By Rebecca Martin
Perhaps the most disappointing letter that I have seen in the past four weeks since beginning this work is one initiated by the City of Kingston’s Corporation Council Andrew Zweben – a public sector lawyer dated 10/24/14 – working against our Common Council.
I received a copy of it last evening, and I’m assuming on behalf of Mayor Shayne Gallo, that the City of Kingston does not feel it should be a “Involved Agency” in the proposed water sale for the Niagara Water Bottling Proposal.
Even after a recommendation to do so by the Kingston Conservation Advisory Council. And then, a letter from the prestigious advocacy group “Riverkeeper” for the same. After which, a memorializing resolution passing through the Council’s General Government/Public Safety Committee that will be voted on by the Common Council on November 4th to make it official. Or the hundreds upon hundreds of citizens who have shared their concerns since this project became public.
1. WATER BOARD TERMS AND LIMITS: At the top of page “2” it speaks to the Water Board being appointed for a five (5) year term by the Mayor. Recently, we have FOILed the City Clerk’s office to learn of the appointments and terms served by the current Water Board. We suspect that some are beyond that limit, and probably way beyond it. I had wondered if re-appointments were allowed as I haven’t seen anything in the Charter thus far that states as such. Therefore, can the Water Board’s possible violation of term limits, rotation etc. invalidate its ability to protect the public interest? Maybe it’s time to remove those Board Commissioners who are beyond their term, and replace them with new blood.
2. WATER BOARD POLICY AND PUBLIC INTEREST: “…the (Water) Board sets Department policy and establishes all rules and regulations which it deems essential to the protection of the public interest in management of the Water Department…” How is the public interest vs. private and political interests identified?
I’d say the public has so far been quite thoughtful and eloquent about their concerns. That has been met with a great deal of defensiveness and eye rolling. What gives?
2. WATER BOARD REVENUE: Andy Zweben points out that 95% of the Department’s revenue comes from the sale of water. Where does the remaining 5% come from?
3. SELLING THE PUBLIC’S WATER AND SCIENCE: In the charter, as is pointed out here, in “B” it says that the “Board of Water Commissioners…is to furnish such water without inconvenience, risk or peril to the residents of the City of Kingston, and that the circumstances described in the application must, in the opinion of the Board, justify the sale of city Water.”
Given that the proposed sale of water to a national water bottling company looking to purchase 1.75 million GPD is an unprecedented situation for Kingston, what Science is the Water board looking at to make that decision and is it sufficient? An Engineering Analysis was performed this year based on Niagara’s request, but the ‘Will Serve’ letter was issued prior to a final draft being presented to the Water Board. They expect a copy of the final draft at their November 12th meeting.
4. IT’S THE DEC (NOT THE DEP). Luckily, in “C” it goes on to say that such sale or sales must be approved by the NYS Water Power and Control Commission (which today is the DEC and not the DEP as Andy Zweben incorrectly noted in his footnote). On what grounds? Is this where their authority and the Public Trust Doctrine can be tested?
5. COMMON COUNCIL AUTHORITY: In “H”, it speaks of any water facilities provided outside of the corporate limits of the city requires permission of the government authority of the area to construct, inspect and repair its water facilities. Several side notes include the authority of Kingston’s Common Council in these cases (construction) where also in the charter it states that:
“Said Board, with the assent of the Common Council, may construct and maintain waterworks for supplying said city and its inhabitants with pure and wholesome water; exercise such powers as are necessary and proper to accomplish such purpose and shall proceed in the manner hereinafter prescribed.”
Additionally, in the 1954 Water Supply Application it states:
“Under this decision and approval the city of Kingston is authorized to furnish a water supply to the new plant of IBM Corp in the Town of Ulster. No authority, however, is given hereby to the city for the sale of water to any others from the supply main to be installed to such new plant without further consent and approval of the Commission.”
Luckily that was written into the 1954 application. There are more checks and balances it appears – and checks and balances are good.
We support the Kingston Common Council passing through a memorializing resolution on November 4th that requests the City of Kingston to be listed as an ‘Involved’ Agency in the SEQR process. In doing so, you are acting on behalf of your public. There is enough evidence that our city as well as the Water Board have an important role in all of this.