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Glen Lake Protective Association - Ruling, December 30, 1997

Ruling December 30, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

-of-

the Application for an Aquatic Pesticides 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, Parts 320 to 327,

- by -

GLEN LAKE PROTECTIVE ASSOCIATION,

NYSDEC No. AV-5-3-97 (Warren County)

Applicant.

ISSUES RULING [12/30/97]

Summary

Aquatic pesticide permit applications are subject to ECL Article 8, the State Environmental Quality Review Act, and its implementing regulations, 6 NYCRR Part 617. In review of this permit application, Staff made a tentative determination that the proposed project is addressed by the Department's Aquatic Pesticide Control, Final Programmatic Environmental Impact Statement ("FPEIS") and will be in compliance with all applicable laws and regulations administered by the Department. However, Intervenors assert that the Applicant's project is not consistent with the FPEIS because the Applicant has not demonstrated that the benefits of a copper sulfate pesticide treatment outweigh the environmental risks associated with such treatment in Glen Lake. This proposed project may have several significant adverse environmental impacts on Glen Lake, as described in FPEIS, IV and V.

The ALJ concluded that it is appropriate to examine de novo the SEQRA issues of need and alternatives. The Intervenors have raised substantive and significant issues regarding the sufficiency of the FPEIS. The ALJ found that the FPEIS discussion of alternatives to proposed action does not adequately address alternatives, particularly the no action alternative, as applied to Glen Lake; and further, that Staff failed to require the Applicant to evaluate alternatives to this proposed project, including the no action alternative. In addition, Staff failed to require the Applicant to demonstrate the necessity for use of copper sulfate in Glen Lake to control filamentous algae.

The ALJ concluded that Staff's determination that the project will be in compliance with all applicable laws and regulations administered by the Department, is premature. Staff has not adequately reviewed project alternatives and need under SEQRA and has not conducted an adequate review pursuant to ECL 15-0313(4). In ECL 15-0313(4), the legislature has expressly granted power to the Department by statute to issue aquatic pesticide permits, including power to place limitations on such permits. The ALJ concluded that implied power to require the aquatic pesticide permit applicant to demonstrate the necessity of the proposed pesticide treatment is an essential element of the Department's rational and meaningful exercise of this permitting authority under ECL 15-0313(4). The ALJ concluded that such implied authority is not merely convenient to the Department's achieving its legislative mandate, but is a necessary power. 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).

Proceedings

The Applicant applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for an aquatic pesticide permit pursuant to Environmental Conservation Law ("ECL") Articles 15 and 33 and Part 327 of the Official Compilation of Codes, Rules and Regulations of the State of New York, Title 6 ("6 NYCRR"). The Applicant proposes to apply copper sulfate pesticide to the waters of Glen Lake, to control filamentous algae. The Applicant proposes to treat up to 23 acres of Glen Lake during the 1998 season. Glen Lake has a surface area of approximately 320 acres, and is a class B(T) lake trout inhabited waters, suitable for swimming. located in the Town of Queensbury, Warren County, New York. The waters of Glen Lake are waters of the State of New York. The Glen Lake Protective Association ("GLPA" or the "Applicant") has identified 345 riparian owners along Glen Lake.

On August 14, 1997, a legislative hearing was held before Administrative Law Judge ("ALJ") Kevin J. Casutto, at the Bay Ridge Fire Station 42, Glen Lake Road, Lake George, New York. Immediately following the legislative hearing, an issues conference was held at the same location. The stenographic record of the proceedings was received by the ALJ on September 5, 1997. Post-hearing filings were received by the ALJ through October 31, 1997.

GLPA appeared by LeBoeuf, Lamb, Greene & MacRae, One Commerce Plaza, Suite 2020, Albany, New York 12210, Thomas S. West, Esq., of counsel. Appearing with counsel were Paul Derby, GLPA Board Member and Bill Sutfin, Certified Pesticide Applicator, Adirondax Service.

Department Staff ("Staff") appeared by Christopher Lacombe, Regional Attorney, New York State Department of Environmental Conservation Region 5. Appearing with counsel were technical Staff, John Bennett and Brian Primeau, Pesticides Control Specialists.

