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Kris
June 25th, 2004, 12:45 AM
June 25, 2004

Do Fish Have Water Rights?

By ANTHONY DePALMA

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Frank Belmont fishes for rainbow trout on the upper Delaware River. The effect of New York City and its reservoirs on the temperature of Delaware and its tributaries has concerned fishermen for decades. They say the reduced flow of the river raises the temperature and harms the trout.

HANKINS, N.Y. - The Delaware River runs low and lazy around here, an unspoiled stretch of wild water that in some spots is little more than ankle deep. But it is widely recognized as one of the premier fly-fishing streams in the country because trout seem to love it, especially when the water is cold enough to make many ankles turn blue.

Trout are so sensitive to temperature that they can sense a change of one-half of one degree. That's why Joe McFadden, a professional fly caster who has fished these waters most of his life, posts the river's temperature every day on a white board outside his fly and tackle shop.

Trouble is, despite a wet and cool spring, water temperatures have been spiking at around 75 degrees several times this season, enough to nearly boil the life out of a rainbow or a brown trout. Mr. McFadden blames New York City.

Although Hankins, a village on the Upper Delaware, is 120 miles and a universe away from the city, it lies within the New York watershed. Recent changes in the way the city manages its water supply have caused ripples here, splitting the usually close community of fishermen and raising concerns about the impact on the region's economy.

For a half-century, since three huge New York City reservoirs were completed on tributaries of the Delaware, fishermen have pleaded with the city to release enough cold water to satisfy the trout that have flourished in the river's headwaters from Hancock to Callicoon, about 25 miles south. New York City, focused on meeting the drinking water needs of its millions of users, paid little attention to anglers' concerns.

That finally changed in April when a plan was adopted that, for the first time, takes both the fishery - an environment and economic activity that is important to this region - and the citizenry into account as the city manages the 271 billion gallons of water in its three Delaware reservoirs. Protecting the city's drinking water remains the top priority, and the plan makes more water in the reservoirs available for use in case of drought. But in years when there is no threat of drought, like this year, the extra water can be used to cool the Delaware and its tributaries so that the trout can thrive. Christopher O. Ward, commissioner of New York City's Department of Environmental Protection, considers this an important achievement. He told the City Council recently that the plan would "establish a new standard for fostering ecological benefits through water management decisions" without jeopardizing the city's drinking water supply. But some fishermen have reservations about the plan, while others have rejected it outright.

"This whole new agreement stinks," Mr. McFadden said from behind the counter of his shop, surrounded by boxes of fishing line and dozens of hand-tied flies. While he welcomes the city's willingness to take the fishery into account, Mr. McFadden said that word had already spread that fishing on the Delaware is not as good as it used to be. "I've got no more than two people a day coming into the store, and I get calls constantly asking about the water temperature," Mr. McFadden said. Business, never booming, has fallen off so dramatically that this month he put his shop up for sale.

"I know they're not going to tell anyone in the city, 'Don't wash your car' just so I can fish up here, " Mr. McFadden said. "But all I want is to get a common ground so both of us can utilize this unique system."

There is no easy common ground when it comes to water rights on the Delaware. It took decisions by the United States Supreme Court in 1931 and 1954 to uphold New York City's right to divert as much as 800 million gallons of water a day from the river.

But to guarantee that Philadelphia, Trenton and other downriver communities get their fair share, the court required the city to make sure the river keeps flowing at 1,750 cubic feet a second as it leaves New York and enters New Jersey.

If the Delaware is flowing strongly enough to meet that target on its own, the city does not have to do anything. But when the level of the river drops, the city has to release water from its reservoirs to bring the flow up to the court-mandated minimum.

Those releases come most often from the bottom of the Cannonsville Reservoir in Delaware County, where the water can be as cold as 42 degrees. Those irregular releases make the river temperature swing from hot to cold back to hot again without warning. The colder it is, the more the trout like it. But as temperatures rise, the fish tend to congregate in cooler eddies and sink holes, where they are so easy to catch that fishing is no longer fun for purists like Mr. McFadden. Above 70 degrees, the trout start to show stress. If it gets much hotter than that, they can die.

When fishermen complained about the erratic water releases, the city generally ignored them, and resentment grew. But things are about to change.

