By Dan Hust
SMALLWOOD — The way from Smallwood to the Toronto Reservoir has been a bumpy ride, literally and figuratively.
But after a decade of wrangling and five years of closure, the reservoir’s eastern dam access may reopen to the public – thanks in part to a number of letters asking authorities to demand such.
Last month, the Federal Energy Regulatory Commission (FERC) told Toronto’s owner and operator, AER NY-Gen, it won't approve any transfer of its operating license until that access is reopened.
That, said AER, has forced its hand.
“We have commenced condemnation proceedings because we are required to by FERC,” said AER Vice President Joseph Klimaszewski Jr. on Friday.
It’s essentially become a condition of AER’s proposed sale of its local hydroelectric properties to Eagle Creek Hydro, a New Jersey-based group of investors.
“They will not allow it until the public access on Toronto Reservoir is restored,” said Klimaszewski.
In fact, AER and Eagle Creek will have to reapply to transfer that license, as FERC has dismissed the original application.
FERC has cleared the sale of the downstream Rio and Mongaup Falls reservoirs, but the components of the Swinging Bridge Reservoir – which include Toronto Reservoir and Cliff Lake – won’t get the feds’ signoff until the Toronto gets its required second public access.
The first one, along Moscoe Road just off Route 55 south of White Lake, has always remained open.
But the path to the second access, clear across the reservoir, crosses private property owned by Woodstone Lakes Development, the Bethel-based business that created the high-end Chapin Estate along the reservoir’s shores.
Approximately the last mile of the access road – though newly created – is currently open to AER’s and Woodstone’s staff exclusively.
Though it was built by Woodstone, Woodstone and AER could never fully agree on issues surrounding its operation, and so Woodstone didn’t open the road.
For a while, residents and visitors could almost get to that new access road by traversing Pine Grove Road in Smallwood and hanging a right onto Town Road 62.
Then, citing the fact that no one lives on TR62, the Town of Bethel turned it over to Woodstone, which privatized it.
Thus, more than a mile’s worth of private roads lie between Pine Grove’s terminus and the public access’ 15 parking spaces and boat launch.
For safety and maintenance purposes, AER has maintained its easement across Woodstone’s lands, but the two entities have disagreed over whether that means there’s a public right of access, as well.
AER and its predecessor, Mirant, never exercised their ability to take the necessary property by eminent domain. FERC documents say that’s because they wanted to settle matters via negotiations or litigation.
But FERC lost patience, spurred on by a slew of local and governmental letter-writers who asked the federal agency to deny AER’s license transfer to Eagle Creek until the access issue is resolved.
“[AER] has made essentially no progress over the last five years in obtaining the rights necessary to provide the required access,” writes FERC in its dismissal order. “During this entire period, the public has been denied access to project lands and waters, a right that the Commission required in the project license, and which Commission staff has made extensive efforts to vindicate.”
“We have no choice but to act,” said Klimaszewski. “... We’re also continuing the ongoing litigation. ... At the same time, we’re continuing to talk with Woodstone.”
FERC notes in its dismissal order that the litigation has not yet been scheduled for a trial.
Klimaszewski expected the eminent domain proceedings, which will be heard in Sullivan County Supreme Court, will take time, too, so when the public access will actually reopen is unknown.
Woodstone’s attorney, Richard Stoloff, said the company has yet to be served with any pertinent papers regarding condemnation.
“Woodstone remains willing to continue negotiations with AER or the named transferee, Eagle Creek Companies,” said Stoloff. “Woodstone will be reviewing its options with its general counsel and counsel specialized in condemnation and will have further comment after such consultations are completed.”
Water levels can fluctuate
In the same order, FERC reiterated the ability of AER – or whomever ends up operating the hydroelectric system – to change the water levels in Toronto as suits the proper administration of the generating system and the preservation of the involved ecosystem.
Woodstone, according to AER filings with FERC, has refused to settle litigation over the second Toronto access until AER can guarantee certain water level heights.
But Klimaszewski pointed out that Toronto is a feeder reservoir for Swinging Bridge, where hydropower facilities sit.
In 2008, Toronto’s water levels were drawn down for a variety of reasons, including operations and maintenance. As a result, docks were left high and dry, and the lake shrunk considerably, leading to complaints and threats of legal action from residents and recreationalists.
The situation improved in 2009 and again in 2010.
“Contrary to popular belief,” said Klimaszewski, “we have always tried to keep the pond full in the summer months.”
He stressed that drawdowns are instituted “only insofar as that pond is needed for downstream activities or ... for maintenance.”
FERC, which oversees AER’s compliance with the federally-issued operating license, has backed up that position, though more from an environmental point of view than anything else.
“It would be inappropriate,” FERC says in its dismissal order, “to condition public access to the Toronto Dam Area on the licensee’s maintenance of certain reservoir levels deemed desirable by private developers and lakefront residents but likely damaging to downstream resources.”