Lawyer says IJC needn't fear lawsuits over Plan B+

WASHINGTON — The U.S.-Canadian commission that sets water levels on the St. Lawrence River can adopt an environmentally friendly plan without fear of lawsuits, a lawyer with ties to Save the River said.

The U.S.-Canadian International Joint Commission is taking public comment on the first major change in water level regulations in decades and has shied away from a plan that Save the River and many other Northern New York interests support, citing the possibility of damage from higher water on Lake Ontario.

Among other reasons, the IJC has said property owners along the southern shore of Lake Ontario might have to be compensated for property damage if the plan endorsed by Save the River, based in Clayton, becomes reality. That plan, called B+, seeks to restore the St. Lawrence River to conditions similar to those before the Moses-Saunders power project was built in the late 1950s.

Instead, the commission has proposed what it considers a balanced approach that weighs environmental, recreational and shipping interests and resembles regulations already in place.

But Randy Sargent, an environmental lawyer who serves on Save the River's board of directors, wrote a legal opinion that seeks to poke holes in the IJC's position. It will be part of Save the River's submission to the IJC during the public comment period, which runs through early July.

At issue is the Boundary Waters Treaty, a 1909 pact between the United States and Canada that outlines management of the countries' shared waters. The treaty requires that property owners be compensated for damage should water levels exceed what nature would cause on its own — a provision Ms. Sargent said means before the power project was built.

Even if the IJC adopts the plan preferred by Save the River, damage will not exceed what existed before the power project's construction, Ms. Sargent said.

A spokesman for the IJC, Frank A. Bevacqua, declined Wednesday to comment on Ms. Sargent's memo.

"The commissioners will discuss the comments among themselves and with staff, and will seek expert advice to more fully understand the issues that are raised. However, the commission is not going to respond to individual comments during the comment period," Mr. Bevacqua said in an e-mail message.

However, Mr. Bevacqua said the IJC believes its proposal is "fair and equitable after considering all of the facts, including the interests that currently exist."

Save the River and New York officials say the IJC's water regulations have for years been designed to benefit owners of property along the Lake Ontario shore, putting environmental considerations second.

The B+ plan, which officials say is weighted heavily toward environmental benefits, could not be implemented unless the federal, state and Canadian governments take action to reduce the additional risk of shoreline damage, Mr. Bevacqua said.

The IJC faces pressure from New York officials, as well as members of Congress from New York, to adopt plan B+. Rep. John M. McHugh, R-Pierrepont Manor, introduced a resolution in the House criticizing the process the IJC used to reach its water levels plan and urging more environmental consideration for Lake Ontario and the St. Lawrence River. He has said he may seek additional measures to block the IJC from implementing its preferred choice.

The state Department of Environmental Conservation and Gov. David A. Paterson also have pushed for plan B+.

But the extent to which Congress can go is open to question. The IJC, as a binational organization, is not strictly a federal agency. And Ms. Sargent said Congress gave up its control over the obstruction, diversion and use of boundary waters when the IJC was created — an argument that may work both for and against Save the River's interests.

On one hand, Ms. Sargent said, Congress's lack of control takes away the argument that the federal government is forcing the IJC to adopt a plan that risks shoreline damage — and knocks the wind out of anyone trying to hold the federal government liable should plan B+ become policy.

On the other, Mr. McHugh and other lawmakers also appear to have limited leverage to demand anything from the IJC.

"The courts say the IJC is a separate identity," Ms. Sargent said.