"Copyright © 2007 by Rabbi Kashrus. All rights reserved." Copepods in the New York City Water Supply
By Rabbi Kashrus
The author has been ambivalent about writing a teshuvah on a subject that has been settled for two years. But new information has been learned that suggests that it is a good time for another one. The main points that have been recently uncovered are the following.
(1) The watersheds in question are supplied by 30% spring water. This fact was important for many poskim because that means that the majority of the water is surface (rain) water. The new point is that all rivers in the world are supplied by the same 30% spring water. Those who depended on this point have essentially wiped out the laws of sherotzim for all rivers in existence.
(2) The Delaware tunnels are just underground rivers that divert the water from the Northern reservoirs to the Kensico. They are no different than any natural underground rivers.
(3) The Kensico itself is a reservoir with its own watershed. It has rivers that supply 5% of the total volume maintained; the rest coming from the mountains. This in itself is considered enough of a river regarding the prohibition of sherotzim even if the other 95% would have been rain water.
(4) The New York City Department of Environmental Protection (DEP) does not open and/or shut the incoming or outgoing gates of the aqueducts that are part of the Delaware system, which is the major contributor to the Kensico reservoir. Thus, all the leniencies based on DEP control are faulty; there is no control.
(5) The author has found it unnecessary to debate the hetei'rim (leniencies) given by any of the poskim because either they were given on false information or they are general enough that accepting them would mean (again) being lenient on every river in the world. It is for this reason that I am being urged to publish this teshuva in order to educate the public. The author is not interested in the political ramifications, but in simply making a record of the new information.
This section may appear out of place. But, this was a three people endeavor and without the other two contributors there is no way that I could have paskened this shailoh. This shailoh is different than the usual ones that are presented to a Rabbi. Normally, the questioner comes with a story, which has three components.
(a) Relevant information
(b) Irrelevant information
(c) Missing information.
The Rabbi’s role is to discard the irrelevant and uncover the missing information.
Our shailoh is much more complicated. No one knew what was involved. Almost everyone had most of the data but no one had it completely. Some even had wrong data, which probably was stated by an expert who did not understand the question, or perhaps the one who answered was not an expert but had access to official stationary. What probably happened was that each Rabbi came in with a set of questions that needed to be answered. They did not come to learn. They were looking for certain answers and based on that they ruled. Unfortunately, they did not even know what to ask. Worse than that they did not know enough elementary scientific facts that they did not realize that the words and terms have different meanings than what they are used to when studying Talmud. Some poskim wrote teshuvot with the warning not to rely on them since they are unaware of the facts. This I find amazing. Journals must be hungry for contributors.
I will admit that I came in with the similar flaws. And, worse, having read the works of others confused me. It took many passes with Professor Regenstein and Rabbi Lach until everything fell in place. Professor Regenstein made sure that I did not err scientifically. His knowledge of biology, health sciences, and just general knowledge as well a tremendous amount of energy kept me from erring. I never saw a person so willing to learn areas that were not exactly in his domain. I would send him an update and he responded overnight with insightful remarks. Rabbi Lach as a mashgiach and investigator for the OU understands how to bridge the discipline of science and halacha. It is because of this give and take between the three of us that teshuvah developed. I take full responsibility for the psak.
But, it is their input that allows me to say that there is no possibility of being lenient. Let me at this point out that R. Dovid Feinstein who has the approbation of Rav Elyashiv for his psak had enough of the data to come to the same conclusion. The author will show that there is no choice. Let me also state that one short conversation with R. Feinstein allowed me to finalize my thoughts. So, I acknowledge him as well. Also, let me add that there was a dialogue between R. Feinstein and R. Elayshiv. R. Elyashiv is not a rubber stamp. Let me repeat, R. Feinstein is not responsible for what I write.
The author would like to start by sharing with the reader his initial reaction when the media brought the issue of the copepods to the public’s attention: it was one of disbelief. How could such an important question (shailoh) have been ignored until now? Maybe, there was a mistake. Eventually, and it took quite a while, it became clear that there was a real problem. However, the reason that many were not convinced of the existence of copepods in the NYC water supply was that it depended on the neighborhood that samples were drawn from and even then the results varied from house to house.
Thus, there was much confusion, but, eventually the decisors (poskim) investigated the matter and divided into the obvious two points of view. I will use the term decisors when referring to those poskim who ruled specifically on the copepods and reserve the term poskim for others who are mostly deceased. Most Rabbis and kashrus organizations were strict (machmir) and required that a filtration system be used to remove these animals, while a few rabbis were lenient (maikil). Individuals at the home level were advised to put a filter on the sink(s) used for drinking and food preparation water. On the whole, most of those rabbis that investigated had most of the facts available at the time they made their decision, although a few may have made their decision based on misinformation. Unfortunately, it appears that some of the lenient rabbis may have made their decision on faulty input.
At this point let us discuss a theological problem that was expressed by a number of decisors as the motive for the lenient position. In fact, one important rabbi, who was lenient, spent a few pages of his responsa (teshuvah) expressing this concern. How can the Almighty allow righteous people to unknowingly sin? We all know how important it is to keep kosher. The Talmud tells us that G-d performed a miracle to protect the ass of R. Pinchas Ben Yoir from eating non-tithed produce (Chulin 7a, a tractate of the Babylonia Talmud), so certainly the rabbi himself would be prevented from committing such a sin.
The commentaries on Tur Orach Chayim (1500 C.E. - Ch. 328) raises the question of whether it is better for a sick individual on the Sabbath to eat available non-kosher (treif) meat or to have someone else slaughter a kosher animal and then cook it. The sins of violating the Sabbath are considered worse than violating those of kashrus. Yet, the ruling is that another person should slaughter an animal. One of the explanations given is that eating a non-kosher animal (tarfus) is a stigma (the exact term is meguneh –shameful to have eaten tarfus) that is worse than violating the even more severe laws of the Sabbath. So, how do we understand what took place?
This is the question that only a person who does not understand what a tzadik (holy man) is and what hashgocho protis (individual attention by the Almighty) means. Only a person who has not studied Chasidic lore or even if he or she did and did not fully understand would ask. The Ramban in Parshas Bo explains that the hashgocho of the Almighty is more intimate with a righteous person. The more a man walks with G-d, the more He walks with him. The lowest of sinners also has hashgocho; albeit close to abandonment. We are told true stories of miracles. The Friedeker Rebbie (Previous Lubavitcher Rebbie) was pulled out of Warsaw in the beginning of the Second World War and came to America through Berlin itself. It is an amazing story.
