Conservation group, municipality sue to block Lake George herbicide use

Association, Waterkeeper and Hague call for more data on state plan to combat milfoil

UPDATE: The Lake George Park Commission has agreed to hold off any use of the aquatic herbicide prior to June 15. Oral arguments on a preliminary injunction that would prevent herbicide use while the court resolves the broader complaint are scheduled for June 8.

By Zachary Matson

The Lake George Association, the Town of Hague and a shoreline property owner are suing to block the planned use of an aquatic herbicide in Lake George this spring to combat invasive Eruasian watermifoil. 

A petition filed Thursday in Warren County Supreme Court named the Lake George Park Commission, Adirondack Park Agency and state Department of Environmental Conservation as defendants and argued the state agencies erred in permitting use of ProcellaCOR EC, one of around 15 federally-approved chemical herbicides for aquatic use.

The filing argued the agencies failed to address valid scientific questions about how the herbicide would impact Lake George waters and suggested the decision was preordained among staff officials. 

RELATED: Town of Hague opposes use of milfoil herbicide in Lake George

“In what appears to be behind the scenes decision-making, the [agencies] orchestrated a rushed process to approve the use of herbicide in Lake George despite an outpouring of technical and scientific opposition, procedural errors and substantial departure from the regulatory requirements,” the petition alleged. 

The park commission had not been served legal papers as of noon Friday, but the agency was aware a suit was forthcoming. The state agencies will be represented by the state attorney general’s office as the case moves forward. 

Lake George Park Commission Executive Director Dave Wick in an interview Friday defended the agency’s review of the herbicide and cited federal and state approvals of the product, as well as its effective use in other states and on nearby Lake Minerva, where the APA approved its use in 2020. Wick, who had not read the petition, said he was disappointed by the allegations of improper “collusive” action.

“That’s a pretty stunning statement,” Wick said. “That’s unfortunate to hear.”

The APA on April 14 approved permits for the park commission to apply the herbicide sometime in June to a pair of sites roughly 3 acres in size on the eastern side of the northern half of the lake. The park commission gave its final approval to the project later that month. Park commission leaders have said the herbicide was meant to target especially dense beds of the invasive plant and would supplement other long-used strategies for combating milfoil. The LGA for decades has supported efforts to remove mifoil plants by hand.

But the LGA and other plaintiffs in the petition take aim at the process that led to the state permit approvals, including the APA’s refusal to hold an adjudicatory hearing to establish a formal record of the pros and cons of the project. Plaintiffs note the DEC designee’s decision to recuse from voting at the park commission meeting but not from the APA vote, a vote that was decisive for the permit approval.

The petition highlighted an apparent “snafu” that sent some public comments submitted to the park agency to a junk mail inbox, preventing comments from the LGA and others from being posted on the agency’s website. APA staff did not include those comments in a count of comments for and against the project that was relayed to board members before they voted on the proposal. 

The petition builds on earlier arguments that the science supporting the use of the herbicide is not specific to Lake George conditions.

“None of the scientific issues raised… were given any significant treatment” in the park agency staff presentation to board members, according to the petition. The petition notes that the four APA board members who opposed permit approval mentioned the scientific questions raised in public comments. 

Chris Navitsky, who as Lake George waterkeeper focuses on protecting the lake ecosystem, also joined the petition as a plaintiff. In a statement submitted as part of the court filing, Navitsky called the planned use of herbicide on the lake as “experimental” and lacking sufficient evidence of its safety. 

“There are too many questions and variables regarding the proposed experimental use of a chemical herbicide in Lake George,” Navitsky said.

Wick said extensive science supports the herbicide’s use and its widespread approval by state health and environmental agencies.

“We have responded to all of the points that merited a response,” Wick said. He said scientific studies in other areas are transferable to Lake George, noting that “gravity in Lake George is the same as gravity in China.”

Hague, which includes the part of Lake George planned to be treated with the herbicide, and a property owner who draws water from the lake near the use site, also joined the suit as plaintiffs. 

The APA permit requires the herbicide to be applied sometime in June, after the milfoil plants have emerged but before many of the natives plants have. If the legal challenge is allowed to move forward, it could delay application long enough to stall the plan entirely until at least next year. The plaintiffs also seek an order prohibiting the park commission from using the herbicide until the issue is resolved in court.