Above: A dramatic photo of Lower Esopus turbidity, submitted to the Times Herald-Record in October 2010 and republished with permission.
A long-overdue agreement governing New York City's release of turbid water from the Ashokan Reservoir into the Lower Esopus Creek has finally been reached, the state Department of Environmental Conservation announced late Wednesday.
The agreement, known as a consent order, includes a provision requiring the city to fund $3.4 million worth of stream work and other environmental projects in the Esopus Creek watershed. The city will also be required to conduct a study of the environmental effects of the Ashokan releases, under the review of the DEC and with public participation.
Also announced was a $2 million appropriation from the state Environmental Protection Fund for the Ulster County Rail Trail -- another issue of local controversy, which has pitted Ulster County officials and trail advocates against the working Catskill Mountain Railroad, whose eastern segment stands in the way of an unbroken trail from Kingston to Highmount.
According to DEC spokesman Peter Constantakes, the consent order itself is not yet in force.
"It still needs to be signed by the New York City comptroller," Constantakes said. "We think it should be fine, and there should be no objections. We don't foresee any problems."
When it is signed, Constantakes said, it will take effect. The public will have the opportunity to weigh in on the city's environmental review of the Ashokan releases, Constantakes said, but the consent order itself will not be subject to another public comment period.
Towns and residents along the Lower Esopus have been waiting a long time for the consent order. In 2010, the city Department of Environmental Protection began discharging turbid water into the Lower Esopus through the Ashokan Release Channel after heavy rainstorms, muddying the creek and drawing ire from local residents and officials. In May of 2012, the DEC released a draft version of a consent order to govern the city's use of the channel. But for nearly a year and a half, Lower Esopus stakeholders have been waiting for the DEC to issue a final version of the consent order.
Last month, another document governing New York City's watershed -- a midterm update of the city's ten-year Filtration Avoidance Determination (FAD) -- was issued by the state Department of Health, the agency that has the power to force the city to filter its water if it does not adequately protect water quality in its upstate watershed. After it was released, Ulster County executive Mike Hein blasted the FAD for not adequately addressing Lower Esopus issues, revealing that an earlier unofficial draft had originally contained $2 million worth of stream programs in the Lower Esopus.
State officials said that the stream programs had not been eliminated, just shifted from the FAD to the DEC's consent order -- reasoning that since the Lower Esopus is physically outside the city's watershed, it is not under the DOH's authority to regulate. But with the consent order still under wraps, the FAD drew heat from frustrated local officials who saw no solution to the ongoing controversy in the Lower Esopus.
In the wake of the FAD's release, both Hein and Congressman Chris Gibson, whose 19th District covers the entire New York City watershed region, have called on the DEC to release the consent order promptly, and to give some answers to Lower Esopus communities that have been anxiously awaiting a resolution to the issue.
Recently, a couple of new groups have emerged as players in the complex negotiations around New York City's watershed issues, and the Lower Esopus in particular. In April, Gibson announced the formation of the Watershed Advisory Group, a group of local officials and residents working to find common ground on controversial watershed issues across the large, five-county watershed region. Last week, several Lower Esopus towns began an effort to band together to form the Coalition of Lower Esopus Communities, joining together for more clout in bargaining with the city.
At the time of the DEC's news release -- around 4:50pm on Wednesday -- Ulster County legislators were conducting a public hearing about the FAD and its failure to address Lower Esopus issues.
The full text of the release, and reactions from other stakeholders, are posted below.
The DEC's news release:
New York State Department of Environmental Conservation (DEC) Commissioner Joe Martens today announced an agreement with the New York City Department of Environmental Protection (NYC DEP) to reduce the impact of discharges from the Ashokan Reservoir into the Lower Esopus Creek, and advance additional initiatives that will protect the environment and promote recreational activities in Ulster County.
