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Glen Lake Protective Association - Interim Decision, March 18, 1998

Interim Decision, March 18, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

-of-

the Application for an Aquatic Pesticide Permit pursuant to
Environmental Conservation Law Article 33 and Article 15, Title 9, and the Official
Compilation of Codes, Rules and Regulations of the State of New York, Title 6, Part 320 to 327

- by -

GLEN LAKE PROTECTIVE ASSOCIATION

NYSDEC No. AV-5-3-97

INTERIM DECISION

March 18, 1998

INTERIM DECISION OF THE COMMISSIONER

The Glen Lake Protective Association (the "Association") and the Region 5 Department Staff ("Staff") has appealed to the Commissioner pursuant to 6 NYCRR 624.8(d)(2) from the December 30, 1997 issues rulings of Administrative Law Judge ("ALJ") Kevin J. Casutto. Ms. Barbara B. Beall, Dr. Carol Fisher and James Underwood, (collectively, the "Intervenors") filed a response to the appeals in support of the ALJ's ruling. The ALJ's ruling is affirmed subject to my comments below.

Introduction

This is an aquatic pesticide case. The Association has applied for a permit to administer an aquatic pesticide, copper sulfate, to the waters of Glen Lake to control algae. The rules governing such applications are contained in 6 NYCRR Part 327. 6 NYCRR Part 327 specifies that a public hearing is held when a riparian landowner does not consent to application of an aquatic pesticide. All riparian owners who responded to the Association survey seeking permission to apply copper sulfate granted their approval, except one household.

Aquatic pesticide permit applications are subject to ECL Article 8, the State Environmental Quality Review Act, and its implementing regulations, 6 NYCRR Part 617. Staff made a determination that the Department's Aquatic Pesticide Control Program, Final Programmatic Environmental Impact Statement ("Final Programmatic EIS") and the draft aquatic pesticide permit application, including the draft permit, will meet all applicable laws and regulations administered by the Department. Accordingly, Staff prepared a draft permit and recommended permit issuance.

Intervenors asserted that the Association's project is not consistent with the Final Programmatic EIS. This is because the Association has not shown that "the benefits of a copper sulfate pesticide treatment outweigh the environmental risks" associated with such treatment in Glen Lake.

The ALJ concluded that Staff's determination to issue the permit is premature without a supplemental EIS. The ALJ further found Staff erred by not determining that use of the aquatic pesticide was necessary in Glen Lake. The ALJ granted party status to the Intervenors and remanded the matter to Staff for further processing, including preparation of a supplemental EIS pursuant to 6 NYCRR 617.10(d)(4).

The Project and Permit Conditions

Glen Lake is in the Town of Queensbury, Warren County. Glen Lake is approximately 320 acres in size with an inlet and outlet generally located along a north south axis. The lake is classified as B(T) meaning its highest and best use is bathing and as a trout fishery. Regulated freshwater wetlands exist at the inlet, (GF-15, a class I wetland) and at the outlet, (GF-21, a class II wetland). A weir controls the lake's water level at the outlet.

The Association's proposed application of copper sulfate would be according to label instructions. The dosage concentration would be .3 parts per million ("ppm"). Treatment would not occur in front of the non-consenting riparian owners' property. The Association would also avoid regulated freshwater wetlands and adjacent areas, or alternatively, would apply for a freshwater wetland permit with respect to treatment in such areas. (6 NYCRR 663.4(d)(39)). The treated lake area would not exceed 23 acres. Treatment would occur in areas of algae growth that will be specifically located during this year's growing season by a Department-certified pesticide applicator. The outlet of the lake would be closed for twenty-four hours to confine copper sulfate to the lake. Sufficient water flow will exist in the outlet stream from run off so that the stream will not dry up after the weir is closed.

The Association also proposes water use restrictions for twenty-four hours after treatment with copper sulfate which include: swimming and bathing, water for consumption, fishing, irrigation or spraying of agricultural crops/plants and livestock/animal water (permit application). These specific conditions are addressed further in this Interim Decision.

The issues conference process resulted in revisions to the draft permit. These revisions are presented below for completeness.

