News & Events

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Brookfield Action Letter

Dear Neighbor,

The Sacandaga Protection Committee has been closely monitoring reports from Hudson River – Black River Regulating District staff to the Board concerning the dispute over Brookfield Renewable’s decision to stop paying $1.5 million annually to the Regulating District for the use of the Conklingville Dam and GSL water to generate electricity at the E. J. West hydroelectric plant next to the dam. At the October 8th meeting, Regulating District general counsel reported to the Board that the Office of the Attorney General is preparing to file suit against Brookfield to get the energy giant to pay the more than $3.1 million they now owe to the Regulating District for the use of the dam and reservoir, and to resume making the annual payments going forward. As you know, the continued financial health of the Regulating District is in the interest of every permit holder. Though we have vigorously (and successfully) fought attempts to drastically increase permit fees in the past, Brookfield’s unwillingness to pay its fair share for the use of the reservoir raises the possibility that we may have to do so again in the future. 

Already, the cessation of payments from Brookfield has resulted in downstream assessments higher than county governments in Saratoga, Warren, Washington, Albany and Rensselaer counties had anticipated. Leaders in these counties have questioned why Brookfield can be allowed to increase its profit margin by skipping out on its bill, and sticking their taxpayers with the tab. 

We feel it’s time to publicly call on our elected officials to support the New York State Attorney General’s efforts to hold Brookfield accountable and demand the company pay its fair share in compensation for use of New York State resources.

We are asking you to contact your members of the New York State Assembly and Senate and request them to contact the New York State Attorney General to express support for the lawsuit against Brookfield Renewable to compel the company to pay the $3.1 million now owed in “back rent” and to resume these payments moving forward so permit holders, and downstream taxpayers, don’t have to foot the bill for Brookfield’s increased profits. 

The easiest way to contact your members is to use the following the links below and send a message on the representative’s web page. You can find your Assembly Representative using the following link https://nyassembly.gov/mem/search/.  You can find your State Senate Representative using the following link https://www.nysenate.gov/find-my-senator.

From these pages you can link to the representative’s web page and send a message. You can state that New York State is preparing to spend tens of millions of dollars to maintain the Conklingville Dam, and that just as permit holders and downstream taxpayers are expected to pay their fair share for Regulating District operations, Brookfield Renewable should be required to pay its fair share for the use of the dam and water.

Background/History

In July, 2023 Brookfield Renewable stopped making $1.5 million in annual payments to the Hudson River-Black River Regulating District (HRBRRD) for the use of Great Sacandaga Lake and Conklingville Dam in generating and selling electricity at its E.J. West hydroelectric plant, adjacent to the dam. To put the $1.5 million annual payment in context, HRBRRD has cited financial reports published by the company showing that it generates $1.5 million per day from its North American hydroelectric facilities. 

In 1922, New York State created the Hudson River Regulating District whose mission was to build a dam on the Sacandaga River and create a reservoir that would impound water to help prevent flooding on the Hudson River during periods of high-water flow. Also, the water was to be released to augment river flows during periods of drought. The laws that created the Regulating District provided that the downstream beneficiaries would pay for the construction of the dam, reservoir and the ongoing operations and maintenance. 

In order to obtain the real property and rights to construct the Conklingville Dam, the State reached an agreement with New York Power & Light which conveyed real property to the State for the dam’s construction. In consideration for the benefits that New York Power & Light would receive relative to hydroelectric power generation, this agreement, which reserved 15 feet of the impoundment to the company, also committed it to ongoing lease payments to the Regulating District for the use of the additional 56 feet the State would provide, as well as the water impounded in Great Sacandaga Lake, for use in generating electricity.  The company and its successors – including Erie Boulevard Hydro, a wholly-owned subsidiary of Brookfield Renewable – have paid this annual fee pursuant to that agreement, and subsequent agreements, without interruption right up to July of last year. 

The most recent operating agreement with Brookfield was due to expired on June 30, 2022, but was extended for a year to allow the company to continue to negotiate with the State over a new contract. 