Read the story of the Brisker Rov who (made it to Eretz Yisrael) while living in Villna during the first years of the war gave shiurim (lectures) during that upheaval like he did before the war in Brisk. Read how he made it to Turkey a four day trip 10 minutes before Shabbos and did not have to be mechalel shabbos (violate the Shabbos). Read about his trip on the boat to Eretz Yisrael. Read about the Chazon Ish who describes how during WW1 he learned in a cellar with the war going on above in the streets. That night he went from point A to point B. The soldiers were rounding up people and he walked through untouched. He believes that they did not even see him bizchus (in merit) of the chidushim (new ideas) he uncovered in Mesechet Eruvin (a tractate of the Talmud) that day. He was preserved to uncover and guide the generation.
Read of the Rashab’s farbrengin (chasidic gathering) on Purim, who the soviet police came to investigate for illegal activities and did not observe the money on the table which would have led to arrests. They looked and did not see. Read about the Mirrer talmidim in Shanghai where buildings they were using were bombed only after they left. The Chinese kept close to them believing they were charmed. Does anyone think that they understand what goes on?
The point I want the reader to grasp is that there are two types of people; the tzadikim and Chasidim. (I am not distinguishing between those who are not followers. The same arguments apply to them.). The Chasidim themselves come in all flavors. But, the select tzadikim did not drink the same water as we did. I do not mean that they used other taps or bottled water. The water from the same tap that they drank was as if it were filtered. If there was a shailoh in the past (which is unclear-but not important), the Rebbie or any tzadik did not have the sheretz in his drink or food. According to the Talmud in Gittin 7a even the household members of such tzadikim are not necessarily protected; otherwise, what was special about his protection? Surely, no one believes that tarfus and sherotzim stopped existing.
The Chumash (Pentateuch) discusses all kinds of sinning. It includes intentional (chas vesholom), shogeg (accidental lapse), and “oi'nes” – unavoidable accident. A bad psak of a rabbi is classified by the pri Megodim (late 18th century) in Orach Chayim 318 as shogegoh. On Shabbos it requires a sacrifice. We may or may not have drunk the treif water. It depends on how the Almighty viewed us. If we want the protection afforded to tzadikim, then let us start by becoming benonim (in between). What follows is a discussion of how a person should view the past according to the revealed portion of the Torah.
The Ramban (Nachmanidies, 13 century) commenting on Leviticus 1:3 states that if someone was unaware that he violated a commandment where the punishment for that accidental lapse (shogeg) does not specify a sacrifice, then they do not require any form of atonement. Thus, it is a stigma for an ordinary individual who is sick to knowingly eat non-kosher, while it is not a stigma for even an important person who does so unknowingly. Thus, no one has any stigma attached to him until this shailoh arose. But, not everyone agrees with this idea from Ramban.
However, our case is explicitly taken up by the Ben Ish Chai (R. Yosef Chayim of Bagdad-late 19 century) in his Torah Lishma 210 where our case reduces to an “oi'nes”-pure accident. It is weaker than an “accidental lapse”. There is neither stigma nor repercussions are attached to the accident.
There is a well-known concept called timtum halev (blemish of the soul) caused by eating tarfus. This means that a person’s personality is shaped by what he eats; eating tarfus causes the development of bad traits. The Rashbah (14th century) in his commentary on Yevomot 114 develops this concept and the Shulchan Aruch in Yoreh Deah 81 paskens that a baby should not be nursed by a gentile or even a Jewess who ate tarfus because of her health needs. We all remember the story of Moses who refused to be nursed by an Egyptian. Many ask why only shame and stigma are the only issues discussed when eating tarfus unknowingly.
What about the issue of timtum halev? The answer is obvious. There is no negative effect on one when he eats tarfus unknowingly. There is no place in the Talmudic literature that uses the term timtum halev in such a situation. In fact, the same author Ben Ish Chai in Rav Poolim (4-Sod Layeshorim 8) states that if one ate tarfus even if was an accidental lapse (shogeg) and certainly with “oi'nes” (accident) there is no timtum halev. Timtum halev is only brought upon oneself when done knowingly. This is a kabalistic issue and only people versed in kabalah can answer this. It is well known that R. Yosef Chayim was a specialist in this esoteric science.
Regardless, a decisor (posek) must decide the answer to a question (sheilah) based solely on what is asked. We must follow the rule of “yikov hadin es hohor”, i.e., let the law move the mountain. Our only guide in decision making then should be intellectual honesty. Now that we know that they are there and we are required to check as will be explained, we do require atonement if we drank it.
It is the author’s conclusion to be discussed in detail below that now that all the important facts are available, it is impossible to conclude differently than the majority. Every house must determine if they have a problem with copepods in their water and they must then take proper measures to assure that these creatures are not found in the water used for drinking and food preparation. This responsa (teshuvah) will only address itself to showing why we must rule strictly.
At this point, I believe that it is important to establish the attitude of the poskim to the sheiloh of drinking water with sherotzim (this is the biblical term for all forbidden animals found in the water). The Zemach Ztedek (1850) in his sefer Piske Dinim 84:4 rules (paskins) that the sheiloh is only for those that must drink the water and have no utensils or means of removing them. What normal person would drink the water if he saw these creatures? It was with this in mind, that I am amazed that any decisor would be lenient. And, more so, any person who saw them in their house would not want to take measures to remove them.
Before I commence with the halacahic discussion of the issues, I would like to answer one pressing question. Is this a new sheiloh (religious question)? The answer is yes. Different species of copepods are found in all waters: ocean, rivers and lakes. Of course, each type of water has different species of copepods. It is almost impossible to capture them with pails unless a number of tries are used: the copepods are quite deep and it is hard to get the pail to go deep enough, and then one may have only one copepod in the pail, which would be difficult to find. Scientists use special fine meshed plankton nets made specifically for the purpose of concentrating small organism.
