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Part 670: Reservoir Releases Regulations: Schoharie Reservoir Shandaken Tunnel-Esopus Creek

(Statutory Authority: Environmental Conservation Law, §§I-010i, 3-0301, 15-0805)

Historical Note

Part(§§670.1-670.9)filed May 25, 1977 eff. June24, 1977.

Contents:

Sec.

§670.1 Purpose and applicability.

It is the purpose of this Part to implement the policy of the State with regard to the release and diversion of waters from certain reservoirs, as set forth in title 8 of article 15 of the Environmental Conservation Law. Accordingly, it is the purpose of this Part to regulate the volume and rate of change of diversions of water from the Schoharie reservoir through the Shandaken tunnel into Esopus Creek, in order to protect and enhance the recreational use of waters in Esopus Creek in a manner consistent with the protection of existing recreational uses of the Ashokan and Schoharie reservoirs, while ensuring and without impairing an adequate supply of water for power production or for any municipality which uses water from such reservoirs for drinking and other purposes.

Historical Note

Sec. filed May 25. 1977 eff. June 24, 1977.

§ 670.2 Definitions.

As used in this Part, the following words and terms shall have the meaning ascribed to them, unless the context requires otherwise:

(a) Ashokan reservoir shall mean the reservoir known as the Ashokan reservoir, located in the Towns of Olive, Marble town and Hurley, Ullster County.

(b) City shall mean the City of New York.

(c) City reservoir releases manager shall mean an employee of the city formally designated by the mayor of the city to fulfill the responsibilities of the city reservoir releases manager set forth in this Part, which designation shall be on file in the office of the department reservoir releases manager. In lieu of such designation, the city reservoir releases manager shall be the administrator of the city environmental protection administration.

(d) Close the Shandaken tunnel shall mean the action of closing a gate or gates located at the Schoharie reservoir to stop or decrease the flow of water from the reservoir into the Shandaken tunnel.

(e) Commissioner shall mean the Commissioner of Environmental Conservation.

(f) Department shall mean the Department of Environmental Conservation.

(g) Department reservoir releases manager shall mean the commissioner or an employee of the department formally designated by the commissioner to fulfill the responsibilities of the department reservoir releases manager set forth in this Part, which designation shall be on file in the office of the city reservoir releases manager.

(h) Diversion shall mean the withdrawal of water from the Schoharie reservoir into the Shandaken tunnel.

(i) Esopus Creek shall mean that portion of a creek known as Esopus Creek which runs from the Shandaken gaging station to the Ashokan reservoir.

(j) Open the Shandaken tunnel shall mean the action of opening a gate or gates located at the Schoharie reservoir to commence or increase the flow of water from the reservoir into the Shandaken tunnel.

(k) Schoharie reservoir shall mean that reservoir known as the Schoharie reservoir, located in the Towns of Conesville and Gilboa, Schoharie County; the Town of Prattsville, Greene County; and the Town of Roxbury, Delaware County.

(l) Shandaken gaging station shall mean the United States Geological Survey (USGS) stream gaging station No. 01362198, located on Esopus Creek at Shandaken, New York, as identified in Water Resources Data for New York, Water Year 1975, U.S. Geological Survey water data report NY -75-1 (see section 672.6 of this Title).

(m) Shandaken tunnel shall mean the tunnel known as the Shandaken tunnel running beneath ground from the Schoharie reservoir to Esopus Creek at Allaben, New York.

(n) Spill or spilling shall mean the flow of water over the spillway of a dam which contains a reservoir or reservoirs.

Historical Note

Sec. filed May 25, 1977; amd. filed Nov. 5, 1984 eff. Nov. 5, 1984. Amended (I).

§670.3 Operation of the Shandaken tunnel.

The city shall utilize the Shandaken tunnel only in accordance with the provisions of this section.

