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Lake Ontario homeowners on both sides of border want to sue IJC

As the water levels fall in Lake Ontario, the heat on the International Joint Commission continues to rise.

A group of Lake Ontario property owners – angry over floods and erosion in 2017 and again this year – plans to hold a rally from 10 a.m. to noon Aug. 31 at Olcott Fire Company.

Their goal: attract more members to the Lake Ontario-St. Lawrence River Alliance and gain support for their effort to sue the U.S. and Canadian governments. They say the countries' approval of a controversial lake management plan called Plan 2014 prompted the flooding.

"We're rallying everybody from the St. Lawrence River all the way to Buffalo," said Jim Shea of Fayetteville, president of the organization. "The Canadians are doing the same thing."

The group has more than 2,000 dues-paying members, with individuals paying $50 a year and businesses paying $100, Shea said. The group issued a news release in early July calling for action against the IJC.

Shea said his group wants money "whether that comes from a lawsuit, which we certainly intend to file if we're not compensated, or some form of government relief, either one."

He said his cottage in Sandy Pond, on the eastern Lake Ontario shore, sustained $40,000 in flood damage in 2017 and another $30,000 worth this year.

"I had to put up a breakwall in 2017. It got knocked down. In 2019, I had to put it up again," Shea said.

The binational panel that governs Great Lakes issues has no revenue of its own. Its money comes from Washington and Ottawa.

Both the U.S. and Canada have laws protecting the IJC from being sued. The Lake Ontario-St. Lawrence River Alliance has called on President Trump to cancel a 1948 executive order by then-President Harry Truman that shields the IJC from litigation.

Reversing the executive order might not happen, so the group has an attorney working on suing the American and Canadian federal governments.

"We don't even have to sue the IJC. We can sue the U.S. and Canadian governments, who are responsible for the actions of the IJC," Shea said.

Rep. Chris Collins, R-Clarence, pushed for Trump to clean house on the IJC. Trump appointed three new members, including former Assemblywoman Jane L. Corwin of Clarence as the new U.S. chairwoman of the IJC.

"With new U.S. commissioners, we are on the right path to scrapping Plan 2014," Collins said in a statement. "While I have not heard from those considering filing a potential lawsuit, I doubt a lawsuit will have standing against a multinational commission with little resources. Working with U.S. commissioners to end Plan 2014 and returning to lake level policies that preceded it should be and continues to be one of my top priorities."

Plan 2014 battle

Plan 2014 took effect in December 2016. Within three months, there was flooding. The IJC insists unusually heavy rain that year was responsible.

"Lake Ontario generally rises in the spring, peaks in early summer and declines in the fall in response to the natural seasonal cycle of water supplies," IJC spokesman Frank Bevacqua said.

"The regulation of Lake Ontario outflows has some effect on the water levels, but it is limited," Bevacqua said. "Regulation cannot control the seasonal or long-term fluctuations, which are largely determined by the natural cycles in water supplies.

"All of the water released from Lake Ontario flows through the St. Lawrence River," he said. "The regulation of Lake Ontario outflows attempts to balance the impacts on the lake and the river," Bevacqua said.

He said the amount of water released from the lake last year and this year exceeded what would have been possible before the Moses-Saunders Power Dam was built at Massena.

"As a result, the peak level of Lake Ontario in 2019 was about 14 inches lower than it would have been without regulation," Bevacqua said. "However, larger releases could not have been made without causing additional flooding in downstream communities, creating unsafe conditions for commercial navigation or exposing municipal water intakes in certain parts of the river."

"We're bearing the brunt of protecting Montreal from Plan 2014," Shea, the Lake Ontario homeowner, said.

The IJC is allowing the lake to get higher to assist shipping interests in keeping the St. Lawrence Seaway open longer each year, he said.

"They're trying to keep the lake level high so their ships can get through and so the ice doesn't freeze up as quickly," Shea said.

The International Lake Ontario-St. Lawrence River Board, the IJC subsidiary that tries to control lake levels, reduced the outflows slightly on Aug. 23, saying releases that are too large create dangerous currents and erosion along the river.

The Canadian plight

Canadians have an organization of lakefront property owners, too. Its leader says the flooding situation has been just as bad on the north shore of the lake as in New York State.

"There are municipalities and homes that have been absolutely decimated," said Sarah Delicate, president of United Shoreline Ontario.

She said in her hometown of Bowmanville, Ont., a town of 40,000 people 47 miles east of Toronto, about 100 homes were damaged this year. In nearby Brighton, where 12,000 people live, water damaged 500 homes, Delicate said.

"We had water come right up and overflood our entire property. We sustained water inside our living room," Delicate said. "Mostly my home is OK, but it decimated my exterior property."

Her property line is 40 feet into the water, she said.

That left her home 10 feet from the lake.

"The Toronto Islands were again right underwater. There was a point in the spring where Toronto was saying they were spending $100,000 a week just on flood response," Delicate said. "What we lack is the high-level politicians making a deal of this."

She said Canadian media coverage tends to treat the floods as isolated local events rather than examining Plan 2014.

New York State has set up property owner assistance programs to reimburse lakeshore property owners for their spending on protecting their properties.

Ontario has no such plan, Delicate said, unless the inside of one's home has been destroyed and the overall community qualifies for the aid.

"Nothing for the outside. In a community like mine, one home was impacted so badly that the foundation collapsed and a family with four children had to leave the home," Delicate said. "They'll get not a single penny, because the community itself didn't sustain a high enough threshold."

The state Department of Environmental Conservation was ordered to loosen its regulations on shoreline construction after the flooding in 2017.

"Here the conservation authorities are actively getting in the way of people reinforcing their shorelines," Delicate said. "There was one house in my community where a rock wall was terribly compromised in 2017. The conservation authority did not allow them to repair it in 2018, and in 2019 the person's house sustained significant damage because of it."

She said dozens of Canadian municipalities have passed resolutions against Plan 2014, just as New York localities have.

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