Under the agreement, New York City will perform a comprehensive environmental review of NYC DEP’s releases from the Ashokan Reservoir, which are currently governed by DEC’s Catskill Turbidity Control Program. DEC will be the lead agency for the review which, will be subject to full public participation. The Catskill Turbidity Control Program consists of management practices to control turbidity in the system, including management of the Ashokan Reservoir release channel, which balances multiple competing uses of water in the Ashokan Watershed.
New York City will also invest approximately $3.4 million to fund environmentally beneficial projects in the Esopus Creek Watershed. This program will include a stream management plan for the Lower Esopus and $2 million to implement that plan or related projects. Two major stream stabilization projects will be undertaken in the Ashokan Reservoir as part of a comprehensive program (that includes FAD projects) to reduce turbidity and erosion at its source. Fish stocking, installation of stream gauges and water quality monitoring will be undertaken on the Lower Esopus under this agreement. The sum of $80,000 will be provided to support Ulster County with technical consulting services during the environmental review process.
Recreational opportunities in Ulster County will also be expanded through a $2 million State Environmental Protection Fund (EPF) appropriation for the Ulster County Rail Trail, extending recreational trail opportunities to include a connection with the Walkway Over the Hudson with rail trails in Ulster and Dutchess counties. The proposed public recreation trail will start in Kingston and follow the Ulster & Delaware line westward to the Ashokan Reservoir, linking the Catskill Park with the Hudson River and Walkway Over the Hudson. The $2 million in funding for this project was designated by Governor Andrew Cuomo in the 2013-14 State Budget.
“Protecting water quality is one of the primary goals of managing water systems and we are pleased that we have an order that will improve the management of the Ashokan system and reduce impacts on the Lower Esopus,” Commissioner Martens said. “I commend the NYC DEP for working with us on a forward-looking order that will help to reduce turbidity, combined with additional funding for other related projects in the Esopus Creek Watershed, provide environmental benefits to communities and residents in the region, and also help to attract tourists and businesses. I also want to acknowledge the efforts of Ulster County Executive Mike Hein, who was a strong representative of his community throughout this process and a tireless advocate for local needs. DEC also appreciates the work of Congressman Chris Gibson to protect the interest of his constituents while also supporting environmental improvements within the Esopus Creek Watershed.”
Under the agreement, which will be executed as a consent order, 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.
The order also includes significant funding for environmentally beneficial projects in the Esopus Creek Watershed, such as stream restoration projects on the Upper and Lower Esopus Creek, development and implementation of a stream management plan for the Lower Esopus, installation and maintenance of new stream gauges, and fish stocking.
The interim reservoir release protocol now in place has been enhanced in response to public comments. This release protocol will be fully assessed and improved through the environmental impact review process, and will ultimately be incorporated into a regulatory permit.
The order complements programs set forth in the Filtration Avoidance Determination (FAD) including stream management programs in the Lower Esopus similar to projects undertaken in the watershed. The New York State Department of Health, in consultation with United States Environmental Protection Agency and DEC, has released a draft Filtration Avoidance Determination (FAD) for public comment. The draft FAD has identified the following projects and funding in the New York City Watershed, including the portion of Ulster County in the City’s watershed: · $50 million increase to continue NYC DEP’s land acquisition program.
· $15 million for a flood buy-out program. This program will include properties that fall outside of the FEMA flood buy-out eligibility criteria. Additional funds can be shifted to this program from the $50 million land acquisition allotment if flood buy-outs requests exceed the $15 million allotment.
· $17 million to support a local flood hazard mitigation grant program (structure relocation, flood proofing, elevation, flood plain reclamation).
· Seven major stream restoration/turbidity reduction projects in the Ashokan Watershed at an estimated $3 million.
· $20.6 million increase for the County Soil and Water Conservation Districts to address erosion and stream stabilization and local flood hazard mitigation planning and projects.
· $23 million for Watershed Agricultural Council farm conservation easements. · $6 million for Watershed Agricultural Council forestry conservation.
