Monday, July 06, 2009

Water Water Everywhere . . . .

“Water, water everywhere, but not a drop to drink?” That is the question some people are probably asking themselves following Judge Hester's recent ruling in the water fight among the Mohawk Valley Water Authority, the State of New York, and others, that places a limit on the amount of water that the Authority can take out of the Hinckley Reservoir. With all of our lakes, streams, and snowy and rainy weather, why is this even an issue? Why should there be a limit at all? What are the ruling's implications for our region's future? A bit of law and history help the ruling make sense.

In New York State, rights to water are private property associated with ownership of land bordering a stream, which cannot be taken away without just compensation. The landowner has a right to the full flow of the stream, undiminished in quantity or quality by others, whether or not the landowner actually uses the water in any manner. These so-called “riparian rights” allow the landowner to fish, swim, boat, use the water to turn a mill wheel, and use the water on his or her property for various purposes, including domestic and agricultural uses, as long as the flow and quality of water in the stream are left substantially unchanged for other riparian landowners downstream.

Diverting water for use as a municipal water supply is not a riparian right because it diminishes the amount of water remaining in the stream for others. A company or municipality wanting to do this must first acquire the right to do so from all of the riparian landowners downstream that are likely to be affected. The landowners may agree to sell all or part of their riparian rights, or agree to diversions only under certain conditions, such as their always having enough water for crops or livestock, or that diversions may take place only when the flow in the stream is above a certain level.

Utica and its suburbs get their water from the M.V. Water Authority, which gets its water from Hinckley Reservoir on the West Canada Creek. At the time the water system was set up in the early 1900s, the private water company that eventually became the Authority purchased various riparian rights from the landowners along West Canada Creek. While many agreements were short and written to the company's favor, others protected the special interests of the various landowners such as agriculture. A few went into great detail to spell out that the company would only be allowed to draw water when flow in the creek was above 333 cubic feet per second (cfs) and that, if water was to be diverted when flow was below this amount, the company would have to release water from its own storage reservoir upstream in an amount equal to its diversion. This would restore the flow in the creek to what it would be under natural conditions.

Complicating this set up was New York State's simultaneous need for water from the West Canada Creek, and damming of the creek at Hinckley to create a 25 billion gallon reservoir, making a reliable supply for its Barge Canal. The conflicts and lawsuits that arose between the water company and State were ultimately settled by an agreement signed in December, 1917. Among its terms, the agreement reserved a water flow of 75 cfs for the water company's use, permitted the company to use the State's reservoir as a transporting agent and settling basin for water, and permitted the company to put its water intakes in the State's dam. However, the company's right to draw water from Hinckley was conditioned upon the company both maintaining water storage capacity upstream of Hinckley and releasing water from storage into Hinckley when flows in the West Canada Creek were low, defined to be 335 cfs (or slightly greater than the trigger flow in some of the company's agreements with private land owners). To ensure that the company had enough water to add to Hinckley to make up for what it was removing, the agreement required that upstream storage be increased in stages as the company's withdrawals increased. At the maximum withdrawal rate of 75 cfs, the company was required to have 6 billion gallons of storage (or almost one quarter of the design capacity of Hinckley Reservoir itself). The agreement stated that the provisions were intended to protect the State from any claims and demands of lower riparian owners which might arise out of the water company's diversions. In essence, this was both parties' acknowledgement that the riparian owners along the creek below the dam still had rights that had to be respected. The agreement also stated that if the company did not comply with the requirements, it had no right to take water from Hinckley.

History happens. In the late 1930s, the water system was purchased by the growing City of Utica. Withdrawals from Hinckley increased. At mid-century with a population of 100,000, Utica was essentially at “full build out,” with little room for growth. It was also at this time that withdrawals had reached a level where the upstream storage capacity required by the 1917 agreement should have been increased. It was not, in perhaps the earliest example of how the city-suburban municipal boundary stands in the way of Greater Utica's progress. With suburban areas unwilling to be annexed to the City of Utica, there was simply no benefit for Utica residents to take on the substantial cost and risks of expanding the water supply to enable growth, expansion of tax bases, and attraction of development in areas outside the city. Utica had already paid for an expensive water supply system that was adequate for its own needs.

In spite of this, growth in the suburbs continued, causing increased withdrawals and the missing of another storage milestone. Fear that increasing population in Oneida and Herkimer Counties would cause water shortages led to a 1968 comprehensive study which concluded that Hinckley Reservoir (with the prescribed expanded upstream storage facilities) should be reserved for Utica and environs and parts of Herkimer County. It also concluded that central Oneida County should be served by the Rome supply, and that western Oneida County should be served by Lake Ontario and other western sources.

