Hein blasts state for leaving Lower Esopus out of watershed pact

Above: Turbid water from the Lower Esopus mixes with clearer water in the Hudson River. Photo taken by Riverkeeper in November of 2011, when turbidity in New York City's Catskill watershed and the Lower Esopus Creek was still high as a result of the Irene and Lee floods.

In a draft document issued last week, the state Department of Health proposed requiring New York City to spend almost $40 million on new stream projects and flood mitigation in its upstate watershed.

But more important, critics say, is what's not in the document: $2 million for stream restoration programs in the Lower Esopus Creek that appeared in an early unofficial draft, and was cut from the document before it was made public. The document, a midterm review and revision of the city's ten-year Filtration Avoidance Determination (FAD), is open to public comment until October 15.

Ulster County executive Mike Hein, who got a copy of the unofficial draft from Congressman Chris Gibson, is irate at the removal of the Lower Esopus funding. On Wednesday, Hein issued a fiery statement, pointing a finger at the DEP for the removal of the $2 million.

"After the NYC DEP apparently pressured Albany, the Lower Esopus portion of this document was removed," Hein wrote. "This is Proof Positive that the NYC DEP routinely uses its grossly disproportionate influence in an attempt to manipulate the regulatory process."

State health officials say they have no authority to force New York City to take action in the Lower Esopus -- at least not in the FAD, a document meant to satisfy the federal Environmental Protection Agency that the city's watershed is pristine enough to stay unfiltered.

Hein is seeking to restore the Lower Esopus programs to the FAD, and is calling on the state Department of Environmental Conservation (DEC) to release a separate document that will govern the DEP's actions in the Lower Esopus. But the county executive is also seeking some bigger changes in upstate/downstate relations: Hein wants to renegotiate the hard-fought agreement that has governed the watershed since 1997, a much more substantial undertaking.

"The fact that the people of our community do not have a seat at the table in the negotiation of the FAD is unconscionable," Hein said. "What impacts our community is being negotiated in New York City and Albany, with the people of our community having absolutely no say in the matter."

The Lower Esopus has been a hot political issue since the city began muddying the creek with turbid water releases in in 2010. This latest spat illustrates just how complicated watershed politics can be.

New York City spends millions of dollars a year on its upstate watershed, but the price of clean water is cheap compared to what the city could be forced to spend if regulators decide that the city is not properly protecting its water supply. If the city violates the terms of the FAD, the DOH could force it to build a massive filtration plant, with a price tag of more than $10 billion.

And the FAD isn't the only document making waves in the Lower Esopus. New York City will soon be required to take action in the creek under an entirely separate consent order with the state DEC. But with both documents delayed, and emotions running hot in southeastern Ulster County over the DEP's actions in the creek, the FAD has become a lightning rod for long-held local frustration with the city.

A (muddy) river runs through it

The Ashokan Reservoir was created by damming the Esopus Creek a century ago, forever separating the creek into an upper and a lower portion. In 2010, the DEP began releasing turbid water into the lower portion of the creek after heavy rainstorms, in an effort to cut down on the use of alum -- a settling agent that causes silt to clump and sink -- in the city's Kensico Reservoir almost 100 miles away.

Because the city controls when and how much water flows into the Lower Esopus via the Ashokan Release Channel, the DEP's discharges of turbid water into the creek are considered water pollution by regulators, even when the water in the creeks upstream from the Ashokan is equally muddy. The city's turbid releases have earned the Lower Esopus a designation as an "impaired waterway" from the federal Environmental Protection Agency. And they have infuriated local residents, who have watched a creek beloved by flyfishers, swimmers and boaters run brown for weeks on end.

The New York City DEP's water releases have been both a curse and a blessing for Ulster County residents. When heavy rains are in the forecast, the releases create extra space in the reservoir, helping to prevent flooding along the banks of the Lower Esopus. Local officials along the Lower Esopus who have been fiercely critical of the muddy water coming from the Ashokan Release Channel are sometimes in the awkward position of beseeching the city to release water into the creek for flood protection.

