Lake Hopatcong Drawdown Issue

 

Bridge Marina is committed to safeguarding Lake Hopatcong, and has been an advocate for the lake on a variety of environmental issues over the years.  Issues related to the 60 Inch Drawdown, which last occurred in 2013, are outlined below for reference.  

Interested in learning more about our efforts to safeguard Lake Hopatcong? Please feel free to contact us at info@bridgemarina.com.

What is the 60 Inch Drawdown?

Lake Hopatcong’s water level is lowered 60 inches every five years primarily to create advantageous construction conditions for a portion of lakefront property owners; this year, the drawdown is proposed to begin on September 22.

What is the risk of drawing down the lake?

Simply put, there is a great risk that normal water levels may not return to the lake after a drawdown.  The predominant manner by which Lake Hopatcong can refill to normal level is precipitation.  Mother Nature can and has been incredibly temperamental and unpredictable, especially here in our lake’s small watershed.  Since one simply cannot predict that weather patterns will provide very suitable amounts of precipitation in the early spring or late winter after a drawdown, the lake can be left without water to refill in the spring.  Draining water from the lake is a very risky endeavor.

 

Some have argued that “the lake has always come back.”  Lake Hopatcong has not always refilled in a timely manner or refilled at all the next season.  As recent as 2009, the lake did not refill until June 20th and in 1988 the lake did not recover from a 60 inch drawdown all summer.  Just last spring (2013), the lake did not recover until May 24th after only a 26 inch drawdown on the lake.

 

Both the New Jersey Division of Fish and Wildlife and the New Jersey Department of Environmental Protection (NJDEP) have recognized the dangers of drawing down the lake.  The NJDEP has cautioned that drawing down Lake Hopatcong is very risky and that any previous successful recoveries from drawdowns have been lucky. 

How did we get here?  Why a lawsuit?  Why now? 

Ray Fernandez, owner of Bridge Marina, and others have worked diligently to protect Lake Hopatcong’s waters for years.  Ray has served as a commissioner on the Lake Hopatcong Commission and he is a founding member of the Lake Hopatcong Alliance, a non-profit, grassroots organization that was created in 2009 to help safeguard the lake.  Ray currently serves as a volunteer member of the Citizen’s Advisory Committee (CAC) to the Lake Hopatcong Water Management Plan.

 

Ray and other citizens have brought numerous options and alternatives to the NJDEP for consideration over the past few years.  Unfortunately, the NJDEP has been unwilling to consider alternatives to the drawdown and has disregarded compromise on the drawdown issue and other issues regarding the lake’s water management.  After years of pleading with the NJDEP to protect the rights of all lake users and receiving no resolve, we were left with no other option than to seek legal recourse.

 

There are thousands of New Jersey residents who believe that drawing down the waters of Lake Hopatcong to benefit just a few citizens is simply unjust, unfair and unconstitutional.  This dispute has been filed to ensure that the lake and its waters are protected for all citizens today and in the future.

What laws and guidelines are reportedly being violated with the drawdown?

The State of New Jersey has numerous statutes (laws) that were put in place to protect Lake Hopatcong, its citizens and its property owners.   Conducting a 60 inch drawdown may violate those laws that protect us.  In addition, the New Jersey Department of Environmental Protection has laws and guidelines that were created to protect and preserve our environment for all citizens of the state.  Conducting a 60 inch drawdown for the sake of dock repairs may violate these laws and guidelines.  Conducting any drawdown without the consent of all property owners and stakeholders may violate these laws and guidelines.

 

1) Failure to comply with the New Jersey Division of Fish and Wildlife Permit Guidelines.  In order to drawdown Lake Hopatcong, a water lowering permit from the New Jersey Division of Fish and Wildlife must be obtained.  Lake Water Lowering Permit guidelines assert, “The Division of Fish and Wildlife issues water lowering permits for the sole purpose of protecting the state’s aquatic biota.”   Lake Hopatcong is lowered 60 inches to allow lakefront property owners to perform dock repairs.   Dock repairs are not a permitted reason for lake lowering.  Lowering the lake by 60 inches to allow for dock repair does not protect the state’s aquatic biota nor does it provide any benefit to aquatic biota; in fact, it puts the lake’s aquatic biota at severe risk.  

 

Lake Water Lowering Permits may only be ordered and endorsed by the “Owner of the Lake.”  Bridge Marina manages and Joseph Fernandez owns 100 feet of property under the lake that extends from our shoreline; other landowners have similar ownership of the land under Lake Hopatcong.  Bridge Marina, and other property owners around the lake, did not agree to a drawdown of the Lake.  The State of New Jersey may only own approximately 460 of the 2,500 acres of Lake Hopatcong.  The NJDEP cannot lower the lake without the consent of all owners.

