No Dam Injunction for Mussels, Circuit Says

     MANHATTAN (CN) – New York City is not liable for a flooded dam that allegedly threatened an endangered species of dwarf mussel, the 2nd Circuit ruled.
     Check out Courthouse News’ Environmental Law Review.
     Neversink Reservoir, built near the Pennsylvania border in Sullivan County between 1941 and 1953, supplies about 10 percent of New York City’s drinking water and holds nearly 35 billion gallons of water.
     In the late 1990s, the city decided to replace the Neversink Dam’s bypass valves to address the excessive vibrations threatening the tunnels. The repairs, originally slated for late 2003, required the tunnel to be dewatered.
     After nearly two years of delay, however, the dam remained out of operation until April 5, 2005.
     A week earlier, the region experienced two heavy rainstorms that caused the reservoir to flood. Wildlife advocates said the flood threatened the endangered dwarf wedge mussel.
     Dozens of people living in the Catskill region sued New York City, its Department of Environment Protection and other agencies for an injunction that would make the city operate the dam with an eye toward protecting the remaining mollusks.
     On Nov. 15, 2010, U.S. District Judge Robert Patterson granted the defendants summary judgment, finding that the plaintiffs lacked standing to sue and that the city had no duty to defend the mussels.
     A unanimous panel from 2nd Circuit summarily affirmed Thursday.
     Dams built for drinking water do not also need to serve for flood protection, the court found.
     “Instead, the standard is that ‘a dam owner has the right to let nature take its course, i.e., the right to permit flood waters [to] go over his dam where the volume of water cast into the channel below the dam does not exceed the volume coming in above the dam,'” according to the unsigned order. “The dam owner is not liable for downstream damage as long as it does not increase the flow of water from the dam beyond its natural flow.”
     This especially holds true if the dam does, in fact, offer some flood protection, the judges added.
     “Plaintiffs conceded that the city’s damn [sic] actually attenuated the flooding,” the order states.

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