The two sides on the debate over herbicide use in Lake George took the weekend to consider Friday’s decision by State Supreme Court Justice Robert Muller and on Monday said they were planning the next moves.
Muller fully sided with the Lake George Association and others who brought a lawsuit against the way the Adirondack Park Agency issued a permit last year giving the go-ahead to the Lake George Park Commission's pilot use of ProcellaCOR EC, an herbicide that fights Eurasian watermilfoil, an invasive species in the lake.
The park commission also received permission from the New York State Department of Environmental Conservation. The APA, LGPC and the DEC are all state bodies.
If the pilot ran in two bays, it would have been the first use ever of an herbicide in Lake George.
In his decision, the judge said the Adirondack Park Agency board likely did not see all of the materials needed to make a decision when they issued their permit, and he faulted the Lake George Park Commission for holding back some materials or for not highlighting them as necessary.
The judge also found that the “rushed” nature of the application to the APA was likely not necessary, that the APA board could have taken more time before coming to a decision.
The largest issue, the one those involved are focused on, says the APA issued a permit without first holding a public hearing. The judge called this “arbitrary and capricious.”
[Read more on the original process here.]
Attorneys from the LGPC, APA, DEC, the Office of the New York State Attorney General, and the governor’s office, are looking at the decision, and will offer counsel to the Lake George Park Commission, said Kenneth Parker, the volunteer chair of the LGPC board.
"We're sitting on our hands right now," Parker said Monday March 6, adding, "They're all putting their heads together right now to see if there's any more legal avenues."
People interviewed said the LGPC and their side have basically three decisions to consider: appeal the judge’s ruling; move forward toward an “adjudicatory hearing” and a possible renewal of the permits; or stop the process completely for now and run through it again.
The LGPC won permission last year to use the herbicide in two bays on Lake George — Blairs Bay and Sheep Meadow Bay — both on the eastern shore north of the Narrows in the Town of Hague. The LGPC won permits from the APA and from the New York State DEC to use the herbicide from mid-May to the end of June.
The Lake George Association and others filed suit and won a temporary injunction last year, and that injunction lasted beyond June 30, so the permits expired. The LGPC had resubmitted applications for new permits. They did this long before the judge ruled last week.
"The commission already has in our two new permits” for the same application in the same bays, said Dave Wick the Executive Director of the Lake George Park Commission.
The permits are issued by the Adirondack Park Association, largely for wetland approval, and from the New York State Department of Environmental Conservation, which looks at the lake water, irrigation and human contact.
Wick was quick to say that the court did not have an opinion about the product itself.
"It was simply procedural," he said of the ruling. The safety and efficacy of the product itself was not questioned. "There's nothing that points to this methodology, this tool in the toolbox, that is a problem," Wick said of ProcelloCOR EC.
The Lake George Waterkeeper Chris Navitsky was a party in the lawsuit on the side of the Lake George Association and helped fight against the herbicide use.
He admitted that ProcellaCOR has been shown to be effective.
“But we feel that is primarily in ponds...not lakes as dynamic and with as much current as Lake George," he said.
It’s this sort of information that he feels the DEC and the APA were missing last year when they approved the permits. Also, the LGA has been active getting signatures on petitions and collecting witness testimony from people around the lake.
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The judge’s ruling says that the Adirondack Park Agency will be required to hold a public hearing, but Navitsky said the LGA plans to submit more detailed comments this year than last and will push the APA board to hold an adjudicatory hearing, which works much like an environmental trial.
In that hearing, the LGPC, the LGA and their partners will go before an administrative law judge, likely one with an environmental background, and each side will present expert witnesses, data and research. Each side can make a case, and witnesses can be cross-examined.
The LGPC’s Wick said that they are ready because they have been studying the issue for years, and the federal Environmental Protection Agency has studied the herbicide as has the NYS DEC. Wick has said all along that the herbicide is safe if used properly.
"There won't be any different information,” he said. "We're happy to be a part of that," the public comment and hearings.
After the hearing, if one comes, the Adirondack Park Association would make a final decision on its permit.
Given that the APA and the DEC already agreed to the use of the herbicide last year, FoothillsBusinessDaily.com asked Navitsky if he thought the outcome would be any different.
He said yes, partly because his side in the argument is better prepared.
However the office of the Attorney General could appeal Muller's ruling from Friday, and he was cautiously optimistic there, given an appealed ruling that came out last week.
An APA-issued building expansion of a marina on Lower Saranac Lake in the Adirondack High Peaks was struck down by a panel of judges who said the APA had not considered the wetlands enough before approving the permit.
It is a decision similar to the situation on Lake George, and maybe that would stop the attorney general from wanting to appeal, Navitsky said. His preference is that the process start all over.