(a) During all times of the year, the city shall divert through the Shandaken tunnel those quantities of water, as determined at the tunnel intake chamber, that when added to the flow of Esopus Creek, as measured at the Shandaken gaging station, are necessary and sufficient to provide at all times a combined flow of at least 160 million gallons per day -mgd (248 cubic feet per second-cfs); provided, when the Schoharie reservoir is physically incapable of providing sufficient water to maintain such combined minimum flow, the city shall make the maximum diversions of water into the Shandaken tunnel which the Schoharie reservoir is physically capable of providing. The provisions of this subdivision shall not be applicable when water is spilling from the Ashokan reservoir.

(b) Between June 1st and October 31st, inclusively, the city shall not make any diversion of water through the Shandaken tunnel:

(1) whenever the flow of Esopus Creek, as measured at the Shandaken gaging station, exceeds 300 mgd (465 cfs); or

(2) whenever the amount of that diversion, as determined at the intake chamber of the Shandaken tunnel, added to the flow of Esopus Creek, as measured at the Shandaken gaging station, will produce a combined flow exceeding 300 mgd (465 cfs).Provided, in order to minimize spill from Schoharie reservoir, the city may make such diversions when the unfilled storage capacity of Schoharie reservoir is less than five billion gallons and the unfilled storage capacity of Ashokan reservoir is more than five billion gallons.

(c) During all times of a year, the city shall, in making any diversions into the Shandaken tunnel), open the Shandaken tunnel at intervals of one hour or more in increments not exceeding 40 mgd (62 cfs), and shall close the Shandaken tunnel at intervals of one hour or more in increments not exceeding 20 mgd (31 cfs). Provided, the provisions of this subdivision shall not be applicable from November 1stto May 31st, inclusively, whenever the flow in Esopus Creek, as measured at the Shandaken gaging station, exceeds 300 mgd (465 cfs).

(d) From November 1st to May 31st, inclusively, whenever the flow in Esopus Creek, as measured at the Shandaken gaging station, exceeds 300 mgd (465 cfs), the city may, in making any diversions into the Shandaken tunnel, make diversions of any amount or no diversions as it determines proper and may open and close the Shandaken tunnel at such rates as it determines proper.

(e) Prior to its commencement of any action relating to the operation of the Shandaken tunnel that is consistent with the provisions of subdivisions (a), (b), (c), and (d) of this section, the city shall notify the office of the department's regional director at New Paltz, New York. The city shall not be required to obtain any specific review or approval by the department for any action which is consistent with the provisions of subdivisions (a), (b), (c), and (d) of this section.

(f) (1) Due to the technical limitations of operating water regulating devices and measuring flows, any rate of flow stated, required or allowed pursuant to this Part relating to the Shandaken gaging station or the Shandaken tunnel intake chamber or to the opening or closing of the Shandaken tunnel shall be deemed to include a rate of flow ten percent higher than the stated, required or allowed rate of flow where that rate is a maximum allowable rate and shall be deemed to include a rate of flow ten percent lower than the stated, required or allowed rate of flow where that rate of flow is a minimum allowable rate.

(2) The provisions of this Part shall be interpreted as reflecting the time lapses required by subdivision (c) of this section and the time required for water to pass through the Shandaken tunnel.

(3) The provisions of this Part shall not be deemed to require the city to monitor the flow in Esopus creek, as measured at the Shandaken gaging station, more than once during any twenty- four hour period or, accordingly, to adjust diversions of water into the Shandaken tunnel more than once during any twenty-four hour period; provided, the city shall so monitor such flow and make any necessary corresponding adjustment at least once during every twenty-four hour period and further provided, any such monitoring of the flow in Esopus creek shall be binding on the city with respect to compliance with the provisions of this Part until the next such monitoring is made.

(4) The provisions of this Part shall not be interpreted as requiring any adjustment of flow in the Shandaken tunnel, in response to a hydrologic event of short duration which may cause the flow maximums established by subdivision (b) of this section to be exceeded for a short duration (e.g., a summer rain storm of three hours).

