1. (a) During all times of the year, the city shall divert through the Shandaken tunnel those quantities of water, as determined at the tunnel intake chamber, that when added to the flow of Esopus Creek, as measured at the Shandaken gaging station, are necessary and sufficient to provide at all times a combined flow of at least 160 million gallons per day—mgd (248 cubic feet per second—cfs); provided, when the Schoharie reservoir is physically incapable of providing sufficient water to maintain such combined minimum flow, the city shall make the maximum diversions of water into the Shandaken tunnel which the Schoharie reservoir is physically capable of providing. The provisions of this subdivision shall not be applicable when water is spilling from the Ashokan reservoir.

2. (b) Between June 1st and October 31st, inclusively, the city shall not make any diversion of water through the Shandaken tunnel:

   1. (1) whenever the flow of Esopus Creek, as measured at the Shandaken gaging station, exceeds 300 mgd (465 cfs); or

   2. (2) whenever the amount of that diversion, as determined at the intake chamber of the Shandaken tunnel, added to the flow of Esopus Creek, as measured at the Shandaken gaging station, will produce a comnbined flow exceeding 300 mgd (465 cfs).

      Provided, in order to minimize spill from Schoharie reservoir, the city may make such diversions when the unfilled storage capacity of Schoharie reservoir is less than five billion gallons and the unfilled storage capacity of Ashokan reservoir is more than five billion gallons.

3. (c) During all times of a year, the city shall, in making any diversions into the Shandaken tunnel, open the Shandaken tunnel at intervals of one hour or more in increments not exceeding 40 mgd (62 cfs), and shall close the Shandaken tunnel at intervals of one hour or more in increments not exceeding 20 mgd (31 cfs). Provided, the provisions of this subdivision shall not be applicable from November 1st to May 31st, inclusively, whenever the flow in Esopus Creek, as measured at the Shandaken gaging station, exceeds 300 mgd (465 cfs).
4. (d) From November 1st to May 31st, inclusively, whenever the flow in Esopus Creek, as measured at the Shandaken gaging station, exceeds 300 mgd (465 cfs), the city may, in making any diversions into the Shandaken tunnel, make diversions of any amount or no diversions as it determines proper and may open and close the Shandaken tunnel at such rates as it determines proper.

5. (e) Prior to its commencement of any action relating to the operation of the Shandaken tunnel that is consistent with the provisions of subdivisions (a), (b), (c), and (d) of this section, the city shall notify the office of the department's regional director at New Paltz, New York. The city shall not be required to obtain any specific review or approval by the department for any action which is consistent with the provisions of subdivisions (a), (b), (c), and (d) of this section.

   1. (1) Due to the technical limitations of operating water regulating devices and measuring flows, any rate of flow stated, required or allowed pursuant to this Part relating to the Shandaken gaging station or the Shandaken tunnel intake chamber or to the opening or closing of the Shandaken tunnel shall be deemed to include a rate of flow ten percent higher than the stated, required or allowed rate of flow where that rate is a maximum allowable rate and shall be deemed to include a rate of flow ten percent lower than the stated, required or allowed rate of flow where that rate of flow is a minimum allowable rate.
   2. (2) The provisions of this Part shall be interpreted as reflecting the time lapses required by subdivision (c) of this section and the time required for water to pass through the Shandaken tunnel.
   3. (3) The provisions of this Part shall not be deemed to require the city to monitor the flow in Esopus creek, as measured at the Shandaken gaging station, more than once during any twenty-four hour period or, accordingly, to adjust diversions of water into the Shandaken tunnel more than once during any twenty-four hour period; provided, the city shall so monitor such flow and make any necessary corresponding adjustment at least once during every twenty-four hour period and further provided, any such monitoring of the flow in Esopus creek shall be binding on the city with respect to compliance with the provisions of this Part until the next such monitoring is made.
   4. (4) The provisions of this Part shall not be interpreted as requiring any adjustment of flow in the Shandaken tunnel, in response to a hydrologic event of short duration which may cause the flow maximums established by subdivision (b) of this section to be exceeded for a short duration (e.g., a summer rain storm of three hours).

   (f)

6. (g) The city may take an action with regard to the operation of the Shandaken tunnel which does not meet the requirements stated in subdivisions (a), (b), (c), and (d) of this section provided it obtains the department's approval of such action, prior to the commencement of any such action, in accordance with this subdivision. The department may approve an action proposed pursuant to this subdivision where it finds such action is reasonable and consistent with the purposes of this Part.

