SMALLWOOD, NY — The public is free to use the public access point at the Toronto Reservoir via access through the Chapin Estate, according to a decision from a Department of Health Administrative Appeals Court. The decision was made back in February, but the people who use the reservoir did not learn of it until recently.

The appeal was sought by the New York State Department of Health (DOH), which had determined that the access point was a “bathing beach,” meaning that under state law the access was required to have certain amenities such as a bathroom and lifeguard.

The Federal Energy Regulatory Commission (FERC) and Eagle Creek, the company that owns the reservoir, said that because the recreational use of the reservoir is a condition of a federal permit from FERC, state law could not be applied in this context.

The initial ruling on the matter came from Administrative Law Judge Denise Lepicier last year. Essentially, the ruling said FERC and Eagle Creek were right and DOH was wrong. The judge found that although the access was, in fact, a “bathing beach,” DOH still did not have the authority to enforce state laws in that regard.

She wrote at the time, “Notwithstanding the fact that the Toronto East Access Area is a ‘bathing beach,’ Eagle Creek argues that New York State laws and regulations are preempted in this matter by federal law regulating the project. Broadly, preemption is the doctrine that federal law must be recognized as controlling when it is inconsistent or conflicts with state law. It has its roots in the Supremacy Clause of the U.S. Constitution, which states: the ‘Constitution and the Laws of the United States... shall be the supreme law of the land; and the judges in every state shall be bound thereby….” The administrative appeals court upheld Lepicier’s decision.

Nino Nannarone, co-chairperson of the group Friends of Toronto, said he spoke to a DOH official who told him the DOH has no plans to pursue the matter further. This most recent legal battle was sparked when neighbors alerted DOH in 2014 that people were using the access as a public swimming spot and DOH began an investigation. That issue now seems finally settled, after 18 years of legal battles to keep the access area open to the public.

Nannarone said Eagle Creek has also repaired the road that people use to get to the access point, which had been full of sizable potholes. In an email to various parties with an interest in the reservoir, Nannorone wrote, “The Friends of Toronto [Reservoir] and the residents of the Town of Bethel and of the Sullivan County as well as the citizens of the New York State want to thank Eagle Creek for meeting our deadline of today, June 15, 2018, to repair the Toronto Access Road off of Pine Grove Road by filling in the huge potholes with gravel and leveling the road.”

Eagle Creek’s CEO responded to Nannarone with an email saying, “The credit for getting the work done belongs to the team responsible for our operations... for Toronto. As indicated earlier, this team is led by Mr. [Bob] Gates. His prompt attention to this issue is appreciated by all.”