The New York State Department of Environmental Conservation (DEC) has released a final Consent Order settling its 2011 enforcement action against New York City Department of Environmental Protection (DEP) in part for DEP’s unauthorized discharges of turbid, muddy water from its Ashokan Reservoir to the Lower Esopus Creek.

The Consent Order authorizes DEP to continue high-volume, turbid releases from the Ashokan Reservoir into the Lower Esopus Creek for both the near and long terms. In addition to violating the law, such releases will continue to harm businesses and recreation along the creek.

Rather than the independent expert evaluation of the City’s use of waste channel releases to the Lower Esopus which was required by an initial draft of the State Department of Health (DOH) Filtration Avoidance Determination (FAD), before it was withdrawn under pressure from DEP, the Consent Order only provides for a description of impacts and a limited review of alternatives to be prepared by DEP. We have been down this road before, when DEP based its review of alternatives to managing turbidity in its water supply system on identifying the cheapest solution for itself: discharging the muddy water into the Lower Esopus.

It is crucial that an unbiased group of experts evaluate that decision and assess the true efficacy and cost of alternatives to continuing to dump the City’s unwanted dirty water on Lower Esopus communities. Without that independent review of all possible structural alternatives, the communities along the creek will likely have to live with continuing releases into the future with little hope that the need for those releases will ever be properly evaluated.

Lower Esopus residents need this expert evaluation immediately. While DEP studies the environmental impacts of discharges to the Lower Esopus over the next two and a half years, the Consent Order allows high volume, muddy releases to continue in nearly the same fashion as before. DEC’s touted changes to the protocol that guides these releases will have little or no environmental benefit. Specifically, the Consent Order’s release protocol places no controls on the quality or duration of the releases. It does intersperse those discharges with periodic, smaller releases of less turbid water to “flush” the Lower Esopus. However, there is no scientific evidence that such low-volume flushes will benefit aquatic ecosystems, let alone businesses and communities along the Creek.

Riverkeeper calls on the Department of Health to remedy these deficiencies by directing DEP to convene an independent expert review of all structural and operational alternatives to Lower Esopus discharges, and by putting in place interim operating rules for the releases that set clear caps on their turbidity, volume and duration to assure that DEP discharges to the Lower Esopus will not result in violations of federal or state environmental laws. Because the Consent Order fails to require DEP to evaluate alternatives that could eliminate the necessity of relying on turbid discharges to the Lower Esopus to manage turbidity in the City’s water supply system, the only hope for Lower Esopus communities is that DOH will step up and use its authority under the FAD to identify and pursue a long term solution.