TO: Batchellerville Bridge Action Committee Members
FROM: Peter VanAvery
DATE: May 19, 2009

The NYS Department of Environmental Conservation has declared war on the 4,800 access permit holders on Great Sacandaga Lake. By gutting the Hudson River-Black River Regulating District's proposed new rules for those permit holders, DEC intends to overturn more than 75 years of practice and convert the lake's shoreline into a public park.

By striking down rules such as the one titled "Access Permit Areas Limited to Access Permit Holders," DEC has blindsided hard-working people who have invested large amounts of money -- and who have paid correspondingly high property taxes -- to enjoy this beautiful Adirondack lake. DEC's action is eminently unfair, undercutting property values and destroying the quality of life of people who deserve better from their state government.

The lake's property owners should push back -- hard. If the general public can go anywhere it wants on the state-owned property ringing the lake, holding picnics and all-night beer bashes and swimming off the shoreline, what good is an access permit? Such a permit might allow an adjacent property owner to place a dock, a stairway, or a boat on the shoreline, but how does she keep the public off them even if she posts "Private Property -- Keep Off!" signs?

And is she liable for people who use her private property without her permission and suffer an accident? In our litigious society, you can be sued for anything. Who will police the lake's 129-mile shoreline, and how much will that cost taxpayers? How will the public know where state land ends and private land begins?

In an irony of ironies, DEC retained the rule that states" "Each access permit holder shall be responsible for keeping and maintaining his access permit area in a clean and sanitary condition." This is the ultimate insult, requiring property owners whose quality of life has been shattered to act as the state's janitor, picking up debris discarded by picnickers. Why should permit holders be responsible for an area of state land over which they have absolutely no control?

For an example of how the public can mistreat a beautiful Adirondack location, check out Sand Island. In addition to strewn garbage, including used diapers, you need to be extremely careful where you walk because of the lack of bathroom facilities. Note: DEC has banned portable toilets from the island.


It is extremely important that you familiarize yourself with DEC's deletions and additions to the Regulating District's proposed rules. To do this, go to www.hrbrrd.com/pdf/proposedrules04242009.pdf. For DECís two-page cover letter, go to www.hrbrrd.com/pdf/commentletter04242009.pdf.


Some highlights of DEC's changes:

Item: Here's DEC's definition (p. 20) of an access permit: "An access permit is intended solely to provide the access permit holder and his invitees with access from such access permit holder's property or a point of public access to Great Sacandaga Lake on a temporary and revocable basis."


Item: The agency has deleted the rule (page 17) titled "Access Permit Areas Limited to Access Permit Holders." In addition to the list of prohibited activities (p. 16), DEC has added: "obstructing or limiting pedestrian access on or across access permit areas." This means that if a member of the public can gain access to the state-owned buffer zone around the lake -- by a public launch site or other public right of way or by water -- he can roam wherever he wants along the 129-mile-long perimeter of the lake. The public cannot legally cross private land to reach the lake -- but that wonít stop some people from sneaking across.


DEC has deleted all references to pedestrian footpaths (p. 20 and elsewhere). These give back-lotters access to otherwise landlocked permit areas by allowing the back-lotters to go down a right-of-way and then cross front-lot permit areas. Currently, back-lotters are confined to a designated 3.5-foot-wide footpath. If DEC's changes prevail, back-lotters (like the general public) will be able to travel across any part of a front-lotter's permit area.


One of the District's proposed rules (p. 14) states that you "have the right to keep" your access permit area free from parked vehicles, campers, etc. DEC has changed that wording to "shall keep," which implies that enforcement by you is mandatory. Hint: Before you try to evict a bikers' club from camping on your permit area, make certain that your health insurance is paid up.


DEC wants to outlaw the following on access permit areas: mowing grass (p. 16), flag masts (p. 64), picnic tables and portable grills (p. 57), fireplaces (p. 65), canopies (p. 17), and portable toilets (p. 14). With a work permit, you can cut trees (p. 57) -- but only for pedestrian access. You can't cut trees to create or maintain a view of the lake (p. 58).


The District's "grandfather clause" originally stated that all non-conforming docks, moorings, stairs, landings, etc., "may remain until replacement." DEC has made a major change (p. 52): "All structures not authorized by these rules must be removed within five years from the effective date of these rules." Many docks are non-conforming. And as for concrete stairways and retaining walls, allowed at the time of construction, their owners have their work cut out for them -- with a January 1, 2015 deadline.


If the public is allowed to swarm across the access permit zone, the liability issue becomes extremely important. One of the District's proposed rules (unchanged by DEC) states (p. 11): "Access permit holders shall not be held liable by the Regulating District in any respect for any loss, damage or injury to person or property caused by another who enters or makes use of the access permit zone, the reservoir or Great Sacandaga Lake where such loss, damage or injury is not done at the direction or otherwise with the assent of the access permit holder." But does this prevent a member of the public from directly suing a permit holder? And will any insurance company provide liability coverage for permit areas wide open to the public?


Since DEC suggested substantial changes in the proposed rules, the District is required to resubmit them to the Governor's Office of Regulatory Reform for its approval. At its May 12 meeting in Johnstown, the District's board voted 4-0 to do this. The votes were cast by Ronald Pintuff and Philip Klein (Hudson River Area) and Pamela Beyor and John Bartow, Jr., (Black River Area). Three board members were absent. Two of them -- Patrick Dugan and Audrey Dunning -- were excused. The third, Anne McDonald, whose term has expired, has been replaced by Gov. Paterson. Her successor, David W. Berkstresser of the Black River Area, did not attend the meeting. Four of seven board seats are now held by Black River Area appointees with limited experience with Great Sacandaga Lake.

Following GORR's approval, the proposed rules will be republished in the NYS Register, followed by a 30-day public comment period. The District's board will review all public comments and may revise the proposed rules. Next, the rules will be resubmitted to DEC for approval. The District hopes to institute the new rules before access permit renewals are issued in 2010.


No public hearings have been scheduled on the proposed rules. The Regulating District is accepting written comments preferably submitted on its Public Comment Form (available at www.hrbrrd.com/pdf/publiccommentform.pdf). Copies of the form and of the rules as revised by DEC also are available at the Sacandaga Field Office, 737 Bunker Hill Road, Mayfield, NY 12117 and the Albany Office at 350 Northern Boulevard, Albany, NY 12204.


Considering the fact that hundreds of millions of dollars worth of lake property is at stake, it is not too early to begin exploring our legal options, such as a class-action lawsuit. That's beyond my area of expertise. Are any of you folks out there willing to volunteer to look into this? Do we have a case? What would it cost?


The next District board meeting will be held at 10:00 a.m. on Tuesday, June 9, 2009, at the Inlet Town Offices, 160 Route 128, Inlet, NY. It's a long drive, but if we know what's good for us, we'd better turn out in force.


The next issue of the BBAC Newsletter will address the question: Where do we go from here? In the meantime, your comments and suggestions are welcome.