June 16, 2004
Mohamad Fayyad
Engineering Team Lead
Division of Hydropower Administration and Compliance
Federal Energy Regulatory Commission
Washington, DC 20426
Dear Mr. Fayyad:
I am writing in response to your letter of May 24, 2004 to Daniel and Dori Bailey of Hadley, New York, regarding the Hudson River-Black River Regulating District's operation of Great Sacandaga Lake under the new Federal Energy Regulatory Commission license.
Under that license, the reservoir's 4,650 access permit holders have experienced one period of excessively high water after another, resulting in an extensive amount of water and ice damage to such private assets as docks, moorings, wood and steel stairways, boats, boat lifts, etc. The high water also has chewed away large chunks of the reservoir's 125-mile shoreline.
Our volunteer organization, a large and fast-growing group of private property owners around the reservoir, is not asking that the license be scrapped. Rather, we request that it be fine-tuned to allow the Regulating District flexibility in releasing water when the reservoir's level exceeds 768 feet above sea level, the point at which the reservoir is considered "full." The change and/or addition of a few words in the license should accomplish this goal.
Let me make it clear that we do not take issue with FERC's ruling that the Regulating District is correctly carrying out the terms and conditions of the 2002 license. However, we do contest your claim that the license is not "seriously flawed" and that "representatives of shoreline property owners" were among the parties negotiating the terms of the license.
From April to June 2003, the reservoir rose above 768 for 59 days in a row. For 10 of those days, the level exceeded 771, the crest of the dam's spillway, an event that had happened only rarely in the 73-year history of the reservoir. Then, from November 2003 to January 2004, the reservoir experienced a second episode of excessively high water. The level exceeded 768 for 52 days in a row, reaching a high point of about 770.5. For the first time in history, every dock on the lake was afloat when the lake froze over. Many were crushed, ripped from their moorings, or otherwise damaged, as were other privately owned beach assets.
After I complained to FERC last June about the reservoir's excessively high water levels, you sent me a letter (January 15, 2004) in which you stated that erosive forces "would occur only during rare occasions when lake levels are at the highest point, typically during June and July." In 2003, water levels exceeded 768 for a total of 97 days, or 27 percent of the year, or one out of every four days. That can hardly be termed a rare occasion.
This year, it's deja vu all over again. For the past 23 days, the reservoir's level has exceeded 768. For five days, the level crested the spillway.
Now, let's examine how this mess came about. Where were the reservoir's property owners while the new license was being negotiated?
In your letter to the Baileys, as noted above, you state that "representatives of shoreline property owners" were among the parties negotiating the terms of the license. In a letter to me dated November 17, 2003 (copy enclosed), Willard W. Loveless, then Executive Director of the Regulating District, sounded the same theme. He wrote: "All these rules were acceptable to the parties who signed the Settlement, including the Great Sacandaga Lake Association and the Great Sacandaga Lake Fisheries Federation, two local stakeholder groups that represent landowners and residents around the lake."
To the best of my knowledge, neither of those organizations ever claimed to "represent landowners and residents around the lake." How could they? According to the March 2002 issue of its newsletter, the Great Sacandaga Lake Association had fewer than 350 members at the time of the negotiations. The Great Sacandaga Lake Fisheries Federation's membership totaled around 100. Together, their membership represented less than 10 percent of the lake's access permit holders. The other 90 percent went unrepresented.
Let me make this point even clearer. The Great Sacandaga Lake Association frequently mails the reservoir's access permit holders an invitation to join it, and each time most of them say "No thanks!" When someone tosses an organization's membership solicitation into the wastebasket, that action can by no means be interpreted as telling that organization to "go ahead and represent me." In addition, I urge you to inspect the newsletters issued to their members by these two organizations during the negotiating period. Try to find any mention of operating constraints such as "aggressive storage" that can override the annual Guide Curve of recommended lake levels. As Section 3.6 of the Offer of Settlement points out: "For the purpose of minimizing energy losses to affected downstream hydroelectric projects, the Regulating District will make every reasonable attempt to limit water releases from the Great Sacandaga Lake to not exceed the maximum average flow targets in the Hudson River below the confluence with the Sacandaga River...." It was never made clear to access permit holders that their needs would be subordinated to the interests of downstream hydroelectric plants.