The problem for us is that these copepods are sucked into the water tunnels in the distribution system and cannot escape. It is the modern aqueduct systems that make it possible for the copepods to move through the system. Also, most cities operating modern water systems have been required to filter their water and the copepods would be removed in the process. But, NY City, as well as a few other areas (e.g., Seattle and Boston), has been exempted because their water quality is very high and the cost of retrofitting such systems with filters is unreasonably high. Therefore, the water treatment system does not take out the copepods. Plankton towns of water in the reservoir system have captured as many as 350 copepods per liter with an average value of 50 copepods per liter. It is interesting that so few actually reach the consumers’ water taps. One might ask, “How is it that no one noticed it until now?” The answer is “kol milsah delo romi aainish lav adatoi” – a person will not notice something he is not looking for. Maybe, if someone did see a speck he assumed it was from the pipes.
The basic Jewish law (halachic) sources addressing this issue are scanty. The Bible devotes one verse to this important law, the Talmud one side of a daf (a daf is two pages) and the Shulchan Aruch only three paragraphs. But, the responsa literature is replete with many responsa (teshuvot) that tells us that this is a practical problem that the Rabbis have struggled with over the years. This section reviews the basics so that we will be able to apply these responsa (teshuvot) to the current question (sheeloh).
Leviticus 11:10 states “All creatures of the sea and rivers (to be defined) that do not have scales and fins, sheretz (to be defined) of the water (to be defined) or other living things (to be defined) in the water are to be shunned (which means not eaten).”
Rashi (12th century) in Betzah 39a states that a typical (stam) river has springs from which the water originates (noviim) and it continues (moshchim) flowing away from those sources. Thus, there are two features that a typical river possesses:
An origin: Noviim -A continuous flow away from the origin: Moshchim.
The Talmud in Chulin (66b-67a) states that water that contains other living things (sherotzim) may be used if the water is taken from utensils (kei'lim) or pits (boir) that are not wells. Wells are presumed to have an origin (noviim) like a river, but water does not flow “away” continuously (so the well is not a moshchim). The Aruch Hashulchan (R. Epstein-late 19th century) in Yoreh Deah 201:18 even goes so far as to claim that a well is a spring which flows, even though we do not see the flow. “The proof is that if we remove enough water, new waters will replace it.” So, flowing “away” is not the issue; it is flowing.
Pits do not meet either requirement; the water has neither an origin (noviim) nor does it flow away from its origin (moshchim). A river has both a noviim and then has a moshchim. Many decisors (poskim) interchange the term “flow“ (moshchim) with the word “zochalin”, which is a term used with the laws of the ritual bath (the mikveh) to signify non-placid waters, i.e., water that is moving. The waters of a mikveh must be placid. This means that if a mikveh springs a leak, it must be repaired before use. Anyone using the mikvah while it is in the zocahlin state will have to go to a kosher mikveh again.
The Darke Teshuvah 84:4 (R. Ztvi Shapiro Munkatch 1880) rules (paskens) that the size of a pit (boir) is not an issue. So, even though some of the reservoirs we will be discussing are very huge, if they are man-made by digging a “pit”, then they may be considered to be a boir under Jewish law (halacha) and their water can be used even if it contains shereotzim.
The Talmud, with its own commentaries, and then the later poskim, debate the case of a man-made pit that flows but does not have springs below it. Some compare it to a river and prohibit the water and others permit the water. Most poskim are strict (machmir) but a few major ones are lenient. Some poskim consider the situation a doubt (an important consideration in determining the applicable Jewish law (halacha)) and under certain circumstances are lenient. A classical example is given by the Sifri (a medrash from the 3rd century on Leviticus) of a river that is a moshchim if is a seasonal. The litmus test of a river qualifying as being a noviim would be if it is perennial. This is a sign of springs below. Please remember this point. It is critical. This point is made by R. Keisis (18th century) in his commentary on Chulin.
Another example of a structure that is considered a moshchim is a pit (boir) with entrances and exists (motzeh uboh). According to those that are strict in the case of water that flows (a moshchim) for which there is no origin (noviim), they require that to invoke the concept of the pit (boir), the water within it must be confined (atzurim), i.e., it must be certain that the pit does not have entrances or exits that allow for flow.
Rashi in his commentary on the Chumash [English] explains that a “sheretz” is something that is short, that creeps and moves. Rambam (Maimonidies, d. 1204) in his Laws of Forbidden Foods (2:12) states that “sheretz of the water” are those small creatures found in the water like worms and leeches, and large creatures of the sea. The principle is that anything that does not look like a fish (kosher or non-kosher) is included in a category of large creatures of the sea, i.e., dogs of the sea. Examples would include dolphins, skates and rays, and tadpoles but not sharks and catfish (which are not kosher but are “fish-like”).
Iban Ezra (13th century) defines “sheretz” as small creatures that were spontaneously generated and “other living things” including those that came through copulation of male and female. Today, it is accepted by science that the set of creatures that were spontaneously generated is empty. As we shall see this issue is also not germane to the current question (sheeloh) we are discussing. And, the Iban Ezra did not depend on spontaneous generation for his rulings. He subsumed the prohibition under “other living creatures”.
Ramban rejects the definition of Iban Ezra and defines “sheretz” as non-kosher fish-like creatures that move about without legs and “other living things” such as those that move about on legs in the water. The laws concerning the impact of both are identical. Thus, for the Ramban sheretz will not only include worms and copepods but also non-kosher (treif) fish.
IN THE WATER
There is one very important caveat to this discussion. If a ”sheretz of the water” is permissible because the water is ruled to be a pit (boir), but then “leaves” the boir, it becomes a “ground sheretz “ and may not be consumed. But, there is a major debate as to whether it becomes ground sheretz with respect to the case where the sheretz is dead; some rule that we must still call it shoretz (creeping) after death. Thus, even if we could rule that the waters in the NYC tap is water from a boir, we could not bake or cook with it since we might separate the sheretz from the water, e.g., it may stick to the side of the bowl and then be remixed into the food. While on the side of the bowl it would be “ground sheretz.” However, if we accept the ruling that after death it is not shoretz, then this would not be an impediment. However, if it is river (or a moschim according to those who rule strictly) then all this irrelevant; it is treif.
WHAT DO THE POSKIM SAY IF ONE CANNOT FILTER THE WATER OR FIND KOSHER WATER?
The main question is whether nullification by volume (bitul) is acceptable in this case. We certainly do have a 1/61 ratio of “water” to “sheretz”, which is the usual ratio for nullification.
