West Canada Creek landowners enter water battle.
Landowners and people who are concerned over how their environment is used and abused have requested to intervene in the pending lawsuit between the Mohawk Valley Water Authority and the State Canal Corp.
The original lawsuit was filed by the water authority against the Canal Corp. on April 25, 2005, in the water authority’s hopes of solidifying its claim that it has the right to 48.5 million gallons of water per day from the reservoir.
The problem with the Water Authority's position is that its "right" to 48.5 million gallons of water per day cannot be greater than the rights that its predecessors purchased from the private landowners along the West Canada Creek (WCC) . . . and the rights that were purchased from the landowners were contingent upon certain obligations to the landowners . . . obligations that currently are not being met.
That is the substance of the landowners' lawsuit: The landowners' rights have been overlooked in the cross-fire between two state-created government agencies, and they want the court to declare what their (the landowners') rights are.
Why should you, not a WCC landowner, care? Two reasons:
- The agreements with some of the landowners contain obligations very similar to the obligations made to the "People of the State of New York" -- i.e., You and Me -- NOT the "Canal Corp." -- thus, the landowners moving to protect their rights will also be protecting yours and mine.
- Government should be expected to live up to its agreements. If it refuses to do so in this case, how can anyone dealing with the government know whether any deal will be kept, or disregarded? A government that does not honor its commitments no longer serves the People and has no business existing. Revolutions have been fought over less.
Disappointingly, private individuals have now been forced to sue their own government -- the Canal Corp and the MVWA -- because other government agencies which should have acted to protect their interests, have not. It is like the fire department refusing to respond when your house is on fire.
The Department of Environmental Conservation should have realized that there was a problem with the MVWA's right to water back in 2002 when it authorized the destruction of Gray Reservoir -- the maintenance of which was required by the agreement with the state that is now in litigation. When DEC allowed Gray to be destroyed, it allowed a violation of the agreement and undermined the basis of its own water supply permit that was issued to the MVWA -- without issuing a notice that the water supply permit was being modified. This may have been a simple case of the dam safety people (who wanted Gray fixed or taken down) not talking to the water supply people, or someone thinking that violation of the agreement was someone else's problem. Regardless, the "People" of New York were not protected, so now Greater Utica residents pay for both sides of a protracted lawsuit where only the lawyers are winners.
Herkimer County, while expressing concern that its resources may be removed to serve far off western Oneida County, has not lifted a finger to intervene on behalf of the "People" residing in Herkimer County. There are long-standing joint Oneida-Herkimer County plans -- plans designed to assure all citizens of both counties of an adequate supply of water even if population were to significantly grow -- that are now being disregarded by Oneida County and the MVWA in particular. In the upcoming weeks we are sure to hear of the importance of the WCC to the Herkimer County economy. It is surprising that Herkimer County has chosen to sit by the sidelines while the WCC and its people are hurt.
8 comments:
What land owners, the old industries that were down stream from Gray a hundred years ago? Or the ones who live on the WCC now that have uninhibited flow from the old Gray Reservoir that eventually flows into Hinckley? Those lawyers are not out to help the private landowners along the West Canada Creek, they are looking at the deep pockets of New York State "You and Me".
Look New York State shot themselves twice in the foot, once with allowing the Dam Removal and second by creating the low reservoir level during the summer of 2007, remember we had dryer summers with higher reservoir levels. We all know the history, so its time the lawsuits are dropped so that the MVWA customers are not supporting lawyers.
