Riverkeeping, Again
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 anytime.
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.