The Remah (16th century) in Yorah Deah 98:4 rules (paskens) that if one can see the prohibited ingredient as a separate entity or even if he or she knows a way to separate it though not visible, then every attempt must be made to remove it, one cannot use nullification (bitul). There is a halachic debate within Yoreh Deah 115 as to what is the status of the water if the sheretz cannot be removed. The Rambam is strict while the Rashba (14th century) is lenient. Most poskim are strict, although some major ones are lenient. Technically there is an issue of Ber'yah – a whole thing – not being subject to bitul. This is because of the importance of a whole thing; but many poskim agree that a sheretz is not considered important and, therefore, we may forgo the usual stringency applied to whole things.
Let me add, that there are many cases where the copepods cannot be seen easily, but when the contents of the filter are placed in a vial they are visible. I have seen the contents of the filter in a vial taken from only one gallon of water drawn from the sink of a Beis Hamedrash of a famous Yeshivah in Brooklyn, NY that showed infestation. And, it is very likely that no one would notice anything when drinking from a glass. This also requires filtration according to the Remah.
The Darke Teshuvah mentioned earlier (84:28) rules (paskens) that if it were true that the water could not be filtered, then it would be incumbent on the people living with such a water supply to move out of that home rather than drink the water. This choice precludes any issue of saving a life (pikuach nefesh), which generally allows a violation of almost any Jewish law. The Zemach Tezedek (Lubavitch, 1850) claims that there is always a way to filter the water to remove visible particles, which is probably true.
Many poskim, who lived in areas where similar circumstances may have existed, and who believed that the people in their community had no kosher way to drink the water, suggested that people cook the water for a period of time and then use it without inspection. This ruling (heter) was based on the hope that the sheretz would be dissolved (both no longer whole and no longer visible) and would thereby become annulled. This is acceptable because of a double doubt. But may we be lenient if the sheretz can be seen and then, perhaps with such a treatment, the sheretz is not seen anymore. Part of the ruling (heter) is not to look at the water. This is proper because we are not required to resolve a double doubt if both are not resolvable. And, the doubt in halacha about whether the situation of the impossibility of removal is subject to the laws of nullification (bitul) remains. Unfortunately, one of our zealous scientists experimented with the NYC water containing sheretz and showed that no amount of boiling will help to remove the intact visible sheretz, i.e., the copepods in the NYC water remain visible after boiling. But, in our modern situation there are inexpensive filters that will remove the culprits and so we do not have to emigrate.
SOURCE OF THE QUESTION (SHAILOH)
The copepods in the NYC water system are a crustacean that is in the same family as a shrimp or lobster. They are found in some parts of the water system that supplies NYC’s drinking water, especially Brooklyn. When these animals are part of the water obtained directly from the Kensico reservoir, they are easily seen and, therefore, their presence qualifies as a question (shailoh) that must be asked.
The NYC water supply, like those of most cities, is treated at some point with chlorine to kill those living things that are in the water. However, although dead, the whole animal can be seen in the consumer’s tap water as visible white dots which can be identified sometimes as a whole sheretz (one can even see the antenna), sometimes they are broken and sometimes a magnification instrument is required to help identify it. Most people who have copepods in their water experience all of the above. The Darke Teshuvah 84:45 brings a case of a sheretz that could only be seen in a clear glass and in the sun. It could not be seen in ordinary daylight. This was only while alive because the motion was detectable, but when they were killed they could not be seen even in the sun. The Darke Teshuvah is machmir on this issue.
This case is a major controversy. Many poskim such as the Maharash (R. Shalom Hakohen teacher of the Maharil–15th century) pasken that if the sheretz cannot be seen in a glass without the aid of the sun even while alive it is too small to be a sheeloh. It is comparable to the situations that require the use of a microscope. The Torah did not require such extraordinary precautions when drinking water. One decisor at the onset of the discovery of this sheeloh was lenient because he believed that the copepods were in this category. However, later on when it was discovered that this is not true, he retracted. I have great respect for him because it is clear that the truth is what counts. But, from this Darke Teshuvah it is clear (although I am not sure why we require proof) that death does not change the status of a treif sheretz to kosher. At this point, everyone, including the lenient decisors, agree that this is the problem to be resolved. There are still two decisors who still believes that there are identification issues. They still believe that it is the case of the Maharash. But, we know that this is not so.
The water that supplies Brooklyn comes from the Kensico reservoir in Westchester County, which is the penultimate reservoir (and sometimes last) in the complex system that brings water from various NYC reservoirs that are further away. This reservoir is also the last reservoir holding water destined for NYC before the copepods are chlorinated. Some of the water, after chlorination, may be stored for a short period of time in the Hillview reservoir within the City. One of the decisors discussed the peculiarities of the Hillview reservoir in forming his lenient opinion. This is a factual error. By the time the water reaches the Hillview reservoir, the question (sheeloh) has already been created.
The Croton reservoir system, located in Westchester County, generally supplies parts of Manhattan (including all of lower Manhattan, East and West Villages, Gramercy Park, Kips Bay, Chelsea, Clinton, East Harlem, Harlem, and Inwood), and the southern and eastern portions of the Bronx. [Due to the inferior quality of this source, at times some or all of the above NYC locations receive water from the Catskill / Delaware system instead.] Aside from crustaceans, the Croton reservoir system has a documented history of midge fly larvae infestation. Because of this concern, NYC is required by Federal law to filter the water from the Croton reservoir system.
However, construction of a filtration plant for the Croton system is still in the planning stages, and the filters are not expected to be completed before 2010. Also, as will be explained below, part of that system is also a part of the Delaware system of aqueducts, which will be described in the next section. [This, of course, suggests that consumers in these areas definitely need a filter regardless of any ruling on the copepods.]
The Croton Water System
The author will not give all the details on the structure and functioning of the Croton Reservoir System except that many of the details raise the same issues as those we will be discussing in detail that are related to the Kensico reservoir. The major difference between the Kensico reservoir and all the other reservoirs in the system is the fact that the Kensico requires other reservoirs in the system to maintain its water level. I will give a partial list of reservoirs that make up the Croton system: Boyds Corner, East Branch, West Branch, Croton Falls, Cross River, etc. But, most, if not all, the reservoirs in the Croton system are constructed the same way as the Catskill / Delaware system.