(g) The city may take an action with regard to the operation of the Shandaken tunnel which does not meet the requirements stated in subdivisions (a), (b), (c), and (d) of this section provided it obtains the department's approval of such action, prior to the commencement of any such action, in accordance with this subdivision. The department may approve an action proposed pursuant to this subdivision where it finds such action is reasonable and consistent with the purposes of this Part.

(1) The city reservoir releases manager shall submit via certified mail a written proposal for such action to the department reservoir releases manager. Such proposal shall specify the dates and times of the proposed action, the amount of water to be diverted, the rate at which water is to be diverted, the duration of the action, and the purpose of the action. Such written proposal shall be received in the office of the department reservoir releases manager not less than 24 hours prior to the commencement of the first proposed action.

(2) Within 24 hours of his or her receipt of the written proposal by the city reservoir releases manager, or as soon thereafter as practical, the department reservoir releases manager shall notify the city reservoir releases manager by telephone whether the department has approved, approved with modifications or disapproved the proposed action; and in the event of an approval or approval with modifications he or she shall specify the dates and times of the authorized action, the amount of water to be diverted, the rate at which water is to be diverted, the duration of the action, and any conditions pertaining to the implementation or termination of the approved action. Provided, between the receipt of the city's written proposal and the department's telephone transmission of its decision, the city and the department may negotiate by telephone relative to such proposal.

(3) As soon as practicable after notifying the city reservoir releases manager by telephone as provided in paragraph (2) of this subdivision, the department reservoir releases manager shall send a certified mail letter to the city reservoir releases manager stating the decision of the department with regard to the proposal involved. In the event the department has approved the city's proposal or approved it with modifications, said letter shall specify the dates and times of the authorized action, the amount of water to be diverted, the rate at which water is to be diverted, the duration of the action, and any conditions pertaining to the implementation or termination of the approved action. In the event the department has disapproved the city's proposal or approved it with modifications, said letter shall specify the reasons for such disapproval or modifications.

(4) When the city is not able to provide a written proposal to the department as specified in paragraph (1) of this subdivision at least 24 hours prior to the commencement of the first proposed action, the city reservoir releases manager shall submit a proposal for such an action by telephone to the department reservoir releases manager, which telephone request shall be made not less than 24 hours prior to the first proposed action. Such proposal shall specify all the information required for a written proposal under paragraph (1) of this subdivision. Immediately following such telephone proposal, the city reservoir releases manager shall send to the department reservoir releases manager via certified mail a written proposal stating those matters covered by the telephone proposal. Within 24 hours of his or her receipt of such a proposal by telephone, or as soon as practical thereafter, the department reservoir releases manager shall notify the city reservoir releases manager as to the department's decision regarding such proposal in the manner specified in paragraphs (2) and (3) of this subdivision. Provided, between the receipt of the city's telephone proposal and the department's telephone transmission of its decision pursuant to paragraph (2) of this subdivision, the city and the department may negotiate by telephone relative to such proposal.

(5) The telephone approval by the department provided in paragraphs (2) and (4) of this subdivision shall constitute the authorization for the city to proceed with an action approved by the department pursuant to this subdivision. No action shall be taken by the city pursuant to this subdivision until such telephone approval has been received, and any such action shall be undertaken in accordance with such telephone approval.

(6) The city reservoir releases manager and the department reservoir releases manager shall each maintain a complete and accurate log of all telephone conversations made pursuant to paragraphs (2) and (4) of this subdivision.

(7) The city reservoir releases manager and department reservoir releases manager shall provide the necessary telephone arrangements to fulfill the provisions of paragraphs (2) and (4) of this subdivision.

