Settlement with Five Downstream Counties and the Regulating District is finally approved - March 2013

At their March 12, 2013 meeting the Hudson River Black River Regulating District Board passed a resolution approving a settlement with five downstream counties (Albany, Rensselaer, Saratoga, Warren, and Washington) over flood control assessments.

The need for a major change in the funding for the Hudson River Area (HRA) was based on the November 2008 decision of the United States Court of Appeals, DC Circuit. The ruling stated the Federal Power Act preempts the Regulating District’s use of state law to collect the annual costs of operation and maintenance from federally licensed hydropower companies operating within the HRA.

The resolution acknowledges that at the time of the reservoir’s construction, the Regulating District Board acquired, at fair market value, title to the private lands underlying the Lake in the name of New York State, and with it the commitment to pay local property and school taxes on the flooded lands.

As a part of the lawsuit process, the Regulating District identified the NY State downstream lands (roads, bridges, parks, etc.) lying within the 100 year flood plain, and the relative proportion of property values in each County with respect to the benefits received for flood protection, wastewater treatment costs avoided white water recreation opportunity enhancements, improvements in municipal and state water supplies, and other benefits. The State portion of the chargeable amount is 22.2%. After the State portion has been assessed, the County breakdown of the balance of the costs is identified as follows (rounded): Albany – 34.6%, Rensselaer – 18.1%, Saratoga – 34.6%, Warren – 8.1%, Washington – 4.6%.

The 2012 – 2013 budget for the HRA is identified as $5.48 million, with expected income of $3.4 million from County Assessments, $0.45 million from the State, $1.1 million for water power service (presumably collected from the hydropower companies) and $0.41 million from permits, plus misc.other income.

Also addressed at the March meeting was the repayment by the HRA to the Black River Area of funds borrowed on a note payable in the amount of $3.045 million. Board adoption will permit the HRA to repay the loan over a 30 year period.

Since Saratoga County is assessed as a beneficiary for lands downstream of the Lake, but is also owed money for property and school taxes for lands under the Lake, there will be a credit to the County until the balance is resolved.

This agreement is a major step forward in the operation of the HRBRRD. However, the District continues to have to deal with multiple lawsuits from some downstream hydropower companies who were part of the NYS downstream beneficiaries, and are now suing the District for recovery of their earlier payments. Also NIMO continues to sue the District to reduce their assessments for downstream properties.