During this period, both HRBRRD and Brookfield Renewable requested the Federal Energy Regulatory Commission (FERC) to help resolve the dispute. FERC’s decision rejected Brookfield’s contention that its lease payments were duplicative of headwater benefits charges assessed to downstream plants, but declined to help the state enforce the contract. When HRBRRD asked FERC if, since New York State Public Authorities Law prevented it from continuing to provide the water and the impoundment at Conklingville Dam to Brookfield for free, it could shut the water off to the plant and make releases through the dam, FERC replied that HRBRRD needed to continue to release water through the E. J. West Power Project even though Brookfield Renewable was no longer paying for the benefit. As of today, while permit holders, the State of New York, other beneficiaries, and downstream taxpayers continue to pay their fair share for the operation and maintenance of Conklingville Dam and Great Sacandaga Lake, the water continues to flow through Brookfield Renewable’s turbines, generating profits for the company, even though the company has failed to pay for the privilege for over a year.

Bet on the Lake $10,000 Raffle Winners - 2024

Drawing was September 6th for our annual raffle fundraiser. The list of winners are as follows:

FIRST PRIZE $10,000 WINNER: #296 Christian Farone

SECOND PRIZE $2,500 WINNER: #195 Patty Rhodes

THIRD PRIZE $1000 WINNER: #191 Craig Radliff

FOURTH PRIZE $500 WINNER: #370 Bob Weisgerber

(10) $100 PRIZE WINNERS:

#300 Andrew Wood

#242 Kory Smith

#313 Tammy Reidell

#052 Joyce Griesemer

#243 Kevin Smith

#194 Daniel Casey

#274 Carrol Morris

#127 Becky Romano

#078 Susan Urbanski

#187 Pat Schell 

Thank you all for supporting the lake!

Golf Outing Fundraiser - Saturday, June 1st

Our annual Golf Outing was another huge success! A big thanks to all of the golfers, sponsors, silent auction donors, and volunteers who made it possible!

Golf Outing Fundraiser - Saturday, June 1st

It's that time of year again for our annual Golf Outing Fundraiser at Hales Mills Country Club, Saturday, June 1st at 9:00am. It is $100 per person and includes 18 holes of golf, cart, coffee, lunch, on course beverages, prizes, silent auction, cocktails and hor's d'oeuvres at the awards reception.

Come join us for a fun-filled day of golfing!

Register via email to: spcgsl@gmail.com

Summer 2023 update letter

The SPC, founded in 2009 when the HRBRRD tried to impose new rules which would have removed exclusive use and severely curtailed the rights of permit holders, continues to, with your generous support, monitor the issues important to our lake community. 

The SPC is the only organization advocating for the lake community with a lobbyist in Albany and a very capable law firm on retainer. The SPC supported the Governor’s plan to have NYS pay the $3.4 M the HRBRRD was charging the downstream counties for the property taxes the HRBRRD pays to our local school districts and municipalities. This was great news for our schools, villages and towns, and will relieve the pressure the downstream counties have been placing on the HRBRRD to designate permit holders as beneficiaries for purposes of reducing the assessments the downstream counties were paying.

The proposed repairs and updates to the Conklingville Dam are long overdue, and

the potential impacts of the plan of work are very important to our community.

While the actual project may not begin until the end of 2024, the SPC and our

lobbyist have been actively supporting the HRBRRD’s administration in securing

state funding for the projects. The Governor’s last two budgets have allocated

$40M for the repairs and this 2023-24 state budget has another $20M for all

District infrastructure projects. The SPC supports these budget allocations and is

anxiously awaiting the release of the scope of work for the Conklingville projects.

The HRBRRD now has a new challenge to their funding. While the HRBRRD relies on many sources of funding for their operations a significant revenue source is Brookfield Energy and other downstream energy producers. Brookfield had been paying $1.5 Million per year for the Head Waters the GSL provides, per the Reservoir Operating Agreement (ROA) between Brookfield and the HRBRRD. When the ROA expired this spring Brookfield looked to reduce the payments to the District to somewhere near $75,000. Both parties filed for a judgement with FERC, and the SPC had our attorneys prepare a supporting letter to the HRBRRD position. In light of recent developments from the FERC determination that Brookfield is not under the obligation to continue the payments the SPC is currently in discussions with our attorneys regarding our response. With its earlier reductions and its recent cancellation of its Reservoir Operating Agreement with the Regulating District, revenue from Brookfield will be just $365,100 in the Hudson River Area in the current fiscal year, compared to $1,881,099 in 2003, representing a decrease of over 80% from what it was paying just two decades ago.

