The Upper Delaware River: A View From Albany
by
Charles C. Morrison, Director, Natural Resources Planning (ret.) 1/
NYS Department of Environmental Conservation
Presented at the 30th Anniversary Retrospective, Upper Delaware National Scenic and Recreational River, Central House, Beach Lake, PA, November 11, 2008
My earliest experience with the Upper Delaware was in the 1930’s when my father would drive our family from our home in North Bergen, NJ to Honesdale, PA, usually crossing the river at Dingmans Ferry, to visit relatives living at # 1 Main St. in Honesdale, next to the Lackawaxen River. My great grandfather came to Honesdale around 1850, worked at John Torrey’s mill, spent some years operating a coal barge on the D & H Canal and later owned a greenhouse and nursery near Torrey’s mill. My grandmother was born there, married there. Part of my family is buried there.
In the 1940s, when I was a student at Colgate University, on those occasions when I could bum a ride from another student who had a car, to get back and forth between home and school, we would drive along Route 97 between Port Jervis and Hancock. I was aware that the State of New York had constructed part of Rte. 97, on top of the canal! I found out later that the State had done this with the Black River Canal and with parts of other now defunct canals, too. Taking that scenic and less-traveled route provided a good opportunity to enjoy the beautiful and timeless Upper Delaware Valley.
Then, in the early 1950’s, just before going to graduate school at Columbia University, I spent a summer as a waterfront director of the Manhattan camp (Keowa) of the Ten Mile River Boy Scout Reservation. At the end of the summer I took a group of boys on a canoe trip on Lake Wallenpaupeck, but I never got to go canoeing on the Delaware. It was unfamiliar water. It wasn’t until much later, in the 1970s and 1980s that I took a dozen or so canoe trips between Hancock and Deerpark and other places inbetween. On some occasions, we had our own private campground in the Curtis nurseries, through the courtesy of Val Curtis, then the president of the Calicoon bank, and, later, Ed Curtis. Except when my son and I cracked a couple of ribs on our nice, new wood and canvas Langford canoe while going through Skinner’s Falls, those were good times.
After graduate school, I worked for a decade at several jobs in New York City, in city and regional planning, capital budget analysis and community facility site selection, and earth science and glaciological research. I worked at the Regional Plan Association of New York, the American Geographical Society of New York City and the New York City Planning Department. Then I decided to get some Washington experience. Like so many others, I was inspired by President Kennedy and signed up for the New Frontier during the summer of 1963, a few months before he was assassinated. Introduced by a contact on the staff of Resources for the Future, I was interviewed by Lawrence N. Stevens, a fellow geographer, who had worked in various positions for Indian Affairs and then as Deputy Director for the Outdoor Recreation Resources Review Commission (ORRRC). Most recently he had been a member of Secretary Udall’s policy planning staff, under Henry Caulfield. Now he had been assigned to put the initial staff together for the new Bureau of Outdoor Recreation and to serve as Associate Director under Director Ed Crafts, formerly the chief of the US Forest Service. Larry looked at one of the manuscripts I had brought with me, at his request, and said: “Well, you can write. You’ve got a job” After taking the Federal Administrative and Management Exam to get on a Civil Service list, I went to work in Washington in February, 1964 in the Nationwide Plan Division of the BOR in the main Interior Department on Constitution Ave. as one of the early new hires from “outside” of Interior, the initial staffing having been accomplished by transferring the planning staff of the National Park Service into BOR.
Creation of BOR on April 2, 1962 by an administrative directive of Interior Secretary Stewart Udall fulfilled one of two main recommendations of ORRRC, which had been created by President Eisenhower, chaired by Laurance Rockefeller and reported back under President Kennedy. BOR, succeeding the Federal Inter-Agency Recreation Committee and the Cabinet Committee on the Environment, was created to provide a focal point in the federal government for planning and coordination of outdoor recreation resources and activities, as well as to conduct studies for the creation of new recreation areas and facilities. The other seminal recommendation by ORRRC was for the creation of the Land and Water Conservation Fund, which was signed into law in 1964. A few weeks after I started on the job with BOR, I spent a week going through ORRRC’s files, in about a dozen filing cabinets stored temporarily on the “mechanical floor,” inbetween the 4th and 5th floor where the elevator machinery was located. I am probably the only person who ever went all through those files. It was hot in there!
