The New York State Department of Environmental Conservation (DEC) announced Sept. 26 an agreement with the New York City Department of Environmental Protection (DEP) on a draft consent order for modifying releases of water from the Ashokan Reservoir into the lower Esopus Creek.
Local reactions varied from cautious optimism and a promise of vigilance, on the part of Ulster County Executive Mike Hein, to outrage from Saugerties Supervisor Kelly Myers, who accused the agencies of excluding local entities in their deliberations and failing to make the text of the agreement public.
The DEP releases turbid water from the reservoir in order to keep New York City’s drinking water clean enough to be exempt from filtration, a multi-billion-dollar prospect that the city skirts by means of a Filtration Avoidance Determination (FAD), which must be renewed periodically. A new draft of the FAD is currently under consideration, but the state’s Department of Health has refused to hold public hearings on the document.
The Ulster County Legislature put together its own public hearing on the FAD on Wednesday, Sept. 25. The DEC’s press release arrived in the midst of the hearing, said Myers, adding, “That was offensive. I think they’re trying to take the sting out of public comments on the FAD. But we can’t even see a copy of the consent order. When we called to get a copy, we were told it won’t be available until after public comment period on the FAD ends on Oct. 15. The two documents really have to jibe together, and the public needs to see how they fit together.”
DEP spokesperson Adam Bosch stated that the consent order must be approved by the New York City comptroller before being released to the public, since it involves a settlement, an expenditure of funds to compensate for actions taken by the DEP. “The only officer who can approve settlements in New York City is the comptroller,” said Bosch, “so until that time, it remains confidential. That’s a bedrock legal provision that allows the parties to have a free conversation about the settlement.”
He said the approval process typically takes about 30 days.
Riverkeeper’s Watershed Program director Kate Hudson said her organization is pushing for an extension of the FAD comment period “until we can see if the agreement will address lower Esopus issues effectively.”
Drop in the bucket
The DEC’s announcement was accompanied by a list of funds allocated to alleviating the turbidity and flooding caused by the water releases, a bone of contention for upstaters since the discharges began in 2010. The press release states, “New York City will invest approximately $3.4 million to fund environmentally beneficial projects in the Esopus Creek Watershed.” However, both Myers and Hudson said most of the funding had already been allocated, and additional items cited were unrelated to the agreement, such as $2 million earmarked for Ulster County’s rail trail. “They just put it in for show,” scoffed Myers.
Of the $2 million to be spent on stream management for the lower Esopus, Myers observed, “That’s a drop in the bucket compared to the work we have to get done. They have permanently changed and damaged our ecosystem. They’ve dumped so much sediment, it’s raised the bottom of the creek. In the area below the [Ashokan Reservoir] dam, at low tide, boats sit on the bottom. Areas of the creek are impassable by boats, there are more invasive species because of the septics that have failed. We’re talking about a $50 million project, and they’re not taking any responsibility. It’s disgusting that they can get away with this.”
Bosch said the $200,000 specified for creating a stream management plan is vital to determining future actions. “The study that will be done is going to be, for the first time, a comprehensive body of scientific data on the lower Esopus. It will show what has happened in the creek, maybe put forth some ideas of things that can be fixed, what flow rates it can handle. Before we jump to conclusions, it will be good to gather that data.”
A similar plan has been, after two years of research, put into place in Shandaken to guide future flood mitigation actions there. Although some of the funding referred to in the DEC’s announcement is designated for projects on the upper Esopus, many of those projects are specifically intended to reduce turbidity going into the reservoir and will therefore, hopefully, diminish the need for turbid water releases into the lower Esopus.
Devil in the details
The DEC’s announcement states, “Under the agreement… NYC DEP will be required to reduce the duration of any turbid releases to the Esopus Creek, flush the creek with clear water more frequently than in the previously-proposed order, limit the maximum release rate, and limit turbidity in releases that are intended to reduce storm flows downstream of the Ashokan Reservoir. The enforcement order includes a penalty if NYC DEP does not meet the order’s requirements.”
Without seeing the numbers, said Hudson, it’s impossible to tell whether these measures will be sufficient to remediate and protect the environment of the lower Esopus. “The devil’s in the details,” she said.
“I was not happy to see them mention flushing,” said Mary McNamara, who serves on both the Ashokan Release Working Group, which will get $80,000 from the agreement, and the Lower Esopus Watershed Partnership. “They release turbid water and flush it with clear water. It might look pretty, but that approach has not proven, either academically or by observation, to be an effective way to deal with the cumulative effect of sediment settling out.”
“There are items within this agreement that have the potential to be valuable,” said County Executive Hein. “In the data we currently have with respect to the consent order, they’re talking about having the civil penalty moved from $900,000 to $3.4 million—that’s for stream gauges, early warning systems, expert analysis, implementation, and a stream management plan. The EIS [Environmental Impact Study] will be controlled by DEC and requires input from Ulster County and our communities. That said, the consent order and FAD should be out at the exact same time—that’s the only way to ensure that all the cards are on the table.”
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