Steve and Laura Smith, looking over the release form for potable water in their Smith Road home in the Town of Wawarsing.  Photo by Brian Rubin
Hostages of Hydration

The latest drama to unfold related to the flooded residents of Wawarsing occurred on Sunday, when Town Supervisor Ed Jennings distributed a release form to residents which would provide them with clean drinking water — and would also absolve the Town of Wawarsing from any responsibility regarding the area's floods before, during, or since the DEP's investigation into the problem's origins began.

"It was a dirty rotten trick, it shouldn't have been done," says Laura Smith, relating what her lawyer said when he saw the release form. When asked for specifics about why her lawyer offered such a harsh sentiment, she elaborates, saying, "If you're releasing completely the obligation of the town in any way, down the line it could be found that they were liable for certain things, though I'm not quite sure what it might be, what it is — that remains to be seen.

"The town has known about this problem for almost 20 years, and nothing was done," she continues. "And for them to put that in writing, they must have something to hide. I don't know any other way of looking at it."

The issue comes from one clause outlined in the release which was distributed on Sunday. On the face of it, the release basically states that the town's delivery of the water should not be construed as an admission of responsibility or liability for the flooding. To that end, it states: "Owner(s) acknowledge that the act of the Town in facilitating the delivery of the water cooler and bottled water in no way, shape or manner shall be claimed as a ground to hold the Town liable for damages allegedly resulting from leaks in the Delaware aqueduct…"

However, immediately following that clause comes another, which would, if the release is signed, prevent the resident from holding the town responsible for any of the flooding problems related to the aqueduct's leaks. The release continues: "…and in consideration hereof Owner (s) release the Town of Wawarsing from any claim, act, suit, or loss heretofore, now, or hereafter resulting from leaks in the Delaware Aqueduct."

To offer a little background on the whole situation, two weeks ago, the Wawarsing Town Board passed a resolution authorizing the town to act as the facilitator of a $5,000 fund for clean water from Leisure Time Spring Water, Inc. to be delivered to residents whose wells have become contaminated with e.coli and coliform bacteria, rendering their water undrinkable, the possible result of massive, yearly floods in the area which many believe are being caused by the cracked Delaware Aqueduct which runs underneath the town. The fund covers three months, and is provided by New York City as a show of good faith while the New York City Department of Environmental Protection (NYC DEP) investigates the cause of the flooding which has been hitting the area around Smith Road for the past several years.

After receiving the releases, many of the residents signed and returned them to Town Hall, relieved that they would finally be seeing a small amount of relief in this ongoing saga. However, upon closer inspection, Laura Smith and Julianne Lennon, two residents who have been spearheading the movement to involve DEP in relief and repair efforts, contacted their neighbors with the realization of the release's far-reaching effects, and since then some of the residents have retrieved their releases from Supervisor Jennings, who himself is a flood-afflicted resident of Smith Road.

"We are waiting to see if there is going to be a redraft of the existing letter, or an entirely new letter," says Smith. "There might be a complete back out of the town of this entire plan — I don't know. We are waiting for word from the supervisor, and that could take some time. We're still looking ahead and trying to find a way to get water to everyone in the area, whether it's through the town or not."

Future aid funded by the DEP, such as water filtration systems and sump pumps, may also be jeopardized by this development, as the town would also act as facilitator to those programs as well.

"If we didn't sign the release, we weren't getting any water, or the UV system," says Laura's husband Steve Smith of his discussion with the town supervisor when he retrieved his signed release.

"Here we were, trusting the town supervisor to do the right thing by us, not knowing for one moment that this was going to happen," says Laura. "If he wanted the town to be released from any responsibility pertaining to the delivery of water from Leisure Time to the residents of this area, that's how it should've been worded."

The Legal Perspective
Rick Cowle, an attorney based in Carmel, NY, gave his opinion on the language of the release, and the grave implications it could have if signed.

"I would never have a client sign that, because they're giving up some major rights," says Cowle. "Whether or not the town is liable is not the issue. The issue is that if they ever get involved in some sort of a claim against New York City, New York City would then bring in the town, and these people would have no choice."

Cowle elaborates on that point, saying, "Suppose the city finds the town as liable, now the people have to go after the town, but they've already given up their rights."

"It really puts people in an unfair bargaining position," he concludes.

The release itself was drawn up by Bill Collier, the attorney for the Town of Wawarsing, who, when asked about the release, said in an interview on Tuesday, "What the heck does that town of Wawarsing have to do with a leak 600 feet under the ground, something built by another municipality? What possibly could the town have to do with that?"

He explained that the language of that portion of the release is designed to protect the town — and the town's taxpayers — from frivolous lawsuits.

"Our society has gotten so litigious it's absurd," he said. "There is no reason the Town of Wawarsing is involved in this other than as a facilitator [of the water deliveries]. Certainly we didn't drill wells, we didn't alter any wells, we didn't alter the groundwater…there's been water bubbling up on the side of 209 since I was a kid.

"Any time you act, you leave yourself open for a liability," he continued. "All we're doing is being, literally, the middle man. They're giving us the money, we're placing the order.

"Anybody who doesn't want to sign that release, that's fine, they'll just have to get their own bottled water, or bring a claim against the city, or bring a claim against anybody they feel to be responsible, whoever that may be."

At one point, Collier reiterated his point that the town has done nothing to cause or contribute to the problem, and at one point he said, "No one has ever suggested that the town is responsible…there's nothing that I can see that the Town of Wawarsing has done wrong here." However, when it was pointed out that the tests being conducted in the area are still ongoing, and that there have been suggestions that drainage issues on Smith Road, which is a town owned road, could have contributed to the flooding problem, he said, "I don't think that that's the case."

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