The Nationwide Plan for Outdoor Recreation, a direct successor to the ORRRC reports, was to be a framework plan for all of BOR’s other activities. The federal Bureau of the Budget saw it that way and was very supportive of it, although in BOR it was put on the back burner while new national parks and recreation areas, the Land and Water Conservation Fund and the State Comprehensive Outdoor Recreation Plans came front and center. It was indicative of the problem that the Nationwide Plan Division had three Division chiefs in the 3-1/4 years I was on the staff and three Assistant Directors at the Bureau level. The plan was to be updated every five years, but the first and only plan was published in 1968, only to have distribution halted by the Nixon Administration because no price tags had been put on the recommendations. The full plan as originally prepared by BOR was then published by Senator Henry “Scoop” Jackson’s Committee on Interior and Insular Affairs.
BOR’s name was changed to the Heritage Conservation and Recreation Service in the early 1970s and in 1981, Secretary James Watt, who had been the Director of HCRS in the mid-1970s, abolished HCRS and folded the staff back into the National Park Service, proving once again that what goes around comes around.
In writing BOR’s manual for developing the Nationwide Plan, it was my intention to get everyone throughout the agency to recognize that a strategic policy plan should be the objective, not unlike the final report of ORRRC. When I arrived at BOR, no one seemed to have a vision of what the final plan should look like or how to put it together by preparing a work plan designed to produce the necessary assessment information on supply and demand and the recommendations for specific needs! The staff who were already on board were fixated on developing some kind of simplistic supply-demand-needs formula that would be a magic bullet. Beyond the manual, I handled he work on recreation demand, largely by default because demand was a mystery to everyone else in the office. The staff thought that they understood the supply side of the equation and that this could be addressed simply by inventorying every state, federal and private recreation area in the country. This was really quite unnecessary as an ingredient for developing a policy plan – and it was a very expensive exercise. We gave the inventory data to Bob Brahm, our Bureau computer specialist, who got it punched onto cards, in Fortran, then fed into vacuum tube computers that looked like the “brainiac” computer in the Spencer Tracy-Katherine Hepburn movie called “Desk Set.”.
My biggest project was to direct the 1965 National Recreation Survey for which we contracted, for $250,000, with the Bureau of the Census. It was a somewhat more refined version of the 1960 National Recreation Survey that had been undertaken by ORRRC, also working with the Bureau of the Census. It measured demand by identifying recreation activities that were done by the survey respondents while they were on vacations, overnight trips and one-day outings during the preceding three months. It also asked questions about recreation preferences. The 1960 study showed the way. It had been directed by a wonderful guy on the ORRRC staff named Abbott Ferris. He was still around in 1965, at Resources for the Future and gave me a lot of his valuable time. At 92, he is still active as a sociologist and has had a very prestigious career. We had the same good fortune with George Hall at the Bureau of the Census, who also had worked on the 1960 survey. to developed a revised questionnaire, but one that would still produce results that could be compared with the 1960 survey results, and a mail survey questionnaire by which we might get comparable results more cheaply.
During the summer of 1965, I went to St. Paul for a week to field test the questionnaire, conducting interviews with the local Census Bureau staff. Then, upon return to DC, I set up the tables that would show the survey results, cross-tabulated by various socioeconomic categories. We only printed 100 copies of these detailed tables, but the major results, by activity, were summarized in a large, colorful brochure and were described in the 1968 Nationwide Plan.
Across the hall from my office, in the Division of Special Studies (E. Winton Perkins, or “Perk,” a legend in the Park Service, was the Division chief.) Stan Young, was doing the advance planning work that led up to passage of the Wild and Scenic Rivers Act in 1968. Stan had a great time going down all of the important rivers in the country. There was a documentary film on wild and scenic rivers, made in the 1960s and sponsored by Atlantic Richfield, that showed Stan going down a nice river with an outboard motor on the canoe! For some reason, this incongruous image has always stuck in my mind. When Stan retired from the Seattle office of NPS, he asked me to review the manuscript for a book he was writing on the federal and state-designated rivers, state-by-state. He had spent his life on the best rivers of the country. The book never was published.
