Lawyers navigate state canal system

By Denise M. Champagne
Posted: 5:19 pm Tue, September 21, 2010

Leave it to attorneys to find a legal angle in a canals conference.

The New York State Canal Corporation and local attorney Lucien A. Morin II have put together a series of programs for Thursday, the final day of the 2010 World Canals Conference being held all week in Rochester. The session can be used for 3.5 CLE credits and will cover topics including riparian rights, the canal system’s integration in the state constitution, brownfield redevelopment in Rochester and PCB cleanup and dredging of the Hudson River.

“I just thought — since the conference is open to lawyers — that bringing a little history to make it a little more relevant to the Rochester area might be fun,” Morin said this week.

Morin also is counsel to the Fairport Industrial Development Agency, a subsidiary of the Village of Fairport Office of Community and Economic Development, whose executive director, Kal Wysokowski, has been heavily involved in the planning of the conference for more than a year.

Morin, of McConville, Considine, Cooman & Morin PC, will present “To Flow or Not to Flow: Is that the Question?”, a review of riparian rights along manmade waterways such as the canal.

“It’s a concept in law which basically allows the adjoining landowners the right to use and enjoy the water,” Morin said. “Since a lot of people don’t know the term, it might be appropriate to discuss those basic rights.”

He will discuss disputes that arose between mill owners along Honeoye Creek more than 100 years ago, when the City of Rochester originally tried to get its water from Canadice Lake and diverted part of the creek to bring the water supply north. One mill owner, Hiram Smith, objected, claiming the mills were entitled to uninterrupted water flow.

The state Court of Appeals, in a June 5, 1883 decision, agreed that the defendants had a clear legal right and ordered a trial to consider damages. Smith et al. v. City of Rochester, 92 NY 463.

Morin, past dean of the Academy of Law of the Monroe County Bar Association, also plans to discuss whether riparian rights include views.

The 2010 World Canals Conference, which began Sunday, was first held in Rochester in 2000. Its return marks the first time the conference has been held twice in the same city.

“I was excited that it came back to Rochester,” said Morin, who lives in Perinton. “It is a goal to not only showcase what the surrounding communities have done with the canal, but also an opportunity for the legal profession to participate in the programs. I think it’s a good thing for our local practitioners. They can get a little CLE, a little history and enjoy some of the benefits of the conference.”

William Estes, general counsel for the state Thruway Authority and Canal Corporation, whom Morin had met in connection with a case he handled, also will address the legal event on the appearance of the canal system in the New York State Constitution, and how the Canal Corporation came to reside within the Thruway Authority.

Estes said the state’s four-canal system first appeared in the Constitution in 1823, two years before the opening of the Erie Canal, which cost $7 million — a total that was paid back within six years.

The canal system became part of the Thruway Authority in 1992, under a fiscal and economic environment not unlike today’s, Morin said. The Thruway Authority paid the state $20 million for the canal system at the time, and assumed its operation and maintenance, investing more than $850 million along the way.

Lawmakers today are calling for another constitutional convention, which Estes said could provide opportunities to find the Canal Corporation a new home that is closer to its mission.

“There’s a question of whether the missions of the Thruway Authority and the Canal Corporation are aligned,” Estes said. “The Canal Corporation has now become a recreation agency. … Commercial shipping has declined because of the long-distance trucking, railroads and the St. Lawrence Seaway.”

The Canal Corporation cannot support itself as the Thruway Authority can, Estes said, and the question of whether its budget should be supported by a public authority or by the state budget — as is the case with other recreational agencies — is one that must be answered. One potential new home is the New York Power Authority, Estes said, since the canal system includes 27 hydropower facilities. It also could become a stand-alone agency.

“The canals are really an under-utilized resource of this state and very much under-appreciated,” Estes said, noting the current Constitution’s mission for the canals is to maintain navigability. “However, there are many competing resources today on the canal,” including drinking water, flood mitigation, economic development, agricultural irrigation and hydropower.

Also on Thursday, assistant counsel Peter Casper will discuss the Hudson River PCB cleanup project, which Estes said will leave 600,000 cubic yards of contaminated sediment after General Electric Co. — identified by the U.S. Environmental Protection Agency as a primary responsible party — completes its work at identified hot spots; and navigational dredging of the river, which runs into the Champlain Canal.

“The most important part of Peter’s talk is going to be delivering the message that, in the largest Superfund site in the country, only environmental hot spots will be dredged,” Estes said. “Solving this huge impediment to navigation will not be a result of the consent decree the EPA negotiated with GE.”

The final legal program will be presented by Mark Gregor, Rochester’s manager of port redevelopment and the Division of Environmental Quality. Gregor will discuss the redevelopment issues encountered in brownfields, particularly as they pertain to waterway revitalization, both in Rochester and statewide.

For conference details, see www.wccrochester.org.

At a Glance:

“Canals in the Community Setting, New York State and Worldwide: Challenges and Opportunities”

• 8:30 to 11:30 a.m. Thursday
• Rochester Plaza Hotel, 70 State St.
• Call (585) 546-1817 to register.