According to DEP officials, it has been many months since the agency released turbid water into the Lower Esopus. Over the last year, releases have been clear or slightly cloudy, they say.

Right: Photo of three glass vials shows turbidity standards of 5, 50, and 500 NTUs. Source: U.S. Geological Survey, via Wikipedia.

According to daily release channel data provided to the Watershed Post by the DEP, the highest recorded turbidity level of water entering the Ashokan Release Channel in 2013 occurred for about a week in late March, when turbidity levels stood at 19 NTU (Nephelometric Turbidity Units, a standard measurement for turbidity). Summer releases have typically been at or near 5 NTU, the state standard for drinking water. For comparison, in October of 2011, with turbidity in the reservoir still high from the Irene floods, the water coming out of the Ashokan Release Channel was above 250 NTU.

But although the silt in the water coming down the release channel has decreased in the last year or so, local ire has not. Hein's heated words reflect widespread local anger with the city about their Lower Esopus water releases.

Earlier this week, Hurley supervisor Gary Bellows told the Daily Freeman that his property has been damaged by the DEP's Lower Esopus releases. 

Most of the land that lies along the Lower Esopus is not technically in the New York City watershed. Since the watershed is governed by heavy regulation on land use and development, that means one less burden for local property owners to contend with. But it also excludes the Lower Esopus region from some of the benefits of watershed programs, and from representation by watershed town advocacy groups like the Catskill Watershed Corporation and Coalition of Watershed Towns.

Kelly Myers, supervisor of Saugerties, recently expressed frustration to the Freeman that her town has to endure the slings and arrows of being downstream from New York City's water system without any of the perks:

“The watershed as defined by DEP stops at the southern boundary of the reservoir,” she said. “So it does not include the Lower Esopus … With (communities that are) part of the watershed, there are definitely some benefits.” 

Fighting on multiple fronts

Hein is calling for the Lower Esopus programs to be put back into the FAD. So is Riverkeeper, an environmental group that has been active in the fight to keep the city from dumping turbid water into the Lower Esopus.

But state DOH officials say they have no authority to force the city to fund any Lower Esopus programs, since the Lower Esopus is outside the watershed. Asked why the $2 million Lower Esopus program was written into and then dropped from the document, DOH spokeswoman Marci Natale issued a written statement saying that her agency had "no regulatory authority through the FAD to require these projects."

"The function of the FAD is to define the watershed protection programs a water system needs to implement to minimize the potential for pathogen contamination in its drinking water supply," Natale wrote. "While outside the watershed, there was recognition of the issues being faced by communities in the Lower Esopus and earlier discussions did include the potential for stream projects in the Lower Esopus. Since there is no regulatory authority through the FAD to require these projects it was determined that these issues would more appropriately be addressed outside of the FAD."

The reason the DOH has no authority over the city's actions in the Lower Esopus, according to DEP spokesman Chris Gilbride, is that the FAD falls under the umbrella of the Safe Drinking Water Act, which does not apply to water bodies like the Lower Esopus that are not used for drinking water. The Lower Esopus is protected instead by the Clean Water Act.

Hein says that by excluding the Lower Esopus from the watershed, the DOH and the DEP are is splitting hairs to benefit New York City.

"One of the key provisions here is how you define the watershed," Hein said. "They like to define it the way they have. Status quo works for them. They stop their legal responsibilities at the point at which they take the water out."

Hein also accused Department of Health regulators of writing the FAD with an eye on the DEP's budget.

"It's clear that when certain areas were raised, others were lowered [between the unreleased draft and the public draft]. It appears they began with a specific budget," Hein said. "The FAD should not be built around the New York City DEP's budgetary constraints. It should be specifically designed around addressing both their negative environmental impacts and their negative impacts on the Ulster County economy."

While DOH may not have the authority to force New York City to address Lower Esopus issues, the DEC does. Last year, under the aegis of the Clean Water Act, the DEC issued a draft consent order that included a $1.55 million fine for the city's turbid Lower Esopus discharges and its use of alum in the Kensico. When released, the final consent order will govern the city's future use of the Ashokan Release Channel.

