West Canda Creek

December 13, 2004


Ms. Sandra L. LeBarron, Director Region 6
New York State DEC
Dulles State Office Bldg
Watertown, NY 13601

RE: Hinckley Reservoir and West Canada Creek -
Mediation By DEC on Water Withdrawal
FERC Projects2701 & 3211

Dear Ms. LeBarron;

New York Rivers United (NYRU) requests two specific actions from your department. They are related but distinct.

1) Local media have published accounts that your Department has required the New State Canal Corporation and the Mohawk Valley Water Authority to enter into Mediation/ Dispute resolution to resolve issues stemming from a permit application to withdraw water for public drinking from Hinckley Reservoir.
We request that NYRU be included in this mediation/dispute resolution process.

BACKGROUND

NYRU is a 501C(3) organization with mission to “conserve protect and restore New York’s rivers.” Rivers are a public resource, and the public must be involved in decision-making process that will affect those resources.
NYRU has been actively monitoring West Canada Creek, a portion of which is Hinckley, for the last 12 years. On several instances, we have been active in issues surrounding the use or misuse of these waters. The latest was the permit application for additional water withdrawals by Mohawk Valley Water Authority. Our concerns were for downstream flows and habitat and the fact that this was proposed as an out-of-basin transfer: going from Mohawk drainage to Oswego. We filed comments on our concerns raising the issue that the Canal Corporation has control over the reservoir and that the data that was being used to support the application was outdated.
We conducted extensive research and had meetings with most parties involved in the process. We also raised our concerns with Senator Meier who represents this area.
The Department has done much work on the issue, but several parties are now being asked to meet and attempt to resolve differences. What is missing is a voice from the public for the management of this resource. The New York State Canal Corporation continues to operate this (and other river systems) for decades- old reasons. The data being used to support and or negotiate have been compiled without public input. It is essential that these discussions be more comprehensive than what is now proposed.

NYRU strongly urges you to invite us to participate in this process.


2) Current conditions have changed and/or are being modified on the management of West Canada Creek River resource. Currently, in addition to the use by the New York State Canal and Mohawk Valley Water Authority, there are three operating hydros, FERC 3211 Jarvis & FERC 2701 West Canada Creek (includes Prospect and Trenton Falls) currently under Federal Energy Regulatory Commission (FERC) licenses that have state-issued “401 Water Quality” certificates.

NYRU requests that DEC notify FERC and request to open up your Water Quality Certifications; should FERC deny your request, we believe DEC has an obligation under the Clean Water Act to act to modify this 401.

BACKGROUND

All three of the current hydro plants (Jarvis-New York Power Authority, Trenton Falls-Erie Blvd, and Prospect-Erie Blvd) were licensed prior to 1986. This is an important fact, because amendments to the Federal Power Act in 1986 gave clearer directions that hydro production must be balanced with other river issues. While a required minimum flow was put in (160 cfs), little else was done on the operation or to clearly establish requirements for downstream issues.
This is a “Class A” trout stream and a favorite recreation area. A falls and by-pass reach remain dry, both resulting in non-compliance with water quality standards.
The current license for the most up-stream project allows for peaking on a limited basis. The operation can go from 160 cfs to 1500 cfs with no ramping and for limited times causing stranding. This operation is under the sole discretion of the hydro operator as long as they are attempting to stay within the decades old rule curve established by the Canal Corporation. Science now tells us that minimum flows alone do not protect fishery habitats and species. Flow magnitude, duration and frequency must also be analyzed to develop operating protocols. This has not been done on their system, and so we have flows at up to six times the minimum flow, which are turned off and on at different times of the day throughout the year.
These flows have resulted in fish stranding and adverse conditions for users and stream residents of the river downstream. They have affected the rivers viability (natural reproduction) and health. If we were relicensing this facility, we would look closely at this issue, but we cannot wait for the licenses to expire: we must act to protect the river now.



SUMMARY
These two issues are related. The operation of the hydro plants affects the amount of water in the reservoir. It is clear that at time of high flows, the hydro operators take advantage of the water, but at what level are they releasing? Peaking operations are timed for the market, as opposed to the protection of the resource. By requiring ramping and limiting drawdowns, we can continue to produce power and protect the resource and better utilize the water. New operations might also provide more water to be utilized for future growth in the Mohawk Valley.
The public needs to have a voice in determining the use of the waters of West Canada Creek. A closed negotiation between just two parties does not address the public’s concerns and may not even meet legal requirements for permitting.
The data for current permits that is being used is old and does not reflect current science. A comprehensive look involving all stakeholders and addressing all issues should be done.
An additional source of water identified in all the licenses and in documentation for the Water Authority has been removed (Grey Dam).
We no longer have barge traffic traveling up and down the canal; the need to better utilize this resource for new users is critical.
The public has weighed in on this issue. The New York State Council of Trout Unlimited, expressing concern as to what is occurring on the river, has contacted your department and has relayed TU’s concerns to me. I would argue that the current management system would not under all circumstances meet water quality criteria.

Action is required by your Agency to protect the river resources.

NYRU urges you to act quickly on these two requests. We thank you for your actions of the past and look forward to resolving these issues. Should you have any questions, please do not hesitate to call me (315) 339-2097.

Sincerely,

Bruce Carpenter
Executive Director

Cc: American Rivers
USFWS-Cortland
NYS-DEC, Albany, legal
TU-
NYSCC
MVWA
FERC-NY
FERC-Wash
NHI - ESQ