It is important to everyone in our community that Brookfield pay their fair share

for the 57’ of water (referred to as Head). The water impounded in the GSL is a

State Asset, and as such is protected by state law and may not be given away. Any

loss of such a significant portion of HRBRRD revenue puts the agreements with

the state and downstream counties at risk. The HRBRRD web page has a section

dedicated to this issue: https://hrbrrd.ny.gov/brookfield-dispute/

The SPC relies on donations to fund our budget. All the money we raise goes to

our legal efforts, fund raising and compliance with not-for-profit rules and

regulations. We just completed our very successful 3 rd annual Golf Outing and are

now selling $100 tickets for our “Bet on the Lake” $10,000 first prize raffle. Only

400 tickets will be sold, so please don’t miss out. David Smail and Bob and Nancy

Jones have tickets for sale, along with the folks at Brownell Lumber, Kingsboro Lumber, Fuel N Food and The Lakeside Tavern. Or you can buy tickets over the phone by calling the Fulton Montgomery Chamber of Commerce at 518-725-0641. You may also make a donation by check to the SPC, P.O. Box 86, Mayfield NY 12117 or at our website  

As many of you are aware, the HRBRRD and Erie Boulevard Hydro Power, L.P. (Erie) are in a dispute regarding payment for the headwaters of the GSL Erie uses to produce and sell power. The SPC is hopeful many of you have followed the lead of the GSLA and Town of Day Association and sent a letter of support on behalf of the HRBRRD to FERC.

The SPC attorneys at Hodgson Russ reviewed the HRBRRD and Erie petitions to FERC and prepared a letter on behalf of the SPC and our constituents in support of the HRBRRD. It is clear that the HRBRRD fee assessment is lawful and appropriate.

Our letter below clearly identifies the reasons and legal arguments supporting the HRBRRD rights in assessing and collecting said fees:

William F. McLaughlin

Senior Counsel

Direct Dial: 518.433.2449

wmclaugh@hodgsonruss.com

March 3, 2023

Kimberly D. Bose

Secretary of the Commission

Federal Energy Regulatory Commission

888 First Street, NE Washington, DC 20426

United States

Re: Erie Boulevard Hydro Power, L.P. Project Nos. 2318-054,  12252-036

Hudson River – Black River Regulating District Project Nos. 2318-053, 12252-035

Dear Secretary Bose:

The following comments are provided on behalf of the Sacandaga Protection Committee (SPC) in support of the January 25, 2023 petition for declaratory order filed by the Hudson River – Black River Regulating District (District) in Project Nos. 2318-053 and 12252-035 (District Petition) requesting the Federal Energy Regulatory Commission (Commission) (1 - These comments are provided in response to the Notice of Petitions for Declaratory Order dated February 1, 2023. Capitalized Terms used herein without definition shall have the meaning prescribed to such terms  in the District Petition, or if not defined there, the Erie Petition.) declare that Erie Boulevard Hydro Power, L.P.  (Erie Boulevard), the licensee for the E.J. West Project (No. 2318), must continue to maintain a necessary  property interest in the head created, owned, and controlled by the District as part of the Great Sacandaga  Lake Project (No. 12252) (GSL Project). These comments also are provided in opposition to the January  27, 2023 petition for declaratory order (Erie Petition) in Project Nos. 2318-054 and 12252-036 requesting  the Commission declare that the Federal Power Act (FPA) preempts the regulatory authority of the District  to assess charges under state law to Erie Boulevard for releases from the District’s GSL Project. (2 - Conklingville Dam and Great Sacandaga Lake are owned by the State of New York and managed by the  District. The District is a state agency which was organized in 1922 pursuant to Article VII-A of the  Conservation Law of the New York State Code (N.Y. Envtl. Conserv. Law § 15-2101 et seq.).)    