I also remember seeing one of the first copies off the press of BOR’s report on the Tock’s Island National Recreation Area, but I didn’t realize its significance at the time, or how controversial it would become. I remember thinking that it seemed like it was a good idea. This report described the old “hole-in-the doughnut” idea which had the Park Service managing the land resource, i.e., the “doughnut,” and the Corps of Engineers managing the “hole.,” i.e., the water in the proposed reservoir. A few years later, while working for New York State, I attended a Sierra Club meeting in the Holiday Inn in Port Jervis where the beginning of the end of this ill-fated project was being plotted. Not long thereafter, “de-authorization” by Congress took place. The State of New York opposed it strongly.
I’ll always be grateful to Larry Stevens for having given me the opportunity to work in the Interior Department. When I left BOR he said that I would never regret the time I spent there – and I never have. It was a valuable experience. Larry left BOR in 1969 to become Executive Director of the Council on Environmental Quality. He died in 1999.
I left BOR in July, 1967 to take a job with the State of New York, in Albany, as director of a statewide environmental conservation commission that was comprised of the heads of 10 State agencies and was based in the State Office for Local Government, with the Commissioner for Local Government serving as chairman of the commission. In 1968 I went to Harrisburg to advise DCNR’s Commissioner Maurice Goddard, at his request, about setting up a similar commission there, which he did. Actually, several states did this. Working with member agencies, I started a statewide scenic roads program, worked on open space preservation and establishment of local conservation commissions, sign control and a few other projects. But, the commission was short-lived. On July 1, 1970, just after Earth Day, the new State Department of Environmental Conservation was created by law. My position and the functions and duties of the commission were transferred to DEC by its enabling legislation. With varying interesting assignments, I stayed with DEC until retirement in 1995. The fun never stopped!
Although I initially served as Director of Community Assistance for DEC under Commissioner Henry Diamond, in September, 1973, DEC created a policy planning and research unit in the Office of the Commissioner, comprised mainly of the water resources and water quality planning staff but also creating a new land resources planning bureau which I was asked to head. Within my bureau, with a staff of 14 people, there were four sections covering the NYS Coastal Management Program, the Outer Continental Shelf Oil and Gas Program, the department’s Economics Studies Section and a Special Studies Section. The latter focused on the land use aspects of the water programs but also included responsibility for developing the State Wild, Scenic and Recreational Rivers Program other than on private land within the Adirondack Park, that being the responsibility of the Adirondack Park Agency. I was also able to draw on the water quality and water resources staff for help with other special projects such as completion of a plan for the future of the Catskill Park, which resulted in 15 study reports and proposed legislation in 1976.
Meanwhile, the federal Wild and Scenic Rivers Act had been passed in 1968, with the Upper Delaware included for study purposes. The Philadelphia office of BOR led the inter-agency study team, comprised of NPS, USFWS, PA-DER, NYS-DEC and DRBC. That office was under the direction of Regional Director Red Arnold, who had been chief of the Grants Division in Washington when I worked there and who had written the first manual for the LWCF grants program. Jack Hauptman and Kevin Coyle, on Red’s staff, were in charge of the Upper Delaware study. Kevin later went on to serve as Executive Director of American Rivers Inc. and Jack became superintendent of Acadia National Park and, then, Fire Island National Seashore.
For New York, the principal member of the inter-agency study team was W. Mason Lawrence, who had been Deputy Commissioner for Fish and Wildlife in the pre-1970 former Conservation Department. In Pennsylvania it was Maurice K. Goddard. When Mason retired in early 1974 he turned the Upper Delaware files over to me – and from that day until I retired in 1995, I had “the duty.” The Upper Delaware was like a tar baby!
The initial BOR draft study report was released for review in 1973 and was strongly opposed by local interests along the river because it proposed extensive land acquisition. This report left a lingering bad taste in the mouths of a lot of local people that rubbed of on the Park Service for years to come. The 1974 version of the draft report posed several alternatives, from maximum federal acquisition in the corridor – administering it like a national park with a strong NPS presence – to minimum acquisition, using existing private campgrounds and DEC and DER public access points as nodes for some limited federal acquisition, and a modest NPS presence. Responding to what people in the valley seemed to want, the State of New York favored the latter approach.
