Abolishes the Hudson river-Black river regulating district and devolves such powers to the power authority of the state of New York.
TITLE OF BILL: An act to amend the environmental conservation law, in relation to abolishing the Hudson river-Black river regulating district and devolving such powers to the power authority of the state of New York; and to repeal certain provisions of such law relating thereto
PURPOSE OR GENERAL IDEA OF THE BILL: Abolishes the Hudson River-Black River regulating district and devolves such powers to the power authority of the state of New York; repealer.
SUMMARY OF SPECIFIC PROVISIONS:
Section one amends the environmental conservation law by adding a new section 15-2142.
Section two repeals Section 15-2137 of the environmental conservation law.
Section three repeals section 15-2139 of the environmental conservation law.
Section four repeals section 15-2141 of the environmental conservation law.
Section five provides that the effective date is on the first of July next succeeding the date on which it shall have become law.
JUSTIFICATION: The Hudson River Regulating District was formed in 1922 with the intent "to regulate the flow of the Hudson and Sacandaga Rivers as required by the public welfare including health and safety". In 1959 the New York State Legislature merged the Hudson River Regulating District with the Black River Regulating District to form the current Hudson River-Black Regulating District (HRBRRD) According to the HRBRRD web site, "New York State created the Regulating District to develop dams and reservoirs to capture excess run-off to prevent flooding in the Hudson River and Black River basins, and to release such captured water gradually during periods of low river flow to maintain water quality in each river basin. This system was designed to reduce damage from spring storms and snowmelt, including disease and destruction of life and property, and to improve river navigation and public sanitation."
In 1927 the HRBRRD entered into an Agreement with New York Power and Light Corporation (predecessor of Niagara Mohawk Power Corporation) to construct the Conklingville Dam on the Sacandaga River in the Hudson River Area and create the Sacandaga Reservoir. (now Great Sacandaga Lake) . Conklingville Dam has a total head (height) of 71 feet. The Agreement allowed Niagara Mohawk to construct the EJ West powerhouse at the dam, utilizing its original 15 feet of head (from an earlier dam, at no charge) plus the HRBRRD's additional 56 feet of head (for an annual water fee). In 1980, upon expiration of the 1927 Agreement, the HRBRRD and NMPC entered into a new Agreement to provide for the continued operation of both Great Sacandaga Lake and EJ West. In 1999 Niagara Mohawk sold the EJ West hydroelectric facility to Erie Boulevard Hydropower, L.P. (now owned by Brookfield Renewable Power).
In 2003 the 1980 Agreement was prematurely terminated and the HRBRRD and Brookfield entered into a new Reservoir Operating Agreement. As stated, the intent of the 2003 Reservoir Operating Agreement was to "to maximize Erie's hydroelectric energy generation at, and revenue from, the Erie facilities (EJ West)." Erie was to pay the HRBRRD a Water Fee for t he use of the HRBRRD's 56 feet of head and the HRBRRD agreed not to exercise eminent domain with respect to EJ West. At the time the 1980 Agreement was terminated, Niagara Mohawk was paying the HRBRRD a Water Fee of $925,000. Under the 2003 Agreement, Brookfield's Water Fee was decreased to $850,000 (increasing at 3% each year). The 2003 Agreement was amended in 2006 to (1) extend the term until June 30, 2021 and (2) lower the criteria for adjustments in the Water Fee, both of which accrue to the benefit of the operator.
Under the Reservoir Operating Agreement, Brookfield utilizes the full 71 feet of head provided by Conlingville Dam for its hydroelectric plant operations at EJ West, but it owns only 15 feet. The remaining 56 feet (79%) of available head at El West is owned by the HRBRRD. The HRBRRD has abdicated its responsibility for flow regulation to Brookfield who operates EJ West (and hence Great Sacandaga Lake) to allow the operator to maximize its revenue. This means that the operator can take releases from Great Sacandaga Lake to generate electricity during hours when power sales rates are high and withhold releases when rates are low. The result is a daily pulsing of flows in the Hudson River, up and down like a yo-yo, not the steady regulated flow one would expect from a regulating district. In water year 2013 (October 1, 2012-September 30, 2013), Brookfield reported to the Federal Energy Regulatory Commission (FERC) that it generated 67,401,742 kwh at EJ West, Because the operator is allowed to control its operation to take advantage of higher on-peak power rates, it's not known exactly what Brookfield's revenue was for that generation; however, it can be estimated that a run-of-river hydroelectric plant
(unable to control flow conditions) would have garnered at least $3,360,000 for the same generation. Because of Brookfield's ability to pulse its operation, it can certainly be assumed that the operator maximized its revenue opportunity. Brookfield's Water Fee to the HRBRRD was reported to be $1,100,000 in 2012 and, as reported in the 2014-15 HRBRRD budget, will continue to remain at that level.