· Nine stormwater retrofit projects annually, with potential funding available at approximately $3.6 million.
After the DEC's news release, Ulster County executive Mike Hein issued a statement praising the agreement:
Today’s announcement by the NYS DEC, regarding the draft NYS DEC Consent Order with NYC DEP, represents a step forward. Ulster County welcomes the opportunity for the County and the public to participate in a meaningful way in the comprehensive environmental review of releases from the Ashokan Reservoir. This review will be overseen by NYS DEC as the lead agency. I have always sought to build a partnership with NYC DEP in which Ulster County is a full partner in making decisions which affect our people, property and environment. I am hopeful that the Consent Order, together with the City’s obligations under the FAD, will provide a framework to begin to work together on critical issues facing my communities. The projects and programs set forth in the Consent Order have the potential to provide significant benefits to Ulster County residents. Going forward, I will continue to vigorously monitor NYC DEP’s activities and assure that Ulster County's best interests are represented.
Commissioner Carter Strickland of the DEP also issued a statement, stressing the importance of the environmental review the city will be required to conduct:
"The details released today by the state Department of Environmental Conservation (DEC) of proposed modifications to the draft consent order are an important step for the City and our neighbors along the Lower Esopus Creek. The proposed modifications include a number of important projects that will help everyone understand and balance the operation of Ashokan Reservoir and issues related to the Lower Esopus Creek that include water quality, flood protection, the health of the fishery, and recreation.
"In accordance with the proposed modifications DEP will pursue two new projects in the Upper Esopus Creek to improve water quality coming into Ashokan Reservoir. We look forward to partnering with the Ulster County Soil and Water Conservation District and the Cornell Cooperative Extension of Ulster County, who have helped us complete similar projects since the 1990s. DEP will also fund $2 million for projects to improve the banks and flow of the Lower Esopus Creek, in addition to $200,000 to develop a stream management plan for the creek.
"To gather a body of science and understand these issues better, the state will oversee a comprehensive study of the Lower Esopus Creek. The study aims to understand how different flow rates from Ashokan Reservoir affect the creek and its floodplains, identify sources of turbidity, measure the health of the fishery, and more. This work will be incorporated into an Environmental Impact Statement that will be subject to extensive public review and input. Importantly, DEP will provide $80,000 to the Ashokan Release Working Group (ARWG) – which includes local government officials, community residents, and nonprofit groups – to hire a technical consultant to help them be active and informed participants in that study. The contents and goals of the study will ultimately be determined by DEC following a public scoping session.
"The importance of this analysis cannot be underscored enough. The study will gather a considerable amount of scientific data about the Lower Esopus Creek for the first time. That data will be used by DEP, DEC, and the downstream communities to make informed decisions together about potential changes to the release protocol for Ashokan Reservoir, which has been in place since 2011.
"The proposed modifications also acknowledge that it is prudent to postpone dredging of Kensico Reservoir. Under a state permit, DEP is required to dredge to remove remnants of the water treatment settling agent alum, which has been used over the years to help control turbidity in the water entering the distribution system. However, dredging the reservoir sooner would likely have meant that a second round of dredging would be required upon completion of the important bypass-tunnel project on the Delaware Aqueduct, which has recently started and will finish sometime in 2022.
"As we look toward beginning projects outlined in the consent order, the City also wants to redouble its commitment to keep communities along the Lower Esopus Creek informed about operations at Ashokan Reservoir and other topics of interest. DEP posts water quality, reservoir release, and reservoir storage data on its website so that the public can track trends on their own, not only during the extreme weather events of 2011, but also during regular operations. In addition, our staff has met regularly with the ARWG over the past two years. We have gathered valuable feedback from these meetings, and local officials have even helped DEP obtain land owner permissions needed for the upcoming study. We are confident this spirit of cooperation will continue and grow."
As with any settlement of a claim, the draft consent order is subject to the approval of the New York City Comptroller.