Peter VanAvery
Batchellerville Bridge Action Committee
Statement at February 9, 2004 HRBRRD Board Meeting
The Federal Government - namely, the Federal Energy Regulatory Commission - has just stamped its seal of approval on the way the Regulating District operated Great Sacandaga Lake from April to June 2003. The reservoir is considered full when its surface reaches a point 768 feet above sea level. Last year, from April to June, the reservoir rose above that point for 59 days in a row. The high water levels resulted in excessive shoreline erosion and made it difficult or impossible for campers to set out docks and launch boats. Wave action damaged or destroyed a number of docks and wooden stairs.
Last June, after I sent FERC three letters of complaint, it began to look into the matter. It certainly did not rush to judgment. It announced its ruling in a letter to me dated January 15, 2004. A copy is posted on the Regulating District's web site.
To quote the central sentence in the letter: "Our review of the data submitted by the District shows that the project was operated in compliance with the terms and conditions of the license." That quote makes two things absolutely clear: 1) The high-water episode of April to June 2003 was not the fault of the District, and 2) it was the fault of the license.
And that beings me to my basic point: The new license FERC issued on the reservoir in 2002 is deeply flawed and needs to be changed. If you need more evidence, just consider that lake-area property owners were afflicted with a second episode of high water in 2003. From November 2003 to January 2004, the lake exceeded 768 for 52 days in a row. For the first time in the lake's 74-year history, docks and other privately owned structures are entombed in ice.
The good news is that FERC itself realizes that an issued license may be imperfect and may need to be amended, and it has established a procedure for accomplishing that. The bad news is that the licensee - in this case, the Regulating District - must initiate the amendment. That could be a problem. Only 12 days after Dick Lefebvre took over as Executive Director, he issued a press release in which he said that the District has operated the reservoir "in the best interest of all stakeholders involved." The press release also claimed that the District is meeting "diverse objectives for maintaining a balance of non-power and power values in the Upper Hudson River Basin."
As numerous people pointed out at the October 22 public hearing in Northville and at more recent board meetings, the FERC license does not balance the needs of stakeholders; it is heavily biased toward the needs of downstream hydroelectric stations. When they need more water to spin their turbines, the lake's level drops. When the natural flow of the upper Hudson is all they need, Great Sacandaga's water is held back for future use, and the level rises sharply.
We are not unreasonable people, and we understand that the lake's level may have to exceed 768 at certain times. However, unless a downstream flood situation exists, we want those exceptions to be as few as possible and limited to a maximum period of ten days. I hope that we can convince Dick to see our way. Meanwhile, we will ratchet up our effort a notch and make an appeal to Governor Pataki, who wields executive control over the Regulating District. In June, when seasonal people begin to flock back up to the lake, we will launch a letter-writing campaign and petition drive aimed at the Governor's attention. In the meantime, we have just launched a survey of the damage to private property caused by the lake's excessively high water levels. We expect the dollar total to be unacceptably high.
We also will be asking lake-area property owners to contact the 29 stakeholders that negotiated and signed the Offer of Settlement and are responsible for the rigid operating rules that the Regulating District must follow in storing and releasing water. Those rules became effective on July 1, 2002. We will be asking those stakeholders to support our call for an amended license. To start this process rolling, we will publish the names of the signatories to the Offer of Settlement in the next BBAC Newsletter.
Now, I'm going to switch topics and tell you briefly about my recent experience with the Governor's Office of Regulatory Reform, or GORR for short. Last fall's access permit fee fiasco demonstrated that the Regulating District was unaware of the state's rule-making process, and our members were encouraged when the Governor's Office of Regulatory Reform took an interest in the situation. As it turns out, however, GORR's jurisdiction appears to be extremely limited. Here's what happened. In January, I asked Daniel Hogan, GORR's director, to investigate whether any of the Regulating District's existing rules and regulations were illegal. His response: "...I want you to understand that our jurisdiction is prospective rather than remedial," and he suggested that I might want to retain the services of a private attorney.
Mr. Hogan's statement appears to suggest that if GORR catches a public benefit corporation in the act of preparing to impose an inappropriate fee, GORR can take steps to prevent it from happening. But if the public benefit corporation succeeds in slipping an inappropriate fee past GORR's attention, GORR can take no remedial action. In such cases, GORR becomes a toothless watchdog, and the public is left at the Regulating District's mercy.
New York State Comptroller Alan Hevesi has launched a campaign to make public benefit corporations like the Regulating District more accountable by subjecting them to public oversight. I have called my experience with GORR to Mr. Hevesi's attention and have wished him well.
Finally, a few words on the proposed 'independent performance audit' of the access permit system. While our group would much prefer a management consulting study of the whole District, let me offer three comments. First, since it's a truism that such studies often reflect the biases of the sponsor, whose definition of "independent" are you going to use? To establish the independence of the firm selected to conduct such a study, I recommend that it be required to sign a pledge that it will not seek additional state contracts for a period of two years. Second, I hope the audit looks at health insurance and pension/retirement costs, and employee co-payments, to assure that they are in line with the real world. Third, last November, the District informed us that 12 of its 30 permanent employees were involved in the access permit system - 7 full time and 5 half time. Considering how easy it is for the subjects of a performance audit to finesse the results, I wish you luck in determining that Employee A spent 97.6 percent of her time on access permits vs. 41.7 percent spent by Employee B, etc. Once you have a final access permit budget figure in hand, I recommend that you compensate for the inevitable padding by lopping off an additional 15 percent.
Thank you.