The timing of the treatment would be coordinated with DEC Region 5 Staff to ensure they take necessary precautions to avoid impacts on trout spawning or stocking. (6 NYCRR 327.4(b)(5)). The Association has stipulated to avoid treatment within 200 feet of the non-consenting riparian owners' property (Fischer and Underwood). The Association amended its application at the issues conference to include three additional algae species listed in the Final Programmatic EIS and would include filamentous species, benthic species, planktonic algal species and macro algae (muskgrass).

Summary of Issues

The ALJ found that lay persons cannot provide credible opinions about algal conditions in the lake when other qualified persons refute these assertions or observations at the Department's issues conference. He adjourned the proceeding for further expert information. The Association, Staff and the Intervenors then submitted further information about algae conditions in Glen Lake.

When, in the ALJ's view, the collected information did not change the Intervenor's claim that "the need for the project versus the degree of risk" of applying the pesticide was not addressed, the ALJ found the Final Programmatic EIS to be in need of supplementation with respect to this project. As explained further in this Interim Decision, a supplemental EIS is not required.

Separately, citing ECL 15-0313 and general statutory authority, the ALJ went on to explain that one must demonstrate "necessity" to be authorized to dose the waters of the State in the first instance. His analyses led him to conclude that an aquatic pesticide permit applicant must demonstrate necessity for the proposed use of pesticides in the waters of the State before Staff can recommend permit issuance.

The Association and the Staff are of an opposite view than the Intervenors. Their arguments are summarized below except one Association argument that requires attention first. The Association argues, in pertinent part, that the only substantive and significant issue can be whether the proposed application of copper sulfate would adversely affect non-consenting riparian owners. Once it is concluded that the non-consenting riparian owner will be protected, authorization of treatment would be granted. Under the Association's rubric there would be no room to challenge any aquatic pesticide permit application before the Department where non-consenting riparian owners will not be shown to be adversely affected. This is too narrow a reading, as explained below.

The remaining joint arguments by the Association and Staff are summarized as follows. First, they argue that lay observations about algal conditions are sufficient to authorize permit issuance and pesticide treatment. Further, they find no statutory authority to require a showing of "need" as a prerequisite to permit issuance. They argue further that a challenge to the Final Programmatic EIS is time barred and that the existing Final Programmatic EIS sufficiently addresses algal conditions and controls consistent with the Glen Lake project. The Association and Staff state that applying copper sulfate consistent with the label instructions or at a lesser dosage, minimizes adverse environmental impacts. The Staff has developed a draft permit, which the Association has accepted.

The Aquatic Pesticide Program

Each year hundreds of applicants call upon the Department to review aquatic pesticide applications to treat waters of the State to control aquatic algae or weeds. Most applications are submitted by certified pesticide applicators. The applicator will submit maps and other information to help staff evaluate the action to be undertaken. These requirements are specified at 6 NYCRR 327.4(b)(2). The certified applicator does not necessarily decide the exact locations for treatment until the season in which the treatment is administered has arrived. The applicator will often decide where to treat, with a Staff person present. Thus, two levels of review by the Department Staff, one at the submission of the permit application and one at the time of treatment may occur.

Staff's judgment in reviewing aquatic pesticide applications takes into account the historic environmental conditions of the water bodies to be treated. For example, applications to treat water bodies with a historic need for treatment may be routinely granted. Applications concerning water bodies with sporadic, intermittent or limited treatment requirements because of higher quality environmental conditions may receive closer scrutiny and review. Applying the same level of scrutiny to each water body is neither necessary nor an efficient use of Regional Staff resources. In any event, Staff does have the authority to otherwise modify the treatment area based upon Staff's observation of the water body at the time of treatment. Thus, at the time of treatment Staff often determines whether a nuisance or overabundant weeds or alga conditions actually exist and directs the applicator accordingly. (6 NYCRR 327.3(b)(1)). Pesticide treatment of areas lacking algae or weed conditions would likely be considered by the Department as violating label instructions or restrictions.

