The latest twist in the seemingly unending saga of the Mohawk Valley Water Authority vs the New York State Canal Corp and others is the Appellate Division's modification last week of Judge Hester's 2009 ruling. Per the OD, the water authority is still hoping for extra water.
Ultimately MVWA will get the extra water . . . but it will be at a price.
Judge Hester's 2009 ruling "in equity" of allowing MVWA to draw 35 cubic feet of water per second from West Canada Creek without providing compensating flows was the judge's attempt to preserve the status quo among the warring parties while they worked out a long term solution for the taking of greater amounts of water. Litigants on both sides of the lawsuit, however, suspected there was no basis "in law" for the judge's solution, so they appealed on that issue (and others), and the Appellate Division has thrown out the 35 cfs allowance -- or limitation depending on one's perspective.
The Appellate Division -- as did Judge Hester -- tacitly acknowledged that the 1917 Agreement between Consolidated Water Co and the State of NY is a valid agreement. A plain reading of the 1917 Agreement makes clear that unless MVWA maintains a compensating reservoir and makes compensating flows to the West Canada Creek (to make up for the water MVWA removes from the Creek during low flow periods), MVWA has NO right to take ANY water from Hinckley. The issues to be resolved thus come down to whether the state defendants intended to relinquish their rights under the 1917 Agreement or should now be barred from enforcing that Agreement because of their inaction at doing so for decades.
Persons who have not been significantly harmed by the breach of an agreement would not be expected to sue to enforce the agreement . . . at least not until the breach becomes or threatens to become significant. I don't believe that threat can be seen as significant until (1) Gray Dam was destroyed and (2) MVWA planned to vastly expand the reach of its system.
I believe that this matter will ultimately be resolved by the construction of a new reservoir that substitutes for Gray Reservoir. If MVWA does not willingly construct it, the state will do so in its stead, and then charge MVWA costs for its use.
Either way costs will be passed on to MVWA customers.