At the legislative hearing, twenty-four members of the public offered comments on the permit application, most in support of the application. A few commentators were neutral, and three commentors (the Intervenors identified below) opposed the permit application. Other commentors supported the project, commenting upon perceived poor water quality, excessive weed growth and algae blooms. These commentors described perceived declining water quality as generally affecting quality of life for Glen Lake riparian users, and specifically affecting such lake uses as swimming and boating.

The deadline for receipt of filings for party status was August 7, 1997. Two applications for party status were received, a petition by James Underwood and a joint petition by Dr. Carol Fisher and Barbara B. Beall. Therefore, issues conference participation was limited to the Applicant, Staff, Mr. Underwood, Dr. Fisher and Ms. Beall.

Regional Staff, after review of the permit application, made a tentative determination to allow the project to go forward, as conditioned by a draft permit (Ex 8, Revised Draft Permit; see also, Ex. 2, Initial Draft Permit). Staff has determined that the Applicant's proposed project is addressed by a Generic EIS, the Final Programmatic Environmental Impact Statement on Aquatic Vegetation Control Program of the New York State Department of Environmental Conservation, Division of Lands and Forests (reprinted March 1986; "FPEIS"). The Applicant does not object to any permit condition and accepts the terms and conditions of the current draft permit.

Staff has determined that the Applicant's proposed project is addressed by a Generic EIS, the Final Programmatic Environmental Impact Statement on Aquatic Vegetation Control Program of the New York State Department of Environmental Conservation, Division of Lands and Forests (reprinted March 1986). A Generic EIS may be broader and more general than site specific or project specific EIS. A GEIS should discuss the logic and rationale for the choices advanced. It may discuss in general terms the constraints and consequences of any narrowing of future options. It may present and analyze in general terms a few hypothetical scenarios that could and are likely to occur. 6 NYCRR 617.10(a).

A Generic EIS may be used to assess the environmental impacts of an entire program or plan having wide application or restricting the range of future alternative policies or projects. 6 NYCRR 617.10(a)(4). The FPEIS on Aquatic Vegetation Control is such a Generic EIS. Accordingly, if Staff determines that a proposed project is consistent with the FPEIS, then Staff may conclude that no supplemental EIS is required for the project. Here, Staff has made such a tentative determination and relies upon the FPEIS without requiring a supplemental EIS.

The FPEIS describes copper sulfate at length. Briefly, copper sulfate is used as a pesticide (algaecide), feed additive, soil additive and wood preservative, and also for other industrial applications. Copper is an essential element for the growth of living organisms, but only in trace amounts. In more than trace amounts, copper sulfate is toxic to living organisms. Use of copper sulfate pesticide to control algae in lakes, results in accumulation of copper in the bottom sediments.

The copper sulfate pesticide product label contains danger warnings regarding handling and use of the pesticide. Additionally, the label contains precautionary statements and environmental hazard statements, including "SPECIAL PRECAUTIONS when applying this product directly to water as an algaecide or herbicide. This pesticide is toxic to fish. Direct application of copper sulfate to water may cause a significant reduction in population of aquatic invertebrates, plants and fish. Do not treat more than one-half of a lake or pond at one time in order to avoid depletion of oxygen from decaying vegetation. Allow 1 to 2 weeks between treatment for oxygen levels to recover. Trout and other species of fish may be killed at application rates recommended on this label, especially in soft or acid waters. However, fish toxicity generally decreases when the hardness of water increases. Do not contaminate water by cleaning of equipment or disposal of wastes. Copper sulfate crystal pesticide label, Tennessee Brand, manufactured by Griffin.

During the issues conference, the Applicant described the generally accepted technique that certified pesticide applicators use for application of copper sulfate pesticide for the control of algae. Following is a brief description of that treatment process. The copper sulfate pesticide label requires that pesticide applicator calculate the volume of water for the proposed treatment area to determine the amount of pesticide required to achieve the desired dosage rate, but not exceed it.