Requiring an expert to decide whether a particular water body requires treatment is not necessary for each aquatic pesticide application. The historical cycle of week and algae growth can be a strong indicator of a need to apply a pesticide for control. However, when an intervenor with appropriate professional credentials disputes the necessity of treating a water body, as was done here, it is necessary to address that information in some fashion. The Department's hearing process is one manner of doing so.

Substantive and Significant Issues

In the present case, the Intervenors have raised a substantive and significant issue that requires further inquiry. (6 NYCRR 624.4(c)(2)). Specifically, the Intervenors raised concerns that call into question where the lake should be treated.

I find this to be the only adjudicable issue and reject the Intervenors contention about copper sulfate concentrations in Glen Lake. The burden of persuasion rests with the Intervenors. The Intervenors here offer argument and raise questions but make no offer of proof sufficient to inquire further. The Final Programmatic EIS provides for copper sulfate to control nuisance and overabundant algae and weeds.

The ALJ, relying on the language in the Final Programmatic EIS, held that a determination of the existence of "nuisance" and "overabundant" algae conditions is a prerequisite to Staff's determining that a project was covered by the Final Programmatic EIS. As both the Association and Staff correctly state, the terms "nuisance" and "overabundant" are not found in the pesticide regulations and accordingly, are not permit standards. The use of the words "nuisance" and "overabundant" contained in the Final Programmatic EIS serve as factors to judge the appropriateness for treatment. I find the ALJ properly applied the meaning of those terms in the Final Programmatic EIS to this project. The issues raised under SEQRA provide authority to minimize adverse environmental impacts.

During the issues conference, the ALJ instructed the parties to verify the presence and quantity of algae. The Association's consultant filed his report on August 24, 1997 documenting presence but not quantity. The consultant found a total of nine algae species. The consultant documented their locations and provided a qualitative analysis of their size, distribution, and surrounding environment. Filamentous algal species (the initial target species) were found from the waters edge to a depth of three meters around the shoreline of Glen Lake. Extensive carpets of filamentous algae were found in both the inlet and outlet areas of Glen Lake as well. The consultant provided no opinion whether this constituted a nuisance or overabundant condition.

A member of Department Staff inspected the site on July 23, 1997. On October 27, 1997, the Staff reported that on July 23, 1997 a DEC Pesticide Control Specialist II, Mr. Bennett, observed alga beds. He stated "...a significant amount of visibly noticeable algae was present in many areas around the shoreline of the lake. I can understand why a lake shore owner would want to have algae removed from their swimming area to improve their recreational use of the lake." However, Staff did not express an opinion whether what they observed is what a reasonable person would construe as a nuisance or overabundant condition within the meaning in the Final programmatic EIS. That information is required here.

Intervenors' consultant inspected the lake on August 17, 1997 and reported his findings in his August 27, 1997 report to the ALJ. He stated "the only indication...of extensive algal production was a dense mat...at the southwest end of the lake." (Report at p. 2). He did not find "...evidence of abnormal or 'nuisance' growth of macrophytes or algae." Intervenors' consultant opined that water quality issues expressed by the public relate to shoreline weed growth and turbidity.

The Association asserts in its appeal that the Intervenors' opinion must give way to the expertise of Staff. However, Staff has not expressed an opinion that there is an overabundance of algae in Glen Lake. Accordingly, the ALJ's ruling regarding the need for additional information to determine whether and where a nuisance or overabundant algae exist to warrant treatment is upheld, as modified here.

The Intervenors propose a settlement process by which a joint review of the water body could lead to permit conditions to allow treatment in agreed upon areas in Glen Lake. (Reply at 18). This presents an opportunity to resolve the matter without hearing. In view of this occurrence, the issues conference record contains information that should be noted here. For example, besides the conflicting survey information, the Greater Glen Lake Watershed Management Plan (draft) shows Glen Lake is oligotrophic bordering on lesser quality mesotrophic stages characterized as relatively clear and having limited rooted vegetation and algal growth. (P. 21). This suggests that limited areas may be in need of treatment. The Plan also identifies faulty septic systems as sources of nutrient loadings and attendant weed growth in some portions of the lake as well. This suggests a need to abate such loadings to lessen week or algal growth.

