Tuesday, June 25, 2024

Article XIV places a duty of restraint on using herbicide in Lake George

Lake George from Deer Leap, Tongue Mtn range.

In a recent Times Union opinion, former Governor George Pataki appealed to current Governor Kathy Hochul to block the state’s immediate plan to apply the herbicide ProcellaCOR to kill Eurasian watermilfoil in Lake George.

The stakes of using herbicide in Lake George is too high, Pataki wrote. The former governor used words to characterize Lake George as the public’s “priceless gem,” “ecological gem” and “priceless inheritance,” all at risk if the herbicide, on a non-emergency basis, is allowed to be used as an experiment.

Our former governor makes important points. Pataki rightfully views Lake George as a preeminent symbol of the values undergirding New York’s 150-year-old fight to slow if not halt the exploitation of New York’s woods, waters, and wildlife.  Pataki was and remains a Republican who believes in safeguarding our environment – and who acted on that belief while in office. The 1996 environmental bond act and approximately one million acres protected statewide during his dozen years as governor speak to that.

Why introduce a risky new chemical treatment in Lake George to accomplish the same job that decades of hand and suction pulling of milfoil can continue to accomplish, the former governor asks?

The Lake George Waterkeeper and Association also argue the precautionary principle: be humble, and cautious, and recognize all that we do not know about the Lake George ecosystem to act in haste. Hold hearings, gather more evidence, and discuss the quality of that evidence before injecting a new chemical treatment into the lake.

One very strong additional case the former governor, or the Lake George Association ought to make is that Article XIV, Section 1 of the NYS Constitution, our  state’s unique “forever wild” clause, when viewed broadly, imposes restraints on governments placing herbicides into the lake purely on an expedient, experimental basis. There would not be a Lake George Park or Lake George Park Commission without the public’s Forest Preserve acquired with public funds beginning one hundred years ago and continuing to this day. Over 35 miles of Lake George shoreline is bordered directly by Forest Preserve (Tongue Mountain, Black Mountain, etc.), while private land conservation easements complementing the Forest Preserve protect far more of that shoreline.  The requirement that the “lands of the state…shall be forever kept as wild forest land” implies an affirmative duty to protect the land and the water in their entirety.

Article XIV, in fact, is protective of the entire web of life. Given the extent of Forest Preserve acquisition on the lake, it plainly demands from our governments wild conditions and fully functional natural ecosystems within the watershed, along the shores, and in the waters of Lake George. State governors and government typically treat Article XIV far too narrowly. It’s not just about prohibition of tree harvesting. Article XIV, upheld by our Court of Appeals in 2021, acts as a powerful restraint on our human inclination to manipulate the natural world, and should be embraced as doing such by governors and responsible state agencies like the LGPC, APA, and DEC.

Article XIV, Section 1, NYS Constitution

Article XIV, Section 1, NYS Constitution. Photo provided by David Gibson.

Governor Pataki compares today’s herbicide proposal with one during his days in office, in 2004. He writes that his administration stopped the application of the chemical SONAR to kill Eurasian watermilfoil in Lake George. Not quite.

In fact, twenty years ago the Adirondack Park Agency held a public hearing about introducing the chemical SONAR into Lake George to gather expert witness testimony. That is the key contrast with today’s APA.

All the issues wrapped up in today’s decision – from hydrodynamics, the movement of water between the two bays and main body of the lake, or hydrolysis, the rapid breakdown of ProcellaCOR in water in a matter of days, or all the other biological, chemical and physical factors to be weighed in deciding the current issue points to an abject failure of the Adirondack Park Agency to hold hearings in 2024.

Like SONAR, ProcellaCOR meets all the Agency criteria for hearings in order to receive sworn, expert testimony about complex, controversial management of Lake George in which various experts sharply disagree. Hearings before an impartial law judge guarantee that arguments are not insular and one-sided, but diverse, substantive, challenged,  cross-examined, and entered into a record on which a final permit decision is based.