Algae blooms are dependent upon several factors including the nutrient load and temperature of the lake water. Generally, algae growth is cyclical, peaking in the warmer summer months. Lake conditions are dependent upon many dynamic factors, making assessment difficult. The precise areas proposed to be treated would depend upon the nature and extent of the algae present at the time. In part, this determination would be made by the Applicant's certified pesticide applicator, subject to Staff review. First, an area approximating one acre would be marked by buoys. Next, depth measurements would be obtained to account for variability of the bottom terrain. At that point, the Applicant's certified applicator would calculate the volume of water to be treated, and calculate the quantity of copper sulfate pesticide necessary to achieve the dosage rate of 0.3 parts per million. This process would be repeated for each additional area.

The Petitions for Party Status

Dr. Fisher and Ms. Beall, Co-Intervenors, identified six issues in their joint petition, summarized below. These issues were also raised by Mr. Underwood in his petition.

  1. The Applicant has not demonstrated the necessity of application of copper sulfate to Glen Lake. Further, copper sulfate applications may have one or more significant adverse environmental impacts, including impacts to health.
  2. The information provided by the Applicant in its permit application does not meet the requirements of 6 NYCRR Part 327 (Use of Chemicals for the Control or Elimination of Aquatic Vegetation), or the NYSDEC Technical Administrative Guidance Memorandum (TAGM) for the Aquatic Pesticide Permit Program, dated March 12, 1993.
  3. Portions of the application are inaccurate and incomplete.
  4. The Applicant's proposed method of copper sulfate application will not result in an effective dose rate. Nor can compliance with the pesticide label does rate or permitted dose rate be assured.
  5. Issuance of the permit would not be in compliance with SEQRA and the NYSDEC's Final Programmatic Environmental Impact Statement, "Aquatic Vegetation Control Program". More specifically, the Applicant has not demonstrated that the benefits of a copper sulfate pesticide treatment outweigh the environmental risks associated with such application.
  6. Issuance of the permit would not comply with 6 NYCRR 327.4(b)(5) regarding trout fisheries.

During the issues conference, the Intervenors consented to consolidation of their petitions for party status. Neither Staff nor the Applicant challenged the Intervenors' environmental interest in this proceeding.

Discussion

Aquatic pesticide permit applications are not subject to requirements of the Uniform Procedures Act. Accordingly, all permit processing times and procedural requirements of ECL Article 70 and 6 NYCRR Part 621 are inapplicable. Instead, permit processing is controlled by ECL Article 15, Title 9 and 6 NYCRR Parts 327 and 624. Consistent with those provisions, GLPA notified all riparian owners along Glen Lake of the proposed pesticide treatment by a mailing on March 1, 1997. 6 NYCRR 327.1(b). Staff received the aquatic pesticide permit application from GLPA on March 7, 1997.

Aquatic pesticide permit applications are subject to ECL Article 8, the State Environmental Quality Review Act, and its implementing regulations, 6 NYCRR Part 617. ECL 8-0109; 6 NYCRR 617.3. Staff made a tentative determination that the proposed project will be in compliance with all applicable laws and regulations administered by the Department. Therefore, the burden of persuasion is on the potential party proposing an adjudicable issue to demonstrate that the issue is both substantive and significant. 6 NYCRR 624.4(c)(4).

Regarding potential impacts on trout, during the issues conference the Applicant volunteered to coordinate timing of any authorized copper sulfate treatment to avoid the time period when Staff intends to stock Glen Lake and also to avoid spawning periods, provided the treatment can occur prior to Independence Day weekend.

Following the August 14, 1997 issues conference, several supplemental filings were made by the parties. One of Intervenors' proposed issues was that the Applicant could not contain the lake outlet flow for 24 hours, as required by the draft permit. By letter dated August 17, 1997, the Applicant confirmed the historic efficacy of its method of stopping outlet water flow during the pesticide treatment period.

Under cover of a letter dated August 19, 1997, Intervenors filed a draft "Watershed Management Plan for the Future of Glen Lake", a NYSDEC memorandum (dated March 14, 1995 regarding Aquatic Herbicide Application Review), a joint Federation of Lake Associations, Inc. and NYSDEC publication, Citizen's Statewide Lake Assessment Program Annual Report (August 1996) and a watershed analysis, prepared by Intervenor Beall.

