Exactly one year ago in the wake of two tragic deaths on the
Esopus, we ran an editorial called Riverkeeping, where we
tried to focus attention on an issue that's becoming increasingly
scary to hundreds of homeowners and landowners in Shandaken:
who's ultimately responsible for what happens in the Esopus,
and could it be you and your family if you happen to own land
with creek frontage? The answer it seems, is yes. It could
be your responsibility. And that's not an acceptable answer.
Last month Elizabeth Winograd, owner of the Copper Hood Inn
and Spa in Shandaken was served with a $5 million wrongful
death lawsuit filed by the family of Jennifer Coppolino.,a
17 year old who perished in a particularly treacherous section
of the creek, just below "the portal" in Shandaken.
Apparently the debris in which she became entrapped had piled
up along a part of the streambank that's on Winograd's property.
Had she known of the debris or the danger it posed to passing
tubers or kayakers, and waded into the creek with a chainsaw
to clear it, she'd have been breaking all kinds of laws and
subject to thousands of dollars in fines. Because of the lawsuit
her business has been effectively blacklisted from renewing
or obtaining liability coverage by the insurance industry
and everything she has spent a lifetime building is potentially
at risk. And what's happened to Elizabeth could happen to
any business owner or any property owner along the Esopus
The Town of Shandaken which is to say its taxpayers, was also
named in the Coppolino suit, for $15 million. The town, for
the record, doesn't have the legal authority to throw a stick
into the creek, to say nothing of putting men and machines
in it. Ulster County was named too. So was a contractor who
years ago may have cut trees or moved gravel in the general
area. Two entities however weren't named. One is the only
governmental agency that actually has administrative jurisdiction
over the Esopus and its banks, the State Department of Environmental
Conservation. The other is the City of New York which at the
time was releasing over a thousand cubic feet of water per
second into the rain-swollen creek, less than 300 yards upstream.
We're not judging the merits of the Coppolino lawsuit, that's
now a matter for the courts. But the simple fact is that Jennifer
Coppolino and kayaker Lawrence Kerwin both drown in the open-air
portion of NYC's water supply pipeline because of debris that
didn't have to be there. And we think it's because the two
agencies with the authority and the ability to have prevented
it continue to take no responsibility for doing so, and even
more astonishingly, no responsibility for even warning people
where dangerous conditions may exist.
Last August we asked DEC to post signs warning of dangerous,
unmaintained section of the Esopus in at least 3 common access
points between the Shandaken Portal and the Ashokan Reservoir.
A year later there's no signs;
they obviously don't feel it's their obligation. DEC is correct
when it says they're not required to make sure waterways are
safe for recreational use. But that doesn't mean they're right
in making that determination. We understand that they're unlikely
to make the more responsible choice voluntarily, for fear
of setting a precedent that would obligate them to maintain
hundreds of miles of recreational waterways statewide. Still,
the NY State Department of Economic Development actively promotes
recreational use of the Esopus through its "I love NY"
programs. And tubing on the creek has certainly proven to
be a major force in attracting visitors to the region and
a very meaningful part of our local economy, which we need.
Phoenicia's tubing business does an outstanding job - working
with DEC - of maintaining the 5-mile section of the Esopus
it utilizes commercially. The financial costs of doing that
are not excessive. And the cost of doing the same thing for
an additional 5 or 6 miles of the creek is not going to break
either the City or the State.
We all understand outdoor recreation has its inherent risks,
and we can't protect every recreational user of the river
from their own judgement, lack of experience, or bad luck.
We can however, warn them of the risks. And we can take care
of the occasional objective dangers that present themselves.
Beyond that, we can also take some additional steps to try
and protect our landowners along the creek.
We believe the town board should consider, immediately, a
simple resolution designating the Esopus a "navigable"
waterway. On a stream so designated, a landowner's liability
ends at the water's edge, period. We believe the Esopus meets
the criteria for that designation under Coast Guard and state
law, and that the town has little choice but to provide landowners
all the protection that affords.
We also think a meeting or conference should be convened as
quickly as possible to bring together DEC, DEP, the State
Attorney General's office, the town, the county and possibly
the US EPA to try and resolve the very managable issues of
responsibility for maintaining the Esopus for recreational
use. It's something that should have happened long ago. If
DEC and DEP are willing to take the issue seriously, the issues
could be resolved now, before anyone else loses their life
waiting for that to happen.