MAHOPAC, N.Y. - The state Department of Environmental Conservation (DEC) is threatening the town of Carmel and four Lake Mahopac residents with more than $800,000 in fines if they don’t come into compliance with environmental conservation law over the maintenance and engineer assessments of the Lake Mahopac dam.
The state had set a deadline of Aug. 15 for the parties to sign an “order on contest” and meet the DEC’s demands before it takes enforcement action, but Greg Folchetti, the town attorney, said the deadline has been extended three weeks so the parties can negotiate further.
The story of the Lake Mahopac dam—essentially a 5-foot spillway—and how it got to this point is a complicated one, but Robert Webber, an attorney for one of the property owners cited by the DEC, said it began in the early 1980s when an engineering report completed by the Army Corps of Engineer resulted in a Class C designation for the dam—the highest designation possible—meaning that if the dam failed, it would result in not just property damage, but loss of life as well.
Webber contends that the Lake Mahopac dam has the same hazard classification as the 307-foot-high, 1,843-foot-long Kensico Dam in Valhalla and the 297-foot-high, 2,188-foot-wide Croton Dam in Cortlandt. The higher classification means these dams must adhere to a higher standard of maintenance and have evacuation plans in place in the event of catastrophic failure.
Webber said that environmental conservation law empowered the DEC to inspect dams and implement safety programs. But in 1999, the state legislature amended the law to shift the burden of responsibility to the “dam owners”—broadly defined as anyone who “owns, repairs, maintains, operates or uses the dam.”
In this scenario, the DEC has cited the town of Carmel and Lake Mahopac property owners Morton Teich (Webber’s client), Joe and Barbara Massaro, Edmund and Mary Jane Nowowiejski and Jeffrey Milham as the owners because of their proximity to the dam.
The DEC, Webber said, alleges that between Oct. 11, 2012, and June 15, 2017, the dam owners committed 1,709 separate offenses concerning the DEC Dam Safety Program. The owners are being assessed $500 per day per violation, for a total of $856,500. Webber said that “loss of the real estate itself—the homeowner’s residence—to satisfy the fines is entirely possible.”
The violations include failure to complete an emergency action plan; failure to complete an approved engineer inspection of the dam, and failure to complete a maintenance plan for the dam.
Weber contends that the Lake Mahopac dam should never have been given a C classification to start with when the initial engineering study was conducted back in the ‘80s.
“It’s incredible,” he said. “It’s right there with those other dams [Kensico and Croton] and I don’t have an understanding of it. That 1981 report was done in one day and has a drawing of the dam that was not done to scale and has no measurements on it and they are relying on it. It’s lacking scale. It’s like something my niece would draw with a crayon. The whole engineering report was based on this drawing.”
The answer, the lawyers for the homeowners agree, is for a new engineering study to be done that would likely result in the dam being reclassified, which would ease the burden and responsibility for the homeowners. However, Folchetti said the DEC is not willing to pay for a new study.
However, in 2012, Town Board minutes reveal, acting as commissioners of the Lake Mahopac Park District, the board authorized an engineering study for the purposes of hazard classification. But Webber and Ed Barnett, chair of the park district’s board of directors, said the town never completed the study.
“It’s like they took the ball to the 1-yard line and then stopped,” Barnett said. “They did most of the engineering, but then they stopped at one point and didn’t go any further. If they had done the rest of the study, we would be able to classify it at a lower classification, which means less cost for inspections and a greater time frame for those inspections.”
However, Folchetti said the town did nothing that prompted the DEC to begin the enforcement procedures.
“The classification of the dam is not the entire basis [for the DEC’s actions],” he said. “There are other matters that the DEC wants addressed, including maintenance and assessment going forward.”
Folchetti acknowledged that the town is considered one of the dam’s owners by the DEC and would be on the hook for its share of the fines if the issue isn’t resolved.
“The DEC has threatened enforcement against five parties, including the town, and if an enforcement proceeding was to commence, then all the parties could be potentially liable for any fines.”
In an email exchanged between Folchetti and Alfred Della Cioppa, the attorney for the Nowowiejskis, obtained by Mahopac News, Della Cioppa rejected a settlement proposed by the town and said if the town ends up liable for its share of the fines, taxpayers would not be happy.
In the email, Folchetti said the town would be willing to undertake future responsibilities for general maintenance, reporting, emergency action plan preparation and filing on the condition that the four homeowners pay all the fines and provide the town with easements, as well as other considerations.
Della Cioppa wrote back that after conferring with the other homeowners’ attorneys, they reject those conditions.
He called making the homeowners pay all the fines “unreasonable, unfair and inappropriate,” adding it would be an “unbearable financial burden.”
“In addition, our clients will not assume this responsibility since the town is jointly and severally liable with respect to the DEC and the law,” Della Cioppa wrote. “In the event of a successful litigation by the DEC, they will undoubtedly first look to the town’s ‘deeper pockets’ for payment of the $856,500. This, together with the expense of litigation, will not be well-received by the taxpayers.”
As for the easement request, Della Cioppa contended that the town already has those.
“It is believed that some easement may already exist and possibly only need to be amended,” he wrote.
Barnett said he has documentation that the easements exist.
“The town has an easement on the Massaro property to do whatever maintenance needs to be done,” he said. “For the past few years, the town has been going in there to open and close the sluice gates.”
Barnett said that the park district believes that the burden of the dam’s responsibility should never have been placed on just the four homeowners.
“We’ve always maintained it should be the responsibility of the collective,” he said. “All the people who live within the park district have a responsibility. But the park district is just an advisory board. So, it’s up to the Town Board to do whatever it wants to do. But it is our position that the park district should be responsible for the dam. And if it is the park district, that means the town because the park district is part of the municipality.”
Barnett, too, said he’s unsure why the town never completed the engineering report.
“The indication was they didn’t want to accept any more risk, but in my opinion, they are creating more risk by not doing their due diligence,” he said.
In a letter from Della Cioppo to Supervisor Ken Schmitt obtained by Mahopac News, Della Cioppo writes, “The town, with its personnel and resources, is clearly in the best position to address these mandated maintenance and safety measures on behalf of all owners. The Lake Mahopac Park District provides an appropriate funding source since the dam’s safety coincides with its purpose of maintaining and preserving the lake for its…property owners.”
Webber said he believes the DEC’s plan has always been to pit the parties involved against one another.
“The DEC throws everyone into the fighting pit and then watches from above as everyone fights it out over their share of the liability,” he said.
Meanwhile, now that a three-week extension has been granted, Folchetti said he hopes a settlement can be obtained that is satisfactory to all involved.
“The negotiations are underway, the details of which I cannot talk about,” he said. “In all likelihood, we will know more in a few weeks.”
The DEC said it could not comment on an ongoing enforcement action.