The New York State Department of Environmental Conservation has been directed to sue the International Joint Commission for its failure to respond to record high Lake Ontario water levels, Governor Andrew M. Cuomo announced Wednesday.
Lakeshore property owners have experienced severe erosion, property damage and loss of vegetation, while the state has sustained more than $4 million in property damage that it still has not yet been able to fully repair, according to Cuomo.
"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," Cuomo said during a Wednesday visit to Rochester. "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."
Cuomo said "litigation is a last resort" after trying to work with the IJC for the past two years.
"It comes from frustration. It comes from the lack of responsiveness from the IJC. It comes from their clear negligence, and from their series of excuses. That’s all you get from the IJC is excuses," he said.
The DEC complaint asserts claims of negligence, nuisance and trespass on the IJC's part, through its failure to take steps to protect property owners on the lake shoreline, its "mismanagement" of water levels that led to severe flooding and its failure to increase outflows from the lake in order to lower water levels and abate flooding, which according to the complaint constitutes "an invasion of privacy."
Since 2017, the state has repeatedly called on the IJC to release as much water as possible from the Moses Saunders Dam, in Cornwall, Ontario, to decrease the risk of flooding along the Lake Ontario shoreline. The dam feeds into the St. Lawrence River on its way to the Atlantic Ocean.
In a June 8 letter to the U.S. and Canadian chairs of the IJC, Cuomo called on the commission to take immediate action to correct its water management protocols and remedy an ongoing threat to lakeshore property owners both residential and commercial. His letter also demanded that the IJC reimburse the state for its emergency spending — an estimated $45 million this year — and make additional funds available for resiliency projects and other protective measurers.
Earlier this year, Cuomo established the Lake Ontario Resiliency and Economic Development Initiative 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 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 all aimed at rebuilding the shoreline and improving resiliency to withstand unforeseen weather events.
State Sen. Rob Ortt, R-North Tonawada, said Wednesday that the suit against the IJC is "long overdue."
"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 cause," he said.
State Assembly Member Michael Norris, R-Lockport, echoed the sentiment.
"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," he said. "I commend Governor Cuomo for initiating this action."
IJC Spokesperson Frank Bevacqua said the agency was aware of the Wednesday announcement from Cuomo, but acknowledged that they have not received a formal complaint yet. He added that they really don't have any reaction at the moment.