 

2) Failure to comply with New Jersey statute 13:12-4.  As per this law, Lake Hopatcong’s lands and waters were left in trust to the State “for the public use of conserving the public waters of the State or for public use for recreation, and shall be and are hereby dedicated to such public use” and that dams and sluice gates are to be maintained and operated “in such manner that the rights of the riparian owners upon such lakes and ponds and the outlets thereof shall be properly conserved.”  The Lake was left in trust for all citizens of New Jersey.  The 60 inch drawdown is conducted primarily to provide a portion of lakefront property owners with advantageous conditions to do construction; other property owners do not need the lake lowered to do work.  Lowering Lake Hopatcong 60 inches to create advantageous construction conditions for only some lakefront landowners while disadvantaging the remainder of lakefront landowners - and all citizens who use the lake - is unfair, unjust and unconstitutional.  If the lake does not refill, all citizens lose access.

 

In addition, the State must preserve the rights of riparian owners.  Riparian rights don’t include the removal of water from a water body to improve construction conditions for one owner while disadvantaging his or her neighbor.  Riparian rights do include the right to access your water body for swimming, boating, transportation, etc.  Riparian rights do include that water may not be transferred out of the watershed that would affect the owner’s access. 

 

3) Failure to Comply with New Jersey statute 13:12-5.  This law states “The waters of Lake Hopatcong may be used as an aquatic public park, for boating, bathing, fishing and winter sports, and the lake level shall be maintained for such purposes at the normal high water mark as established on March eleven, one thousand nine hundred and twenty-two, natural elements permitting.”  Management of Lake Hopatcong waters in a manner not congruent with this statute, or in the best interest of the general public, without proper waiver or permission is in violation of this statute. 

 

4) Lake Hopatcong is an important and fragile environment that must be protected.  Drawing down the lake 60 inches places the lake’s environment at severe risk during the drawdown and in subsequent seasons.  The New Jersey Division of Fish and Wildlife has outlined the concerns a drawdown presents in its own guidelines for lowering lake water levels. The New Jersey Division of Fish and Wildlife and the NJDEP have recognized the dangers of drawing down the lake and have cautioned that drawing down Lake Hopatcong is very risky, and that any previous recoveries from drawdowns have been lucky.  Even in light of this, the NJDEP has decided to proceed with the 2013 60 inch drawdown.

Why wasn't the lawsuit successful?

We sought a temporary injunction from the Morristown County Superior Court, Chancery Division, to stop the five foot drawdown of Lake Hopatcong. Our complaint claimed that the State was infringing on our riparian property rights by taking the waters from above our property under the lake. The Court denied the request for a temporary injunction because the Judge believed that a material dispute existed with regard to public versus private ownership rights in the waters of Lake Hopatcong--most notably those waters above our property. Without being able to reach a clear conclusion as to ownership of the waters, the Judge believed that we could not show that we would be irreparably harmed by the lowering or 'taking' of the water. The Judge suggested that the water would return at some point in the future and that if we experience any temporary loss of water that causes harm, we can sue the responsible parties for damages. Because we have the right and ability to seek damages that may result from the drawdown, an injunction could not be granted to stop the drawdown.

 

It should be noted that the ruling of this Court does not suggest that drawdowns are legal or necessarily permissible, only that the Court could not take immediate action by granting an injunction to stop this because, in the eyes of the Court, we would not suffer "irreparable" harm and thereby do not qualify for an injunction. We will continue to take steps to protect our rights and pursue stopping the 5ft drawdown, as it represents a risk to our lake and community.

 

Conclusion

We realize that there are lakefront property owners who prefer a drawdown to maintain their properties and we empathize with them; here at Bridge Marina we maintain over 400 feet of waterfront.  We realize that there are those who will disagree with our position and our actions and we respect their opinion.

 

We view drawing down the waters of Lake Hopatcong on a routine basis - benefiting just a few citizens while disadvantaging the remainder - to be unjust, unfair and unconstitutional.  Lake Hopatcong is a public recreational resource for all citizens to
enjoy.  There is far too much risk for the environment and the community if the lake does not refill in the spring. 

 

We also recognize that the state may be violating its own laws that were put in place to protect our citizens and our environment.  Our state agencies must be held to the same standards as citizens.   

What can you do about the 60 Inch Drawdown on Lake Hopatcong?

Protect your right to enjoy Lake Hopatcong.  Write NJDEP Commissioner Bob Martin at bob.martin@dep.state.nj.us  and tell him what you think. Contact your Senator and Assemblyman or Assemblywoman and ask them to contact Mr. Martin and ask Mr. Martin to stop drawing down Lake Hopatcong.

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