(8) With respect to any action proposed by the city pursuant to this section which relates to any inspection, maintenance or repair to the Schoharie reservoir, the Ashokan reservoir or the Shandaken tunnel or any appurtenant structures or facilities, the approval, approval with modifications or disapproval of the department under this section shall be made with respect to the time and duration of the proposed action and shall not be made with respect to the substantive details of the inspection, repair or maintenance activity. The department shall not unreasonably delay or hinder any inspection, maintenance or repair activity which the city wishes to undertake with regard to said facilities.

(h) Both the city reservoir releases manager and the department reservoir releases manager may specify one or more persons on their respective staffs to take all actions under this section in the place of and on behalf of such manager when such manager is not able to take such action directly. Provided, each such designation shall be in writing and shall be on file in the respective office of each manager. Provided further, any such designation shall authorize such designee to act in all respects under this section for the respective manager.

(i) The department may request the city to take an action with respect to the diversion of water from the Schoharie reservoir through the Shandaken tunnel in a manner that does or does not comply with the provisions of any or all of subdivisions (a), (b), (c) and (d) of this section for the purpose of field monitoring or testing, research, protecting the fishery or other naturalresources of Esopus creek, protecting the fishery or other natural resources of Schoharie reservoir or Ashokan reservoir for the benefit of existing recreational uses of such reservoirs, or special recreational events on Esopus Creek. Such request by the department shall be sent by certified mail from the department reservoir releases manager to the city reservoir releases manager and shall be received by the city reservoir releases manager at least 24 hours prior to the first requested action. Said request by the department shall be consistent with the purposes of this Part and shall specify the dates and times of the requested action, the amount of water to be diverted, the rate at which water is to be diverted, the duration of the requested action, the specific purpose of the requested action and any conditions governing implementation and termination of the requested action. If the requested action will not occur when the Schoharie or Ashokan reservoir is spilling and will not cause either of such reservoirs to spill water or to spill increased amounts of water, the city shall comply with such request; and in the event such requested action will occur when either reservoir is spilling or will cause either reservoir to spill or to spill increased amounts of water, the city shall determine whether or not to comply with such request. The city's receipt of the department's letter containing such request shall constitute authorization for the city to increase or decrease the flow of water in the Shandaken tunnel in accordance with such letter.

(j) All telephone logs and written communications made pursuant to this section shall be considered matters of public record.

Historical Note

Sec. filed May 25, 1977 eff. June24, 1977.

§670.4 Monitoring.

(a) The department reservoir releases manager shall be responsible for monitoring all actions taken pursuant to this Part on a continuous basis in order to determine whether any significant adverse environmental impacts, including but not limited to fishkill incidents, occur as a result of the operation of the Shandaken tunnel by the city pursuant to this Part. The department reservoir releases manager shall promptly investigate any such incidents which may occur and report the results of such incidents to the city reservoir releases manager.

(b) The department reservoir releases manager shall be responsible for conducting studies in order to:

(1) establish additional detailed rates for opening and closing the Shandaken tunnel when the flow in Esopus creek exceeds 300 mgd (465 cfs) as measured at the Shandaken gaging station,

(2) identify means for reducing or eliminating turbidity in Esopus creek associated with the operation of the Shandaken tunnel, and

(3) provide a technical data base for resolving such other problems and issues associated with the diversion of water through the Shandaken tunnel as may be identified. The department reservoir releases manager shall consult with the city reservoir releases manager regarding such studies.

(c) The department shall have authority, upon reasonable notice, to enter and inspect any property or premises for the purpose of investigating either actual, suspected or potential environ- mental degradation caused by actions which do or do not comply with the provisions of this Part, for the purpose of ascertaining whether certain actions do or do not comply with the provisions of this Part, or for the purpose of monitoring any actions which do or do not comply with the purposes of this Part.

Historical Note

Sec. filed May 25, 1977 eff. June24, 1977.

§670.5 Recreational activities.

(a) In order to assist persons wishing to undertake recreational activities on or along Esopus creek, the department reservoir releases manager shall respond to all inquiries relative to the date, duration and nature of diversions to be or being made pursuant to this Part.

