Niagara Gazette

May 2, 2013

Court ruling on Maid of the Mist work disputed

By Justin Sondel
Niagara Gazette

Niagara Gazette — A federal advisory council specializing in historic preservation believes an “adverse effect” ruling would have been more appropriate during the environmental review process tied to the construction of a new Maid of the Mist Corp. boat storage facility on the American side of the Niagara Gorge. 

In an April 29 letter to the U.S. Army Corps of Engineers, the Advisory Council on Historic Preservation questioned the Corps’ “no adverse effect” finding for the project which is being built on the old Schoellkopf Power Plant site. 

In his letter, Reid Nelson, director of the Office of Federal Agency Programs, says the Army Corps should have considered making a finding of “adverse effect,” and engaged the New York State Office of Parks, Recreation and Historic Preservation, the New York Power Authority and other consulting parties to develop a memorandum of agreement to resolve any adverse effects tied to the project.

Nelson’s letter stopped short of endorsing the formal position of the Niagara Preservation Coalition, a local non-profit organization that has taken legal action in recent weeks in an effort to prevent the construction project from moving forward.

“Though we do not agree with the substance of NPC’s position, based on our review of the documentation provided, the ACHP believes that a finding of ‘adverse effect’ would have been more appropriate in this case,” Nelson’s letter reads. 

Niagara Preservation Coalition President Louis Ricciuti said the letter supports his group’s argument that the power authority and the Army Corps made procedural errors in submitting paperwork necessary to alter the Schoellkopf site, which was recently added to the National Registry for Historic Places. 

That admission would have required a public hearing process that would have delayed the project, providing the public an opportunity to weigh in on the site.

Ricciuti believes the agencies were so hurried to move the project along that they did not properly identify how it may adversely effect the integrity of the Schoellkopf site itself.

“There was no opportunity for a public hearing,” he said. “They pushed this thing through so damn fast that there wasn’t an opportunity to do anything like that.”

Maid of the Mist spokesperson Kevin Keenan referred requests for comment to the power authority. The power authority did not respond to requests for comment on Wednesday. 

The Maid of the Mist needs the new storage facility because it lost the rights to operate its concession on the Canadian side of the gorge following a public bidding process. Hornblower Cruises and Entertainment — a California based cruise company — secured rights to the Canadian operation and will begin offering tours next year. 

The Maid of the Mist has an existing 40-year contract with state parks that it signed in 2002. With 30 years left on the contract — which was not put out to bid — the Maid needs a new place to store its fleet during the winter, as the storage facilities are on the Ontario side of the gorge. 

Gov. Andrew Cuomo announced last year that the state would amend its contract to allow the Maid to continue its operations by letting the company develop a new storage facility on the American side. 

Hornblower sued the Maid and several state agencies in an effort to reopen the concession on the American side. The parties argued the lawsuit in April and are awaiting a decision from New York State Supreme Court Justice Catherine Nugent Panepinto.

The NPC also sued the Maid and several state agencies, alleging they ignored possible environmental risks associated with disturbing the Schoellkopf site and that the facility would damage the historical integrity of the site, among other concerns. The group’s lawsuit was dismissed by Panepinto on procedural grounds last month. Representatives from the Army Corps and Cuomo’s office exchanged emails with the Gazette, but did not offer comments by the time the story went to press.

Ricciuti said building boat storage facilities on the site where the power plant slid into the gorge in 1956 removes the essence of its historical nature.“That’s like putting a trailer park on top of Mount Rushmore,” he said.

The Army Corps issued a finding of “no adverse effect” on Feb. 20, 2013, concluding that the addition of fill and concrete to provide a raised building for the Maid’s new facility would result in “burial, avoidance and preservation of any intact archaeological remains.” 

The power authority made a similar finding and state parks concurred with the “no adverse effect” ruling as well.

The Advisory Council on Historic Preservation is identified on its website as an “independent federal agency that promotes the preservation, enhancement, and productive use of our nation’s historic resources, and advises the President and Congress on national historic preservation policy.”

The council’s letter notes that the Army Corps’ finding was based on the conclusion the project would be located in “the isolated northernmost portion of the expanded Niagara Reservation state park” with “tinted concrete with muted colors, limited lighting and appropriate materials to minimize potential visual effects.” 

The advisory council suggests that by attempting to mute the potential effects of the storage facility on the surroundings, the project does not “avoid the effects” but rather serves as a means to “resolve the adverse effects of placement” of the facility at the Schoellkopf site. The council maintains the development of measures to “minimize or mitigate effects should occur following a determination of adverse effect, when the federal agency consults to develop steps to resolve adverse effects.”  

In his letter, Nelson notes the council can only provide an advisory opinion at this point as the 30-day review period for the Corps’ findings of “no adverse effect” elapsed prior to it being notified by the NPC of its concerns.

Ricciuti has also received a letter from the Federal Energy Regulatory Commission granting a rehearing for matters related to the way that the land was transferred. He said his attorney, Linda R. Shaw, is still trying to determine if the rehearing might help the group stop what they see as the destruction of the Schoellkopf site.

Ricciuti hopes both documents can help him stop what he has described as the “cannibalization of a piece of the region’s history.

“We are hoping we can sift through the federal regulations to determine whether these documents have any relevance,” Ricciutti said. “We’re doing our due diligence and we will see what happens.”