Adirondack Group intervenes with Federal Energy Regulatory Authority; asserts Hydro Project at Indian Lake Dam would violate the NYS Constitution.

The Association for the Protection of the Adirondacks is seeking formal party status with the Federal Energy Regulatory Commission (FERC) concerning an application to study hydroelectric facilities on the Indian Lake dam and Indian River in Hamilton County. The Association has also written to the Department of Environmental Conservation and the Adirondack Park Agency asking them to take every possible action to stop the proposed project, which has the potential of violating the “forever wild” clause of the NYS Constitution, and to vigorously enforce all applicable State laws.

David Gibson, Executive Director of the Association, says: “If this project were to be licensed by FERC as a result of the study, it would violate Section 2 of Article 14 of the NYS Constitution. The Indian Lake dam is owned by the State of New York and the land under and around the dam is in the Adirondack Forest Preserve.”

Eric Boulevard Hydro, LLC of Liverpool, New York has filed an application with FERC for a permit to study the feasibility of constructing and operating a hydroelectric facility at Indian Lake dam. The Association is calling on DEC to stop the project by refusing to issue a water quality certification under Section 401 of the federal Clean Water Act on the grounds that DEC can not be in the position of violating the State Constitution.

Hydroelectric power development is an unconstitutional use of the publicly owned Forest Preserve. While Article 14, Section 2 permits up to 3 percent of the Forest Preserve to be used to impound water for reservoirs, their uses are strictly limited to municipal water supply and State canal purposes. An amendment to Article 14 which gained wide voter approval in 1953 removed the regulation of rivers as a constitutionally authorized purpose for flooding the Forest Preserve. Hydroelectric power as an authorized purpose for dam building was decisively rejected by the voters in 1923.

In its motion with FERC, the Association asserts that the land on which Indian Lake Dam is located was purchased as Forest Preserve in 1897 from the Indian River Company as part of a 43,000-acre purchase and is, therefore, subject to Article 14. The Indian River Company reserved rights to maintain and operate the dam and flood the newly acquired State land behind the dam, but only for lumbering purposes. Logging ended on the Indian River in 1954 and the reserved rights expired in the years that followed.

Since 1988 Indian Lake dam has been operated as a dam in the Forest Preserve by the Hudson River Black River Regulating District, although no formal agreement between DEC and the District exists for such operation. The Association believes that Article 14’s constitutional constraint on Forest Preserve reservoir use for purposes other than water supply and canals should be addressed with regard to the dam’s operation. Also, the District maintains several nonconforming structures and other features on the Forest Preserve that constitute a long-standing illegal occupancy that needs to be resolved.

The Association also points out in its motion that the Indian River is a State-designated Recreational River under the Wild, Scenic and Recreational Rivers Act from the Indian Lake dam to its confluence with the Hudson River. Under this law, in-stream waters and the beds and banks of designated rivers are protected by State regulations. The principle purpose of the act is to perpetuate natural, free-flowing rivers. The law requires that natural flows be maintained in designated rivers to be protective of water quality, aquatic biota and other ecological as well as scenic and aesthetic values. DEC regulations reinforce the prohibition on hydro facilities on Forest Preserve land, including on existing dams. The Association believes that current dam operations by the District on the Indian Lake dam and by the Town of Indian Lake on Lake Abanakee dam are not in compliance with the requirements of the State Rivers Act.

The Indian River is also listed in the Nationwide Rivers inventory which is maintained by the National Park Service and includes rivers that have been found to be potentially eligible for inclusion in the federal Wild and Scenic River System. The listing constrains FERC’s licensing activities for water resource development. Designation in the federal system has the same purpose as designation in the State system, perpetuation of natural, free-flowing rivers.

“We are taking this action today in order to alert FERC, State agencies and Erie Boulevard Hydro about these important State constitutional and other legal constraints in relation to a hydro facility at this particular site,” concludes Gibson. “We also take this action to urge DEC and APA to enforce existing State laws and assert jurisdiction to protect the public interest. Article 14 of the State Constitution is not a paper tiger. The State Constitution should be honored here as it must be throughout the Forest Preserve.”
The Association for the Protection of the Adirondacks is a non-profit, membership organization founded in 1901 to employ public education, citizen action, public and private partnerships and strong advocacy to protect, enhance, and sustain the wild character, ecological integrity, and mutual well-being of the natural and human communities of the Adirondack region.
From its inception the Association has advocated for the protection of rivers and water resources in the Adirondacks, including its support for the State Wild, Scenic and Recreational Rivers Act, sponsorship of an influential documentary film about designated Adirondack rivers titled Of Rivers and Men and publication of an educational pamphlet about public navigation rights.

View Letter and Background Paper