After coordinating with Ralph Romeo, on Maurice Goddard’s staff, to make sure that the two states were in full agreement with each other, I drafted Governor Malcolm Wilson’s letter to the Secretary of the Interior supporting the minimum acquisition alternative, intergovernmental cooperative management, reliance on local land use controls that would be consistent with federal guidelines, ridge-to-ridge protection of the valley and only a small Park Service presence. A year or two went past and nothing seemed to be happening, so in 1976 I called Ralph, talked with BOR and then wrote a letter from Governor Hugh Carey to the Secretary of the Interior urging a legislative initiative by the Interior along the lines we had already recommended. Still nothing much happened, although Interior had submitted its own recommendations to Congress, asking for significant acquisition and a more traditional approach. They (the NPS Director and Assistant Secretary for National Parks and Fish and Wildlife) didn’t listen to us!
In 1977, Gerald M. Hansler became Executive Director of DRBC. My immediate supervisor, the head of our DEC planning office, Tom Eichler, had worked with Jerry and suggested that he could be helpful. Subsequently, Jerry, Ralph Romeo and I, with DRBC Secretary W. Brinton “Buzz” Whitall, went to Washington to present our ideas to Congressman Matthew F. McHugh and his staff, including Administrative Assistant Marvin Rappaport. They quickly grasped our ideas, liked them and said that they would “take it from thereon.” They talked with local officials and other community leaders along the Upper Delaware and with members of Congress, including Joe McDade, Ben Gilman and Phil Burton, the latter being the longstanding chairman of the National Parks Subcommittee of the House Interior Committee. The designation legislation was enacted in November, 1978. The main changes from our submittal to Matt McHugh the year before were those that provided for the Citizen’s Advisory Council and the program for providing financial incentives to the local governments for trash pickup and enforcement as well as with development of local plans and land use regulations. These were important additions.
By 1979, the Park Service staff started to come in and we were no longer working with the BOR staff. John Hutzky came on board first, then Al Henry. The work began slowly. Some good things happened, however. One of the best things that the Park Service did in those early years was to buy the Roebling bridge when it came up for sale in 1979.
In 1979 a planning team was assembled to prepare a river management plan, with substantial direct input from the Upper Delaware NPS staff under Superintendent John Hutzky for those management issues that fell directly within NPS purview. The team was comprised of representatives of the Park Service, the two states, DRBC and the five Upper Delaware counties. Sandy Hauptman (now Schultz) was assigned from the planning staff in the NPS Philadelphia Regional Office. (Dave Kimble was chief of planning in the Regional Office, reporting to Regional Director, Dick Stanton, but by 1980 that position was occupied by Jim Coleman.) Rich Giamberdine, from the Denver Service Center of the Park Service, was the planning team leader. Larry Beal and Keith Dunbar, also from the DSC, were his assistants. Roger Fickes and Dick Byler represented PA and Bob Everest was from DRBC. The county planners (Carson Helfrich, Tom Shepstone and Bill Douglass, Dave Fonseca, Dave Siebert and Peter Garrison and Rich Jones) were an important resource because of their local insights, pivotal position, information resources and ability to bring county resources and authority to bear. Although at the time I was among the first to say that adding the five counties to the Upper Delaware Council would have made it too big, too cumbersome and, besides, the emphasis was on the use of local authority for land use controls, it always seemed to me that we should have included the counties in the final organizational structure for river management. I didn’t do that when I had the chance and, in fact, I put up the preceding arguments against it. To my knowledge, no one ever brought it up again.
The planning team had many meetings at the Land house at Skinner’s Falls, the oldest house in Wayne County. I had hoped that the Park Service would purchase that house for its historic value and for a ranger station to help with the situation at the Falls, but it didn’t happen.
As chairman of the planning team’s Legal Authorities and Institutional Arrangements committee, and with input from other committee members, I prepared a report that cataloged and described the various existing laws, regulations and programs at the federal, state and local levels of government that could be networked, coordinated and focused on river management. Importantly, this committee report also set out several alternatives for creating an intergovernmental river management organization. The several alternatives ranged from a strong regulatory organization that would have to be implemented through an interstate compact, to a coordinating council comprised of the 15 towns/townships, the two states, DRBC and NPS, each of which would bring its own laws, legal authority and programs to bear on river corridor management in a coordinated fashion.
