TO: Batchellerville Bridge Action Committee Members
FROM: Peter Van Avery
DATE: June 30, 2011

Let's begin with a brief progress report on the Batchellerville Bridge replacement project. Four of the 12 piers (counting out from the west shore: #1, #2, #11, and #12) are finished, with the rebar cages now in position at piers #3 and #4. Construction is in its early phases at piers #5, #6, and #10. In spite of delays caused by high water levels, the project is still ahead of the state Department of Transportation's construction schedule.

At its June meeting, the Regulating District's board finally began to search for a solution to the excessively high water levels that have periodically plagued Great Sacandaga since a new federal license was issued in 2002 on the reservoir/dam/power plant.

Unlike its predecessor, this license emphasizes the "aggressive use of storage." As a result, the lake has repeatedly overflowed its banks, causing tremendous erosion to the shoreline and hundreds of thousands of dollars of damage to docks, boats, steps, and other personal assets.

What has driven lake property owners to the breaking point is that the District could frequently have avoided this damage simply by anticipating high inflow when the lake is already nearly full and then creating more storage space by releasing more water. In many cases, the District could have dumped water without creating flooding along the upper Hudson River.

The problem is that the District has long operated under the assumption that the terms of the Offer of Settlement (the document that provided a blueprint for the license) give it very little leeway in storing and releasing water. So it came as a surprise that, at the June board meeting, Acting Executive Director Michael Clark and General Counsel Robert Leslie announced that they were exploring the possibility that the District didn't need to interpret the Offer of Settlement so restrictively.

In fact, Mr. Leslie said that when he checked with the legal staff at the NYS State Department of Environmental Conservation, he was told that, in their opinion, the Offer of Settlement gave the District greater flexibility than it had been using.

The District tested that flexibility over the Memorial Day weekend, at a time when the lake was surging over the dam's spillway. The District released water at roughly 4,500 cubic feet per second, which exceeded the maximum allowable flow. In spite of this release, the Hudson remained well below flood stage. "We received positive feedback in general," Mr. Leslie told me.

But we shouldn't get our hopes up too high just yet. Chief Engineer Robert Foltan cautioned that finding a little more wiggle room in the license might be only a partial solution to the water-level problem. He recalled that, several years ago, when he drew down the lake below the minimum target elevation one winter, DEC told him that the minimum winter drawdown elevation was hard and fast.

Also, downstream hydro plant operators have yet to be heard from officially. Nor is the Federal Energy Regulatory Commission (FERC) on record yet. To date, the District has held preliminary discussions with Brookfield Renewable Power, Inc., the company that operates the hydro plant at the Conklingville Dam and at several other downstream locations. These have led the District to conclude, Mr. Clark told me, "that taking an exception to the Offer of Settlement, under certain circumstances, is not problematic."

I must confess to some bemusement that it has taken the District's board nearly a decade to begin coming to grips with the water-level problem. I started sounding the alarm back in 2003, the year after the new license went into effect. In 2003, the lake's level exceeded 771 (the crest of the spillway) on 10 days -- outnumbering in just one year all the times the reservoir had overflowed the spillway since its creation in 1930. After I wrote several letters of complaint to FERC, the agency finally responded: "It is our finding that the licensee has been in compliance with the terms of the license."

We need to watch this situation very carefully. Too often, Great Sacandaga's problems are talked to death -- with zero results. It's still possible that the solution will require the Offer of Settlement to be amended. In last month's BBAC Newsletter, I advocated contacting the leadership of the numerous public and private organizations that negotiated and signed the Offer of Settlement and asking them to support an amendment. Keep applying the pressure. We've put up with the water-level fiasco for far too long.

Sometimes it seems that what the Regulating District does best is to generate billable hours for members of the legal profession. The latest court decision came down last week when state Supreme Court Judge Richard T. Aulisi ruled that the District must pay Fulton County the more than $3 million it owes in back property taxes. Deadline: 30 days. The suit was brought by the county and three school districts (Mayfield, Northville, and Broadalbin-Perth).

Although the county was the winner, the judge struck its partners -- the three school districts --from the lawsuit and said that they should have sued the county instead. He pointed out that, under state law, a county is required to make a school district whole for delinquent taxes by April 1 of any given year. Saratoga County has done just that for the school districts in Edinburg and Day. From media reports, it appears that the three Fulton County school districts are now considering this option.

One way or another, the three school districts will eventually receive the money due them. According to today's Daily Gazette, most of the $3 million ordered to be paid to the county by the District is earmarked for the schools.

Unfortunately, Fulton County's chances of collecting the back taxes in the next 30 days appear minimal. The District has been running on fumes since 2008, when its Hudson River Area component was deprived of more than 80 percent of its annual revenues by a U.S. Court of Appeals ruling that downstream federally-licensed hydro plant operators could no longer be billed for the reservoir's operating expenses. This has forced the District to lay off staff and operate with a skeleton crew.

The District says it will pay its back taxes when it has the funds to do so. Last year, in an attempt to replace its lost revenues, the District for the first time billed five downstream counties (Albany, Rensselaer, Saratoga, Warren, and Washington) for flood-control benefits. The counties -- which have their own budget problems -- refused to pay and responded with a lawsuit against the District. In April, the counties lost the first round when state Supreme Court Judge Stephen Ferradino rejected their arguments. The counties are appealing.

I suspect that few property owners in Edinburg and Day (both in Saratoga County) are thrilled about the prospect that some of their property tax dollars may go to help the District pay its Fulton County property taxes. (Disclosure: my property is in Edinburg.)

The next meeting of the Hudson River-Black River Regulating District's board will be held at 10:00 a.m. on Tuesday, July 12, 2011, at Mayfield Municipal Complex, 28 North School Street, Mayfield, NY.

The lake is at 769 feet above sea level, about one foot above target.