Pataki’s APA properly held such a hearing in 2004 (on applying the chemical SONAR), and after weeks of hearing evidence and compiling the hearing record, the APA decided it could not reach the legally required determination that there would be no undue adverse impact to Lake George waters from introducing SONAR. Being unable to reach that determination, the application was denied.

Hochul’s APA simply does not want to hear and to weigh sworn evidence at all, viewing formal hearings, to quote their staff,  as “unnecessary,”  “burdensome,”  and “ trial-like.”  APA leadership states that APA staff review is as informed , comprehensive, and thorough as any hearing. However, listen to the staff presentation at last week’s meeting. It heavily favors the applicant’s arguments for ProcellaCOR introduction – in this case,  by another state agency, the Lake George Park Commission.  In the absence of a public hearing, the APA behaves like most planning boards where applicants and their consultants and lawyers have a very big advantage over other voices.

Governor Pataki got it right, but even his argument in the Times Union to Governor Hochul about not doing harm to the legacy of Lake George is too limited. New York governments, including the DEC, the Lake George Park Commission and the APA have a duty of restraint when it comes to Lake George (and much else). In the absence of an adjudicatory hearing with sworn evidence from all parties serving as the sole basis for a permit decision, Article XIV of our State Constitution, the Adirondack Park Agency Act, the Environmental Conservation Law, the Plan for Lake George (1985) all combine to prohibit the merely expedient, experimental application of herbicide into Lake George.

Photo at top: Lake George from Deer Leap, Tongue Mtn range. Photo provided by David Gibson.

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Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest PreserveDuring Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history. Currently, Dave is managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.

25 Responses

  1. Keith says:

    Whatever happened to the former governor’s violation of the APA Act that he was cited for a few years back when he was renting no-longer-used, farm-worker housing to vacationers? Never saw follow-up article regarding him until now.

  2. Todd Eastman says:

    Where do the State Department of Health and the DEC fit into this process?

    The APA does not have the internal capacity to assess potential impacts including cumulative impacts of the proposed application of ProcellaCOR to Lake George?

    • Paul says:

      Todd, the DEC approved their permit for this last Friday.

      I am all for being very cautious about what we put into this, or any lake. This fiasco has been embarrassing. This treatment has been very vigorously tested and it has shown that it is a safe a product as you can get for controlling an invasive that destroys the ecosystem. I respect the former governor very much but here he is just plain wrong. The benefits here far outweigh the risks. That is why the Lake George Park Commission the APA the DEC the EPA have a duty to do what is right for the lake and the environment. It is just kind of sad to see a whole bunch of people just want to stop implementation just because they have some unfounded fears that ANY use of any kind of chemical just needs to be studied forever while we let the lake get chocked with mifoil. The mob won in this case. The lake loses. Too bad. I give the commission lots of credit for trying.

      • Todd Eastman says:

        You bring up good points. Perhaps not using it on Lake George until longer term use in smaller waterbodies is better evaluated…

      • Benjamin Franklin says:

        Paul, Over and over you repeat your view that the science is settled and that ProcellaCOR is better than Eurasian Milfoil. You overlook the realty that science is never settled. In this instance, there is opposition to the use of ProcellaCOR from many scientists. The scientists tasked with initially evaluating this herbicide and approving it were paid by the manufacturer. Are there independent environmental scientists supporting its use? If so, please name them. Are there environmental organizations supporting its use? Is so, please list them.

        • Paul says:

          I have never said that the science was “settled”. What I have said, and is a fact, is that there is a lot of science at this point supporting the safe use of this product for this purpose. Sure, like I have said as well, you can continue to study anything forever. At some point you need to make a risk benefit decision based on what you have. Not sure what sort of “independent” scientists that you are looking for? But many scientists not affiliated with the maker, and in fact specifically scrutinizing the compound as part of the regulatory process are as independent as you can get. Yes, the DEC and the APA and the EPA all support it’s use, they are all environmental organizations.