If the Gray Reservoir issue happened in late 2008 and not 2002 with the “economic crisis” going on it would be a different story. How would it look if the MVWA wanted to bond for millions of dollars or increase rates to rebuild a dam that was NEVER used there would be such outcry it would be considered a waste of customer money. This blog would probably writing about it, just like building a park when it is not needed
I agree that the West Canada Creek is an important resource for the area and we must preserve its recreational value as a fishery and natural area. But, the power companies and Canal Authority are the culprits for its fluxuations. Hypothetically, if the MVWA were to drill wells and not use Hinckley RESERVOIR, the Canal Authority would (or could) still dry the West Canada by diverting water into the Canal because they "need" it. The MVWA does not manage the flow into the WCC - Canals does. Further, with or without the Gray Dam, the same amount of precipitation falls on the watershed. Assuming Gray is full and it's a dry summer, releases from Gray would still have had to be maintained throughout the dry summer to maintain the fisheries on the Black Creek. The amount left over to be released into Hinckley would be akin to literally drops in a bucket.
I cannot say that Gray was Never used -- but if that is true, then it is because the Water company/board/authority Never complied with their obligations to release water when creek flow levels were low.
If the choice put to the people is: "Restore Gray or DO WITHOUT water" . . . the public WOULD choose to restore Gray. . . . because that was the obligation that was accepted by the Consolidated Water Company and all its successors to allow Greater Utica to take the water. While publicly regulated, water rights in NYS are PRIVATE not public property, and must be purchased. To pretend that these rights do not exist is arrogance and anarchy.
For the MVWA or anyone to argue that MVWA should just be allowed to take water from Hinckley ignores the fact that Hinckley was never created to be Utica's reservoir. The state has no obligations to Utica whatsoever regarding water supply other than to allow it to put its intakes in the dam rather than the creek. To substitute Hinckley for Gray would require setting aside up to 25% of its capacity for the water authority's exclusive use.. . . something that the state could demand payment for. The advantage of maintaining Gray would be that the state could not pull its plug and drain it.
I disagree with the notion that releases from Gray would be a "drop in the bucket" . . . in fact, when creek flows are low, the Water Authority's withdrawals amount to a significant percentage of flow. It is at those times that the Authority is obligated to make up for every drop that it takes out.
Yes, the Canal Corp screwed up big time when it "pulled the plug" and drained Hinckley . . . but even if it had drained Hinckley totally, the people along WCC were still entitled to what would have been the flow under "natural" conditions ... meaning whatever flow was in the creek WITHOUT any withdrawals by Utica.
The state is not blameless by any means. If it diverts water from Hinckley in such a manner that the Water Authority cannot maintain its obligations under its old agreements, then the State is violating its old agreement with the Water Authority as well.
As I said earlier, the people along WCC are entitled to the natural flow of the creek.
The old agreements were set up to allow for multiple uses of the WCC to peacefully coexist with each other for the Public good. . . . They need to be complied with . . . for the Public good.
The MVWA wants to refer to a 100 +/- year old document as proof that they are and always have been entitled to up to 48.5 million gallons of water per day, even though the use never came close to averaging that and was probably closer to half of that even in the good times. The problem for them is that this same document also states that when the water lowers to a specific level, any water they remove from the system is to be replenished in an amount equal to that which they removed. This was to done utilizing The Gray Dam and Reservoir.
The MVWA now argues that since they never replenished the water as they should have all along, and that there were never problems or concerns raised, that it then became the established practice and they should be able to continue on as they have been and not be forced to replenish the water. Well if you want to use that argument, the MVWA has established the practice of only using approximately half the 48.5 million gallons of water per day this same document “entitled” them to, and they should be made to continue on as they have been, using half the water. One or the other!
Folks below the dams are much better off with the dams there so that they have better control over floods and dry spells. In the end, that part just comes down to poor management. What happened 2 summers ago should have never happened. Even though it is true it’s that same amount of water flowing into the creek as it would be if it remained in its natural state, the MVWA would still removing water from that “creek” even when it is at its lowest levels, and they would not be replenishing it like they are supposed to. (and it’s not just a drop in the bucket, especially when the water is that low). The MVWA is the only one of the competing interest up there that actually removes water from the system. The others just utilize it.
"Folks below the dams are much better off with the dams there so that they have better control over floods and dry spells. In the end, that part just comes down to poor management."
