PLANNED HYDRO DAM GENERATES LAWSUITS WATER FLOW BECOMES ISSUE

Elizabeth S. Schwartz Staff writer
Section: LOCAL,  Page: B1

Date: Monday, July 10, 1989

For decades, hydro plants on the Mohawk River have produced beautiful, sweeping waterfalls, kilowatt hours of power and lawsuits.


The latest dispute is being played out in state Supreme Court, where the Audubon Society of New York State and Fourth Branch Associates, operators of a dam in Waterford, have sued the state Department of Environmental Conservation and a company that wants to build a dam in Waterford, about 1,200 feet upriver, also in Waterford. The basic argument of the Audubon Society and Fourth Branch Associates is not unlike the one argued before the U.S. Supreme Court 60 years ago by George O'Connor, a Waterford attorney. The lawyer claimed that the Green Island Dam would deprive his client's mills of water.


In the current case, Fourth Branch states that a proposed hydro power plant stretching across the Mohawk River from Cohoes to Waterford could harm its plant in Waterford near the Mohawk Paper Mills.


In addition, Fourth Branch charges that in May, EnCon illegally certified that the plant proposed by the Adirondack Hydrodevelopment Corp. would be safe for the water.


According to Fourth Branch, Adirondack Hydro's project could hurt fish in the river, although the U.S. Fish and Wildlife Service stated in March that the project would have "no significant adverse effects" on the aquatic community.


The Federal Energy Regulatory Commission issues licenses for hydro plants. But before this happens, EnCon must give a certificate that the plant will comply with the Clean Water Act, according to George A. Danskin, the chief permit administrator of EnCon's Division of Regulatory Affairs.


In April, the Delaware & Hudson Railway asked that Adirondack Hydro not be given an operating permit. The company plans to elevate the dam, and the railroad fears that it would "endanger the stability" of a D&H bridge over the dam site.


Adirondack Hydro already has the federal regulatory commission's permission to build a plant with 12 powerhouses spaced evenly across the dam. But the company has since changed its plans, and now awaits a federal OK to build a plant with one powerhouse on the end of the dam, to produce more than 48 million kilowatt hours of electricity annually.


"This is a very interesting and very complex case," said Maureen Leary, an assistant state attorney general who handles environmental enforcement cases and is representing EnCon in the lawsuit. "There are a lot of state and federal regulations that enter into this. It's not just like your basic landfill."


Hydro power is generally considered to be a simple, safe way of producing electricity: Water turns turbines to produce electricity.


But the litigation over the Waterford hydro plants has hardly been simple.


Last month, Supreme Court Justice Paul E. Cheeseman dismissed the suit on what both sides characterized as a technicality.


When Fourth Branch refiled the suit, Supreme Court Justice Joseph Harris asked lawyers to file more briefs. Fourth Branch, the Audubon Society, EnCon and Adirondack Hydrodevelopment Corp. are due back in court on Friday.


Meanwhile, Adirondack Hydro can't start building its power dam until the Federal Energy Regulatory Commission issues the permit. Adirondack Hydro had hoped to start construction in June.


Adirondack Hydro officials argue that their project, which involves building a power plant at the already existing State Dam on the Mohawk River between Waterford and Cohoes, will not significantly change the flow to Fourth Branch's plant, which is downstream on the fourth branch of the river.


EnCon's water quality report states that Adirondack Hydro must build and operate its plant "in a manner that ensures" that the fourth branch of the river receives 45 percent of the river flow.


Karen Miller, the regulatory coordinator for Fourth Branch, said the fourth branch currently receives about this percentage of the flow on an average annual basis. The percentage varies during times of high and low water, she said.


The water certificate issued by EnCon is vague because Fourth Branch's flow needs,vary depending on the river level, Miller said. The certificate only states that it will receive 45 percent of flow.


Scott Fine, the attorney for Adirondack Hydro, said his client "has spent more than $2 million on studies to ensure that the environment is safeguarded."