    • Todd Eastman says:

      Was the approval of ProcellaCOR by the DEC based upon its research or based on the EPA determination?

      • Paul says:

        I would think that part of there determination would be the fact that it has been used in other waterbodies here in NYS successfully w/o any adverse issues.

  3. Stop Overtourism says:

    I don’t think it’s off-topic to say the following: The biggest threat to “forever wild” is PEOPLE. Too many of them. If you’re going to talk about “restraint” in the name of 14th Amendment, you simply cannot have that argument without addressing ROOST and its ilk, in constant pursuit of government grants (our tax dollars) to chase more tourism dollars. Let’s see some restraint THERE in the name of “Forever Wild.” How about diversifying the economy so people have secure employment in industries other than the poorly paying and socially destabilizing tourism industry? The city of Venice has had to resort to charging an entry fee for tourists because Venetians can’t live there anymore. It has become a tourist theme park (recall what happened to Venice’s canals during COVID – the waters cleared and dolphins and fish came back). The Adirondacks have become an environmental Disneyland and THAT is the elephant in the room that no one will address. This is a well-documented global problem. I understand concerns about pesticides. But you simply cannot make an argument in the name of the 14th Amendment, on behalf of a lake, when it is continuously polluted by your own oil-leaking motor boats, motor vehicles that have fallen through the ice, human sewage, garbage, lost fishing gear posing hazards to wildlife, noise, firecrackers, fireworks, and other insults to its supposed “forever wild” status. There is nothing wild about Lake George. There has been zero restraint on tourism and second home development on Lake George. It is a suburban subdivision. The damage was done long ago and and continues just from the human traffic and subsequent pollution. ProcellaCOR is a proverbial “drop in the ocean” as a threat to this lake. If you don’t want invasive species and you don’t want herbicides, make it a no-motor lake. Look at the bigger picture here.

    • Arthur F Dodson says:

      Hear Hear. Thank you! Money money money game.

    • AdirondackAl says:

      Good points. Like every other waterbody in the state, Lake George waters already conatin PCBs, dioxins, mercury, PAHs, PFAS, heavy metals and a host of other chemicals, albeit at exceedingly low concentrations. The “not one drop” slogan should be retired.

    • Fisherking says:

      Tell it.
      And let’s add seventy eleven thousand pressure treated docks leaching those chemicals into the lake.

  4. M.P. Heller says:

    The duty of restraint comes from the populace. Sky is falling/ Chicken Little campaigns are becoming so frequent that every time an issue comes along its another “crisis”. It’s disturbing. It exposes a lack of critical thinking skills among the general public.

    Eventually lots of stories become that of the Boy Who Cried Wolf. Nobody cares anymore.

    Lots of egos. Not a lot of high SAT scores.

    Piss poor….

  5. Stop Overtourism says:

    Thanks Fisherking for reminding us of one of the most obvious points, which I totally missed, about (wealthy) human impact – the thousands of pressure-treated docks (and the motor boats attached to them of course)! They certainly don’t mind any of those chemicals when they’re making it hand-over-fist on their “camp” as a vacation rental, renting it out to large, loud, littering, septic-system filling, drunken-boat-driving firecracker using, partying groups of vacationers! This is absurd. I am a flaming left wing liberal who cares about the environment and public health and I see the complete irrationality and hypocrisy in this tantrum over the proposed careful use of ProcellaCOR in this suburban lake. I’d like the nesting loons (if there are any), fish, turtles, and songbirds to chime in with their thoughts if they can get the fish hooks and line off of their necks.