Everyone on the planning team agreed with me that the latter type of intergovernmental coordinating council was the right way to go. It was the most politically viable alternative because no member entity had to cede any authority or enact new legal authority. It was just a matter of coming together to collectively implement the plan. This organizational model was consistent with the legislation and with our pre-1978 recommendations going back to the BOR report. This alternative also was included in the 1982 draft plan and it was carried over to the 1986 revised plan, because it made sense and no one could think of anything better. Afterwards the concept was implemented by bringing the Upper Delaware Council into being by having a majority of the towns/townships, the two states and DRBC sign on as members. NPS signed as an auxiliary member because of a possible conflict interest arising from the fact that it was contracting with the local governments. The report that I prepared as chairman of the planning team’s Legal Authorities and Institutional Arrangements Subcommittee, carrying the intergovernmental management approach forward by further detailing it for inclusion in the river management plan, was probably my single most important contribution.
The development and adoption of the Land and Water Use Guidelines in 1981 went well enough, but it was not easy work and it wasn’t completed within 180 days of the 1978 enactment either, as required by that law. The river management plan was another story, of course. By law, that was to be completed within three years. It took seven.
The 1982 draft plan was a good plan, fully consistent with the 1978 legislation. In its fundamentals, within the framework of the 1978 legislation, the revised 1986 plan wasn’t really that much different. Nevertheless, despite a strong public information program throughout the planning process through newsletters, working with the Citizen’s Advisory Committee and holding countless meetings with local officials and the general public, it all came apart. Various reasons have been given for this. The anti-NPS factions had been gnawing away at the Park Service and the planning process from the beginning. Several local organizations formed to fight the plan and riparian land owners became excessively agitated. The feeding frenzy built upon itself to the point where NPS employees feared for life, limb and property. The National Inholders Association, i.e.,Chuck Cushman, also known as “Mr. Rent-a-Riot,” and currently known as the American Land Rights Association, came in to stir the pot further. Yet, some years later, Cushman admitted to me that, considering the minimal federal land acquisition requirements for the Upper Delaware, inholders in other national parks and forests throughout the country “should have it so good.”
The hooliganism started early in the planning process. It got worse and it was contagious. In part, it was a game, a contest of wills, to see if they could wear NPS and the local members of Congress down. Some of it was bad timing and bad luck and some of the bad luck was made by NPS for itself. One activity that worked against completion of the 1982 plan was that, while the planning team was trying to evaluate written comments made by the public on the draft plan, in order to deveop the final plan, the Park Service had staff in the field trying to establish river corridor boundaries. Landowners asked the NPS staff what it meant to be inside or outside the boundary, but the NPS staff were not sufficiently knowledgeable about the plan and the land and water use guidelines to be able to tell them. This added fuel to the fire, as did the sight of NPS uniformed enforcement staff at the hearings and patrolling the river corridor with pistols in their holsters.
Under other circumstances, in a different time and place, the plan might have been put “on hold” while things cooled off, providing time for more public review of the plan and for working with local officials to gain support. But, the public turmoil that had developed demanded a different solution. The year 1983 was very frustrating for everyone, as NPS and Department of the Interior staff pondered their options. In the end, NPS stopped the planning process, dismissed the Denver Service Center staff, and put the local governments in charge of preparing a revised plan. The local governments already had banded together in an organization called the Council of Upper Delaware Towns and consultant resources – the Foresight Group – were provided, adding the presence of Mike Presnitz and Chuck Hoffman. At least all of the hard and good work that had been done would not be wasted. The other part of the solution was to bring in a new planning team comprised of local elected officials from each NY town and PA township in a leadership role, but also NPS, NYS, PA and DRBC representatives. There was a Plan Revision Committee and a Plan Oversight Committee. I am listed as being a member of both, but the difference in the role of one versus the other now escapes me. The NPS staff from the Denver Service Center were dismissed by mid-1983 – unfortunately, in my opinion, but probably a necessary move. They aren’t even listed in the Final River Management Plan, which wasn’t fair. Rich Giamberdine, with whom I kept in touch for awhile, died not long afterwards. Larry Beal and Keith Dunbar still work for NPS.
