Tuesday, November 16, 2010

Is the Glass Half Full?

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.


onjeesun said...

The MVWA wants their cake and eat it too. They want to use their "past practice" of not using the compensating flows to justify not doing so in the future however...past practice also has them NEVER using water up to the amount they were allowed to based on the original contract. It seems simple enough to me. Either limit the amount they can use and do away with compensating flows based on past practice or fully adhere to the original agreement. They can't use past practice to justify not compensating the water flow AND use more water then they have based on past practices. On an aside, the reservoir can't possibly hold the amount of water it once did with all the silt and debris that has accumulated in there over a hundred years. I personally think they should reevaluate the whole situation up there from estimated capacities, the rule curve, compensating flows and who has the final say when we're in dryer straights - pun intended.

Anonymous said...

Well I guess the water board showed the state. When they destroyed the Gray Reservoir they set up this battle that they can only lose. The whole group should be fired and the water board returned to government control. It can't get any worse than the unending rate hikes and bleach like water. Total incompetence by the repair crews and apathy from the top. Better yet, forget the whole thing and we can all use bottled water. It can't cost much more than chemical laden liquid they provide us. I do not let my cat drink this water!!!

Desert Flower said...

It does appear that the Appellate Court was not happy with the way Judge Hester issued his Decision?

Is Judge Hester a good judge or one that can be swayed by the political establishment?

Does anyone practice the "rule of law?"

Anonymous said...

Well, the New Year is but a few weeks away so I'm sure that the MVWA will welcome in the New Year by announcing it's annuel rate hike. How much this year Mr. Becher, 6-7%? Of course the rise in rates will occur on April 1st. And who will get the blame this time around for the yearly rate hike that the MVWA uses as a business model?

Strikeslip said...

@ Desert Flower - Actually the impression I got was that J Hester was trying to balance the equities of the parties' past behavior with what the agreement required. It was a very well written and thought out decision even though I disagreed with it somewhat. There isn't anything wrong with that.

Anonymous said...

Strike, What about the agreement that came after the 1917 agreement? I don't see you quoting that one much?

Strikeslip said...

I discuss only the 1917 agreement because that is the one that MVWA's right to take water out of Hinckley is based upon, and the one that was central to the litigation. Later agreements involved different parties, were all discussed in Judge Hesters May 09 order, but are not that relevant.