In the mid-1980s, disputes arose between Utica and its suburbs over water rates, which Utica lost. Suffice it to say that Utica residents' status as the owners of the water system vs. suburban residents' status as mere customers, and the burdens associated with bringing water over greater distances to less densely populated suburban areas, went unrecognized. The owners of the system were denied a return on not only their investment, but also on the risks they were taking as the operators of a complex regional system. If an incentive was lacking to make changes that would benefit the suburbs before, the rate disputes made the situation worse.

With the pressure of the cost of a new federally-mandated filtration plant, and a local press that incessantly painted Utica as being 'tight-fisted,' uncooperative, and unwilling to think regionally, the City of Utica threw in the towel in the 1990s and sold the water system to the newly created M. V. Water Authority for a quick buck. Although Utica residents' burden of being sole owners of the system was now shared with others, they still bore half of the cost of buying the water system from themselves, and of maintaining it because they used half of the water. While Utica residents make up 50% of the Authority's 12-member governing board, two of them are picked by the county legislature, and two of the non-city members are picked by the County Executive. Since only a small portion of the county is served by this water system, the county involvement tilts the board toward an expansionist “pro-developer” philosophy with blind spots on issues of urban sprawl and proper allocation of water supply.

This became evident in 2003 when the Authority applied to the Department of Environmental Conservation to expand its water service to areas in Westmoreland, Kirkland, Frankfort, and Schuyler; agreed to supply water to the Town of Verona; and announced an intent to sell water to the City of Sherrill and Village of Vernon, which were customers of the City of Oneida system. Most of these areas were outside the Authority's service area and had alternative supplies available that were identified in the 1968 study. Verona's own engineers essentially concurred with the study, concluding it made more sense to get water from Rome, or from the Onondaga County Water Authority (L. Ontario). Camelot Village in Westmoreland, which had contaminated wells, was used to promote the need for the M. V. Water Authority's proposed cross-county pipeline – all while City of Rome mains were only one quarter mile away! The Authority's plans were contrary to the recommendations of the 1968 study, and, per that study, could leave the Utica area short of water, if the mid-century growth rate were to resume.

Meanwhile, in 2002, the Authority had destroyed its only storage reservoir upstream of Hinckley to avoid costly repairs, not seeing it as essential to operations, and, apparently, not comprehending its planned role in allowing mixed uses of the West Canada Creek to co-exist. The combination of the destruction of the storage reservoir with planned system extensions got the State Canal Corp.'s attention. However, instead of moving to ameliorate the potential impacts of the Authority's faux-pas, the State used the situation to attempt to extort a per-gallon charge from the Authority (and us ratepayers). It was strictly about money. The Authority responded with a lawsuit. In the meantime, the nature of the developing problem began to sink in with landowners along the creek, fishermen, boaters, camp operators, and others who derive a living or pleasure from its flows. Old agreements surfaced. It became apparent that the Authority was not playing by the rules, and that its plans were a threat to continued mixed uses.

Finally, we receive Judge Hester's ruling that the State's inaction for many years would stop it from preventing the Authority from continuing to divert water consistent with its use and practice over the years, which the judge defined to be “not to exceed 35 cfs,” which converts to 22.6 million gallons per day (MGD). However, the Judge rejected the Authority's claim to 75 cfs, saying that the Authority “is not entitled to divert a flow in the amount of 75 cfs of water without providing compensation flow according to the terms of the 1917 Agreement.”

True to its expansionist philosophy, the Authority spins the judge's limitation on withdrawals as an authorization to further expand the system. It cites its “average daily demand” (ADD) of 19 MGD, rounds the judge's limit up to 23 MGD, and concludes it can add 4 MGD worth of new users. The Authority fails to tell the public that it estimated in 2002 that its actual withdrawals from Hinckley were 21 MGD, with the difference from ADD attributed to production water uses at the Water Treatment Plant and leakage in the reservoirs and transmission systems. It also fails to tell the public that its “Maximum Daily Demand” is 25 MGD, and already exceeds the judge's limit.

The Authority also fails to tell the public that the higher historical demand occurred when the system was smaller than now, before industries left town. If the Authority spreads out even more to add 4 MGD of new users to reach the limit, what happens if some of the older properties revert to industrial use? Will the Authority deny them water? Ration water? Increase rates? Or simply violate the judge's limit and hope no one is watching? The judge's limit was merely to preserve the status quo, to buy time, and not to authorize an expansion.

The practical effect of the judge's limit is that this region's growth is now capped where it stands. The Marcy “Nanotech” site becomes useless for its intended purpose because the 3 MGD needed by a “chip-fab” is not available.

Obviously, the help of all stake holders is needed to solve our water shortage, but the search for a solution must not be orchestrated by the Water Authority. It is only interested in growing its business.

[This article was originally published in the June, 2009 "Utica Phoenix." Be sure to pick up this month's "Phoenix" to read "Last Exit for West Utica" ... available now in a newsrack near you.]

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