NYC loses case to pollute the Esopus Creek (check it out)

**AaronJasper** · 03-20-2007, 09:33 AM

A Stunning Victory for Fishermen
U.S. Supreme Court Declines Appeal in Esopus Creek Case

February 26, 2007, Tarrytown, NY – Confirming a stunning victory for fishermen and clean water advocates, the U.S. Supreme Court denied New York City’s petition for certiorari to overturn a federal Court of Appeals decision that prevented unregulated pollution of the Esopus Creek, a pristine, world-renowned trout stream located in the Catskill Mountains.
“We are not surprised that the petition was denied,” said Professor Karl Coplan of the Pace Law School Environmental Litigation Clinic, which successfully represented the plaintiffs in the hard-fought case, “the Second Circuit Court of Appeal’s decision was clearly in-line with the Supreme Court’s earlier decisions on the subject.”
In March 2000, a coalition of fishing and environmental groups, including Catskill Mountains Chapter of Trout Unlimited, Theodore Gordon Flyfishers, Federated Sportsmen’s Clubs of Ulster County, the Catskill-Delaware Natural Water Alliance, along with Riverkeeper, sued the City in an effort to stop New York City’s Department of Environmental Protection (DEP) from discharging pollutants from its Shandaken Tunnel into the Esopus Creek in violation of the federal Clean Water Act (CWA). Water from the Schoharie Reservoir, which travels through the 18 mile-long tunnel, carries extremely high levels of fine clay particles that turn the clear waters of the Esopus Creek a muddy brown. Local fishermen began to call this stretch of the Esopus “Yoo-hoo Creek” for its resemblance to the chocolate soft drink. These discharges from the Tunnel diminished the quality of the Esopus, destroying its recreational trout fishery. Fishermen no longer fish downstream from the Shandaken Tunnel Outlet.
“Not only is this a victory for the Esopus and its wild rainbow trout, it is also a victory for the Clean Water Act,” stated Bert Darrow, a fly fishing instructor for over 35 years and permanent director of the Catskill Mountains Chapter of Trout Unlimited as well as a board member of Theodore Gordon Flyfishers. [bold added, Ed.]
In October 2001 and again in June 2006, the Second Circuit had unanimously held that inter-basin transfers of polluted water require a CWA discharge permit. “The Supreme Court’s denial resolves the question in this case that any transfer of pollutants between distinct and unconnected water bodies without a permit is illegal. Our tireless efforts over these last seven years have affirmed the plain language and intent of the Clean Water Act.” said Daniel Estrin, Supervising Attorney at the Pace Clinic. Now, with the resolution of this case, the DEP must pay a hefty penalty to the United States Treasury for violating the CWA: $5,225,000.
Whether the City will indeed reduce the turbidity remains the subject of much contention. The plaintiffs in this case have sued the State’s Department of Environmental Conservation (DEC) contending that the permit the State issued to resolve this problem violates both state and federal law. As Bert Darrow noted, “This is not the end of the road. It is now up to the State to enforce the law and issue a permit that does not violate state water quality standards.”
Ernest Schwiebert Chapter, Trout Unlimited • Pennington, New Jersey • http://www.esctu.org 3
The City is proposing to make only minor modifications to its operation of the Tunnel. But, the plaintiffs believe that a structural measure, such as a multi-level intake structure that would select only the clearest water to send through the Tunnel, is necessary to effectively solve the turbidity problem. Governor Eliot Spitzer agrees. In 2003, then-Attorney General Spitzer recommended that the City employ a multi-level intake structure in the Schoharie Reservoir to reduce turbidity in the Esopus and to avoid building a water filtration plant.
“Hopefully Governor Spitzer will take the lead in resolving the turbidity problem so that the fly fishermen can return to the Esopus,” said Ron Urban, Chairman of the New York State Council of Trout Unlimited. “It’s high time that Yoo-hoo creek was restored to its natural state where the water ran gin-clear. I look forward to a river that is cleaned up so that fishermen will never have to worry about high levels of turbidity,” echoed Bert Darrow.
Alex Matthiessen, president of Riverkeeper, concurred, “This is a tremendous win for the New York City watershed, its fishermen, and our environment. It is now the City’s responsibility to live up to its obligation to ensure that the Esopus runs clear.”

Photo of the Impact of the Tunnel on the Esopus
This photo was worth more than 1,000 words!

Victory in the Esopus Case would not have been possible without able assistance of students from the Pace Environmental Litigation Clinic, who dedicated thousands of hours representing the coalition from filing notice and drafting the complaint, drafting briefs, arguing in federal court, and finally filing the opposition brief to the City’s petition for certiorari.

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**Troutfishing4life** · 03-20-2007, 11:31 AM

Thats great that the water is going to be cleaner and better for fish and fishing

Mike

**AaronJasper** · 03-20-2007, 12:26 PM

yeah below that pipe outflow the river would be silted up really bad. its a win for everybody, fisherman, fish, birds and even the dreaded paddlers.

rckrego · 03-20-2007, 01:26 PM

don't forget the people tubin' and boozin'!

**JBlanchard** · 04-07-2007, 10:23 AM

I have a friend at my work thats gone up there to go camping a couple times and he was talking about the how nice it and that he saw huge rainbows that he could'nt catch. I doubt ill catch anything but I am planning on going up there for a weekend. He knows of a place right on the river, I can stay at. Wasn't all that cheap but who cares. I'll have to do a lot more reading on it before I go. Any suggestions about it what time of year is better. The place is near Phoencia

rckrego · 04-09-2007, 11:26 AM

Let me know what you find out. I head up to the capital district a few times a year, and would love to make the esopus a stop on the way up and back. From what I've heard you want to avoid july and august because people come floating down the river in inner tubes and put down all the fish.