Court questions Adirondack Park Agency’s permit hearing standards

Legal battle over herbicide use in Lake George raises questions about regulatory process

By Zachary Matson

Appellate judges on Wednesday in Albany pressed an attorney for the state on what standard the Adirondack Park Agency uses to determine whether to hold special hearings on permits.

The case centered on the APA’s approval in 2022 of a plan by the Lake George Park Commission to use an herbicide, ProcellaCOR, to kill invasive Eurasian watermilfoil in a pair of infested bays. 

The Lake George Association challenged that approval, raising concerns and arguing the agency should have conducted an adjudicatory hearing that allows formal testimony and submission of evidence. APA hasn’t held such a hearing in over a decade.

After a Warren County judge annulled the permit and ruled that APA erred in bypassing the special hearing, the state agency appealed the decision to the Appellate Division, Third Department. 

Joshua Tallent, a lawyer from the Attorney General’s Office representing APA, and Thomas West, an attorney representing the Lake George Association, agreed on the central question of the case: Whether LGA raised a “substantial and significant issue” that merited further review and could determine permit approval.  

“[The LGA] failed to identify a substantive and significant issue, an issue of fact so serious it could have led to permit denial,” Tallent said. “To undertake the time and expense to do (a hearing) there has to be an issue that warrants that kind of treatment.” 

Related reading: Court upholds APA decision not to hold public hearing for Adirondack mine

West highlighted two areas he argued did rise to the level of hearing-worthy issues—concerns that the herbicide would spread beyond the intended areas and that the herbicide would kill protected native plants. 

He focused on alleged process failings at APA, including how late-incoming public comments were handled and that the APA board never discussed whether criteria for holding an adjudicatory hearing had been met. West noted that an earlier plan to use a different herbicide on Lake George was sent to an adjudicatory hearing.  

“The record shows this process was infected with errors of law that really called into question whether APA was administering its regulatory program properly,” West said. “Once you start applying chemicals to Lake George, you can never go back.” 

Associate Justice Lisa Fisher pressed West about what specific issues with the plan were not addressed or answered in the agency’s extensive record. 

“The statute doesn’t say everyone gets an adjudicatory hearing,” Fisher said.     

The opposing lawyers also agreed that, if granted, the hearing could last a year or longer. Tallent said an APA adjudicatory hearing could take multiple years as an administrative law judge considered and ruled on motions, evidence and other matters. West said a good judge could move the process forward and asserted that the hearing was necessary to evaluate a significant concern.   

“It’s an extensive undertaking,” Tallent said.

The park commission is planning to re-submit an application with the park agency in hopes of moving forward with herbicide application by the end of June if the court rules in its favor 

In comments submitted to the state Department of Environmental Conservation on Feb. 16, the LGA signaled its continued opposition and outlined numerous alleged flaws in the park commission’s latest plan, ranging from process fouls over notification letters to a growing understanding of the dynamic water flows within Lake George it argues undermines the proposed approach.

While the Lake George case has worked its way through the courts, APA has continued to approve permits to use the same herbicide to combat invasive milfoil in lakes throughout the park, including recently for Brant and Paradox lakes. The herbicide has already been used in Minerva Lake and Lake Luzerne.

Top photo: A view of Lake George from Rogers Rock. Explorer file photo by Gwendolyn Craig