The Adirondack Council

News Release

FOR IMMEDIATE RELEASE, Wednesday, Sept. 26, 2001

BOLTON LANDING -- In what appears to be an unprecedented ruling in New York State, an administrative law judge has found that the State Office of General Services agreed to destroy rare, protected plants in Lake George when it consented to work with the Lake George Park Commission on a plan to reduce Eurasian watermilfoil last year.

State Administrative Law Judge Molly McBride has ruled that OGS gave its consent to destroy rare, threatened and endangered plant species that are growing in the same location when it agreed to be a co-applicant with the LGPC in seeking an Adirondack Park Agency (APA) permit for the experimental use of the chemical pesticide fluoridone (brand name Sonar) in four locations.

"Since when does the State of New York give permission to willfully destroy the rare, threatened and endangered species it is required to protect?" asked Bernard C. Melewski, Acting Executive Director of the Adirondack Council. "This runs contrary to every action that Governor Pataki has taken in the Adirondack Park since he took office. Who authorized the Office of General Services to give permission to destroy plant species that the Department of Environmental Conservation is charged with protecting?"

The use of Sonar in Lake George and the risks to protected species was discussed at an issues conference before judge McBride in preparation for public hearings on the application before the APA. The judge ultimately ruled that OGS's consent to experiment with the herbicide in Lake George eliminated the issue from further discussions at public hearings.

"In other words, the APA doesn't have to listen to a word about the chemical eradication of rare and threatened plants when it makes a decision on this permit application," Melewski said. "If the permit is issued, those plants will die. Period."

Currently, milfoil covers less than 3 percent of Lake George. Milfoil was first found in the lake more than 15 years ago and was likely spread by boats coming from other affected waters. According to the applicant's environmental studies, milfoil cannot possibly colonize more than 8 percent of the lake bottom. In shallow water, milfoil can form dense beds that hamper boat traffic and invade the habitat of other plants. To date, it has been kept in check using non-toxic means.

There are at least three plant species on the state's protected list known to be in the areas that would be treated with pesticides. Within the proposed test areas, there are two plants listed as endangered, 3 that are "threatened" and one considered "rare." To make the endangered list, for example, plants must "require remedial action to prevent [their] extinction" within the state. "Listed plants are those with five or fewer extant sites, or fewer than 1,000 individuals..." according to state Environmental Conservation law.

That same law imposes a $25-per-plant fine for any person that destroys or damages plants on the list. The only exception to the law is where the owner of the land (in this case, a publicly owned lake bottom) gives consent. The Office of General Services purports to manage the lake bottom of Lake George for the State of New York.
In August the Adirondack Park Agency (APA) declared that the LGPC's application could not be approved in its current form and ordered a formal public hearing. On Sept. 13, the Adirondack Council filed a motion asking Judge McBride to direct the LGPC to seek a "declaratory ruling" from two state agencies.

The Council asked that the DEC (which must also issue a permit before the pesticides can be applied to the lake) be consulted on whether it would ever consent to a project in which the applicant admitted it would be killing plants that are protected by state law.

The Council also asked the judge to direct LGPC to seek a declaratory ruling from the state Health Department on whether it would allow the chemical to be applied in areas where drinking water intake pipes might be nearby. DOH currently prohibits the application of fluoridone and other pesticides withing a quarter-mile of water intakes.

The Council asked Judge McBride to adjourn the hearing until those questions could be answered. If the agencies refused or were unable to answer, the Council asked the judge to direct the LGPC to seek an advisory opinion from the NYS Attorney General. The Council continues to argue that until these questions are answered, the application is legally flawed and the proposal may actually be prohibited under state law.

"The judge said it was up to the Adirondack Council, not the applicant, to provide the answers to these questions," said Melewski. "We aren't the ones asking permission to dump tons of weed killer into the Queen of American Lakes."

In justifying her refusal to delay the proceeding until the rulings were issued, the judge wrote: "The project has long been known to the public and the [Adirondack Council] has known about this proposed project for several years." Melewski objected to this characterization, calling it inaccurate and misleading.

"Until this summer, there was not even a complete application to review or formal environmental impact statement," Melewski said. "In just the past few months, the project design for the Sawmill Bay site alone has changed three times. Until the proposed test sites were finalized, we had no idea whether water intakes would be involved. And until the LGPC made its final application to the Adirondack Park Agency, we weren't sure they still wanted to use sites where they knew they would threaten protected plants."

The hearing is expected to resume in mid-October and continue through November. Melewski said the Council would indeed petition the DEC and Health Department on its own, but he was unsure whether their answers would be received in time for the judge to act on them. Also unprecedented is the fact that the DEC has been reviewing the same application for more than three months and has not yet decided to join the APA in a single review of the application and to hold a joint hearing.

"Continued silence on the part of the DEC is a disservice to the public and failure by New York's lead environmental protection agency to assure that these very significant issues are adequately addressed," Melewski concluded.

The Adirondack Council is an 18,000-member, privately funded, not-for-profit organization dedicated to protecting and enhancing the natural character and human communities of the Adirondack Park through research, education, advocacy and legal action.