As a landowner on the WCC, I can tell you that when we purhcased the property we were confident that the "dam" on the river would helpto "protect" us from floods and droughts. Over the past three years we have seen that just isn't so. In 2006, the Kuyahoora Valley, along with numerous other parts of the state, experienced what was then called a 500 year flood. Many residents and businesses were either flooded, damaged or significantly inconvenienced. This is forgotten in the "drought" talk, but I believe that this event was solely caused by poor managment of the dam. Yes we had rainfall for 5 days leading up to the flood, some days had over 3" of rainfall. However, during this time, the dam did not release any water above the normal 1100 CFS that flows during "wet" times. Then, on the sixth day, it was like someone finally figured out that they should relase more water, but it was too late and the unrestricted flow of water over the dam was disastrous.
Then in 2007, the "drought" that was man made. With all of the media attention and scrutiny, it seem interesting that last year (2008) the WCC flow was perfect all year long.
I believe that the Canal Corporation should be held accountable for 2006 and 2007 and that the residents of the state are entitled to know why these things happened and what the state is going to do to ensure that they do not happen again.
As for the MVWA, well, the agreements are the agreements and they signed them when they purchased the water system. I agree with onjeesun - if you are going to argue common practices, then you have to argues that the volume of water taken over the same period of time is the maximum that you will take at any time. Rebuilding the Gray Reservoir will not solve the problem as it was not big enough to off set the amount of water MVWA wants to take.
My last comment is this, we are doing a lot of things based on data from over 100 years ago. Many things have changed and I believe that the only way to properly manage this resource is to complete a study of Hinckley Reservoir and the watershed surrounding it. Determine how much water there is available and then determine how to fairly and without damaging the resource distribute the water.
They are currently dredging the area in the Long Island Sound using these giant vacuum type things and they then pipe the dirt they remove out to shore and use it to rebuild the beaches. After 100 years of silt and debris has entered Hinckley reservoir the least that could and should be done is to dredge it and return it back to it's original capacity or even dig it deeper. They could even sell the dirt to help offset the costs. I hear the soil is rich and sought after from that area. I do find it curious that this past years water levels in the reservoir were great all year and the flows downstream were perfect. Maybe it was the big spotlight they all shined on themselves playing games with our water.
You raise a good point onjeesun . . . The capacity of Hinckley likely has significantly decreased due to silting. It would be interesting to determine just how much capacity has dropped.
Under its agreement with the State, MVWA is supposed to have 6 Billion gallons of storage capacity when it is taking 48.5 MGD, ie, about a 120 day supply. . . and about 1/4 of the *reputed* capacity of hinckley.
Perhaps a compromise can be reached:
MVWA can meet its capacity obligation by dredging as much out of hinckley. . . and the state can adjust its releases to guarantee compliances with the old agreements.
I would be curious as to where they might pipe the dredgings from a hydraulic dredge to. A hydraulic dredge requires an area to pump the silt to, as well as a free and clear route for the water to drain back into the body being dredged. A large amount of silt in Hinckley Reservoir is at the lower end of the lake at or near the dam. Where would they pump that to, considering that the dam sits between two ridges along the West Canada valley?
As far as water releases from the old Gray Reservoir, the water always flowed unimpeded through the Gray dam, and Black Creek always flowed freely to Hinckley. I would have to imagine if Hinckley had been drawn down to the levels it was last summer, the dam would have been opened farther to allow more water to go down stream. A matter of concern would have been that release would have had to be minimal and controlled as the black creek channel is not deep and flooding would result from too much water being released. There are homes and camps along the creek that would be in jeopardy.
Gray Reservoir was a pretty and pristine place. It was always posted as I remember, but as teens we used to sneak in there to swim and fish. There were some huge fish in there.
I have walked and fished every foot of both the West Canada Creek from 3 miles north of Noblesboro to the mouth in Herkimer, and Black Creek from Gray reservoir to Hinckley. Black Creek used to be a great bullhead fishery as well as a trout stream. Destroying the fisheries and recreational use of either of those watersheds is a heinous crime and should be prevented at all costs.
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