Lake George Ass'n v. N.Y.S. Adirondack Park Agency

Decision Date13 June 2022
Docket NumberIndex No. EF2022-70178
Citation76 Misc.3d 295,173 N.Y.S.3d 388
Parties In the Matter of the Application of The LAKE GEORGE ASSOCIATION, The Lake George Waterkeeper, the Town of Hague, and Helena G. Rice, Petitioners, v. The NYS ADIRONDACK PARK AGENCY, The Lake George Park Commission, and the NYS Department of Environmental Conservation, Respondents, for Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules and Injunctive Relief.
CourtNew York Supreme Court

Fitzgerald Morris Baker Firth P.C., Glens Falls (Michael Crowe, and Thomas A. Ulasewicz of counsel, for petitioners.

Letitia James, Attorney General, Albany (Joshua M. Tallent and Susan L. Taylor, of counsel), for respondents.1

Robert J. Muller, J. Known as "The Queen of American Lakes," Lake George is roughly 32 miles long and 28,000 acres in size. It lies within the upper region of the Great Appalachian Valley and drains all the way northward into Lake Champlain and the St. Lawrence River drainage basin, and is classified by respondent New York State Department of Environmental Conservation (hereinafter the DEC) as AA-Special for its fresh surface waters. Eurasian watermilfoil (hereinafter EWM) is an aquatic invasive plant that is not native to the United States. It has been found in numerous locations in Lake George since the 1980s, presumably as the result of plant fragments being transported from other waterways on boats and trailers.

EWM is very difficult to eradicate once it is established. There are no natural predators to keep the population in check, the roots must be completely pulled or killed to prevent regrowth, and removal typically creates fragments that propagate and exacerbate the spread of the species. EWM grows densely at the surface of the water, making recreation difficult if not impossible. It also prevents sunlight from penetrating into the water column and chokes out other vegetation. Suffice it to say that all parties to this proceeding agree that EWM is dangerous to the waters of Lake George and must be eradicated. Indeed, they have worked together toward this common goal for decades.

In 2016, respondent NYS Adirondack Park Agency (hereinafter the APA) issued a permit to respondent Lake George Park Commission (hereinafter the LGPC) for the use of hand harvesting and benthic matting in the removal of EWM from Lake George. Hand harvesting involves divers manually pulling the plant and root systems from the lakebed. In areas with large multi-stemmed plants, hand harvesting also involves the use of a vegetation conveyance device known as a Diver Assisted Suction Harvester (hereinafter DASH); this is a vessel which acts as a large vacuum to transport harvested plants out of the water. Benthic matting involves the laying of mats over beds of EWM. It successfully eradicates the EWM beneath the mats, but kills all other plant species there as well. It appears that hand-harvesting has proven most successful at eradicating EWM in Lake George, but it is labor-intensive and expensive. Petitioner Lake George Association (hereinafter the LGA) alone has contributed over $1.1 million to the effort since 2013.

ProcellaCOR EC (hereinafter ProcellaCOR) is an aquatic herbicide used in the management of EWM. It was approved by the United States Environmental Protection Agency in February 2018 and then by the DEC in February 2019. Review by the DEC involved review by the Bureau of Ecosystem Health and the Division of Health and Wildlife for ecotoxicity. It has also been reviewed by the New York State Department of Health to ensure no human health concerns. New Hampshire has used ProcellaCOR on 43 occasions to manage EWM in its lakes, and Vermont has used it on 18 occasions. ProcellaCOR has also been used with success in this State in Chautauqua Lake, Glen Lake, Minerva Lake and Saratoga Lake, among others.

On February 22, 2021, in response to a request from the LGPC, the APA opened a pre-application file for initial analysis of a draft proposal for the application of ProcellaCOR to eradicate EWM from underwater lands within Blairs Bay and Sheep Meadow Bay — both of which include wetlands.2 Blairs Bay and Sheep Meadow Bay are approximately 8 miles apart, with both located in the Town of Hague on the northeastern side of Lake George. From 2007 to 2017, the LGPC managed EWM in Blairs Bay with both hand harvesting and benthic matting, apparently with little success. Nothing further has been done there since 2017. Hand harvesting and benthic matting were used in Sheep Meadow Bay as well from 2007 to 2009 and from 2012 to 2014,3 with these efforts also proving largely unsuccessful. There has been no further management there since 2014.