The District’s fee is lawful and appropriate. There is a significant, tangible, and immediately discernible difference between a powerhouse located at, and connected to, a government-owned dam, and a powerhouse located downstream from that same government-owned reservoir and works. Without a co-located powerhouse, such works might be operated by government employees whose focus is to impound water, release it, direct it, and utilize it for myriad public purposes exclusive of the generation of power and the entanglements of running a powerhouse. With a co-located powerhouse, all manner of complexity, risk, and expense beyond mere “interest, maintenance, and depreciation” (see, 16 USCA § 803 (Requiring downstream licensees to contribute to “charges for interest, maintenance, and depreciation”)) inure to the operation of the government works. These might include personnel decisions and expense, administrative and accounting requirements, communications systems, additional permitting burdens, broader environmental concerns, and significantly more liability exposure. In that light, the decision by a sovereign  government, or its designee, to co-locate or integrate power generation into its works, or to partner with a  private company to do so, is a decision outside the four corners of the FPA, which states: “No provision shall be construed as affecting or intending to  affect or in any way to interfere with the laws of the respective  States relating to the control, appropriation, use, or distribution  of water used in irrigation or for municipal or other uses, or any  vested right acquired therein.” (16 USCA § 821). To limit materially the financial benefits that may compel such arrangements is a disincentive for co-located power production and is contrary to both the language and purpose of the FPA’s  headwater benefits rules. We urge the Commission, therefore, to reject the tortured efforts made by Erie Boulevard to obscure these central facts and declare that (1) Erie Boulevard has no inherent right to take and use the waters owned by the State of New York except as prescribed by mutual agreement, and (2) that the State of New York has the absolute right to prescribe a fee for the use of its property.

The SPC was formed in 2009 to develop strategies to protect the environmental, economic and legal interests of the Great Sacandaga Lake communities. It is composed of community leaders, lake users, permit holders, and property owners who reside, work, and enjoy the Great Sacandaga Lake. Like Erie  Boulevard, SPC members pay fees assessed by the District for the privilege of using the waters and lands  there and share in the desire to ensure its successful administration. Under the current Reservoir Operating  Agreement (ROA), set to expire in June 2023, Erie Boulevard has paid an annual fee of approximately $1.5  million. The company now contends that such payments are unlawful, and asks the Commission to renounce  them while simultaneously conjuring a new right to utilize the waters and lands of the GSL Project, without  separate compensation for that property right. The request flies in the face of the language of the FPA, the  sovereign power of the State of New York, Commission precedent, and the universal understanding that  there is a distinct and identifiable value in the E.J. West Project’s unique location at the Conklingville Dam and its direct use of the water impounded by it. If granted, the request to eliminate the fee structure would increase the burden placed on all of the other entities that pay fees to the District for the use of its waters and property, further disrupt almost 100 years of legal relationships, and threaten the public-private partnership that is the Great Sacandaga Lake.

In its Petition, Erie Boulevard concedes that the fee at issue has been incorporated into the ROA as a “water fee.” (3 Erie Petition at 7.) Regardless of the nomenclature used to describe the fees at issue, the fees represent an appropriate compensation for the value of the District’s property. The contractual agreements, including  fees, have been in place for the entire existence of the Conklingville Dam, the GSL Project, and the E.J.  West Project. As more fully explained in the Petitions, the District administers the Conklingville Dam,  together with the water and lands of the Great Sacandaga Lake, which it impounds. Erie Boulevard owns  the hydroelectric power station known as the E.J. West Project, which is located at, and attached to, the  Conklingville Dam. From and after 1927 and continuing to the present time, the District entered into a  series of ROAs setting forth the terms under which Erie Boulevard and its predecessors in interest, were entitled to use the waters of the Lake, including for the generation of electricity by timed and coordinated  releases through the power station. In exchange, as one portion of the compensation for this arrangement, the District was entitled to receive a payment representing the value of its property, which the parties agreed would be equal to the full value of the power produced at the co-located power station by fifty-six (56) of the seventy-one (71) feet of head available to operate the turbines. This less-than-all ratio derives from the parties’ acknowledgement that, pursuant to New York law, Erie holds a separate and distinct property interest in 15 feet of headwater, while the State owns the rest.