The HRBRRD is also responsible for maintaining permits to Great Sacandaga Lake for exclusive use of the shoreline. The permits, roughly 4,500 in total at amounts starting at $50 each, bring in revenue of $425,000 per year. The permit fee has not been increased since 1983. The land that is owned by the district is forest preserve land, which is state land that is protected as "forever wild" and therefore cannot be leased or sold unless a constitutional amendment is put forward. The land is permitted each year for recreational purposes, although there is some question about whether actual surveys exist for the issued permits. Consequently, it is unclear as to the assignment of liability in the unlikely event there is a claim.
In 2008, in a case brought by an independent hydroelectric licensee, the United States Court of Appeals for the District of Columbia rendered a decision that HRBRRD had no authority to exact compensation from the licensee for headwater benefits. The matter was remanded to FERC who convened a headwater benefits determination proceeding that
resulted in significantly reducing the allowable headwater benefits assessments that HRBRRD can charge all hydroelectric plants located downstream of Conlingville Dam. This created a $4.45 million budget gap in the HRBRRD operating budget. In an attempt to rectify this situation, in February 2010 the HRBRRD assessed the five county regions of Albany, Rensselaer, Saratoga, Warren and Washington a total of $4.45 million for a newly determined flood control benefit. It should be noted that the HRBRRD had the opportunity to assess individual property owners (public and private) and/or individual municipalities however assessment of the counties was chosen. The counties responded by filing a lawsuit against the HRBRRD to protect their taxpayers' rights. In 2013, the five counties and HRBRRD settled the lawsuit with the following payment schedule for the next four years:
Albany County $1,034,698 Rensselaer County $ 542,447 Saratoga County $1,035,809 Warren County $ 242,908 Washington County $ 138,238 TOTAL $ 2,994,100
As part of the 2013 settlement, New York State agreed to offset some of the costs of this burden by adding $1 million a year to the operating budget of the HRBRRD, which will reduce. the charges to the counties by that amount.
Nevertheless, the counties will have to pass along the remaining burden of this settlement to their county property taxpayers by raising their taxes in order to generate the necessary revenue. This bill is a step toward saving local taxpayers millions of dollars by eliminating the Hudson River Black River Regulating District and, consequently, their onerous fees and yet another unfunded mandate on county government.
Through a careful review of the timeline listed above, at various periods under the prior management of the HRBRRD amendments and changes were made to the Reservoir Operating Agreement that provided significant operational control and revenue-generating opportunities to the owner of the EJ West hydroelectric plant. During these same periods there were several reports of excessive and lavish spending by the prior management of the HRBRRD. In as much as the current management and board is operating the HRBRRD as efficiently as possible, actions taken prior to the current management and board provided the lack of control over flow management and the additional burden on county taxpayers is not tolerable. When the State Legislature created the Regulating District, it was never intended that the counties, and more importantly their taxpayers, would be responsible for the operational costs. In fact, the private companies that generated power were responsible for the cost of operations of the district.
Currently, the New York State Power Authority (NYPA) manages several dams and reservoirs and is well qualified and equipped to perform the functions of the HRBRRD. Transferring the duties of the HRBRRD to NYPA would be a logical and prudent transition. It would allow for the continued management of the permit system, but also provide an
opportunity to allow for better flow regulation and increase government efficiency.
LEGISLATIVE HISTORY: 2011-2012: S.591A/A.3075A Remained in the Senate Committee on Education and the Assembly Committee on Environmental Conservation
2009-2010: S.8118A/A.11401A Remained in the Senate/Assembly Committees on Environmental Conservation
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect on the first of July next succeeding the date on which it shall have become a law; provided, however, that effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date is authorized and directed to be made and completed on or before such effective date.
