Gov. Andrew M. Cuomo has ramped up his battle against the International Joint Commission for what he deems a “mismanagement of Lake Ontario water levels” with plans to sue the commission.
The IJC regulates the shared uses of binational waterways between the U.S. and Canada, particularly projects like dams that can affect water height and flow. It oversees the International Lake Ontario-St. Lawrence River Board, which is tasked with managing outflows from Lake Ontario through the Robert Moses-Robert H. Saunders Power Dam in Massena and Cornwall, Ontario.
In the wake of widespread flooding and shoreline damage this year along the lake and St. Lawrence River, the governor on Wednesday announced his directive to the state Department of Environmental Conservation to file the lawsuit.
By not raising outflows from the lake to reduce water levels further at their behest, the Cuomo administration has accused the commission of failing to perform its duty to protect shoreline property owners, creating a nuisance by impeding citizens’ use and enjoyment of their land through its mismanagement and property invasion via inundation.
The DEC, which will file the lawsuit in state Supreme Court in Monroe County, seeks compensation from the commission for the damages that resulted from flooding and what state officials claim was the agency’s inaction. The state alone reported $4 million in damage, but Gov. Cuomo said property owners have sustained hundreds of millions of dollars in damage for “what the IJC has done.”
“The IJC’s function is to manage the lake level — that is their job, to manage the lake level. They have failed to manage the lake level — period. End of story. It was their job — they failed,” Gov. Cuomo said during his Wednesday announcement in Rochester.
The governor has blasted the commission throughout the year and in 2017 when shoreline communities were also inundated from high waters, accusing the agency of inaction and favoring other stakeholders such as the shipping industry and Canada. He also said the commission has failed to balance the interests of those stakeholders, New Yorkers and the effects of climate change, therefore allowing New York communities to accrue what could amount to more than $1 billion in damages from 2017 and this year.
Gov. Cuomo has also been an outspoken critic of the agency’s most recent outflow management regulations under Plan 2014, correlating its mandates with the widespread flooding in 2017 on Wednesday. Commission officials, a 2018 report from the commission’s Great Lakes-St. Lawrence River Adaptive Management Committee and a few climate and environmental science experts have disputed the accusation, and attributed the 2017 flooding to record-setting rainfall.
Various officials representing the state have corresponded and met with commission officials over the past several months and in 2017, but the governor said Monday the agency has “been wholly unresponsive and they have taken no action that has made the situation any better.”
When ask to comment on the pending litigation, Frank L. Bevacqua, the commission’s U.S. information officer, said “We have not been given any formal notice of any legal action that may have been taken.”
Whether the commission can be sued because of its international status has been debated. Mr. Bevacqua said the International Organizations Immunity Act protects the agency from litigation. DEC Commissioner Basil Seggos said Wednesday a previous Supreme Court ruling allows the state to “pursue compensatory damages in acts of negligence” from any sovereign body.
“This is a sovereign body, so we’re confident we can make that sovereign immunity exception,” he said.
Excessive precipitation across the Great Lakes Basin and high outflow from Lake Erie, which also experienced record-breaking water levels, were key factors in Lake Ontario and the upper St. Lawrence River experiencing unprecedented water levels this year.
The effects were compounded by a heavy snow pack along the Ottawa River basin melting a little later than usual and major rains throughout the basin in late April and into May, which led to record flows from the river into the lower St. Lawrence River. This excess water caused Lake St. Louis, located where the Ottawa and St. Lawrence rivers meet, to exceed flood stage, flooding large areas near Montreal and elsewhere in Quebec. In order to mitigate the effects of this flooding, the river board reduced outflows, backing water up on Lake Ontario.