Judge Denies Request To Stop Drawdown
MORRISTOWN - A Superior Court judge Thursday declined to stop the impending five-foot drawdown of Lake Hopatcong, scheduled to begin Sunday.
Judge Stephan Hansbury denied the request for an injunction filed by Jefferson resident Joseph Fernandez, owner of the Brady Road, Jefferson lot where his son Ray Fernandez operates Bridge Marina.
Hansbury told Fernandez’s attorney Shawn LaTourette that the first claim in the lawsuit that the state Department of Environmental Protection and Lake Hopatcong State Park engaged in fraud could be refiled if the allegation was more clearly defined. The two other claims concerned state agency decisions, which could be addressed in state appeals court, Hansbury said.
LaTourette said he was considering filing the appeals.
In his lawsuit Fernandez claimed that the state owns only 460 acres of the 2,500-acre lake. Further, he claimed, that the April 6, 2000 deed for his property gave him ownership of the lake bed and the water up to 100 feet from shore.
Fernandez claimed that as owner of that piece of the lake he has not given permission to the state to lower the lake on his property.
The lawsuit claimed that Fernandez would suffer irreparable harm if the lake was lowered five feet, and cited the 2008-09 drawdown that left the lake at below average levels until June 2009, well into the boating season, and adversely, affected the marina’s business and reduced rental income.
Hansbury said that while the losses of income related to the slow-filling lake could be real, the drawdown produced a “temporary” condition, and any losses would be financial in nature and could be recovered through other means and thus were not “irreparable.”
Lake Hopatcong is lowered annually by 26 inches. Every five years, the lake is lowered by 60 inches to allow lakefront property owners to more easily make repairs to seawalls and docks. The 60-inch drawdown is also said to enhance the water quality through debris removal and as a way to kill off aquatic weeds. The drawdown schedule is part of the 2011 Lake Hopatcong Water Level Management Plan.
That plan takes into account that Lake Hopatcong feeds the Musconetcong River, a trout producing water body, and Lake Musconetcong, a shallow lake formed to provide power for mills in Stanhope, and later, water for the Morris Canal.
A permit for the drawdown was granted Aug. 16. The drawdown begins Sunday and is scheduled to end in Dec. 15. The goal is to have the lake back to its average nine-foot depth before spring.
Ray Fernandez said the state actually stops the drawdown, at the rate of 1.5 inches a day, by Nov. 1, and must have the lake nearing average levels by Dec. 31.
He said all the drawdowns, even the 26-inch ones, pose a risk that the lake won’t refill on time, but the five-foot drawdowns are a significant problem.
“We can watch the disaster or we can stop it,” he said.
Joseph Fernandez claimed in his suit that a 1903 state Department of Commerce document dissolved the Morris Canal and Banking Corp. (the company that owned the Morris Canal) and designated 460 acres of the lake to be transferred to the state. The transfer was based on the acreage of the lake leased from the canal corporation by the Lehigh Valley Railroad Co., which was then the operator of the canal.
Fernandez said that the declaration is in contrast to the state’s claim in the August application for the current drawdown that is owns all 2,500 acres of the Lake Hopatcong.
LaTourette and Hansbury discussed the nature of that transfer to the state control. LaTourette said the transfer only conveyed the ownership of the 460 acres of the lake to the state, not the entire lake. Hansbury said that the maps presented to him suggested that the entire lake was transferred, at least the use of all the water in the lake.
State Deputy Attorney General Lewin Weyl, who sought dismissal of the lawsuit, said that the state does not seek control of the lake bed, but the state is given the responsibility of maintaining the public lake. Weyl said the transfer of the Morris Canal holdings to the state included the dam at Landing, which means the state owns the dam, and with that ownership comes the right and responsibility of maintaining the depth of the lake and the quality of the water.
He cited state law that backed the claim that the state controls the public waters, but said the state has no claim to owning the lake bed.
Central to the lawsuit was LaTourette’s claim that Lake Hopatcong was a private lake owned by the residents whose property touches the lakeshore. He said the state is only one of the lake’s owners and to allow the state to lower the lake infringes on the property rights of those other owners.
“To permit government to take that property would wreck an irreparable injustice,” LaTourette said.
Hansbury asked if under LaTourette’s description of the lake as owned by thousands of people, would he, LaTourette, be in agreement with a scenario that had all those property owners building walls, and excluding all other owners from their particular piece of the lake.
LaTourette said that would be allowed if it protected each property owners’ rights.
LaTourette cited opposition to the drawdown as measured by several letters included in the court filings and the attendance of a dozen or so lake area residents at Thursday’s hearing.
Hansbury noted that with thousands of people living around the lake, the expression of a few voices of opposition was not convincing as an argument for stopping the drawdown.
Weyl cited an informal survey of lakefront property owners conducted by the DEP that said 70 percent of respondents said the five-foot drawdown was necessary. The survey, also included in the court filings, did indicate that 41 percent of the respondents were concerned that the lake would not recover in time from the five-foot lowering.
The rules governing management of the lake levels date to 1932, according to the 2011 Lake Hopatcong Water Level Management Plan.
Historically, the lake’s water level was lowered by 30 inches annually for waterfront maintenance and to protect property from ice damage, the document said.
Hansbury said that given the history of drawdowns since the 1930s, the five-foot lowering was “status-quo,” and that to not allow the drawdown would be unusual.
In January 1990, the annual drawdown was reduced to 26 inches, and in 1982 the state began the 60-inch drawdown every five years to accommodate major repairs, the 2011 plan said.
The 2009, five-foot drawdown produced a lawsuit filed by marina owners and a condominium complex seeking to stop the effort. The lawsuit claimed the reduced lake levels damaged their ability to successfully operate a business.
Hansbury cited the dismissal of that suit as one concern that indicated the current suit might not succeed upon appeal.
In 2009, New Jersey was experiencing drought conditions, which affected the speed at which the lake refilled.
The DEP weather warnings at the time said that April 2009 was second driest on record with measured precipitation about half of the long-term average for that period. February 2009 was the driest February on record with less than .75-inches of precipitation statewide, the agency said.
The lake’s current depth at the Landing dam, where it flows into the Musconetcong River is 8.6 feet, according to the U.S Geological Survey readings. Last fall, when lake levels were questioned, a series of storms produced enough rain to refill the lake.
Larry Ragonese, director of communications for the New Jersey Department of Environmental Protection, said the department has no scheduled work planned for this drawdown. In 2008 the state made significant repairs to the dam at Landing.
Roxbury also reported that no residents had filed for permits so far. Ragonese said he was not surprised by that finding since the need for repairs on lakeside facilities are usually discovered after the lake level has been lowered.
Ray Fernandez said that in recent years 17 to 20 lakefront residents have sought permits for work during the drawdown. Much of the work that is done does not require a municipal permit, he said.
He questioned why the lake would be drawn down to accommodate so few repair projects when the potential for harm to the lake and many other property owners could be great.