STATE OF NEW YORK ________________________________________________________________________ 1139--B 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. BRESLIN -- read twice and ordered printed, and when printed to be committed to the Committee on Education -- recommitted to the Committee on Education in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the environmental conservation law, in relation to abol- ishing the Hudson river-Black river regulating district and devolving such powers to the power authority of the state of New York; and to repeal certain provisions of such law relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The environmental conservation law is amended by adding a new section 15-2142 to read as follows: S 15-2142. HUDSON RIVER-BLACK RIVER REGULATING DISTRICT AND STATE OF NEW YORK POWER AUTHORITY: OLD BOARDS ABOLISHED; TRANSFER OF FUNCTIONS; PENDING ACTIONS AND PROCEEDINGS; INTERPRETATION OF DOCUMENTS; EXISTING RIGHTS AND REMEDIES. 1. EXCEPT AS HEREINAFTER PROVIDED, THE BOARD OF THE HUDSON RIVER-BLACK RIVER REGULATING DISTRICT IS HEREBY ABOLISHED, AND ALL OF THE JURISDIC- TION, FUNCTIONS, POWERS, DUTIES AND OBLIGATIONS POSSESSED OR EXERCISED BY, OR FOR WHICH COMMITMENTS HAVE BEEN MADE BY, SUCH BOARDS, INCLUDING LANDS OR PROPERTY ACQUIRED, MONEYS OF THE BOARDS, AND ACTIONS TAKEN OR DETERMINATIONS MADE BY SUCH BOARDS, ARE HEREBY TRANSFERRED TO, ASSIGNED TO AND DEVOLVED UPON THE POWER AUTHORITY OF THE STATE OF NEW YORK AND ITS CHAIRMAN. 2. EXCEPT AS HEREINAFTER PROVIDED, THE CONTRACTS, BOOKS, MAPS, PLANS, PAPERS, RECORDS AND PROPERTY OF WHATEVER DESCRIPTION WITHIN THE JURIS- DICTION OR UNDER THE CONTROL OF THE HUDSON RIVER-BLACK RIVER REGULATINGEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01551-08-4 S. 1139--B 2
DISTRICT, INCLUDING MONEYS APPROPRIATED AND AVAILABLE TO SUCH DISTRICTS, PERTAINING TO OR USED IN CONNECTION WITH THE EXERCISE OR PERFORMANCE OF THE FUNCTIONS, POWERS AND DUTIES HEREBY TRANSFERRED AND ASSIGNED, SHALL BE DELIVERED TO THE CHAIRMAN OF THE NEW YORK STATE POWER AUTHORITY, WHO IS HEREBY AUTHORIZED TO TAKE POSSESSION THEREOF. 3. FOR THE PURPOSES OF SUCCESSION, THE FUNCTIONS, POWERS AND DUTIES TRANSFERRED, ASSIGNED TO, AND DEVOLVING UPON THE POWER AUTHORITY SHALL BE DEEMED TO CONSTITUTE A CONTINUATION OF SUCH FUNCTIONS, POWERS AND DUTIES EXERCISED BY THE HUDSON RIVER-BLACK RIVER REGULATING DISTRICT, AND THE ACTS, ORDERS, RULES, REGULATIONS AND DETERMINATIONS OF SUCH DISTRICTS SHALL HAVE, AND CONTINUE WITH, THE SAME FORCE AND EFFECT AS THOUGH DONE BY OR MADE BY THE POWER AUTHORITY. 4. ANY BUSINESS OR MATTER HERETOFORE UNDERTAKEN OR COMMENCED BY OR BEFORE THE HUDSON RIVER-BLACK RIVER REGULATING DISTRICT, OR ANY ACTION OR PROCEEDING HERETOFORE BROUGHT BY OR AGAINST SUCH DISTRICTS, PERTAIN- ING TO OR CONNECTED WITH THE FUNCTIONS, POWERS AND DUTIES HEREBY TRANS- FERRED AND ASSIGNED TO THE POWER AUTHORITY MAY BE CONDUCTED, COMPLETED, PROSECUTED AND DEFENDED BY AND IN THE NAME OF THE POWER AUTHORITY. IN ALL SUCH ACTIONS AND PROCEEDINGS THE HUDSON RIVER-BLACK RIVER REGULATING DISTRICT, UPON APPLICATION TO THE COURT, MAY BE SUBSTITUTED AS A PARTY. 5. WHEN THE HUDSON RIVER-BLACK RIVER REGULATING DISTRICT IS REFERRED TO OR DESIGNATED IN ANY LAW, CONTRACT OR DOCUMENT, SUCH REFERENCE OR DESIGNATION SHALL BE DEEMED TO REFER TO AND INCLUDE THE POWER AUTHORITY SO FAR AS SUCH LAW, CONTRACT OR DOCUMENT PERTAINS TO MATTERS WHICH ARE WITHIN ITS JURISDICTION BY REASON OF SUCH TRANSFER AND ASSIGNMENT OF FUNCTIONS, POWERS AND DUTIES. 6. NO COUNTY WITHIN THE HUDSON RIVER-BLACK RIVER REGULATING DISTRICT SHALL BE LIABLE TO SUCH REGULATING DISTRICT FOR ANY TAX PAYMENTS, FEES, CHARGES AND/OR ASSESSMENTS. S 2. Section 15-2137 of the environmental conservation law is REPEALED. S 3. Section 15-2139 of the environmental conservation law is REPEALED. S 4. Section 15-2141 of the environmental conservation law is REPEALED. S 5. This act shall take effect on the first of July next succeeding the date on which it shall have become a law; provided, however, that effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effec- tive date is authorized and directed to be made and completed on or before such effective date.