci bacteria and E. coli approved for bathing beaches. The bacteriological water quality of bathing beaches shall meet the following standards:
(A) For marine water beaches Enterococci geometric mean shall not exceed 35 per 100 ml for a series of five or more samples collected during a 30-day period.
(B) For freshwater beaches Enterococci geometric mean shall not exceed 33 per 100 ml for a series of five or more samples collected during a 30-day period. -OR- E. coli geometric mean shall not exceed 126 per 100 ml for a series of five or more samples collected during a 30-day period.
(2) Chemical and Physical Quality. The water shall be free of deposits, floatable debris, growths, oils and greases, or any foreign substances that may potentially present a public health threat. The water in bathing beaches shall be considered to exceed the chemical and/or physical quality standards when the Department determines that any substance is being discharged or may be discharged into the water that is or may be hazardous to the health of persons using the bathing beach.
(b) Preemptive Standards – New York City Wet Weather Advisory. The bathing beach operator shall post public notifications as prescribed in 24 RCNY Health Code § 167.27(a).
(a) Collection of samples and analysis for the purpose of surveillance or design shall be performed in accordance with the sampling plan specified by the Department. The sampling procedures will be based on potential pollution sources, storm water discharges, historical water quality data, regional hydrodynamics, beach usage, beach length, and geomorphology for representation of water quality monitoring.
(b) Laboratory Analysis. Bathing beach samples shall be examined by a laboratory in possession of a valid current New York State Department of Health National Environmental Laboratory Accreditation Certification (NELAC) using approved methods in accordance with City, state, and federal agencies.
(c) Preemptive Standards – New York City Wet Weather Advisory. For bathing beaches covered under this advisory, the operator shall be knowledgeable of the established wet weather rainfall intensity standards set for the facility. The operator shall monitor rainfall intensity/data on a daily basis during the bathing season.
The Department shall assign to each bathing beach one of the classifications listed below based on the evaluation and evidence of information provided by water quality data, sanitary and safety survey, site condition or historical information.
(a) Class A: Open for Swimming and Bathing. All of the following conditions shall be considered in order for a beach to be classified as open and approved for swimming and bathing:
(1) Bathing beach water quality standards are in accordance with 24 RCNY Health Code § 167.13.
(2) Sanitary and safety surveys conducted pursuant to 24 RCNY Health Code § 167.25 are satisfactory to the Department; and
(3) The epidemiological history is satisfactory to the Department. No repeated complaints/reports of illness/injury received from the public or from owners/operators of bathing beaches.
(b) Class B: Under Advisory – Not Recommended for Swimming and Bathing. When any of the following conditions is present, a bathing beach/facility shall be under advisory, notifying the public of the likelihood of polluted water and recommending that the public avoid swimming in the water to prevent contracting a swimming related illness:
(1) Rainfall intensities exceed the preemptive standards/threshold of New York City Wet Weather Advisories, as issued by the Department before each bathing season.
(2) A sanitary and safety survey or investigation reveals the presence of floatable debris, medical/infectious waste, toxic contaminants, petroleum products and/or other contamination on the beach or evidence of sewage and wastewater discharge, which may constitute a potential public health hazard.
(c) Class C: Closed – Temporarily Restricted for Swimming and Bathing. When one or a combination of any of the following conditions exist, the beach may be closed for bathing.
(1) Water quality standards exceed the standards set forth in 24 RCNY Health Code § 167.13; or
(2) Epidemiological data indicates a significant incidence of related illnesses or repeated complaints/reports of illness/injury received from beach patrons; or
(3) Sanitary and Safety Survey/Investigation: A sanitary and safety survey or an investigation reveals the presence of floatable debris, medical/infectious waste, toxic contaminants, petroleum products or other contamination on the beach, or there is evidence of sewage and wastewater discharge in sufficient quantities that will adversely affect the quality of the beach water; or
(4) Presence of public health hazards as illustrated in 24 RCNY Health Code § 167.09. If a bathing beach is closed due to unsatisfactory water quality sampling data, the beach shall remain closed to the public until appropriate sampling shows that the water quality meets the standards prescribed in 24 RCNY Health Code § 167.13(a). When a bathing beach is closed pursuant to 24 RCNY Health Code § 167.17(c), no one shall be allowed in the water and the beach must not be reopened without the express written permission of the Department. If a beach operator temporarily closes a beach voluntarily, the operator may reopen the beach when the conditions that led to the closing have been corrected.
