Todd Neeley’s fantastic article about my ditch situation has now appeared in print, in the October 2016 issue of Progressive Farmer Magazine. There are also a number of very cool pics as well. Here is the link:
In the article there are some comments made by Orange County Legislator Paul Ruszkiewicz and Town of Warwick Supervisor Mike Sweeton I’d like to address. I’d respond to the NYSDEC but they refused to provide the reporter with any comments on the article or issue. Very sad, but not unexpected. It is NYS you know.
My responses to what Ruszkiewicz and Sweeton said:
The “dispute between two farmers line” is simply untrue and a complete copout. What’s at issue here for him is how the NYSDEC is not enforcing the black letter NYS Environmental Conservation Law on basic drainage ditch protections in a drainage district and he is DOING ABSOLUTELY NOTHING ABOUT IT! He was part of an email I sent out in late January or early February where I spelled out very clearly that the NYSDEC is no longer enforcing that part of the law. He said and did nothing. Yes, he has no regulatory authority, no one said or ever implied that he did. But he could have made a huge stink about it with NYSDEC and other agencies.
To emphasize, no one claimed the Drainage Association he chairs has any sort of “regulatory authority.” But he has “bully pulpit” authority which he can and should use. This is not a simple “grower versus grower” dispute. One grower filled in a main drainage ditch in clear violation of the very specific state law designed to protect these ditches and formed the very association he currently chairs. The other grower wants to maintain the drainage and more importantly protect the principle of drainage. These are not equal positions. If Ruszkiewicz doesn’t stand for the protection of drainage, what the heck is he there for? The fact he did absolutely nothing to stand for the drainage protections is quite frankly, disturbing and appalling.
Sweeton’s line about the drainage changing over the years is straight from my neighbor’s mouth. And it is categorically false. The ditch has been where it is for over 100 years. It has not moved or changed, apart from when the forerunner of the NYSDEC worked on and expanded and codified it back in the project done in the 1930’s. What he didn’t say is that Rogowski has not been maintaining his portion of Ditch #32/Jack’s Ditch that borders his land. If he did the water upstream heavily comes my way. One farmer upstream did call the NYSDEC repeatedly to complain about this and what was done to my ditch but Tim Eidle, the attorney at the NYSDEC who I spoke with repeatedly, would neither take or return his call. That farmer left multiple messages on Eidle’s vm asking when his land floods because of this who should he sue?
Other neighbors aren’t weighing in because they are afraid of Rogowski and Osczepinski, period.
Years ago Rogowski’s father and uncle tried to sell the water from the aquifer under much of the black dirt to the Town of Goshen. It directly affected only a couple of growers but the PRINCIPLE affected everyone (the aquifer under much of the black dirt was threatened) and the local Vegetable Grower Organization at the time (of which then I was a Board Member, Ruszkiewicz wasn’t, and Ruszkiewicz is now President of) hired a lawyer to oppose the selling of the water and the Rogowski’s actions. It wasn’t merely “farmer vs farmer” then and it isn’t now.
Sweeton should not hurt himself patting himself on the back. The Town of Warwick held a private meeting with Rogowski, where we the land owners were not included, after Rogowski illegally tried to fill in the ditch with no permits. The Town then allowed Rogowski to ignore his submitted and approved (in 3 days) engineering plans and the Flood Plain Permit to build this unnecessary road in the dead center (versus side of ditch as the permit allowed) of the ditch. The Town Engineer came out and allowed it. The Wall is built unsoundly and every other contractor and engineer that has examined this has said it is not a matter of if but when it will collapse. The Town allowed this construction to take place although the land owner did not approve of it. This was not clearing some sticks or debris for a pre existing road. This is construction of a road that never existed in a main drainage ditch that cost nearly $100,000 to build.
And the easement wasn’t granted in 1930. It goes back farther than that. The actual easement as a road or path has never existed and there is no evidence that it ever has. In my research of it, it appears it goes back to the previous 2 land owners in the late 19th century, pre dating my great grandfather. It seems it just was never removed from the older deeds.
He had a right of egress/ingress where the right of way was (which was mostly in the ditch), not to build a massive wall and fill in my ditch, on my property, against my wishes. We dispute that.
Kudos to Senator Gillibrand’s office and Assemblyman Skoufis and his staff in particular, along with State Senator Bonacic’s office who worked on this. Especially Gillibrand’s office who did all they could and then some.
And thank you to FEMA for now taking an interest in this and investigating it. They are taking it very seriously and I am cautiously optimistic that they will be the much needed “adult in the room” to see to it that the Flood Plain Permit and relevant rules, regulations and vital protections are enforced.
Shame on all of the various regulatory and oversight agencies, especially ACOE, EPA and the NYSDEC. The EPA and ACOE is pure cowardice but the NYSDEC’s actions are inexplicable. I am still deeply concerned about some of the changes in the CWA and the revised rule. But that being said, I don’t approve of no regulations or chaos. We have to have sensible rules and protections, and those charged with enforcing them need to do their jobs.
Article 15 Water Resources, Title 19 Drainage, of NYS Environmental Conservation Law (ECL), and specifically § 15-1947 which is entitled “Unlawful interference with drainage works” deals with drainage protection in a drainage district.
This section of the law states in part the following: “2. It shall be unlawful for any person without authorization to interfere with, fill up, alter or change any drainage ditch or other structure constructed under the provisions of title 19 of this article…. 3. It shall be unlawful to build or maintain across or in such drainage ditch any bridge or culvert which unduly impedes the flow of water in such ditch.”
If you don’t enforce this law you cannot farm on muck soils. It is critical for drainage protection and basic flood control. It is black letter law.
The DEC told me they have no instances of enforcing it. That is untrue. Tom Sobiech of Pine Island had a similar circumstance as me in 1998 and DEC personnel came out to his farm in 1998 and enforced the law. But even if that wasn’t true that is no reason to not enforce it now. The reason there are so few instances of enforcing it is because virtually every farmer is scared to death of running afoul of the DEC. If word gets out the DEC is no longer protecting drainage ditches, especially DEC Commissioner Ditches like mine form the 1930’s project, then all bets will be off. Farmers will block ditches, pipes, drainage and flood their neighbors in the process.
The Wallkill River Watershed Conservation and Management Plan states: “Essentially this entire 16,000 acre region was designated as an Agricultural Drainage District by the State of New York in the late 1930’s. Not only did this designation allow for the planning and construction of an ambitious network of drainage channels, it established legally binding requirements for the maintenance of these channels. The overall purpose of the District is to ensure that landowners within its boundaries have the drainage and flood protection necessary to allow for agricultural production.”
If the NYSDEC does not enforce Article 15, Title 19 of ECL then essentially there is no protection of drainage or flooding in the black dirt in Orange County and across NYS. Period.