MONTICELLO, NY — A hearing has been scheduled for February 21 at the government center in Monticello regarding the Toronto East Public Access Area, and whether members of the public will be able to swim in the reservoir in the wake of the order of the New York State Department of Health (DOH).

The DOH sent an email to The River Reporter on January 28, saying it would not be able to respond to a Freedom of Information Law (FOIL) request regarding communications about the reservoir until at least April. The newspaper, however, was able to get the 33-page document from another source.

It’s pretty clear that the company that owns the reservoir, Eagle Creek, and the Federal Energy Regulatory Commission (FERC) and DOH have been communicating about this for nearly three years. After pressure was brought to bear on it, the DOH took a position that the swimming that takes place in the access area makes it technically a “bathing beach.” The pressure was brought by a group comprising developer Steve Dubrovsky; Marc Bushell, who owns a home adjacent to the access area; and Howard Schoor, chairman of the Chapin Estate Homeowners Association. DOH’s stated view is that under state law, a bathing beach is not allowed to operate without a permit from DOH, and that would require some amenities such as restrooms and a lifeguard.

But FERC has a different view of the matter, and notes in a May 2015 letter to Eagle Creek that the state has many unpermitted swimming areas. The letter says, “Commission staff spoke to Bill Rudge of the New York State Department of Environmental Conservation regarding swimming at the thousands of informal swimming locations scattered around the state mentioned on the DEC’s website. Mr. Rudge indicated that many of the informal swimming locations are on undeveloped but managed areas, and are not issued permits by DOH. Mr. Rudge indicated that most of the areas are somewhat more wild than the area surrounding the Toronto Reservoir, but he did not articulate any specific concern at the project regarding informal swimming which would necessitate permitting…”

The DOH has continued to insist over the past two or three years, that a permit is required at the Toronto Reservoir despite that fact that it has not called for a permit for the access area located at another location on the Toronto Reservoir, and one on the Swinging Bridge Reservoir, which are both operated under circumstances virtually identical to those of the Toronto East Access Area.

DOH declared the access closed to swimming in the summer of 2016, and Eagle Creek hired a security guard to enforce the DOH order. DOH has told Eagle Creek it would be glad to help renegotiate the license under which the company operates the hydropower plants in the reservoir system, but so far neither the DOH nor FERC has been willing to yield.

An administration law judge will now attempt to bring a matter that has been at the center of a 14-year legal battle to a final conclusion.