   1. (1) The city reservoir releases manager shall submit via certified mail a written proposal for such action to the department reservoir releases manager. Such proposal shall specify the dates and times of the proposed action, the amount of water to be diverted, the rate at which water is to be diverted, the duration of the action, and the purpose of the action. Such written proposal shall be received in the office of the department reservoir releases manager not less than 24 hours prior to the commencement of the first proposed action.
   2. (2) Within 24 hours of his or her receipt of the written proposal by the city reservoir releases manager, or as soon thereafter as practical, the department reservoir releases manager shall notify the city reservoir releases manager by telephone whether the department has approved, approved with modifications or disapproved the proposed action; and in the event of an approval or approval with modifications he or she shall specify the dates and times of the authorized action, the amount of water to be diverted, the rate at which water is to be diverted, the duration of the action, and any conditions pertaining to the implementation or termination of the approved action. Provided, between the receipt of the city's written proposal and the department's telephone transmission of its decision, the city and the department may negotiate by telephone relative to such proposal.
   3. (3) As soon as practicable after notifying the city reservoir releases manager by telephone as provided in paragraph (2) of this subdivision, the department reservoir releases manager shall send a certified mail letter to the city reservoir releases manager stating the decision of the department with regard to the proposal involved. In the event the department has approved the city's proposal or approved it with modifications, said letter shall specify the dates and times of the authorized action, the amount of water to be diverted, the rate at which water is to be diverted, the duration of the action, and any conditions pertaining to the implementation or termination of the approved action. In the event the department has disapproved the city's proposal or approved it with modifications, said letter shall specify the reasons for such disapproval or modifications.
   4. (4) When the city is not able to provide a written proposal to the department as specified in paragraph (1) of this subdivision at least 24 hours prior to the commencement of the first proposed action, the city reservoir releases manager shall submit a proposal for such an action by telephone to the department reservoir releases manager, which telephone request shall be made not less than 24 hours prior to the first proposed action. Such proposal shall specify all the information required for a written proposal under paragraph (1) of this subdivision. Immediately following such telephone proposal, the city reservoir releases manager shall send to the department reservoir releases manager via certified mail a written proposal stating those matters covered by the telephone proposal. Within 24 hours of his or her receipt of such a proposal by telephone, or as soon as practical thereafter, the department reservoir releases manager shall notify the city reservoir releases manager as to the department's decision regarding such proposal in the manner specified in paragraphs (2) and (3) of this subdivision. Provided, between the receipt of the city's telephone proposal and the department's telephone transmission of its decision pursuant to paragraph (2) of this subdivision, the city and the department may negotiate by telephone relative to such proposal.
   5. (5) The telephone approval by the department provided in paragraphs (2) and (4) of this subdivision shall constitute the authorization for the city to proceed with an action approved by the department pursuant to this subdivision. No action shall be taken by the city pursuant to this subdivision until such telephone approval has been received, and any such action shall be undertaken in accordance with such telephone approval.
   6. (6) The city reservoir releases manager and the department reservoir releases manager shall each maintain a complete and accurate log of all telephone conversations made pursuant to paragraphs (2) and (4) of this subdivision.
   7. (7) The city reservoir releases manager and department reservoir releases manager shall provide the necessary telephone arrangements to fulfill the provisions of paragraphs (2) and (4) of this subdivision.
   8. (8) With respect to any action proposed by the city pursuant to this section which relates to any inspection, maintenance or repair to the Schoharie reservoir, the Ashokan reservoir or the Shandaken tunnel or any appurtenant structures or facilities, the approval, approval with modifications or disapproval of the department under this section shall be made with respect to the time and duration of the proposed action and shall not be made with respect to the substantive details of the inspection, repair or maintenance activity. The department shall not unreasonably delay or hinder any inspection, maintenance or repair activity which the city wishes to undertake with regard to said facilities.
7. (h) Both the city reservoir releases manager and the department reservoir releases manager may specify one or more persons on their respective staffs to take all actions under this section in the place of and on behalf of such manager when such manager is not able to take such action directly. Provided, each such designation shall be in writing and shall be on file in the respective office of each manager. Provided further, any such designation shall authorize such designee to act in all respects under this section for the respective manager.
8. (i) The department may request the city to take an action with respect to the diversion of water from the Schoharie reservoir through the Shandaken tunnel in a manner that does or does not comply with the provisions of any or all of subdivisions (a), (b), (c) and (d) of this section for the purpose of field monitoring or testing, research, protecting the fishery or other natural resources of Esopus creek, protecting the fishery or other natural resources of Schoharie reservoir or Ashokan reservoir for the benefit of existing recreational uses of such reservoirs, or special recreational events on Esopus Creek. Such request by the department shall be sent by certified mail from the department reservoir releases manager to the city reservoir releases manager and shall be received by the city reservoir releases manager at least 24 hours prior to the first requested action. Said request by the department shall be consistent with the purposes of this Part and shall specify the dates and times of the requested action, the amount of water to be diverted, the rate at which water is to be diverted, the duration of the requested action, the specific purpose of the requested action and any conditions governing implementation and termination of the requested action. If the requested action will not occur when the Schoharie or Ashokan reservoir is spilling and will not cause either of such reservoirs to spill water or to spill increased amounts of water, the city shall comply with such request; and in the event such requested action will occur when either reservoir is spilling or will cause either reservoir to spill or to spill increased amounts of water, the city shall determine whether or not to comply with such request. The city's receipt of the department's letter containing such request shall constitute authorization for the city to increase or decrease the flow of water in the Shandaken tunnel in accordance with such letter.
9. (j) All telephone logs and written communications made pursuant to this section shall be considered matters of public record.

The city shall utilize the Shandaken tunnel only in accordance with the provisions of this section.