The District is entitled to seek distinct compensation for the “full value” of its property, which compensation is different from, and in addition to, the requisite compensation for “headwater benefits.”  (See, City of Kaukauna, Wis. v. FERC, 214 F3d 888, 892 (7th Cir 2000)) (Distinguishing charges for  property from charges for “headwater benefits”). This distinction between charges to a co-located facility “for the use, occupancy, and enjoyment of [government] lands or other property” (16 USCA § 803(e)) and  the charges to downstream facilities for “headwater benefits” is explicit within the FPA itself and has been  recognized by the Commission (compare, 16 USCA § 803(e) with 16 USCA §803(f); see also, E. Columbia  Basin Irr. Dist. v FERC, 946 F2d 1550, 1556 (DC Cir 1991)) (explaining that Section 10(e) is distinct from  Section 10(f) and authorizes charges to compensate “the [g]overnment for the benefit it has conferred on  the licensee” to use its property). It is a distinction also made explicit in the Settlement Agreement at Section 8.4, which clearly and unambiguously distinguishes between charges to the E.J. West Project for the “use of head and water at the [District’s facilities] and “charges for benefits to downstream facilities.”  (Settlement Agreement § 8.4.).

For its first seventy-five years, a succession of ROAs and New York State law governed the relationship between the District, the residents around the Lake, the operator of the E.J. West Project, and  others who derived benefits from the Great Sacandaga Lake and the Conklingville Dam, which agreements included the mechanisms for assessment of fees prescribed by state law. Although the power station was  first licensed by the Federal Power Authority (predecessor to the Federal Energy Regulatory Commission)  in and around 1963, neither the Conklingville Dam nor the Great Sacandaga Lake were operated pursuant  to a federal license. Neither the propriety of the fees, nor the District’s authority to collect them under state  law, was in doubt. Absent its agreement with the District, Erie Boulevard lacks the requisite right to use the water and other property owned by the State of New York and managed by the District. In turn, if Erie Boulevard fails to re-negotiate the ROA, the E.J. West Project will become an incomplete project, lacking the necessary property rights to divert such waters to its own use, or fulfill its obligations under its license.

The Conklingville Dam and the GSL Project were issued an original license under the FPA on September 25, 2002 after nearly a decade of disputes regarding the scope of federal jurisdiction and the concomitant agreement to enter into an Offer of Settlement by and among the District, Erie, and several other parties who benefit from the Conklingville Dam and the GSL Project (Settlement Agreement). Integral  to the issuance of that federal license was the recognition that the GSL Project and the Conklingville Dam  were part of a complete “unit of development” with the E.J. West Project. Ongoing disputes were resolved  through the terms of the Settlement Agreement, and operations were governed by the ROA. Despite this  synergy leading to the licensing of the Conklingville Dam, and despite the Settlement Agreement, several  downstream hydro-electric projects challenged the District’s assessment of fees on the grounds that such  fees were duplicative of the “headwater benefits” assessments that FERC levies pursuant to Section 10(f)  of the FPA. Notably, Erie Boulevard is also the owner of some of those downstream facilities and has previously avoided the questions it raises now.

The question presented in the current Petitions is materially different from previous petitions in ways that matter. First, the E.J. West Project is not a “downstream” project benefitting only from the additional headwater benefits created by operation of the Conklingville Dam; it is part and parcel of a “complete unit of development” that includes the Conklingville Dam and the Great Sacandaga Lake. As  such, without the ROA and the associated rights to use the District’s property, Erie Boulevard is unable to  operate the E.J West Project in any capacity. Nor does the E.J. West Project comprise a complete “project” within the meaning of the FPA. Accordingly, its insistence now that it has no obligation to secure such  property rights from the District should call into question Erie Boulevard’s willingness and ability to fulfill  the remainder of its obligations. In other words, if Erie Boulevard does not wish to pay for the rights it needs to operate its facilities, as contemplated in the Settlement Agreement approved by the Commission,  the Commission should consider whether it must forfeit its license and open the door for a capable operator.  (See, Fourth Branch Assoc. (Mechanicville), 89 FERC ¶ 61,194, 61,589 (1999)) (invoking the doctrine if implied surrender where co-licensees were at “loggerheads” regarding the future operation of a project).  For the reasons stated above and in the Petition filed by the District, we urge the Commission to rule in favor of the District and declare that Erie Boulevard must continue to pay separate compensation for the use of the District’s property.

Respectfully submitted,

William F. McLaughlin