According to Natale, the DOH spokeswoman, that consent order will also include funding for the Lower Esopus projects that were left out of the FAD.

But the draft consent order was issued over a year ago, and local officials are still anxiously waiting for it to be finalized. So far, the DEC has given no indication of when the final version will be released. Hein is pushing for the order to be released as soon as possible.

"The consent order should be public now, so the public has all the cards on the table and has the ability to compare," Hein said.

All he wants for Christmas is an MOA

Hein's immediate goal is to focus attention on the plight of the muddy Lower Esopus. But he is also calling for a much bigger change in upstate/downstate relations: In Wednesday's press release, the county executive called for a new Memorandum Of Agreement (MOA) between New York City, its watershed communities, and the city's federal and state regulators.

The MOA that governs New York City's watershed was the subject of bitter dispute and debate for years leading up to its adoption in 1997. Since then, it has governed all aspects of New York City's watershed regulations and programs. It includes the extra regulations that businesses and landowners inside the watershed must comply with, the agreements for funding economic development and wastewater treatment in the watershed, and the rules under which the city can buy land to protect its reservoirs. Scrapping the MOA, and starting again from scratch, would be a monumental undertaking.

Hein's reason for wanting a new MOA: When the 1997 watershed agreement was negotiated, no Ulster County executive was part of the negotiations, since the county did not move to adopt a charter form of government with an elected county executive until 2006.

"The way the MOA is currently structured disregards the fact that Ulster County recently changed its form of government, and can speak with one voice for 182,000 people," Hein said. "The current MOA excludes Ulster County from the discussion process."

Alan Rosa, executive director of the Catskill Watershed Corporation and a key figure in the hard-fought watershed MOA battles of the 1990s, takes issue with Hein's argument that Ulster County has not been represented.

"I'm scratching my head. Ulster County was very much part of the whole watershed negotiations," Rosa said. "There are two members from Ulster County on our board, and they go through an elected process to get on that board." 

For his part, Congressman Chris Gibson, who released the unofficial draft of the FAD to Hein's office, is staying out of the fray. Spokesperson Stephanie Valle said that Gibson, who is running a Watershed Advisory Group to discuss New York City watershed issues with his constituents, is not yet taking a position on whether the MOA should be reopened, or whether the FAD should include the Lower Esopus.

"At this point, our focus is really on trying to engage all of the stakeholders across the region for input," Valle said. "Before we're ready to take a specific position, we want to make sure everyone has the time to weigh in."

Rosa, however, is dismayed by Hein's call for the 1997 New York City watershed agreement to be scrapped.

"I spent six years negotiating," Rosa said. "I believe I went to 468 meetings, from Albany to New York City to Washington, D.C. and throughout the watershed...I did it so our children would have a right to live here. Now he wants to renegotiate the MOA? It's very discouraging to see that."

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Update, 8/31/2013: After the publication of this article, Stephanie Valle, spokeswoman for Congressman Chris Gibson, contacted the Watershed Post to clarify that Gibson is seeking a resolution to the Lower Esopus issues, and is calling for the DEC to release the consent order. Valle writes:

[W]e believe as it stands now, how the Lower Esopus issues have been handled is unacceptable and that's why we're calling on DEC to release the consent order now to see if, like the draft order, they are addressed. Our focus is on resolution to the problem. I think that's an important point and our position is not accurate without it.

A spokesman for the DEC, Peter Constantakes, issued a statement Friday in response to the Watershed Post's inquiry about when the consent order would be released. In it, the DEC does not give any information about when the consent order will be made final, saying only that they will seek to finalize the order "expeditiously": 

We are working to complete the consent order which involves consideration and response to comments from the public and interested stakeholders. The final order will address any significant issues raised during the public comment period. A Response to Comments document will be issued to accompany the final order and will explain why any recommendations were not incorporated into the order. DEC intends to complete this work expeditiously.