Sunday, March 21, 2010

"Need" Is Subjective . . .

. . . and depends on one's perspective. At least that is the thought that ran through my mind reading this morning's OD editorial, "Study need for new reservoir as first step ."

The water authority maintains that the Gray Reservoir was never needed to provide an adequate water supply. But others believe its presence was significant, including the Canal Corp. Only an independent study can say for sure . . .
The Water Authority is correct . . . Gray Reservoir was never needed for the Water Authority's physical operations. That was because the Water Authority had taken all it needed out of Hinckley -- water that it had no right to take -- and no one stopped them from doing it for 90 years.

And rights are what this entire dispute comes down to. For the Water Authority to legally take water out of Hinckley, it was required under its 1917 Agreement with the state to maintain and release water from its own reservoir at Gray.

Although the Water Authority now claims that its "rights" to draw water without Gray have been affirmed, that is not the case. The court never struck down the 1917 Agreement. Instead, as a matter of equity (rather than law) Judge Hester chose not to strictly enforce it, and, in essence, directed the parties to continue their past practices. This made sense because the lives of 130,000 people were in the balance.

As to the future, the decision is quite clear: if the Water Authority wants to take more than the 35 cfs used in 1970, it needs to comply with the old agreement. That agreement requires a 6 billion gallon reservoir upstream of Hinckley if the Water Authority is to take the maximum draw of 75 cfs allowed under the agreement.

There is no "need" to study. The need was determined as a matter of law over 90 years ago when the forerunners of the current parties settled their dispute. The need was acknowledged 40 years ago in the 1968 Oneida - Herkimer Counties Comprehensive Water Supply Study. It was recognized again in the recent court decision. The need for the 6 billion gallon reservoir is settled.

What needs to be studied is how it will be implemented in our era of complex environmental laws, and how we are going to pay for it.

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