As part of a new drought plan, PPL Corporation , which operates a hydroelectric plant at Lake Wallenpaupack in Pennsylvania, agreed to release more water from the lake during dry months. That water flows into the Lackawaxen River, which finds its way into the Delaware about 25 miles south of Hankins.

The Lake Wallenpaupack water can be used to meet the court-ordered 1,750-cubic-feet-a-second flow requirement. New York would then catch a break and not have to release its supplies to satisfy the court order.

That extra cushion of water has also enabled officials to do something else the fishermen had asked for many times over the years - set guaranteed levels downstream from the dams on the east and west branches of the Delaware, and on the Neversink River, which runs into the Delaware. In the past, levels fluctuated wildly, which harmed the trout and interfered with the hatching of insects on which they fed. The target flow levels, based on historical records, are intended to make the river flow far more consistently. And those records will be updated over the next three years and lay the groundwork for a long-range water management plan.

All this might have been expected to please even the grumpiest fishermen. But, in fact, it divided them into two camps. Trout Unlimited has conditionally endorsed the interim plan. Rocci Aguirre, a representative of the state and national Trout Unlimited councils, said that while the plan was not perfect, it was "a step forward."

But another group, the Friends of the Upper Delaware, sees the interim plan as "the most severe threat to the river in over 35 years." The basic problem, said Craig Findley, 59, president of the group, is that the plan does not make enough water available to keep the Upper Delaware as cool as the fish and the fishermen would like.

Mr. Findley's group wants the city to release 600 cubic feet per second of cold water consistently from April through October, regardless of whether the water is needed to meet the court's mandate. This would keep the river cold and extend the trout season by several months.

Mr. Findley said he was worried about what would happen if there is another summer as hot and dry as it was in 2001. Under the new plan, water released from Lake Wallenpaupack would eliminate the need for the city to pour any cold water into the Delaware. Without that extra amount of cold water, he said, the river could heat up fast.

"And if that happened," Mr. Findley said, "it would devastate the Delaware fishery."

Such a calamity would shake the already weakened economy of places like Hankins, population 250, where tourism and fishing are the only viable future.

The New York City official most responsible for drawing up the interim plan, Michael A. Principe, director of the Bureau of Water Supply, said he understood the pressing need to ensure adequate flows in the river.

"The last thing any of us wants to see is a fish kill," Mr. Principe said.

But, he said, the fishermen must understand that nothing can put New York City's drinking water supply at risk. What they are asking for, Mr. Principe said, is enough water to create an optimal habitat for the trout. The city's reservoirs simply do not hold that much water, he said, which means the fishermen will have to learn to be content with a river that is good for trout, but not ideal.

For now, Mr. McFadden still watches the river carefully, and every day he records temperatures and flows on the board outside his shop. He worries that if the water temperatures stay high, and the trout end up huddled in sinkholes, he may have to add another note.

"If it gets too hot out there," Mr. McFadden said, "I'll put up a sign that says 'Please do not fish. Leave 'em alone.' "

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Copyright 2004 The New York Times Company

Jasonik
June 25th, 2004, 08:45 AM
All this might have been expected to please even the grumpiest fishermen. But, in fact, it divided them into two camps. Trout Unlimited has conditionally endorsed the interim plan. Rocci Aguirre, a representative of the state and national Trout Unlimited councils, said that while the plan was not perfect, it was "a step forward."

But another group, the Friends of the Upper Delaware, sees the interim plan as "the most severe threat to the river in over 35 years." The basic problem, said Craig Findley, 59, president of the group, is that the plan does not make enough water available to keep the Upper Delaware as cool as the fish and the fishermen would like.

Mr. Findley's group wants the city to release 600 cubic feet per second of cold water consistently from April through October, regardless of whether the water is needed to meet the court's mandate. This would keep the river cold and extend the trout season by several months.


As a general principle, excess water not needed for the natural thriving of river ecosystems can be taken for the city's drinking water, but to jeopardize the natural order of aquatic life by taking their water is deeply wrong.

As a comment on the article; though the title, Do Fish Have Water Rights? is topical, to even doubt the question is anything other than rhetorical is disturbing. Additionally, the author repeatedly refers to the controversy in terms of fisherman vs. city residents. The correct pairing is man vs. fish. That fishermen, and especially flyfishers, have such a love and respect for trout in its natural habitat, should serve as an example of good stewardship for all water policy officials. I fear that the true conflict is between those who live with and love nature, and those who are ignorant of the intricate beauty of the wild.