TO: Batchellerville Bridge Action Committee Members
FROM: Peter Van Avery
DATE: May 31, 2012

Here's the latest from the construction site of the new Batchellerville Bridge in Edinburg. This week, according to NYS Department of Transportation Spokesperson Carol Breen, the contractor will begin to pour concrete on the first section of deck. Work will continue on the deck through the summer. The project is still on schedule to have the new bridge ready for traffic this fall. In case you've been wondering, DOT plans to apply an anti-graffiti coating on the abutments on each side of the lake.


Back in January, after a practically snowless winter, District Executive Director Michael Clark responded to concerns that the lake might not refill by spring by stating: "Even if it does not snow at all, the reservoir will refill every year by the end of May." Give that man a big cigar! For a brief period yesterday, the lake did indeed hit its maximum spring target of 768 feet above sea level. This morning's gauge reading is 767.96.


Our April BBAC Newsletter broke the news that the Regulating District's board was on the verge of making unwanted changes in the lake's access permit system. Specifically, the board was considering passing a fuzzily worded resolution that would remove the current freeze on modifications to the width or alignment of existing front-lot access areas. That prohibition had been imposed by the board in January 2010.

Our close reading of the proposed change set the alarm bells clanging. The text indicated that if one of your neighbors wanted your permit area's boundaries to be changed in his favor, all he would have to do was to convince the District that his request was "reasonable." Worse, the District would make the final decision about what was "reasonable" and what was not.

During the public comment period at the May 8 board meeting in Johnstown, representatives of four lake-area organizations -- the BBAC, the Sacandaga Protection Committee, the Great Sacandaga Lake Association, and the Town of Day Property Owners Association -- delivered a loud and clear message: The vagueness of what was meant by the word "reasonable" was laughable, and the proposed resolution itself was totally unacceptable.

In a private conversation before the start of the meeting, Joe Sullivan, co-chair of the Sacandaga Protection Committee (SPC), thanked me for calling this issue to his group's attention. SPC spokesman at the meeting was Counsel Charles W. Malcomb from Hodgson Russ Attorneys. You'll find his excellent statement on the SPC's web site at http://www.lovethesacandaga.com/uploads/attorney%20memo/HR%20Memo%20re%20Permit%20Modification%20Resolution%205-8-12.pdf.

I am delighted to report that the board heard and understood the collective message. For the foreseeable future, at least, the resolution is dead. RIP.


In a related matter, the board considered an appeal by two back-lot permit holders who wanted a neighboring front-lot permit area modified so that they could obtain more frontage. The front-lotter vigorously opposed this proposed change. After hearing from all three sides, Board Chairman David Berkstresser called for a vote -- only to have board member Mark Finkle recuse himself because the front-lotter was a friend.

This meant that a vote could not be held. The board, which is supposed to have seven members, requires a quorum of four members before it can conduct official business -- and only four members, including Mr. Finkle, attended the May meeting. One member was absent, and two seats are vacant. So the vote was tabled until the July 10 board meeting in Mayfield. (The June board meeting will be held in out-of-the way Inlet.)

In the meantime, one of the two back-lotters has withdrawn his appeal.


Lawsuits continue to swirl around the Regulating District like black flies around the head of a hapless Adirondack hiker who forgot to pack her bottle of OFF.

Here's an update on just one lawsuit: the District's attempt to bill five downstream counties (Albany, Rensselaer, Saratoga, Warren, and Washington) for $4.5 million annually for flood-control benefits. This is how the District hopes to replace the revenue it lost in 2008 when a Federal court ruled that it could no longer bill downstream hydro plants for its operating expenses -- as the District had done for the preceding 80 years.

Not unexpectedly, the five counties -- all of which are themselves financially hard-pressed --refused to pay up and brought a lawsuit against the District. On May 10, a mid-level state appeals court ruled unanimously that the District could legally bill the counties. But the five judges also found that, under the law, the District should first have calculated and subtracted "benefits to the state." Since the counties claim that 800 state bridges and 5,200 miles of state highway -- plus other infrastructure and state parks -- receive flood-protection benefits, this could substantially reduce their bill.

The court instructed the District to recalculate the bills, including the state's share. While the court noted that the District has no authority to compel an appropriation from the state Legislature, "the fact that the Legislature has historically refused to make such appropriations provides neither this Court nor respondents with a basis to disregard the express statutory mandate to deduct the benefits to the state from the apportionment." This sounds as if the District is going to have to wait a long time (forever?) before the state pays up.

Meanwhile, the five counties are still unhappy about being forced to pay anything and are now considering taking their case to the state's highest court, the Court of Appeals. They face an immediate hurdle: When the mid-level appeals court makes a unanimous ruling -- as the five judges did in this case -- the Court of Appeals frequently denies the request. Also, even if the Court of Appeals does accept the case, it could decide that the state should not be billed for flood-control benefits, setting the counties back where they started. So it's a gamble.

I don't understand why the state doesn't make all these lawsuits go away by simply picking up the whole $7 million annual bill for running the Regulating District. The lake and the dam offer obvious benefits to the whole state. Great Sacandaga Lake is a major tourist magnet, drawing in people from throughout the state and beyond, and the Conklingville Dam's ability to regulate the flow of the Hudson has an impact far downriver, swirling away effluvia from sewage treatment plants and keeping the salt line south of Poughkeepsie. Heck, at the annual Walleye Challenge Ice Fishing Derby in January, contestants showed up from eight states and as far away as Indiana and Maryland.


A final note on the May board meeting: The board gave the District permission to sell its workboat on eBay. The vessel, previously used to place riprap on eroded areas of the lake's shoreline and pluck stumps and other debris out of the lake, has sat on land since the District's budget crisis forced it to lay off a dozen employees in 2010. Unfortunately, the District's eBay ad had no takers -- "not even low-ball bids," according to Executive Director Clark.

Maybe one of you readers could find a use for this 40-foot-long vessel. Could it be converted into an ultimate party boat? With its maximum capacity of 15 tons, it could handle an impressive number of barrels of liquid refreshment. And its hydraulically operated loader might come in handy if a guest overindulged. Why, you could reach out with it, pluck that person out of the crowd, and toss him/her into the drink. Please send me any other ideas that occur to you.


The next meeting of the Hudson River-Black River Regulating District's board will be held at 10:00 a.m. on Tuesday, June 12, 2012 at the Inlet Town Office, 160 Route 28, Old Forge, NY. The Governance Committee will meet first, followed by the regular board session.