  6. Hey farmer, farmer, put away that DDT now
    Give me spots on the apples, and leave me the birds and the bees
    Oh, Don’t it always seem to go
    That we don’t know what we’ve got till its gone?
    They paved paradise, and put up a parking lot…
    Joni MItchell

  7. Dave, I am reminded of the exciting and inspirational music that started coming out in the 1960s, like this amazing song…
    Hey farmer, farmer, put away that DDT now
    Give me spots on the apples, and leave me the birds and the bees
    Oh, Don’t it always seem to go
    That we don’t know what we’ve got till its gone?
    They paved paradise, and put up a parking lot…
    Joni MItchell

  8. Stop Overtourism says:

    Yes, Ellen. They paved paradise and put up a parking lot. All over Lake George. The birds and the bees are leaving for quieter places where overdevelopment, noise and light pollution haven’t ruined their habitat. Where the waters are clear of sunken motor vehicles. Where there aren’t thousands of polluting motor boats churning up and polluting the waters day in and day out. The notion that Lake George is a pristine wild lake that will be ruined forever by a limited, controlled, well-researched application of an herbicide in only small parts of the lake is the theater of the absurd. It is detached from reality. This lake was swallowed by urban sprawl and tourism decades ago and ProcelliCOR will have zero effect on the health of this lake in comparison. The damage is done and is getting worse, not from an herbicide, but from PEOPLE. Some of them are the same people having a meltdown over ProcelliCOR. Make a meaningful protest. Instead of signs saying “not one drop,” how about signs saying, “Save the Adirondacks. Get off the tourism money crack!”

    • Benjamin Franklin says:

      You are correct about all the bad stuff that has been done to Lake George and other Adirondack lakes, but, that is not an argument for using PorcellaCor. At some point bad actions need to end or we will have nothing left to save.
      Thank you for your good thoughts.lets stop trashing this beautiful place.

  9. Paul says:

    What has happened here is really too bad for the lake. If you really want to protect the lake the last place you want the decisions to be made is in the courts like this. In the case where (like here) a judge or judges, or a jury in some cases, makes the decision. Science can be thrown out the window. Here they only need to make decisions based on their legal interpretations. George Pataki is a lawyer he should know that. Sure, you can not trust the EPA, the APA, the DEC and many others because they are making a decision that you disagree with, but I would much rather have them making the decision than a lawyer.

    • Benjamin Franklin says:

      The APA board has many Manhattan based lawyers making decisions for you.

      • Paul says:

        Ben, This is nonsense. I have met several of the aquatic biologists that work for the APA. They are not manhattan based lawyers but local people who know the Adirondack ecosystem better than any scientists anywhere. When you don’t take their advice – the lake does so at it’s own peril. In this case the invasives win and the lake loses. Congratulations. This will now be decided by the lawyers that you mention. None of them local. And none of them scientists.

  10. Stuart Cartwright says:

    Sonar. ProcellaCOR. I am confident that within a decade, a better product will emerge, and will be less reliant on chemical mixes, and more reliant on genetic structure. Highly targeted solutions that identify genetic molecules unique to this plant and it’s genome will soon be available. ProcellaCOR’s ingredients (florpyrauxifen-benzyl) utilize a “carpet-bomb” approach. Read the LG Waterkeeper’s 26-page paper with his concerns about the testing of this relatively new product. Of course, risk-v-reward plays a part, too. In smaller, shallower, quiescent eutrophic lakes, (eg., Brant Lake) where shallow waters are choked with Eurasian Milfoil, using this product could be seen as the lesser of two evils. Not so in the class AA waters of Lake George, a deep, large, fast moving oligotrophic body of water that is not quiescent, as the Jefferson Project has determined over the last decade. In fast-moving deep waters (with a seiche wave) the florpyrauxifen-benzyl will undoubtedly be less targeted. The risk to Lake George’s unique ecology of waiting, and continuing to hand-harvest (paid for privately by the LGA and lake abutters) far outweighs the reward of a possibly quick eradication of milfoil. It’s early days yet for discovering the best solutions for what is not yet crisis-level in Lake George.

  11. Leslie says:

    Milfoil could be used as compost agricultural soil amendment. Manually harvested.

    The application of chemical with pfas would destroy this possibility

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