(b) The department reservoir releases manager may provide for diversions pursuant to this Part for such special recreational events as he or she finds appropriate in light of the purposes of this Part and consistent with section 670.3(I) of this Part and shall respond to all inquiries relative to the date, duration and nature of any such diversions. Provided, all requests for diversions for special recreational events pursuant to this section shall be made to the department reservoir releases manager in writing not later than April 15th of any year. Further provided, the department reservoir releases manager shall not provide pursuant to this subdivision (1) for more than one diversion during any month or (2) for more than four such diversions between May 1 and October 31, inclusively.

Historical Note

Sec. filed May 25, 1977 eff. June 24, 1977.

§670.6 Records.

The city shall maintain detailed records regarding its operation of the Shandaken tunnel. Such records shall be maintained at the city field offices at the Schoharie and Ashokan reservoirs and at the office of the city reservoir releases manager. Such records shall at a minimum specify the amounts of water diverted through the Shandaken tunnel, the dates, times and duration of such diversions, the rates of the openings and closings of the Shandaken tunnel, and the amount of water contained in the Schoharie and Ashokan reservoirs at any particular time. Not later than 45 days following the end of any calendar month, the city reservoir releases manager shall provide to the department reservoir releases manager a summary of such detailed records for that calendar month. Such monthly summary shall be in sufficient detail for the department to determine whether the city's operation of the Shandaken tunnel during the preceding month complied with the provisions of this Part. The department shall have the opportunity, after reasonable notice, to inspect the city's detailed records at the office of the city reservoir releases manager or the city field offices at the Schoharie and Ashokan reservoirs.

Historical Note

Sec. filed May 25, 1977 eff. June 24, 1977.

§670.7 Emergency situations.

(a) The provisions of section 670.3 of this Part shall not be applicable to any action taken by the city with regard to the operation of the Shandaken tunnel in any emergency situation where:

(1) there is a threat to the continued existence or safe operation of the Schoharie reservoir, its darn and appurtenant structures; the Shandaken tunnel and appurtenant structures; or the Ashokan reservoir and its darns and appurtenant structures; to the public health and safety; or to the maintenance of a satisfactory level of water quality in the Ashokan reservoir;

(2) such threat may not be averted by any action taken in compliance with section 670.3 of this Part; and

(3) such threat can be averted by an action of the city that is not in compliance with section 670.3 of this Part.

(b) Any action taken pursuant to this section with respect to the operation of the Shandaken tunnel shall continue only for such time as is necessary to avert the threat involved. The city reservoir releases manager shall provide immediate telephone notice to the department reservoir releases manager regarding any action taken by the city pursuant to this section. The city reservoir releases manager shall provide written notice to the department reservoir releases manager within five working days of any action taken by the city pursuant to this section, which notice shall specify the action taken and set forth the reasons for the city reservoir releases manager's decision pursuant to paragraph (1)-(3) of subdivision (a) of this section.

Historical Note

Sec. filed May 25, 1977 eff. June 24, 1977.

§670.8 Enforcement.

(a) The Attorney General, on his own initiative or at the request of the commissioner, or the corporation counsel at the request of the city, shall bring an action to restrain or enjoin any violation of any provision of this Part. The commissioner shall furnish the Attorney General or the corporation counsel with such material, evidentiary matter or proof as may be requested by either of them in connection with such action.

(b) Not with standing the provisions of any law, the venue of any action commenced or proceeding brought pursuant to this Part may be in the County of Albany.

Historical Note

Sec. filed May 25, 1977 eff. June 24, 1977.

§670.9 Revisions.

On a periodic basis the department shall review and consider proposing amendments to this Part. Any amendments to this Part shall be made in the same manner as its initial promulgation.

Historical Note

Sec. filed May 25, 1977 eff. June 24, 1977.