On May 24, 2021, members of the APA, LGPC, DEC, LGA and SOLitude Lake Management (hereinafter SOLitude) — an aquatic herbicide applicator and consultant for LGPC — met to discuss the proposal relative to Blairs Bay and Sheep Meadow Bay. Staff members from the APA, LGPC and LGA thereafter conducted site visits to the Bays on July 28, 2021. The wetland in Blairs Bay was assigned a value rating of 1 due to the presence of alternate-flowered water milfoil — listed as threatened in this State — and the wetland in Sheep Meadow Bay was assigned a value rating of 3 (see 9 NYCRR 578.5, 578.6 ).4

Applications for the use of ProcellaCOR in Blairs Bay and Sheep Meadow Bay were subsequently submitted by SOLitude — as representative of the LGPC — on January 7, 2022. The application for Blairs Bay sought to apply up to 4.2 gallons of ProcellaCOR within a 4-acre area, including a 0.33± acre wetland. In Sheep Meadow Bay the LGPC sought to apply up to 4.77 gallons of ProcellaCOR EC within a 3.6-acre area, including a 0.5± acre wetland. The LGPC proposed to complete the treatments between May 17 and June 30, 2022, primarily to shield alternate-flowered water milfoil and other native species from any potential effects of the herbicide — although no effects are expected given how quickly the chemical breaks down in the water.

On January 11, 2022, the APA notified adjoining landowners that the applications had been received. The APA then issued notices of incomplete permit applications for both project sites on January 25, 2022. These notices requested additional vegetative survey information, revisions to the site mapping, explanations of efforts to avoid and minimize impacts to wetlands, and additional details of the proposed herbicide use, among other materials. The APA received all requested materials on or about February 18, 2022 and, on March 3, 2022, all interested parties were advised that the application had been deemed complete and that written comments on the proposal would be accepted until March 31, 2022.

The APA thereafter received 325 comment letters, with 300 in opposition to the project and 22 in support. The comment letters in opposition included, inter alia , a 15-page letter dated March 31, 2022 from the LGA and petitioner Lake George Waterkeeper and an 11-page letter dated March 31, 2022 from Carol D. Collins, Ph.D., a liminologist who has spent years studying Lake George. The LGA and Lake George Waterkeeper expressed several concerns, including that "[t]he circulation and hydrodynamics of Lake George will result in the wide-spread distribution of the herbicide well beyond the cited dilution zone in the current [a]pplications" [LGA/Lake George Waterkeeper March 31, 2022 letter, attached as Exhibit "D" to Petition, at p 2], the "[h]erbicide treatment of [EWM] will result in significant nutrient loading from decomposing plants, especially phosphorus, that will cause algae growth and increase the potential for [h]armful [a]lgae [b]looms" [LGA/Lake George Waterkeeper March 31, 2022 letter, at p 7], and there will be "significant ... impacts to native macrophytes and organisms" [LGA/Lake George Waterkeeper March 31, 2022 letter, at p 12]. The LGA and Lake George Waterkeeper implored the APA to conduct studies with respect to the ecology of Lake George specifically — given its AA-Special classification and use as a drinking water source — as well as to hold a public hearing before proceeding with approval of the permits. Collins stated similarly in her letter:

"I find that the use of ProcellaCOR in Lake George is likely to have highly significant adverse impacts on the plant and animal communities, fisheries, water quality and drinking water. The application is premature, rushed, absent of critical information, misleading and incomplete. Given these problems, it is not possible at present to fully evaluate the impact ProcellaCOR will have on the Lake George ecosystem. I strongly urge the [APA] to table this application and take the time to fully investigate the impacts of this toxin. Trials of this herbicide should not be conducted in the waters of Lake George that so many rely upon for drinking water, fishing and recreation until more information is available" [Collins March 31, 2022 letter, attached as Exhibit "H" to Petition, at p 1].

On April 1, 2022, David Wick, the Executive Director of the LGPC, submitted a document to the APA summarizing the ecological and other benefits to be derived from the proposed application of ProcellaCOR including, inter alia , the fact that the herbicide is very targeted and eradicates EWM while having little if any impact upon native species. Wick also noted that the application of ProcellaCOR is not labor intensive and is much less costly, with no regrowth of EWM for at least three years. Wick then submitted a document to the APA on April 7, 2022 in response to the several comment letters received in opposition to the project, advising that the herbicide breaks down quickly after being introduced into the water and, as such, will not be distributed widely. He further advised that the annual die-back of EWM results in harmful algal blooms, and the application of ProcellaCOR will prevent this going forward. Finally, Wicks advised that data from Minerva Lake...

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