The Applicant supplemented its permit application with a Survey of the Algae for Glen Lake, Warren County, New York (August 24, 1997; the "Algae Survey"). This survey was prepared by the Applicant's consultant limnologist, Lawrence Eichler, based upon his August 1997 field assessment. Mr. Eichler observed extensive carpets of filamentous algae in both the inlet and outlet areas of the lake. He also reported other algal species typical of what he characterized as moderately productive lake waters. Mr. Eichler omitted to provide any opinion regarding the presence of a "nuisance" algal condition or "overabundant" algal condition in Glen Lake (hereinafter, "nuisance" algae).

By letter dated August 27, 1997, Intervenors filed a summary of the findings of their proposed expert witness, limnologist Robert Singer, Ph.D. Dr. Singer's offer of proof is that Glen Lake does not exhibit conditions indicative of a nuisance algae condition, and that copper sulfate use is not warranted at this time. Also enclosed with this letter were an excerpt from the joint Federation of Lake Associations, Inc. and NYSDEC publication, Diet for a Small Lake (1990) describing the use of copper sulfate as an algaecide, and local newspaper articles on the proposed project.

By letter dated September 6, 1997, Intervenors commented upon the above described filings, including their critique of the Eichler survey.

The Applicant also commented upon the filings, by letter dated September 19, 1997. In that letter, the Applicant clarified that it will consider modifying its proposal to avoid need for a freshwater wetlands permit (the wetlands are at the inlet to the lake and in the northeast bay of Glen Lake.) At this point, Staff was still reconsidering the wetlands issue. The Applicant stated that if necessary depending upon Staff's position, the Applicant may modify its proposal to avoid the wetland and adjacent area as delineated by Staff. Thereby, the Applicant would avoid the need for a wetlands permit.

Intervenor Underwood submitted documents in furtherance of his proposed expertise in environmental inventory, under cover of a letter dated September 30, 1997.

Department Staff responded to the post-issues conference filings by letter dated October 3, 1997, and stated affirmatively that a freshwater wetlands permit is required for the project as proposed Staff further clarified that Staff did initially consider the impact of the proposed project on the wetlands and made a tentative determination that the project would not constitute a substantial adverse impact on the wetlands.. Staff further stated it may revise this determination upon review of any project modification that the Applicant may propose.

During an October 10, 1997 telephone conference, the Applicant stated that it would not seek a wetlands permit, but instead will modify its proposal as necessary to avoid the requirement of a wetlands permit. Also, I directed Staff to provide a written summary of Staff's site visit and an opinion on whether the observed conditions constituted a nuisance algae condition appropriate for treatment with copper sulfate Staff opines that it is not required to conduct a site visit for each aquatic pesticide permit application. While this may be correct, if Staff does conduct a site visit, documentation of that site visit may become part of the hearing record, as I have required here.. Lastly, during the telephone conference, Intervenors made a settlement offer. Intervenors proposed to be bound by the joint recommendation of the Applicant's Mr. Eichler and Intervenors' Dr. Singer (following their field assessment) and withdraw all proposed adjudicable issues, if the Applicant is also willing to be bound by the experts' joint recommendation. Mr. Eichler and Dr. Singer are colleagues at the Freshwater Institute and have co-authored several articles. The Applicant rejected this offer of settlement by letter dated October 17, 1997, stating that "[t]he Applicant cannot agree to be bound by the recommendations of persons, however knowledgeable about lake quality, that do not live on Glen Lake."

On October 28, 1997, Staff filed two memoranda. One memorandum from Pesticides Control Specialist II John Bennett to Regional Attorney Christopher Lacombe, dated October 27, 1997. addresses Staff's July 23, 1997 site visit. In that memorandum, Staff states the position that it is extremely difficult for Staff to determine what constitutes a nuisance algal condition. In Staff's view, whether lake conditions constitute a nuisance algae condition, is an issue determined by the riparian users. Further, Staff states that in its review of aquatic pesticide permit applications, Staff does not attempt to determine what constitutes a nuisance algae condition and what is necessary to control algae because it would be extremely difficult for Staff to do so.

