On Friday, March 3, 2023, the Supreme Court in Warren County (Muller, J.) annulled a permit issued by the Adirondack Park Agency for the use of ProcellaCOR on Lake George. The Court issued the decision in The Lake George Association, The Lake George Waterkeeper, The Town of Hague, and Helena G. Rice vs. The NYS Adirondack Park Agency, the Lake George Park Commission, and the NYS Department of Environmental Conservation. Click here to read the decision. (This is a wide-ranging and highly readable decision.)
This trial court decision annuls the APA’s Freshwater Wetlands Act permit issued to the Lake George Park Commission (the State agency responsible for the protection and management of Lake George) for the application of an herbicide (ProcellaCOR) to control the growth of Eurasian watermilfoil (“EWM”). APA issued the Park Commission a permit in 2022.
The case was brought by the Lake George Association, the Lake George Waterkeeper, The Town of Hague, and Helena G. Rice, an adjoining landowner to one of the treatment areas. The two bays proposed for treatment are Blairs Bay and Sheep Meadow Bay, which contain wetlands with value ratings of one and three, respectively.
Petitioners and other members of the public were concerned that the herbicide treatment would spread beyond the treatment areas, lead to harmful algal blooms, and negatively impact drinking water and non-targeted plants and aquatic species. The Supreme Court’s decision, which cited the Jorling Appellate Division, Third Department decision from the day before, held that these concerns were sufficient to give all of the Petitioners standing to challenge APA’s approval of the permit.
Never before in the APA’s history has the Agency seen two of its permits overturned in one week. This marks a low point in APA history.
Regarding the merits of the Petitioners’ arguments, the decision ruled in favor of the Petitioners on four of the eight causes of action in their Petition. In addition to the relatively procedural failures on the part of the Agency (such as “APA staff . . . failed to accurately summarize the substance of the comments in opposition to the application”), the decision agreed with Petitioners that “the APA approval process was lacking in comparative analysis” and was unnecessarily rushed by APA staff.
The decision also held that due to the “one-sided nature of the presentation by APA staff”, the Board did not have “sufficient information upon which to make a determination” about the impacts of the proposed herbicide treatment on the wetlands at Blairs Bay, which has a value rating of one.
Critically, the decision also faults APA for not holding an adjudicatory hearing on the permit application. Notably, APA has not held an adjudicatory hearing 15 years, after approving nearly 150 in its first 35 years. The APA’s decision to halt adjudicatory hearings was not a formal policy but a decision from the APA’s senior leadership and the Cuomo Administration, which, unfortunately, has carried over to the Hochul Administration.
The Lake George Association decision points out that “all parties . . . agree that Lake George . . . offers a ‘uniqueness of resources’”, and that there was a significant “degree of public interest” given the 325 public comment letters that were submitted to APA, and that there are “significant issues relating to the approval of the project”. However, the decision questioned whether “the board was provided with all public comments” and found that “the information presented at a public hearing would likely be of assistance to the APA in its review of the applications – ensuring that the board members are provided with all relevant information both in support of and in opposition” to the proposed herbicide treatment. To the Lake George Park Commission’s credit, after the decision was issued, its Executive Director, Dave Wick, stated that it looks forward to defending its application at a formal public hearing. Other interveners will also seek to participate in this hearing and submit independent scientific analysis.
The Court concluded that “the APA’s issuance of the permits without first holding a public hearing was arbitrary and capricious.”