From:
http://www.adirondackcouncil.org/sonorpr.html
News
Release
For more
information:
John F. Sheehan
518-432-1770
FOR
IMMEDIATE RELEASE, Wednesday, Sept. 26, 2001
NEW
YORK STATE AGREES TO DESTROY
RARE, NATIVE PLANT SPECIES IN LAKE GEORGE
Ruling in ‘Sonar' Case Appears
to be Unprecedented in New York State
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.