THE UPSTATE NEW YORK CITY RESERVOIRS IN DETAIL
The upstate reservoirs, which supply the Kensico reservoir, are fed by rivers, streams and creeks. Water flows into these reservoirs without stop, throughout the year. This normal flow of water is known as the “base flow”. When it rains (snows), the flow increases, sometimes significantly. The base flow is mainly spring-water, but a significant portion of the increased flow in the rainy season is direct run-off from the ground, i.e., rainwater and snow-melt. This is normal for rivers in general.
The reservoirs of the Delaware system (which provides, on average, 60% of the water of the Kensico) were created from tributaries (smaller rivers) that once fed the Delaware River. As a result of man-made dams, these tributaries now flow into the reservoirs, rather than the Delaware. However, a U.S. Supreme Court ruling requires the water authorities to release a certain amount of water daily from many of the reservoirs into their downstream river to provide water flow in those rivers and to have a sufficient water flow into the Delaware River. This is accomplished by leaving gates in the base of each dam open, to allow reservoir water to flow downstream. This outflow of water occurs constantly. However, which of the many gates in each of the dams is used for this purpose is continuously changed, to keep them all in proper working condition. (As with the rest of the water system, there is a tremendous amount of redundancy and flexibility built into the various components of the system.)
Water from the Delaware system is often first sent to the West Branch reservoir, located about 20 miles north of the Kensico. The West Branch also contains its own natural waters, supplied by streams fed from the nearby watershed. The West Branch also receives water from the nearby Boyd’s Corner reservoir, which is filled exclusively with watershed water via streams and creeks. This mixture of “West Branch / Boyd’s Corner / Delaware” water is then piped to the Kensico Reservoir. However, oftentimes the West Branch is bypassed, so that Delaware water is deposited directly into the Kensico.
The Catskill system (which provides, on average, 40% of the Kensico’s water) consists primarily of the Ashokan Reservoir, which was created by damming the Esopus Creek. [The other Catskill reservoir, the Schoharie Reservoir, spills its water (via the 18 mile Shandanken Tunnel) into Esopus Creek, which in turn empties into the Ashokan Reservoir.] The northern leg of Esopus Creek runs directly into the Ashokan reservoir. However, Ashokan’s dam (Olive Bridge Dam) completely cuts off the reservoir from that part of the Esopus Creek that is further downstream. The downstream section of the Creek is created by independent tributary streams, located downstream of the reservoir. There are no mandated releases of water from the Ashokan into the downstream Esopus, although in a wet year, there may be a month’s worth of water spill over the top of the dam, when the reservoir has exceeded its capacity.
Uncontrolled spillage over the top of the dams into the riverbed below is a phenomenon that occurs in many of the upstate reservoirs toward the end of the rainy season. The extent of this overflow varies from year to year, depending on the intensity of winter snow and rains. The Kensico reservoir rarely, if ever, spills over.
Water flows from the Delaware / Catskill reservoirs to the Kensico entirely by gravity – there is no pumping needed. Water leaves each reservoir through tunnels located deep under the surface of the water. Each reservoir’s tunnel has a series of gates that can be opened and closed to allow water to exit the reservoir under the force of gravity into the tunnel. While these gates can be left open for weeks on end, inevitably each of the upstate reservoirs will be at times totally sealed off from the system to allow for maintenance, with water coming to the city from all the other reservoirs minus the closed off one.
The aqueducts that transport water from the upstate reservoirs to the Kensico reservoir are about 90 miles long and about 16 ft in diameter. The Catskill aqueduct is composed of a combination of 4 types of conduits:
(1) Cut and cover aqueducts, which are trenches in the earth, lined with cement and covered with cement arches. These total about 55 miles in length.
(2) Grade tunnels, which are essentially similar to cut and cover aqueducts, but are tunneled through hills or mountains. In both types the flow of water nearly, but not completely, fills the aqueduct. There are 24 grade tunnels, aggregating 14 miles in length.
(3) Pressure tunnels to bypass valleys. These are deep tunnels, driven though bedrock and lined with cement, and are connected to the aqueduct by vertical shafts on each end of the pressure tunnel. There are 5 pressure tunnels, totaling 17 miles in length, including one crossing underneath the Hudson River, which extends about a half a mile at a depth of 1114 ft below sea level.
(4) Steel pipes where the bedrock alone is not suitable for pressure tunnels. These are constructed of steel plates, lined with concrete. They are laid into a trench just below the surface of the earth. There are 14 such sections, totally 6 miles in length.
The Delaware aqueduct system consists entirely of pressure tunnels. The gates into and out of these tunnels are always open. The Catskill aqueduct tunnels have many gates and different ones are kept open on almost a daily basis to prevent these older structures from freezing up. The Delaware system is newer and there is no concern of freezing up. The facts that the Delaware gates are always open and the tunnels are have nothing more than cement lining to prevent debris and leakage is very important as will be explained. Those who based their discussion on the NYC DEP control of the system were not aware of this point. There is no control. The same gates are always open.
Also, let me note that many decisors tried to distinguish between natural vs man’s interventions with regard to rivers. This is a misconception. There are many occasions where rivers overflow or stop up and man has to fix it. Man has made rivers and changed the course of rivers. Besides, what is natural? As we noted the beaver makes many modifications albeit on a small scale.
THE KENSICO RESERVOIR IN DETAIL
Prior to the creation of the present day Kensico reservoir, there was a natural lake in the eastern section of the reservoir site, called Rye Lake. In 1916, the modern day Kensico reservoir was created. This large body of water swallowed up the previous natural Rye Lake. The water supply that allowed for this significantly larger body of water was the newly created Catskill aqueduct, which brought reservoir water from the upstate Ashokan reservoir into the Kensico. Therefore, Rye Lake’s water level is now substantially higher than it was originally.
The present day Kensico reservoir is too large to be supplied by the natural watershed surrounding it. There are perennial, natural streams all around the Kensico reservoir that empty into the reservoir, but they supply an average of 2% of the reservoir’s total water. The remaining 98% of the water is supplied by water from the upstate aqueducts. If the Kensico reservoir were to be filled solely from its watershed, with no water coming in from the aqueducts, as well as no water being released to the city, the process of filling the reservoir would probably take around 3000 days (a little over 8 years).
However, the outward appearance of the reservoir is just like that of any other natural body of water. Aside from the large man-made dam at one end that comprises a fraction of the perimeter of the reservoir, the remainder of the reservoir is composed of natural embankments – it is not cemented or affected by man-made structures. The Kensico, aside from places where the dam is visible, appears no different than any other natural lake. It contains a regular ecosystem, including ducks, geese, fish, and, of course, boaters and fishermen.