Revision of the plan proceeded from late 1983 to late 1986 under the general guidance of the new chief planner for the NPS regional office in Philadelphia, Glenn Eugster. (Dave Kimball had retired.) NPS Regional Director Jim Coleman was perceived to be an honest broker. His support was helpful in moving the plan to completion. Mike Presnitz and Chuck Hoffman of Forsight Consulting were hired to work with the plan revision committee. (Chuck worked for American Rivers a bit later.) Later on there also was a plan oversight committee, for actually incorporating the changes in the plan I was a member of both groups, as was Bruce MacMillan, but, frankly, all of that is a big blur at this point. This work was a real grind, going back over many of the same issues and alternatives that we had gone over for the 1982 initial draft plan. Of course, some new issues were identified and were addressed, too, and this period was also an opportunity to make refinements and dig deeper on some issues. Most importantly, local officials, who were members of the Council of Upper Delaware Towns, were directly involved in the revision process as the key members of the team. This was the essential ingredient for having the plan accepted and it provided some guarantee that it would be implemented. Issues and the options for addressing the issues were discussed and worked through, one at a time, until everyone around the table fully understood them and, importantly, bought into them.
In the end, the recommendations of both the 1982 plan and the 1986 plan were constrained by the provisions of the 1978 legislation and, therefore, they couldn’t be too much different from one another. Also, the 1982 plan served as a template for the revisions and as the committee worked through the various issues they inevitably came to the same conclusions as the earlier planning team.
My most significant contribution during the plan revision work may have been to bring the concept of consistency to the table, working through Glenn and Chuck. Basically, the actions of federal and state agencies would have to be consistent with the provisions of the river management plan and the adopted land and water use guidelines. This idea is embodied in the federal Coastal Zone Management Act and it has been a good incentive for the states to participate in that program. In the case of the Upper Delaware, it was implemented by incorporating the river management plan and guidelines in DRBC’s Comprehensive Plan, to which New York and Pennsylvania and federal agencies must adhere under the interstate compact.
The consistency provision of the plan, involving the DRBC Comprehensive Plan, might be of use in countering any adverse routing of the electric and gas lines that currently threaten the valley.
I came to the Cochecton Town Hall from Albany for some of the plan revision and plan oversight meetings, particularly towards the end of the work, but for most of those three years, Bruce MacMillan, the Natural Resources Supervisor for DEC’s Region 3, attended more faithfully than I did. After adoption of the river management plan in 1986, I gave up the assignment as DEC’s chief representative I had held since 1974 under the aegis of the internal DEC “Delegation Memorandum” I had written then.. After 1986, I wrote a new Delegation Memorandum assigning that duty to Bruce MacMillan. He and Fred Gerty, Regional Forester for DEC Region 3, participated in the meetings of the UDC and its subcommittees until they retired, at which time Regional Natural Resources Supervisor Bill Rudge took over and continues to this day. Ralph Manna, former Regional Director was very active and helpful in earlier days and Willie Janeway, the current Regional Director, is following in that tradition.
From 1986 until I retired in 1995, my job for the Upper Delaware according to the new Delegation Memo that I drafted was to assist Region 3 with issues or problems that needed attention in Albany, whether by DEC or other State agencies. Fortunately, there weren’t many. One issue that I worked on after 1986 concerned the so-called “strand” and the extent to which the public has access to it The strand is equivalent to the foreshore, i.e., the area between mean low water and mean high water. It is subject to the common law public trust doctrine, adopted by New York State when it became a state, which involves a bundle of rights that are held in trust by the State for the public and which the public can use and enjoy to a reasonable extent even on private land. Those rights do not extend to camping, picnicking, crossing private land to gain access or trespassing on private land above the strand in any other way, except in an emergency.
