Environmentalists not pleased with Lower Esopus consent order

Fishing by sight ain’t easy when the Esopus gets cloudy

Fishing by sight ain’t easy when the Esopus gets cloudy

The good news: Under pressure from lower Esopus Creek stakeholder groups, the consent order on Ashokan Reservoir water releases was made public on Friday, Oct. 4, instead of waiting until after the Filtration Avoidance Determination (FAD) comment period had ended.

The bad news: Stakeholders say that the document falls dismally short of their hopes for dealing with the muddy water that the New York City Department of Environmental Protection (DEP) has been releasing, and will continue to release, into the creek.


The water releases are designed to keep New York City’s drinking water clean enough to be exempt from filtration, a multi-billion-dollar prospect the city avoids by means of the FAD, currently under one of its periodic reviews. Since the releases began in 2010, residents along the lower Esopus have objected to resultant damage to their property and to the creek habitat, resulting in the creation of an Interim Release Protocol, forged by DEP and New York State Department of Environmental Conservation (DEC). Stakeholders have fought to give the protocol teeth, but the process is agonizingly slow.

“We’ve been waiting for this document for two and a half years,” said Mary McNamara of the Ashokan Release Working Group and the Lower Esopus Watershed Partnership. “It appears that it will take at least two years to begin the environmental review of the release protocol. That’s getting close to five years of working with something that’s called ‘interim.’”

Kate Hudson of Riverkeeper had hoped the agreement would lay out alternatives for the use of the release channel, but she said, “The consent order and the permit modification process it lays out accept continued use of turbid releases—that’s a given. It’s about how we can tweak it to make it more palatable to the communities.”

She was disappointed to find that the document “does not limit the duration of releases. It just requires a flush [with clean water] every five days if it’s very turbid. But I have heard from at least two hydrologists who say the flushing has no environmentally beneficial effect. It’s really window dressing.”

Hudson said that Riverkeeper would continue to advocate for effective alternatives by delivering comments during the FAD approval process. “Since November of 2010, we know what the impacts are. We require the DOH [NYS Department of Health] to reconsider its position on the way the waste channel is used.”

One positive aspect of the agreement, from the stakeholders’ point of view, is the provision for an environmental review that would assess the effects of the releases.

Hudson’s concern about the environmental review is that it is “by definition a DEP-driven process. We’re gratified that the DEC will be the lead agency. That is provided for and is what we requested. But the party who drafts the document controls the conversation. There’s a significant difference between that process and what could be required under the FAD, under the control of DOH and an expert panel.”

Given that the only structural measure to be evaluated by the review is use of the release channel, Hudson feels any data uncovered during the review process should be transferred to the FAD for consideration of alternatives.

“The next steps are to make sure the environmental review is as wise and as smart as possible, from a science and a community decision-making perspective,” commented McNamara. “At the moment there are gaps in what is mentioned as things to be studied.” She cited the document’s reference to the problem of sediment suspension and settling but the omission of the potential for settled sediment to be stirred up. “But,” she added, “at least there is the requirement for these studies to be made if the release channel is to be used.”

McNamara emphasized the complexity of the issues involved. “The Esopus is not a tunnel or a channel—it’s a living, breathing stream. The upper section drains the highest peaks in the Catskills, through a complex drainage system. A good-quality, well-functioning stream is a focal point that gives benefit. If it’s not handled well, it will take years, if ever, to reverse the damage.”


Saugerties supervisor also not pleased

“The consent order was a real disappointment,” said Saugerties Supervisor Kelly Myers. “What we were looking for is that DEP would accept responsibility for the damage they had caused and move forward in such a way to prevent more damage. That’s what the people who elected me want. The consent order does neither of those things.”

Myers appreciates that the document designates funding for a consultant for the Ashokan Release Working Group and requires an environmental study, but she questions what will happen with the data collected. “There’s nothing clear in the consent order that says they’re going to do anything about it.”

While the agreement also provides $2 million for stream management, she called such funding “a drop in the bucket compared to the damage that was caused and what we have to do to correct things for the future. It’s too little, too late.”

She encouraged residents to participate in the process of comments on the FAD. “The only recourse that people in our region currently have is to vehemently oppose the FAD. If the consent order is only supposed to buffer problems with DEP, we just have to say, ‘Filter it. If you’re not going to respect us, then filter your water.’”

The FAD comment period has been extended to November 15, in response to requests from local stakeholders. Comments may be submitted to New York State Department of Health, Attention: Pamela Young, Empire State Plaza, Corning Tower, Room 1110, Albany, N.Y. 12237 or by emailing to fadcomments@health.state.ny.us.