Public Access to the Housatonic

update: 2008/Dec/10: To further clarify. The CC never gave any info to the DEP. We did give info directly to FERC. The DEP got all their info independently, sending a representative out to examine the location and included his report in their submission to the DEP. When the ConsAgent contacted DEP to offer support, the DEP had already submitted their comments and it was too late.

Another article was published in the CtPost today, and it's important to understand the full nuances of what is going on regarding the FERC licensed area near the Ousatonic Dam, specifically it's recreational component.

First the link to the article
http://www.connpost.com/valley/ci_11066285

And then as is my practice - a cut/paste of the article (the online link doesn't retain content forever) with my comments inserted.

By KATE RAMUNNI Staff writer Updated: 11/24/2008 11:50:20 PM EST

SHELTON -- The Federal Energy Regulatory Commission has reversed its decision to allow McCallum Enterprises to close off a portion of the public access on its Shelton Canal Co. property -- but that doesn't mean the fence erected weeks ago there will be coming down any time soon.
"They issued a ruling but haven't issued a ruling on other proceedings," McCallum president Joseph Szarmach said Monday. "It's still up in the air right now."

++ For purposes of comment, I'll try to stay focused on the recreation component of McCallum's FERC license to withdraw electrical power from the public waters. FERC has indeed denied closure of the area to the public. The fence installed recently should be removed, and access restored to viewing areas such as the historic photo display and the steps leading to the river's shore for fishing and portage. There is nothing "up in the air", FERC has ruled. The other proceedings Mr Szarmach refers to are unrelated to the recreation component.++

On Sept. 3, the FERC's Division of Hydropower Administration and Compliance approved McCallum's application to amend its recreation plan for the Derby Dam that provided about 1.5 acres of public open space for fishing and picnicking. But about a month later, the state Department of Environmental Protection asked the commission for a rehearing on the application.

According to the ruling, the DEP contended that relocating the area would "unnecessarily diminish recreational opportunities," which is in violation of the hydroelectric company's license. This time, the commission agreed.

++ The Ct. DEP both applied for intervenor status, and made comments in opposition to the request. Those were heard, and the initial opinion of FERC was revisited and changed. ++

"The licensee has not produced sufficient evidence to support relocating the area nor shown that the proposed new site will provide the same recreational opportunities as the existing site," the ruling says. "We are unwilling, without more evidence, to deprive the public of the benefits of recreational fishing at the current site."

++ If evidence can be made to FERC that the McCallum request is with merit, they still may limit the recreational area.++

"I applaud the Federal Energy Regulatory Commission for revisiting their decision," Conservation Commission chairman Tom Harbinson said. "The recreation component of the FERC license has been valued by the region for years, and not just by Shelton residents. This was recognized by the [Connecticut] DEP and Shelton Conservation Commission, who, along with their efforts as well as those of others, will be returning a value of passive public use to the citizens."

But, according to Szarmach, the Conservation Commission's assertions that the area is a popular fishing spot are greatly exaggerated. "This ruling is based on misinformation the Conservation Commission gave to the DEP, who gave it to FERC," he said. "We know first hand that it is absolutely false," he said, adding that Shelton Canal Co. employees report there is seldom anyone fishing, and no one has ever launched a canoe from the area.

++ Their is no mis-information by the CC. The City did not file intervenor status in time to make comment on it's own. Yes, we did point to our local knowledge via photos, videos and observations to the Ct DEP - they are all publicly available on our google group msg board, and online web presence that links to the imagery. That includes video of kayak use. The Shelton Canal Co. employees are not an arbitrary party. Why not ask someone who is an advocacy group and body of fisherman like the "Friends of the Housatonic" group that fought dredging issues on this river about a year ago? ++

Planning and Zoning Commissioner Leon J. Sylvester took exception to Szarmach's comments, saying he knows the area is definitely used for fishing and that the level of use depends on the water levels, water condition and time of year.

++ Leon's son writes a regular fishing article in one of the local papers. Leon would know about fishing activities rather than relying on the chance viewing by an employee. ++

The FERC rejected McCallum's claims that the area presents a danger because of the possibilities of drowning and fatalities in the canal.

++ Lets see some facts. How many drownings occured in the "recreational area" of the canal? The canal does run open in some locations down-street toward the Birmingham condos, but that is outside of the FERC licensed area, and being next to Canal Street, has had some auto accidents. To imply that accidents in this "canal" are dangerous to the "recreation area" is sly. The answer is no deaths and drownings have occured in the recreational area, or maybe they occurred but nobody saw them happen - like the fisherman we haven't seen fishing?++

It also rejected McCallum's argument that the expected influx of residents living along Canal Street would increase that danger. "The suggestion that there could in the future be increased public use of this recreation site, which could result in some safety issues, is speculative, but in any event such issues would be considered and resolved at such time as they presented themselves," the ruling says.

++ This is an interesting comment by FERC, and to a certain degree I understand the McCallum perspective. Obviously, there will be economic development occuring in the vicinity. These changes in neighborhood character may require re-evaluating the safety fencing, benches, trash cans and other amenities in the area. Being pro-active to look forward at possibilities makes good business sense, but as there is no application on the horizon for this area for several years - such a claim to needing a course of action to solve a problem that doesn't exist is simply jumping the gun ++

Szarmach said his company is continuing with its plans to appeal the Planning and Zoning Commission recent rezoning of the property from R-4 to R-1, which decreases the number of units that would be allowed if it were to be developed. And it will be either developed or sold, he said. "We are waiting for the zoning to be overturned, and we are confident it will be," he said. "We can't move forward on filling in on the Army Corps [of Engineers] permit until we get that out of the way. "This most recent ruling is not the end all, just one ruling," Szarmach added. "We are still looking to fill in the canal and sell or codevelop it."

++ The public should understand that concurrent to the FERC ruling on the recreational component, there has been a separate application to FERC requesting that McCallum be allowed to fill the canal. I understand that this was already approved. There is however another layer, the Army Corps of Engineers. The ACE issued a pretty expansive letter of requested items in Mar2008, and in Jun2008 McCallum "temporarily" withdrew their ACE application. The Ct DEP, Housatonic River Estuary Commission, State Historical Society, and Housatonic Valley Association all issued comments in opposition.

Additionally, there is a third action going on. The PZC has as part of it's review of their zoning map determined that an area which encompasses the Canal Co. property (and includes a good bit of other acreage from adjacent parcels) should be modified for zone in accord with their Plan of Conservation and Development recomendations. This is unrelated to anything regarding the two FERC applications.++

The CC supports transparency in government. You can get right to all the documents via a webpage created for this subject.