Public navigation rights also were prominent in the rather intensive discussion took place about the strand. Under these well-established and longstanding common law rights, freshwater waterways that are navigable-in-fact (as contrasted with those that are navigable in law) are burdened with a State-owned public easement that allows paddlers not only to travel freely on the waterway and also to portage around rapids or other obstacles on private land, in the least intrusive manner possible, as may be necessary to achieve safe passage. Again, these rights do not allow any other access or activity on private land, other than for emergency conditions. The Association for the Protection of the Adirondacks has published a 16-page question and answer brochure on the nature of these rights. It is available on the Association’s web site. There is also a longer version of a paper on these rights, written by John Humbach, a professor of law at Pace School of Law and myself, on that site. An article by Kenneth Hamm in the June, 2008 issue of The Conservationist magazine, published by DEC, concisely states the nature of these common law rights. Finally, there is a bill, supported both by DEC and the NYS Coalition for Public Navigation Rights, that was introduced in the NYS Senate and Assembly on June 18, 2008 that would codify these rights in statutory law. This bill is titled “Public Right of Passage Upon Navigable Waterways.” The bill numbers will change next year.
Later, the discussion of the strand and the public trust doctrine centered on the fact that the State claims ownership of the underwater land, from mean low water to the boundary with Pennsylvania. George Frosch advocated strongly that his deed went to the boundary and that he could trace an unbroken chain of title back to a grant from the King of England. He advised other landowners along the river to check their deeds accordingly. That was fine. However, under the New York State Constitution, no one can claim adverse possession against the State. We told George that it was up to him to prove his claim. He never did that. He took the position that it was up to the State to prove that they don’t own it. There is no case law on this matter that is specific to the Upper Delaware, yet.
At one point during the discussion of this matter, Lou Gnip, a former DEC surveyor in DEC’s Real Property Bureau and at this time the person in the State Office of General Services who headed the underwater lands section, was required by his superiors at OGS to state, by letter, that New York State was relinquishing its claim to ownership of underwater land on the Upper Delaware. This reversed their earlier and correct position on the matter. Lou told me later that he was literally forced to write the letter over his better judgment. The truth is that no State official has authority to give away State-owned land, not even the Governor. Although the State leases underwater lands on navigable waterways and issues permits for various uses of such lands, including dredging and filling permits issued by DEC on waterways that are navigable-in-fact, it can never wholly divest itself of the basic ownership interests in underwater land that it holds in trust for the public. These interests pertain to public access and other public rights of limited use and they are held by the State in perpetuity. Anyone who is interested in this subject as it pertains to common law in New York will find a lot about it on the internet. There is a lot of material. I’ll end with three words: This isn’t over. DEC should be asked for a legal analysis and, possibly, a declaratory ruling. An Attorney General’s Opinion requested by DEC would be another way of getting a ruling from the State, but they aren’t completely foolproof either. Finally, a good law suit would help to resolve this. Actually, all three avenues are worth pursuing.
One other issue deserves mention because it, too, will keep coming back. The idea of designating the Upper Delaware in the New York State Wild, Scenic and Recreational River System sounds, at first mention, like a logical step. But it is quite different that the Pennsylvania program. The New York program has very strong regulatory teeth. The NYCRR Part 666 regulations require DEC to directly regulate land use or to delegate such regulation to local government The standards are restrictive and it is a difficult program for DEC to administered, in part because the agency has professional foresters. Fish and wildlife biologists and engineers but it does not have professional land use planners. Designation works in the Adirondacks where 1200 miles of river have been designated, but that’s because the Adirondack Park Agency has integrated the regulations for these rivers into its overall regulations for private land in the park. Also, if the Upper Delaware were to be designated in the State System, with the concurrence of the five towns, an agreement that is unlikely to be obtained, that would still cover only one side of the river. This is not a voluntary, benign corridor program like the Scenic Byways Program. So, what’s to be gained? My advice would be to let it rest for now and focus on the revision of the river management program, possibly taking advantage of the Department of State’s Waterfront Revitalization Program (part of the Coastal Management Program.) This apparently has been tried in Calicoon, but I don’t know the history of that.
I have strong memories of my time on the Upper Delaware and great affection for this special place and the people I have known through my work there. Let this 30th anniversary occasion not be the end of all of that, but simply a pause for reflection and a look backward in anticipation of a new beginning and continuing acquaintanceship.
1/ CharlesCMorrison@Verizon.net; 518-583-2212
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