TO: Batchellerville Bridge Action Committee Members
FROM: Peter VanAvery
DATE: July 3, 2008
The deadline (July 30) for public comment on the Hudson River-Black River Regulating District's latest version of its proposed rules for Great Sacandaga Lake's permit system is coming up fast. Since some members have reported difficulty in downloading the District's public comment form, we have posted a PDF version on our web site (www.nybbac.org).
Remember that the District's board is unlikely to make any additional changes in the wording without pressure from above. So make certain that you send copies of your comments to Gov. David Paterson; Judith Enck, Deputy Secretary for the Environment; Robert Hermann, Director, Governor's Office of Regulatory Reform; and Assemblywoman Teresa R. Sayward. You'll find their addresses in the June 19 issue of this newsletter.
Here are some additional proposed rules that warrant your attention:
- For more than 50 years, the sign posted on each access permit area has
proclaimed that the permit holder is granted "exclusive use"-- even
though the District's rules have stated since 1933 that "The granting
and issuance of any permit ... shall not constitute an exclusive right
or privilege ...." The District has announced that as old signs are
replaced or new ones issued, they will no longer bear the word
"exclusive". Why, then, is Proposed Rule 4.19 titled "Access Permit
Areas Limited to Access Permit Holders?" That sounds pretty "exclusive"
to me.
- Proposed Rule 5.6 (Access Permit is Temporary and Limited Grant of
Access) states: "The Access Permit does not provide any permanent or
long-term entitlements or rights." This appears to be contradicted by
Proposed Rule 6.24 (Termination of Access Permit Upon Transfer of
Interest in Property), which kicks in after a property is sold: "The
Access Permit Area assigned to said Access Permit shall not be eligible
for assignment to other Eligible Properties unless the new Owner of
Record has failed to file a completed application for an Access Permit
previously assigned to said Eligible Property on or before March 15
following the transfer of the Eligible Property." In other words, the
present and future owners of the private property do have a long-term
monopoly on the assigned access permit. Would this contradiction survive
a legal challenge?
- Proposed Rule 5.5 (Pedestrian Footpath to Access Permit Area) states:
"If an access permit holder does not have a public right-of-way or legal
private means of access directly to the access permit area, then the
District may provide a pedestrian footpath with a width of 5 feet over
other access permit areas." This is yet another case where the
District's own Advisory Committee and numerous members of the public had
recommended exactly the opposite. The Advisory Committee's recommended
words read in part: "No new pedestrian footpaths will be created across
front-lot permit areas to provide access to back-lot permits. Existing
pedestrian footpaths will be five feet in width and will be
grandfathered in perpetuity."
The Advisory Committee reasoned this way: If you purchase a front-lot property with no pedestrian footpath across its access permit area, you should have a reasonable expectation that no such footpath will be created there in the future. If a prospective buyer knew that this was not going to be the case, he or she would have the option of buying property on a different lake.
On its web site, the District argues why it wants to keep its proposed wording: "In some cases, there is currently a 'gentleman's agreement' where no pedestrian footpath is required as the front-lot owner is letting the back-lot owner cross his private property to get to the access permit area. If the private property associated with the front-lot access permit is sold, the new owner may restrict the back-lot access permit holder from crossing his property. In this scenario, the Regulating District would need to create a pedestrian footpath so the back-lot access permit holder could still get to his access permit area."
That's a weak excuse. Fortunately, this situation is easily resolved. In cases where such a "gentleman's agreement" exists, the District should provide a reasonable period of time (say, six months from the date these proposed rules go into effect) for affected back-lotters to apply for an official pedestrian footpath. Thus, unofficial footpaths would become official footpaths. After that, while there may still be a few special instances where new pedestrian footpaths are needed, they should be handled on a case-by-case basis. Meanwhile, the lake community has made itself clear about what it wants. The District should react accordingly. - Proposed Rule 4.12 (Sanitation -- Human Excreta) states in part:
"Portable toilets may be authorized with a special activity work
permit." Do you really want the District to have the power to authorize
portable toilets on the access permit zone? Of course, your two
next-door neighbors are wonderful people who would never think of
parking a portable toilet in front of your view of the lake. But what if
one of them sells the property to someone who is not so considerate? Hmm?
- Since the rule-revision process is in its third year, you might
conclude that all the glitches have been edited away. Right? Wrong! Want
to know how many boats can be moored in front of an access permit area
greater than 20 feet in width? Proposed Rule 4.16 (Number of Watercraft
Authorized) says 1. Proposed Rule 8.16 (Moorings) says 2. How far out
can you moor a boat from the shoreline? Proposed Rule 8.16 says 80 feet.
The Authorized Work Activities and Work Permit Fees Appendix says 100
feet (Item 7 on page 47).
The same appendix tells us (page 50) that we can request a work permit to relocate unbroken surface stone from the beach to the eroded shoreline of our access permit area. Bullet 2 under Item 2 states: "All stone products are to be placed using equipment capable of completing the work while producing the least amount of ground disturbance possible." This wording implies that some ground disturbance may be inevitable. Yet Bullet 3 states: "No excavation or ground disturbance activities of any kind shall occur at any time." And as far as "equipment" is concerned, we read on page 48 (Item 13): "No equipment or machinery shall be operated on your access permit area." Clear now? - The Access Permit Fees Appendix (page 44) says: "There will be no new
or renewal access permit fees for municipal access permits and non-use
permits." Why not? Beginning in 2010, permit holders will have to pay
the full cost of the access permit system. What entitles municipalities
and holders of non-use permits to receive a free ride? Why should the
rest of us have to pay their share?
- How do you interpret and comply with a rule written in non-sentences?
See Proposed Rules 4.4 (No Entitlement), 6.1 (Eligibility Criteria), and
8.2 (Work Permit Application Process -- final sentence). This gibberish
should be translated into English.
You should be aware of the fact that the District may be revising some rules on its own. For example, at its April meeting, the board passed a resolution that would lead to an amended rule declaring pedestrian footpaths as "unallocated" portions of front-lot permit areas. The narrow strip of state land that constitutes a footpath would not be assigned to the front-lotter. This would free him/her from liability for that strip of land (unless his/her actions cause a loss or damage). Instead, the District would assume liability.
At that board meeting, Executive Director Glenn LaFave characterized this change as a "minor" amendment. However, it will have a ripple effect on other proposed rules -- notably 4.3 (Non-Liability for Injury or Damage) and 5.11 (Acceptance of Access Permits Exempts State, District, and Board From Liability) -- that will need to be fine-tuned.
If the Governor's Office of Regulatory Reform decides that major changes have been made to the proposed rules during the current public comment period, it can require the District to publish the revised text in the NYS Register, followed by an additional 30-day public comment period. Otherwise, we won't see the changes until the rules are published in final form.
The District's next board meeting will be held at 9:30 a.m. on Monday, July 14, in the Auditorium of Northville Central School, 131 South Third Street, Northville. During the public forum held at the beginning of the meeting, attendees are invited to make statements on any pertinent subject (including the proposed rules). I urge you to attend and speak out.
The reservoir's elevation is at 766.33 feet above sea level -- about 1 foot under target.