New York

Lake George Association asks court to block herbicide use

View of Lake George from the second story of Fort William Henry in Lake George on Thursday, May 30, 2019. (ERICA MILLER/GAZETTE PHOTOGRAPHER)
PHOTOGRAPHER:
View of Lake George from the second story of Fort William Henry in Lake George on Thursday, May 30, 2019. (ERICA MILLER/GAZETTE PHOTOGRAPHER)

LAKE GEORGE — Advocates for Lake George are asking a court to block use of a controversial herbicide to kill invasive Eurasian watermilfoil, the aquatic weed that can hinder native species and clog a body of water.

The Lake George Association, Lake George Waterkeeper, town of Hague and the owner of land near one of the two planned test application sites filed the Article 78 complaint last week, seeking to overturn the Adirondack Park Agency’s April 14 approval of the plan submitted by the Lake George Park Commission.

David Wick, executive director of the LGPC, said Monday he’s confident the three state agencies that reviewed and approved the plan did their job correctly, but even if the complainants succeed only in temporarily delaying the application, it could be impossible to complete this year.

The LGPC plans to spread the herbicide ProcellaCor on 7.6 acres of the 28,000-acre lake. Its permit is valid only through June 30, 2022, and the herbicide needs to be applied in May or June because the milfoil is still small and growing most rapidly then. 

ProcellaCor mimics the plant’s growth hormone, causing it to grow so fast that it essentially disintegrates. So it needs to be used when the plant is taking in the most possible nutrients, and that window closes around the end of June.

The herbicide is approved by federal regulators and many states, including New York. But it has been on the market for only a few years, so there is a finite amount of data on any long-term effects on the ecosystem.

The Lake George Association led an effort to block application of ProcellaCOR in the Queen Of American Lakes, offering competing scientific opinions to the contention that the herbicide is safe. The more than 300 people who submitted written comment sided with the Association to a large degree: Many of them submitted identically worded letters of opposition.

However, the state Department of Environmental Conservation, Adirondack Park Agency and LGPC itself all approved the project.

The APA is singled out in the legal paperwork filed Thursday in state Supreme Court, Warren County as the petitioners seek to set aside the permit approval.

They allege that:

  • APA did not post 149 comments for public review and apparently did not factor them into its decision.
  • APA did not notify landowners adjacent to the application sites, some of whom use the lake for drinking water.
  • APA’s deliberations and rushed decision were lacking in comparative analysis and consideration of contrasting positions on scientific issues; in this, it failed its legal duty.
  • APA did not record the permits with the county clerk’s office, in violation of law.
  • APA failed to recognize that diver-assisted milfoil removal is a viable alternative to herbicide.
  • APA did not seek additional information when presented with professional scientific opinion in public comments opposed to the herbicide.
  • The state Department of Environmental Conservation, a voting member of the APA, failed to recuse itself during the April 14 APA vote though it should have. 
  • The Lake George Association and Lake George Waterkeeper asked the APA to conduct an adjudicatory hearing under criteria set in APA regulations but the APA did not even mention the criteria.

The petitioners are seeking a temporary restraining order and preliminary injunction blocking use of the aquatic herbicide.

Wick said he could not comment on the legal aspects of the case.

But he was willing to discuss the issues.

Wick said he was disappointed the Lake George Association chose this route — it lacked the authority to challenge the science so it attacked the process, he said.

“The commission of course has followed every possible procedure,” he said. “We’re very confident in what we’ve done. Three state agencies did exactly what they were supposed to do.”

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