Glens Falls Chronicle Serving the Glens Falls/Lake George region; Warren, Washington and northern Saratoga counties since 1980
By Ben Westcott, Chronicle Staff Writer
The Adirondack Park Agency voted 7-1 on June 20 to allow the Lake George Park Commission to use the herbicide ProcellaCOR by June 30 to combat invasive Eurasian watermilfoil in two Hague bays.
The Lake George Association and other parties sued the same day.
New York State Supreme Court Justice Robert Muller issued a temporary restraining order until the court can hear arguments to determine whether a preliminary injunction should be issued.
A hearing was initially set for Monday, June 24, but Justice Muller then postponed it to Friday, June 28, at 1 p.m.
The Park Commission is in a time crunch to apply ProcellaCOR by the June 30 deadline imposed by the permits.
Last year, in a similar Lake George ProcellaCOR case, Justice Muller ruled in favor of the LGA.
On appeal, the Appellate Division of NYS Supreme Court reversed his ruling.
The LGA is now seeking to appeal that decision to the state’s highest court, the Court of Appeals.
As for the current case, “The postponement will give Justice Muller time to more thoroughly review the paperwork from both sides,” wrote LGA Communications Director Nancy Hawley.
“Obviously there’s an aspect of time concern,” LG Park Commission Counsel Karla Buettner told The Chronicle Monday afternoon. “If we don’t get a decision by the 30th, we lose another year. So it’s disappointing that we weren’t able to present the case this morning.”
She said the postponement was a surprise. “We were on our way to the courthouse when we were advised that the hearing had been adjourned from today until Friday,” Ms. Buettner said.
An APA press release after Thursday’s approval of the ProcellaCOR permits quoted APA Board Chair John Ernst:
“The APA board’s decision was based on the best available science and guided by both the U.S. Environmental Protection Agency and New York State Department of Environmental Conservation’s stringent pesticide regulations and approved registrants. NYS DEC conducts extensive science-based reviews of aquatic pesticide products prior to approval for use in New York State to ensure these products are fully protective of public health and the environment.
“Scientific evidence and studies have been conducted to ensure this product is fully protective of public health and the environment when applied at the approved application rates.”
Zoe Smith was the sole dissenting vote in the APA’s 7-1 approval.
The litigation seeking to annul the APA’s approvals was brought by the LGA, its Lake George Waterkeeper, two towns and six riparian property owners. They sued NYS DEC, the LGPC and the APA.
An LGA press release said, “The suit’s claims and issues were not previously before the court regarding the proposed application of ProcellaCOR in Lake George. These include rights of riparian property owners on Blairs Bay and Sheep Meadow Bay where the LGPC plans to test the herbicide, and scientific evidence that was not available in 2022 when the APA permits were first issued.”
It said, “On behalf of riparian owners, the litigation holds that the state’s decision forcing the application of ProcellaCOR in the water over their water intakes disregards their constitutional right to object to this herbicide treatment and violates their right to a clean environment under the Green Amendment to the New York State Constitution.”
The litigation argues that “a vast amount of new science” demonstrates that the use of an aquatic herbicide at the two bays “is inappropriate and will cause harm to native plants and aquatic invertebrates in the treatment area.”
The litigation also “raises claims concerning the state of Minnesota’s declaration that ProcellaCOR is a PFAS-containing aquatic herbicide.”
The Lake George Park Commission contends that proper application of the herbicide does not pose a risk to public health and that utilizing it would be cheaper and more effective at eliminating Eurasian watermilfoil than the traditional hand harvesting method, in which divers pull the plants up by their roots.
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