The Kensico reservoir is about 4 miles long, and three miles wide, with a large island in the center. Its average depth is 52 ft. The dam that caused the formation of this lake is 1,825 ft long and 307 ft high (although about half of this height is below ground).
There is no natural outflow of water from the Kensico. However, water constantly flows out of the Kensico into the distribution tunnels. There are a series of gates that control the flow of water into the tunnels. In general, these gates all remain open – the amount of flow is regulated by changing the percentage of the opening of the various gates. On very rare occasions, the inflow or the outflow to the Kensico is completely shut down, such as for temporary repair work. Even when this happens a small amount of water from the uncontrolled creeks and rivers in the Kensico’s natural watershed continue to flow into the reservoir.
The amount of water that flows out of the Kensico daily is about 1.2 billion gallons, about 4% of its total capacity. A comparable amount of water, from the upstate reservoirs, enters the Kensico at its opposite banks, i.e., at the “far” end from the dam. The body of water within the Kensico reservoir between the influent and effluent sites has a rate of flow that varies from 0.2 to 10.2 centimeters (2.5 cm = 1 inch) per second, depending on the site. Actual average residence time for the water coming into the Kensico is about 10 days for the Catskill water and 30 days for the Delaware water. The two systems have different inflow points, which affects the residence time within the reservoir.
Water leaves the Kensico from the gate system at about 60 ft below the water surface level. It passes through the series of gates, and enters a large fore-bay – a large concrete holding tank, similar to a swimming pool, located below ground. At this point chlorine is added to the water by dripping a solution of chlorine into the water as it passes through. From the fore-bay, the water enters the underground tunnels that take the water to the Hillview reservoir and the city.
I have elaborated on the Kensico in detail because it operates differently than the other reservoirs and specifically affects the Borough of Brooklyn, where many Jewish people reside. But, I have also discussed the systems that affect Manhattan and the Bronx because many others live there and many work there.
The Role of Science
There are many books, journals and periodicals that are devoted to the topic of science and religion; but we will limit ourselves to what we need to know to pasken the sheeloh of the copepods. Any information that we need to know that is available must be used in reaching a decision. In fact, if we need to know some fact and science has not studied it, then we are required to either have the research done or if that is not possible then in most cases if we cannot find guidance from the halachaic sources, then we must be machmir.
It is obvious that to answer the sheeloh of the copepods in the New York City water supply, we must learn about the reservoir systems that supply the NYC area with its water. This part of the study will enable us to determine the halachic status of each of the components of the system and to relate them to the life history of the copepods. Let me point out at this point that there have been a number of public (published) discussions about the aquifers / springs that may provide water to the Kensico that are actually underneath the Kensico’s visible water.
The researchers based their conclusions on the fact that the Kensico is 100% below the local water table, but this is a required condition but not a sufficient condition to say that it does have springs below; it may or may not. The author has seen maps of the area that specifically include information about aquifiers (in this case springs from which water enters from the ground into the visible water) and he can attest that all of the information provided by the governmental sources indicates that there are no springs below the Kensico. Before the Kensico was flooded there were no springs there. So, the absence of springs is a point that from a halachic point of view has been established, unless we want to send down divers to cover the entire bottom surface to look for springs. Some decisors pointed to part of the discussion within the Diverei Chayim (R. Chayim Sanser (1880)) that implies according to their understanding that aquifers will develop naturally in such a body of water. The author will show that this concept is just not true. [But there are springs in Rye Lake.]
Let us also make an interesting observation about the halachot of sherotzim. This particular issue of determining their status is the only case where it is possible for the same animal to be found in one place and to be kosher, and to be found in another place where the same animal would be considered treif: those found in a river are definitely treif and those found in a pit (bor) are definitely kosher. In general, a cow is a cow and a pig a pig. But here we have kosher copepods and treif ones that could be related.
Another issue that has to be dealt with because of the historical aspects of the issue is that of spontaneous generation (SG). As noted earlier, the idea of spontaneous generation has been considered. There is language found in the halachic literature dealing with “nishaveh” (formed-created) that deals with the possibility of sherotzim being created by the water. But, let me go over this point in a bit more detail.
There are a few different types of copepods found in the specific reservoirs that we are discussing. Most are born from a male and a female with the female carrying the fetus to term. They are like mammals in this respect. This information is a fact based on modern science, even if we accept that within halacha there is a concept of spontaneous generation. I find it difficult to think that because the rabbis of the Talmud would have made some animals such as copepods kosher because of the fact that they would have decided in older times that the copepods were generated spontaneously that we must perpetuate their mistake.
I would assume that if they knew what we do about the copepods and if they were also working with the ruling permitting the drinking of water with sherotzim in a pit that was based on spontaneous generation, then we are required as their messengers to be machmir [stringent] with respect to permitting the copepods, i.e., we should not be permitting them. (Every generation is a messenger of the previous generations - Torah is continuous from teacher to student. One does not learn Torah from books.)
The Chazon Ish (R. Yeshayah Karelitz – 1st half of the 20th century) rules that all sherotzim are treif today because science says (and has demonstrated) that they come from male and female parents, and we have a ruling “kol hayotzeh min hatomeh tomeh” (Talmud Bechoros 5b) – anything that comes from treif parents remains treif. If this halachic idea were accepted by all the poskim then we would have to be machmir with respect to the copepods. But, most of the decisors on the copepods issue have not accepted this ruling, as will be explained. Those decisors still consider a sheretz from a pit to be kosher.
Let me bring two examples from the responsa literature to illustrate that the Chazon Ish’s position is not universal. The original discussion was meant to shed light on the question of killing a louse on the Shabbos. The Talmud rules that we may kill a louse on the Shabbos because they do not come from a male and female. In the 17th century the use of spontaneous generation in halacha was raised. We find that halachists as late as our century are still lenient with respect to accepting decisions based on the early concept of spontaneous generation. If one looks at the Mishneh Berurah (Chofetz Chayim - 1st half of the 20th century) in the Laws of Shabbat (316), Oruch Hasculchan (late 19th century), and Shulchan Aruch Horav (Lubavitch – d. 1812), one finds lenient rulings still based on spontaneous generation.
