TRR photo by Fritz Mayer

An administrative law judge has ruled that the New York Department of Health does not have authority to prevent people from using the public access area of the reservoir for swimming. 
 

Toronto access update

SMALLWOOD, NY — The New York State Department of Health (DOH) filed a violation against Eagle Creek Renewables in July 2016 because the company, which owns the Toronto Reservoir, was not preventing residents from swimming in the reservoir.

DOH said it considered the public access area, which is required to be maintained by the Federal Energy Regulatory Commission (FERC) as a condition of Eagle Creek holding a license to operate hydropower plants in the reservoir system, to be a “bathing beach.”

There were hearings on the subject in February and April, and administrative law judge Denise Lepicier, made a decision on the matter in August. In answering a Freedom of Information Law request, the DOH emailed the decision to The River Reporter on November 6. Essentially, the ruling said FERC and Eagle Creek were right and DOH was wrong.

Neighbors complained to the DOH about swimmers at the access area, who have been swimming there for many years, except when blocked for periods of time by the developer of the gated community the Chapin Estate. DOH investigated the issue, making several trips to the facility, and determined that the access area in question was, by definition, a “bathing beach,” and under state law such beaches require amenities such as lifeguards and public restrooms.

The judge found that although the access was, in fact, a “bathing beach,” DOH still did not have the authority to enforce state laws in that regard.

She wrote, “Notwithstanding the fact that the Toronto East Access Area is a ‘bathing beach,’ Eagle Creek argues that New York State laws and regulations are preempted in this matter by federal law regulating the project. Broadly, preemption is the doctrine that federal law must be recognized as controlling when it is inconsistent or conflicts with state law. It has its roots in the Supremacy Clause of the U.S. Constitution, which states: the ‘Constitution and the Laws of the United States... shall be the supreme law of the land; and the judges in every state shall  be bound thereby….”

Lepicier wrote, “[DOH] may not impose its ‘bathing beach’ regulations on Eagle Creek in contravention of the FERC’s direction because state regulation is preempted by federal law.”

She said the finding of violation against Eagle Creek was dismissed in its entirety, and that means DOH has no authority to prevent members of the public from swimming in the Toronto Reservoir.

DOH was not happy with the ruling and is appealing the case, which will be heard by a three-judge panel in Albany. In the meantime, Bob Barrett, who has followed this issue closely for at some 17 years, said swimmers and boaters were using the public access area freely up until the weather got colder.

 

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