Wa­ter

Daily Freeman (Kingston, NY) - - WEATHER -

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.

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