NY will sue IJC for water level ‘mismanagement’ that damaged shoreline communities

Photo by Tom Rivers: An employee with the State Office of Fire Prevention and Control checks pumps on May 10 for a 450-foot-long AquaDam along the shoreline in Carlton, just west of the Oak Orchard Harbor. The state and local municipalities have tried to protect property and fight erosion from the high lake waters.

Posted 9 October 2019 at 1:30 pm

‘We will not shoulder the burden of the destruction that is a direct result of the IJC’s gross mismanagement of Lake Ontario water levels, and the IJC needs to compensate New York for the severe damage to the homes and businesses along the shoreline. That’s what this lawsuit is all about.’ – Gov. Andrew Cuomo

Press Release, Gov. Andrew Cuomo

Governor Andrew M. Cuomo today announced that the New York State Department of Environmental Conservation is filing a lawsuit against the International Joint Commission for its mismanagement of Lake Ontario water levels that caused catastrophic damage to shoreline communities.

As a direct result of the IJC’s mismanagement, extremely high water levels exacerbated damage to residences and businesses, swept away large swaths of the shoreline, and upended the lives of thousands of New Yorkers twice in the past three years. Property owners have suffered severe erosion and loss of vegetation, while the State sustained more than $4 million in property damage that it still has not been able to fully repair. The lawsuit argues that the IJC must compensate the State for the destruction resulting from water level mismanagement.

“The facts of the matter are plain: The IJC’s function is to manage the Lake Ontario water levels, and they failed – period. They have been wholly unresponsive and have taken no action to make the situation better,” Governor Cuomo said. “We will not shoulder the burden of the destruction that is a direct result of the IJC’s gross mismanagement of Lake Ontario water levels, and the IJC needs to compensate New York for the severe damage to the homes and businesses along the shoreline. That’s what this lawsuit is all about.”

Specifically, the complaint asserts the following causes of action:

• Negligence:  IJC breached its duty by failing to take sufficient steps to protect the interests of New York property owners on the Lake Ontario shoreline.

• Nuisance:  Based on the severe flooding that resulted from IJC’s mismanagement, IJC was or should have been substantially certain that its conduct would cause an invasion of the State’s interest in the use and enjoyment of its land.

• Trespass: IJC failed to increase outflows from Lake Ontario to lower water levels and abate flooding, which constituted an invasion of property.

In an attempt to mitigate exposure to property owners, the State repeatedly called on the IJC to release as much water from the Moses Saunders Dam as possible. Rather than protect shoreline communities, the IJC has favored commercial shipping interests. In a June 8 letter to the U.S. and Canadian Chairpersons of the IJC, the Governor, on behalf of the State of New York, called on the commission to take immediate action to correct its water management protocols to remedy the ongoing threat to the citizens and businesses caused by Lake Ontario flooding.

The Governor demanded that the IJC reimburse New York for its costs, and make additional funds available for resiliency projects and other protective measures made necessary by the IJC’s acts and omissions. The IJC has failed to address any of these demands. Instead, the IJC has recently reduced the outflows slightly notwithstanding continued record-high water levels. As laid out in the DEC’s complaint, the IJC can no longer hide behind a claim of sovereign immunity and must now answer for its negligent conduct and failure to adhere to obligatory requirements to address high water levels.  The IJC’s failure to take action compels this legal action.

Department of Environmental Conservation Commissioner Basil Seggos said, “Time and time again, Governor Cuomo has called on the IJC to put the safety and integrity of New York’s shoreline communities ahead of shipping interests. And repeatedly, the IJC failed to act. New York State is making significant investments to improve the resiliency of homes and businesses along Lake Ontario. We are now demanding that the IJC do the responsible thing, and take action to safeguard our communities from high water.”

In 2017, New York State responded quickly to the crisis and took immediate action to protect communities by delivering critical state resources to help communities and businesses rebuild. The State committed $117 million to rebuild communities along the Lake Ontario shoreline that were devastated by high water levels in 2017, only to once again this year experience record-high water levels in these same communities. Following these events, the IJC should have recognized the significant potential of future devastation from rising waters and taken action to lessen the extent of damage caused by flood waters.

Assemblyman Michael Norris, R-Lockport, said, “Taxpayers and businesses along the southern shore of Lake Ontario have suffered significant damages and this legal recourse is necessary to obtain justice for them moving forward. I commend Governor Cuomo for initiating this action.”

This year, and to prepare for anticipated, future high water levels on the lake, Governor Cuomo established the Lake Ontario Resiliency and Economic Development Initiative, or REDI Commission and committed up to $300 million to support its efforts. The multi-agency REDI Commission is charged with developing a plan to increase the resiliency of infrastructure along Lake Ontario’s waterfront while strengthening the region’s local economies, which are heavily dependent on summer tourism.

The commission is currently examining areas susceptible to damage caused by the rising waters, including those hit hard in 2017, in order to develop a package of new state actions ranging from legislative changes to aid packages to executive actions that will not just rebuild the shoreline, but improve resiliency to withstand unforeseen weather events. The state anticipates it will have spent $45 million in response and damage costs for 2019, and as part of REDI’s comprehensive examination of projects to promote resiliency and economic development in the affected region.

In addition to delivering millions in funding to help restore residents and businesses affected by the rising water-levels on Lake Ontario, New York State has deployed more than 1.5 million sandbags, hundreds of pumps, and 11,000 feet of temporary dams in eight counties along Lake Ontario in preparation for damage caused by high water levels.  New York State will continue to take aggressive action to ensure residents and businesses are protected from these high-water levels, but the state should not have to bear the costs without any action from the IJC.

Editor’s Note: State Sen. Rob Ortt, R-North Tonawanda, issued this statement: “Today’s announcement that New York State would be suing the International Joint Commission for damages caused by flooding connected to Plan 2014 is long overdue. Although the Attorney General’s office declined to act on my proposal to sue the federal government for damages caused by Lake Ontario’s flooding back in May, I am pleased to see they have had a change of heart and will now seek financial compensation for the residents, localities, and businesses along the lake’s shores.

“Lake Ontario property owners, localities, and businesses have been devastated by flooding in two of the last three years in large part due to the International Joint Commission’s Plan 2014, which was approved in the last days of the Obama administration. That is why I was the first elected official to call on going after the International Joint Commission for damages. These businesses, localities, and residents have been forced to live with dangerous flooding that has caused immense financial strain due to the implementation of Plan 2014. New York State cannot continue to be the sole provider of emergency relief funding for residents impacted by Lake Ontario’s flooding, and it is time for the federal government to take responsibility for the damage it has caused.”

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