(a) Supervision. Aquatic Supervisory Staff defined under 24 RCNY Health Code § 167.19(c) shall be on duty at the waterside at all times when a bathing beach is used by the bather(s) and shall provide continuous visual supervision and surveillance of the bathers in their assigned or designated area of coverage, without interference or interruption of his/her duties unless additional qualified staff is provided. The staff shall not be subject to duties that will divert their attention from the safety of the bather(s), or that will prevent immediate assistance to persons in distress in the water.
(1) Minimum Supervision Requirement. At least one aquatic supervisory staff person having at least the required supervisory level required under 24 RCNY Health Code § 169.19(c) shall be provided at all times for continuous visual surveillance for each 50 yards of beachfront or fraction thereof. Sufficient aquatic supervisory staff must be provided for visual surveillance of the entire bathing area(s) open for swimming or bathing.
(2) Additional Supervision. The Department may require additional aquatic supervisory staff whenever it is necessary for the protection of the bathers. Factors for additional aquatic supervision requirement may include, but are not limited to: bather loads, currents, tides, and any other conditions which may cause changes in water conditions; size and configuration of beach shape; diving board use; and other bather activities.
(3) Area without Supervision. Legible signs stating "No Swimming or Bathing" must be posted at areas not permitted/approved for bathing on property adjoining the designated bathing area that is owned or under control of the permit holder.
(4) Lifeguard Not on Duty. When no lifeguard is on duty at a beach, legible signs stating "No Lifeguard on Duty – Bathing and Swimming Prohibited", or language to that effect, shall be posted at every entrance to the bathing area. The sign must be at least 36" × 24" in size, with letters at least two inches high.
(b) Operator. All bathing beach and beach facilities shall be maintained and supervised by a responsible person who, as the operator, shall maintain the beach in compliance with the provisions of this Article. The operator of the bathing facility shall be accountable for, but not be limited to, the following responsibilities:
(1) Controlling decorum and activities at the bathing site;
(2) Hiring and retaining adequate and qualified supervisory personnel;
(3) Reporting injuries and deaths to the Department;
(4) Public notification for potential contamination, confirmed contamination or public health hazards;
(5) Monitoring weather, and other environmental conditions, that impact the beach; and
(6) Maintaining the physical facilities as required by this Article.
(c) Certifications. All bathing beaches shall be supervised by the required certified personnel. Copies of certificates or other documents showing possession of such qualifications shall be kept at the facility at all times and shall be presented for inspection by the Department upon request.
(1) Lifeguards. Appropriately certified lifeguards shall be present whenever the beach is open. A minimum of one supervising lifeguard is required for bathing beaches that require three or more lifeguards. The lifeguard shall meet the following minimum requirements:
(A) Ocean Surf Beach: Supervision Level I – Surf Lifeguards
(i) Shall be at least 16 years old; and
(ii) Shall possess a current American Red Cross Basic Life Support for the Professional Rescuer Cardiopulmonary Resuscitation ("CPR") certificate or American Heart Association Course "C" CPR certificate, or an equivalent certificate approved by the New York State Department of Health. Certification period must not exceed one year; and
(iii) Must possess a current Municipal Lifeguard Certification, or accepted equivalent certificate having successfully completed a minimum 20-hour (24-hour if first aid skills are included) surf lifeguard training courses acceptable to The New York State Department of Health. All training and ocean testing must be satisfactorily completed prior to assignment at ocean front. The certification period must not exceed three years.
(B) Non-Surf Beach: Supervision Level IIb – Beach Lifeguard
(i) Shall be at least 16 years old (or 15 years old if supervisory lifeguard is present); and
(ii) Shall possess a current American Red Cross Basic Life Support for the Professional Rescuer CPR certificate or American Heart Association Course "C" CPR certificate, or an equivalent certificate approved by the New York State Department of Health. Certification period must not exceed one year; and
(iii) Shall successfully complete a minimum 20-hour (24-hour if first aid skills are included) lifeguard training course (including a beach module) acceptable to the New York State Department of Health and possess a current certificate thereof. Certification period must not exceed three years.
(C) Supervision Level III
(i) Shall be at least 18 years old (or 16 years old if certified as Level II Lifeguard);
(ii) Shall possess a current American Red Cross Community – CPR certificate, or equivalent approved by the New York State Department of Health. Certification period shall not exceed one year; and
(iii) Shall be competent to:
(a) understand and apply the rules and regulations of this Article and implement the safety plan;
(b) evaluate environmental hazards;
(c) use lifesaving equipment; and
(d) undertake bather/crowd control.
(D) Supervising Lifeguard. Beaches that require Supervision Levels I and IIb aquatic supervisory staff shall provide a supervising lifeguard when the facility is required to provide three or more aquatic supervisory staff.
(ii) Shall have at least two seasons of adequate lifeguard experience.
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