In the late 1990’s the sheeloh permitting leniency with respect to spontaneous generation re-emerged in deciding the status of worms underneath the skin of fish. Again to be lenient, the idea of spontaneous generation was invoked. Thus, anyone who is strict, i.e., does not accept killing lice on Saturday or allowing worms in fish would have to be machmir on the copepods to be consistent with their stand on the other two issues. The whole issue of worms in fish and sherotzim in utensils and “boros” are equated by the Rambam in the Laws of Forbidden Foods 2:17. He claims that the fish worms are kosher because they are not shereta horetz - sheretz of the ground. All sherotzim found in fruit that came after they were off the trees, those in waters that are not like utensils and in fish are derived from the same Biblical source.
The first teshuvah may be found in the Sheelot Uteshuvot 27 Written by R. Chayim Or Zoruah (13th century). He discusses a mouse that was born in a pit of water. He is almost lenient because he rules that we can apply yotzeh (a product of treif parents) only when we have to deal only with the issue of the parents. In this case there is another consideration that must be addressed. The issue is the environment within a pit. To use his term, the sheeloh is a zeh vzeh gorem - there are two causes (issues) to be addressed, is the pit kosher and do the animals in the pit have non-kosher parents. In such a case we may be lenient. However, in the specific case being discussed the Or Zoruah backs off because it is hard to call a mouse a water animal. But, obviously, if we were dealing with a water animal such as a treif fish (or copepods) we must presume that he would have been lenient.
The second teshuvah is by the Diverei Chayim (R. Chayim Sanser 1880). In a famous responsa, cited in Yoreh Deah 2:54, he takes up the case of the ephemeral portion of a river, i.e., the water that is there only during the rainy season. The questioner wanted to consider that part of the water in that case constituted a moshchim and the questioner takes the lenient position on that sheeloh. The Diverei Chayim exclaimed that if he believed that position, then he should also allow eating any fish that was killed while in the water according to those poskim who are lenient. If the sherotzim dies in the water even if they are removed later on, such poskim permit them to be consumed. Later on, the Diverei Chayim states that when something is in a river such as a treif fish, they are treif even while alive.
It appears that the Diverei Chayim was using the Ramban’s definition of sheretz, which includes fish. And we know that treif fish are born from either eggs or carried by the female. This position is also brought up in the commentary of the Sefas Emes (R. Yehudah Aryeh Leib Gerrer Rebbie – 1890). He also takes it as a given that all fish found in a “bor” are kosher.
Let me conclude this section by saying that the Chazon Ish was recognized as a prince of the Torah. In Eretz Yisrael many follow his decisions even when he is not understood. His ruling put the breaks on the use of electricity. Many poskim are machmir on eating new animals that have the two kosher signs required of such animals because of his rulings. Yet, if not for him, the removal of the prostrate would not have been permitted and would have caused many family tragedies; couples married many years would require divorce; it could be classified as damage to the male organs so that a male may not be married or remain married. It would be a krus shofcha-let -- a cut off organ. Of course, the man would be required to go through the operation to save his life.
R. Blumenkrantz (who is from Far Rockaway and recently passed away) reports in his sefer on Hilchot Pesach that many places hire people to remove worms from the fish. So, even in America there are hashgochos that follow the Chazon Ish. They negate the whole of chapter 84 in the Shulchan Aruch. The position of spontaneous generation today is still an open sheeloh. Many encyclopedic seforim on the Laws of the Shabbat when discussing the killing of a louse bring forward both positions.
There is a difficulty as to how to proceed with the discussion. The lenient decisors have made incorrect assumptions, which have influenced their thinking. I will avoid rebutting their points since after I explain the situation there will be no need to do so. The major debate in our sheeloh is based on the fact that similar words and concepts that are used by sherotzim are also used by mikveh. However, I will soon point out that we need no analogy. Some of the machmirim compared it to mikveh to make it treif, while the lenient decisors claimed that the laws of mikveh and sherotzim are different.
The teshuvah of the Divere Chayim, I mentioned paskens that the ephemeral section of a river is a river for sherotzim and not for mikveh. It is a river because it is part of a river.
There is a famous teshuvah from the Vayomer Yehoshua (late 18th century) brought by the Darke Teshuvah (84:5) who distinguishes between the two issues. The case is one of a pipe that was attached to a spring to divert its water into a bor. The sheeloh was whether we are to be concerned about the sherotzim in the bor. With regard to the laws of mikveh the bor is considerd a maayon because of the “connection”. He answered that this does not make the water in the bor into river. Of course, as he claimed we have to be sure that the river is free of sherotzim. We see that the rules are different. One has to be careful how the laws of mikveh are used when discussing the laws of sherotzim. By sherotzim it is not the connection to a river that makes it one; while by mikvos the “connection” is decisive.
So, we see that a river by sherotzim is defined by what is a river and not its connection to one. This is why the Darke teshuvah was strict in his case and the Vayomer yehoshua lenient in his. In the case of mikveh its the reverse; the ephemeral water is not kosher while the bor connected to the spring is kosher.
This point was important for the lenient deciors to separate the Kensico from the Northern reservoirs. Of course, as we will see the Kensico has its own watershed. Also, the tunnels are more than a connection “they are part of the river”. The decisors are not completely wrong. Some of systems going into the Kensico have pipes and one can argue that is a “onnection”to a river; but not the river discussed in Leviticus with regard to sherotzim. But, the Delaware system is 100% a tunnel in the ground and does not suffer from any deficiency except that it is man made. Of course, as I will show the Kensico is also a river even if it were isolated.
Let me review the rules of mikveh. In the Laws of Mikveh two words taken from Leviticus (11:16) maayon (springs) and bor (pit) are used. The laws for these two systems are different. A mikveh must be stationary and have 40 sooh (a unit of liquid measure). A maayon (biblical) may be running water and in some cases be less than 40 sooh. The status of a river which is flowing is debated in the Talmud. If we cannot classify it as a maaayon, it may not be used for ritual immersion. The Talmud brings forward two main opinions.