Regarding the overall environmental conditions of Glen Lake, implementation of the recommendations contained in the Glen Lake Management Plan is to be encouraged. The plan provides avenues to improve water quality through pollution abatement and watershed management and in attaining the goal of ensuring "...fisheries and habitat areas are maintained and improved and that contact recreational uses of the lake are not diminished." (Plan at 37). These avenues need to be pursued, however, in concert with the aid of aquatic pesticides as environmental conditions warrant. This approach is consistent with the approach taken in the Matter of CBC Realty (Decision, February 5, 1986). It maximizes use of aquatic resources on balance with prudent and reasonable treatment scenarios.

Label Instructions and Permit Conditions

The Intervenors assert that recreational uses of the lake should be restricted for seven days according to pesticide label instructions, and not for twenty-four hours as specified in the draft permit and Final Programmatic EIS. (Ex. 8 item 1., Reply at 21). Intervenors rely on a different aquatic pesticide product than that selected by the Association. Intervenors' copper sulfate product, produced by Agway (Reply brief at Appendix 9), has a label restriction prohibiting use of the water for seven days. The Agway product is no longer registered in New York as the registrant allowed the registration to lapse on March 31, 1997 (official notice hereby taken).

The Association proposes to use the pesticide, Tennessee Brand, copper sulfate pentahydrate, manufactured by the Griffen Corporation. One use of this product is for "algae control in impounded waters, lakes, ponds and reservoirs." (Permit application). There are no label restrictions for bathing, swimming, water consumption, fishing, irrigation or spraying agricultural crops/plants or livestock/animal watering. Here however, swimming and bathing and livestock/animal water is restricted for twenty-four hours pursuant to 6 NYCRR 327.6(a)(7). The Association also would conform to more restrictive permit conditions by prohibiting water for human consumption, fishing, and irrigation or spraying for agricultural crops/plants for twenty-four hours. Accordingly, no issue is raised regarding the permit conditions.

The Final Programmatic EIS

The Department issued a Generic EIS, the Final programmatic EIS on the aquatic vegetation control program, in 1981. It was reprinted in 1986 and guides the aquatic control program and permits issued thereunder. When final generic EISs are filed, the SEQRA requirements for subsequent actions are prescribed in the regulations. (6 NYCRR 617.10(d)).

The ALJ held that a supplemental EIS for Glen Lake should be prepared. I conclude that supplementation of the EIS is more than what is required under the specific circumstances of this case. I conclude that this project is within the scope of the Final Programmatic EIS. However, additional information is required regarding where a nuisance and overabundant algal conditions exist to warrant treatment. That information can be supplied as an addendum to the application materials and should include the survey already undertaken by the Association. (6 NYCRR 624.4(c)(7)). An addendum to the application can be equated to a request by Staff for more information under 6 NYCRR 621.15(b).

Furthermore, with respect to SEQRA, Staff must prepare a draft site-specific findings statement pursuant to 6 NYCRR 617.10(d)(2) and 617.11(d). The required rationale in such site-specific draft findings statement should support the locations to be identified for application of copper sulfate.

I find that no other proposed issues are meritorious. The Intervenors' concerns do not rise to a level warranting further review. The matter is remanded to the ALJ for further processing. This processing will include the Association's filing of an addendum to the application to identify proposed treatment areas opined as being a nuisance and overabundant algae condition and will be reviewed by Staff, which will then either confirm or disagree with the Association's filing in whole or in part. Since the issue is already joined, no further issues conference is required.

The ALJ will schedule an adjudicatory hearing to hear conflicting evidence on the addendum information and will prepare a report thereon. In the event an agreement is worked out between the parties, further adjudicatory proceedings would be discontinued. Draft SEQRA findings, any modifications to the draft permit and the additional information provided shall be circulated to the Intervenors for review and comment pursuant to a schedule set by the ALJ.

For the New York State Department of Environmental Conservation

_____________/s/_____________
By: John P. Cahill, Commissioner
Albany, New York

Dated: March 18, 1998

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