cials in the affected towns say an absence of remedies to those problems demonstrate that city oversight of environmental reviews is self-serving.
“We feel that collateral damages are impacts that call attention to the need for filtration,” said Vernon Benjamin, the former Saugerties town supervisor who serves as a spokesman for the town. “Collateral impacts include recreational needs in Marbletown and needs in protecting properties in low lying areas in Hurley and Ulster, and protecting our stream banks in Saugerties. Those are collateral damages that occurred when they did those major discharges several years ago.
‘You don’t want the agency that is going to benefit from the consequences to be the lead agency on any kind of review like this,” Benjamin added. “It’s nutty.”
From October 2010 through February 2011 and roughly the same period in 2011-12, the release of turbid water from the Ashokan Reservoir into the Lower Esopus was made as part of a long-term plan to dispose of the muddy water. The state in October 2012
issued a $2.74 million penalty against the city for the daily turbid releases into the Lower Esopus Creek in 2010-11 without approval, although the fine largely consisted of programs that the city would fund in the event an environmental review of the creek is conducted.
City Department of Environmental Protection officials argue that the releases are separate from the filtration avoidance determination, or FAD, which they say should focus only on the watershed above the Ashokan Reservoir.
“The FAD is only related to activities in the watershed related to meeting the objective of things in the surface water treatment rule and activities outside the watershed are not related to the FAD,” said Adam Bosch, a spokesman for the city agency.
Bosch said the environmental impacts of the releases are being addressed in a separate process and should not be part of the discussion of filtration issues concerning water going into the Ashokan Reservoir. To that end, a notice seeking comment on the lead agency request was not even sent directly to the towns of Ulster and Saugerties, village of Saugerties, or city of Kingston as interested parties that are affected by actions
called for in the filtration avoidance determination.
“The lead agency letter was sent only to towns and villages that are within the watershed boundary,” Bosch said via email. “Some towns along the lower Esopus also have land in the watershed — such as Hurley and Marbletown — so they would have received the note. The others would not because no FAD programs happen within their municipal boundaries.”
Saugerties town officials were able to get the letter from other sources, but not before it was too late too meet an Oct. 30 deadline to submit comments.
Marbletown town Supervisor Michael Warren said the absence of city responses in the filtration avoidance determination to problems caused by releases of up to 600 millions gallons per day of muddy Ashokan Reservoir water is troubling. He argues that state environmental review laws for all other projects would require that impacts be addressed, and attributes the lapse to city officials not being used to communities along the Lower Esopus Creek speaking up after more than 100 years of city control of the reservoir.
“When they were talking in the spring about renewal
of the FAD and the city being lead agency, I thought how would DEC or DOH even entertain something like that?” he said. “Basically there’s new circumstances and people are taking a lot stronger stance . ... Just because that’s the way it was 10 years ago, we’re not doing that now.”
Warren said the city’s own documents shows how important the Ashokan Reservoir’s waste channel is and that its impacts on downstream communities should not be ignored. He noted that the U.S. Environmental Protection Agency has already declared the Lower Esopus Creek an impaired water body due to the muddy water releases.
“In the FAD ... our communities are basically more impacted by use of the waste channel, and it is paramount to their use of the FAD as a major component of their solution,” Warren said. “Without the release channel you really can’t do the FAD. In the document, if you’re now looking at the impacts from the ... channel into an endangered waterway. The feds should probably be directly involved with this.”
Opposition to city oversight of the environmental reviews was also raised in an Oct. 26 letter to the state Department of Environmental Conservation from the
Catskill Center, Riverkeeper, and the Natural Resources Defense Council.
“DEC is the agency with ‘both the power and the duty to impose practicable conditions’ upon the city to mitigate the potential for adverse impacts to the environment associated with the implementation of aspects of the ... filtration avoidance determination,” the letter said. Among the groups’ concerns is that no state environmental quality reviews have ever been conducted for the Lower Esopus Creek releases, which were done with the state Department of Environmental Conservation’s knowledge but not approval in 2010, and then under a consent order in 2011 that waived environmental regulations until studies could be done.
Riverkeeper attorney Kate Hudson, in a telephone interview, said the city’s argument that the filtration avoidance determination should be separate from the Lower Esopus Creek review is simply “spinning” to minimize comments from those communities.
Hudson noted that city officials themselves used the filtration avoidance determination to encourage the state Department of Health to give its blessing to the releases.
“Even though they’re going
to say this is a completely different process ... (and) it doesn’t have anything to do with the FAD, that is really smoke and mirrors, because those discharges were authorized in 2010 by the (state Department of Health) under FAD by letter saying that the DEP’s turbidity control plan for the Catskills was approved under the FAD and therefore they were allowed to begin those discharges,” she said.
In the December 2010 letter, the Department of Health expressly cites the filtration avoidance determination in saying the releases were authorized to the extent they were similarly allowed by the state Department of Environmental Conservation.
“This approval is also subject to the following additional FAD reporting requirements, which are hereby established ... (that) DEP will provide a description/discussion on how the Ashokan Waste Channel is currently being used for turbidity control,” the letter said.
Hudson said that approval proved to be a “disaster” and said efforts to use state enforcement action for the 2010 releases to separate the issue from filtration avoidance determination approval is a “head fake” to avoid scrutiny.