The issue is that we follow the rov (majority). If there is more spring water than rain water then it is a maayon. If not it is a mikveh and because it is not placid it is disqualified as a kosher place to perform ritual immersion. According to the Talmud everyone agrees that it may be used in the “dry” season. The question is only during the rainy season. Some say that at that point we have to be concerned about more rain water while others say that the underground springs become more active and match the rain water and in fact put out more water. The Shulchan Aruch brings forward both positions. Let me at this point note that science claims that ALL rivers in the world are only supplied by 30% spring water while the rest is surface water. How we factor this in with ritual immersion is beyond the scope of this teshuvah. I have been told by one Torah authority that he would not allow a river for immersion in any season bizeman hazeh (in our times). This is a moot question.
How do we view rivers with respect to sherotzim? The answer is simple. The Torah does not use the word maayon. It uses the word “necholim” - rivers. So, the opinion of science is immaterial. Whatever we call a river and has springs is a river. When it comes to sherotzim we do not find one posek that makes a distinction between seasons. Whether the sherotzim are found in the rainy season or the dry season the ruling remains the same. It is treif. As I said earlier, R. Keisis gives us the litmus test for calling a river a moschchim. This is if it seasonal. It dries up. This is not the case for the river system in question. Most of the decisors who were lenient relied on the NYC DEP’s statement that the systems of rivers we are discussing are supplied with only 30% of the water from springs. They did not realize that they have been matir (ruled leniently) about all the rivers of the world; e.g., the Mississippi, the Nile and the Euphrates rivers. This is a serious misunderstanding.
Discussion of Salient Points
All the reservoirs within the NYC reservoir system except the Kensico were created from rivers that were dammed and, if necessary, their water is diverted to the other reservoirs. These reservoirs also supply water to those living in proximity to the reservoir, i.e., some of the water is provided to people living in upstate New York. So, for example, the Ashokan reservoir may be viewed as a man-made lake. The waters are now placid instead of flowing. I am for the purpose of this discussion ignoring the entrances and / or exits; if we factor this in then it would even be worse. The halachic (religious legal system) question is then: what is the status of such a reservoir? Is it a bor (pit), a moshchim (a river flowing away from its source) or a river.
R. Keisis (1750) in his commentary on Chulin (a tractate within Talmud) clearly states that man-made rivers are no different than natural ones. In fact, many rivers have been diverted and no visible trace of the original channels exists visibly. Within the Talmud in Avodah Zoroh 39b a case is discussed of two rivers that were diverted into a third. They are still rivers. As I pointed out before, many rivers that we see may have not been there at the time of creation. And, many that were there then, we know have dried up. When it comes to dams, we know that beavers make them. I cannot emphasize this point enough.
It is this point that many of the lenient decisors failed to recognize. Pits can be natural or man-made. Most moshchim without an origin are man-made, although it is possible to sometimes find them naturally made. Let me point out that the assumption that a river is permanent and must have been there from Adam is a gross mistake. Man has manipulated, changed the course, diverted and created new rivers. When rivers stop up man has to go and clean them. It is no different then what happens in a reservoir. Look at the canals in Chicago where the Chicago River was diverted back to the Michigan River. The idea of DEP control is a misnomer. We control what we have to. And, when we fail, we see results. Look at New Orleans. This is all simple geography.
At this point we need to define the status of a lake with regard to the sherotzim. The Oruch Hashulchan 84:19 (R. Epstein, late 19th century) rules that a lake is classified in the same category as a river for these laws. This is before he discusses a bor (pit) and a moschim. It makes no sense to classify a lake as a river unless we are discussing a lake that is maintained like a river, but is placid because it is in a basin but would have to have no water coming in or out which is almost impossible. The Talmud in Avodah Zoroh 12b states that a person is forbidden to drink from a river or lake at night because of the danger of swallowing a leech or other poisonous insect. The Rambam in the Laws of Rotzeach (11:6) brings forward this vague Talmudic ruling. The Maharam Shick (mid-19th century) in Orech Chayim 134 asks the obvious question: Why was the Talmud not concerned about kashrus? He answers that most rivers and lakes are free from sherotzim. However, the Talmud prohibits consuming sherotzim when we have established the existence of sherotzim in a particular lake or river. Thus, we can conclude that all the usual reservoirs, which are lakes, are in the category of rivers with regard to sherotzim.
The Kensico is different from the other reservoirs because it is supplied from other reservoirs by aqueducts. Also, the Kensico is the remnant of Rye Lake, which continues to receive water from the local watershed and the springs that originally created Rye Lake remain. But, the NYC DEP considers the Kensico separate from Rye Lake. The Kensico portion does not have aquifers or springs. We have to determine the status of Rye Lake and determine what effect that has on the status of the Kensico Reservoir, which is a larger body of water that subsumed Rye Lake. The area of the original Rye Lake is 20% of the whole area of the modern reservoir and the Lake itself is many feet higher then it was originally. (A part of the Kensico Reservoir is still called “Rye Lake” as indicated on maps of the region.) Clearly, Rye Lake is now mostly made up of rain water and spring water that comes from elsewhere, i.e., from the other reservoirs, but also a reasonable quantity of water from its own remaining watershed.
All of the decisors mistakenly did not factor in the issue of Rye Lake. They viewed the Kensico as a bor with entrances and exits. Most decided that this actually made it a moshchim and followed the strict view. For this group of decisors all the reservoirs that have been mentioned qualify at least as a moshchim and there was not much more to discuss.
However, all this is a mistake. It is a reservoir with its own watershed. If the newer portion were drained, Rye Lake would fill up by itself. Even if I closed off the Kensico permanently from the upstate systems we would have a lake (river) which is 95% river water from upstate with 5% of its own. Of course, it would begin to overflow because of its own watershed. Even if the 5% were spring water and the rest of the river water were rain water, the Diverei Chayim I mentioned earlier ruled that the Kensico is a river for sherotzim. In his case, he claimed that the ephemeral water even though mostly rain water is considered a river for sherotzim because it is mixed with river water. And, certainly, he would rule if it is 100% river water which is our case.
Also, as I said earlier the Delaware tunnels are open from upstate all the time and we thus have a river. There are underground rivers that can be found in nature. And, the sherotzim there are treif. For sherotzim, the term river is what we call river. We do not have to struggle with how much to compare these laws to mikveh and how much not to. It matters not.
The copepods come from river systems, which are no different than natural ones. All the arguments about the NYC DEP having “control” have no meaning with this understanding. In fact, there is no DEP control. The same gates are always open. What do I care how I get the treif sherotzim if it is from a river? Anyone that is matir the sherotzim found in the Kensico or any other section of the river system might as well throw out the laws of sherotzim.