So why weren't the reservoir's property owners paying closer attention during the negotiations? Because they were on the receiving end of an extremely successful disinformation campaign conducted by the Regulating District, the only organization that communicated with all of them. I am enclosing copies of the front page of the Waterline, the Regulating District's annual newsletter, for the years 2000, 2001, and 2002. In each case, the front page features a chart titled "Historic and Settlement Target Elevation." The same chart (also enclosed) appears in the "Handbook for Holders of Access Permits at Great Sacandaga Lake." Anyone looking at this chart had to conclude that, after the license was issued, the reservoir would be operated between a minimum level of 748 to a maximum level of 768. I urge you to take a careful look at the text accompanying each issue of the chart. Do you see any mention of aggressive storage or any other operating constraints? Do you see any mention of extensive shoreline erosion? Do you see any hint of the possibility of extensive damage to the beach assets of access permit holders? In short, the Regulating District's communications to access permit holders were fraudulent, a con job calculated to make us think that water levels would be similar to what they always had been.
Interestingly, some intervenors also appear to have been fooled. Until your ruling pulled out the rug from under them, the Great Sacandaga Lake Fisheries Federation had argued that last year's excessively high water levels were the result of the Regulating District's mismanagement. In the March 2004 issue of the Edinburg Newsletter (copy enclosed), Jack Smith, the GSL Fisheries Federation's secretary, wrote: "The Great Sacandaga Lake Fisheries Federation, Inc., remains firm in its position that the cause for the high water in the spring and fall of 2003 was due to the actions of the Regulating District. The Agreement of Settlement is a good document if followed, and not the monster that some people make it out to be. The Regulating District should have released water when levels exceeded 768 feet in June, and in the fall and winter." Of course, FERC's ruling proves that the license is indeed a monster.
Another intervenor who has taken issue with the Regulating District is Town of Edinburg Supervisor Jean Raymond. In her column in the February 2004 issue of the Edinburg Newsletter (copy enclosed), she wrote: "The agreement further provided that the District could exceed the releases of the computer model and had only to consult with various signatories to explain the need to do so, and further that in the event of immediate need that they could report after the fact the need for additional releases. They DID NOT (her capitals) have to seek permission."
As you are aware, the architects of the license recognized that it might be a less than perfect document and require amendment. The catch is that the amendment process (see Section 2.7 of the Offer of Settlement) must originate with the Regulating District, which -- as it continues to treat access permit holders as second-class citizens -- refuses to do so. Our solution is to appeal to Governor George Pataki, who wields executive control over the District, and to other elected officials. We are currently conducting a survey of the damage caused to private assets by last year's two high-water episodes. We expect the total dollar figure to be eye-opening.
Finally, you mention the Erosion and Slope Stability Monitoring Plan that the license required the District to conduct and that FERC recently approved. I wish you had noticed that the study was conducted in August 2003 between the year's two episodes of high water; it was obsolete before it was issued. It was conducted by boat. But some areas are hidden behind bushes; to spot the damage, you have to walk the shoreline. The plan lists 179 sites that qualify for remediation; that number is far too low. And FERC's claim that "the licensee estimates that up to 25 sites can be addressed per year during the months of May through September" spotlights a remarkable example of government underachievement. At that rate, the project will never see completion.
This is a sorry tale of governmental injustice toward the citizens it is supposed to serve. We will continue to fight for the rights of the private property owners around Great Sacandaga Lake.
Sincerely,
Peter VanAvery
Batchellerville Bridge Action Committee
cc: GE Pataki, Governor
J Cahill, Secretary to the Governor
MO Donohue, Lieutenant Governor
MR Salas, Federal Energy Regulatory Commission
DD Hogan, Governor's Office of Regulatory Reform
AG Hevesi, NYS State Comptroller
E Spitzer, NYS Attorney General
AB McDonald, Hudson River-Black River Regulating District
RH Lefebvre, Hudson River-Black River Regulating District
RA Whaley, NYS Adirondack Park Agency
EM Crotty, NYS Department of Environmental Conservation
JM McHugh, U.S. House of Representatives
M McNulty, U.S. House of Representatives
JE Sweeney, U.S. House of Representatives
JL Bruno, NYS Senate
HT Farley, NYS Senate
M Butler, NYS Assembly
TR Sayward, NYS Assembly
S Silver, NYS Assembly
JN Tedisco, NYS Assembly
P Tonko, NYS Assembly
D&D Bailey, Hadley, NY