The second memorandumFrom Senior Wildlife Biologist Alan L. Koechlein to Regional Attorney Christopher Lacombe, dated October 28, 1997. confirms Staff's determination that a freshwater wetland permit is required for the project as proposed, pursuant to 6 NYCRR 663.4(d)(39). But, Staff also states that Staff finds no reason to conclude that the project would cause any potential impacts to the functions and benefits of wetlands. Nevertheless, although a wetland permit is necessary for the project as proposed, Staff would likely approve such a permit application based upon Staff's review of the existing materials filed as part of the aquatic pesticide permit application (including the supplemental materials submitted during this proceeding).

The issues conference record closed on October 31, 1997 with my receipt of Staff's filing.

I. State Environmental Quality Review and the FPEIS

Intervenors assert in their fifth proposed issue and in other proposed issues that the Applicant's proposed project is not in conformance with SEQRA and the FPEIS. At the base of several of Intervenors' proposed issues is their contention that Staff failed to require this Applicant to demonstrate the necessity for use of copper sulfate in Glen Lake to control filamentous algae.

All draft environmental impact statements must include a description and evaluation of the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor. The description and evaluation of each alternative should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed. The range of alternatives must include the no action alternative. The no action alternative discussion should evaluate the adverse or beneficial site changes that are likely to occur in the reasonably foreseeable future, in the absence of the proposed action. 6 NYCRR 617.9(b)(5)(iii)(v).

Intervenors assert that in order for the project to be within the scope of the FPEIS, the Applicant must demonstrate that its project is in conformance with the conditions and thresholds established in the FPEIS or its findings statement. 6 NYCRR 617.10(d)(1). Intervenors assert that Staff improperly failed to require the Applicant to demonstrate that a nuisance algae condition exists in Glen Lake or to demonstrate that the types of nuisance algae in Glen Lake are among those identified in the FPEIS. FPEIS at 3-6; 6 NYCRR 617.9(b)(5)(i). Instead, Intervenors assert that Staff has improperly accepted the non-expert opinion of the majority riparian owners as proof that Glen Lake has a nuisance algal condition. Therefore, Intervenors conclude that Staff erred in determining this the project will be in compliance with all applicable laws and regulations administered by the Department.

Secondly, Intervenors reason that the FPEIS identifies environmental risks, and that failing an adequate demonstration of necessity for the proposed aquatic pesticide treatment, no balancing of benefits and risks can occur. Intervenors conclude that any environmental risk is too great because the Applicant has failed to demonstrate the existence of a nuisance algal condition in Glen Lake. Intervenors conclude that Staff must require Applicant to prepare a supplemental EIS, or deny the permit application.

In the context of SEQRA, these issues are framed as Staff's inadequate consideration of need and of alternatives, particularly the no action alternative, in reviewing this project. In the context of other statutory and regulatory authority, it is framed as Staff's role in review of aquatic pesticide permit applications under ECL 15-0313(4).

De Novo Review of SEQRA Alternatives

In this permit hearing, de novo examination of SEQRA "alternatives" and "need" is appropriate. 6 NYCRR 617.9(b)(5); 7.03[4] at 7-42, Gerrard, Ruzow and Weinberg (1997), citing, In re CECOS Int'l. Inc., Interim Decision of the Commissioner (July 19, 1988); and In re Town of Marbletown, Interim Decision of the Commissioner (October 21, 1982).

When a final generic EIS, such as the FPEIS, has been filed, a supplement to the Final generic EIS must be prepared if the subsequent proposed action was not adequately addressed in the generic EIS and the subsequent action may have one or more significant adverse environmental impacts. 6 NYCRR 617.10(d)(4). In this case, the present action was proposed subsequent to the FPEIS. The present action may have one or more significant adverse environmental impacts, as described in FPEIS IV and V, and by the Intervenors. Further, the present action was not adequately addressed in the FPEIS. Specifically, the FPEIS discussion of alternatives to proposed action does not adequately address alternatives as applied to Glen Lake, including the "no action" alternative. A supplement to a final generic EIS must be prepared if the subsequent proposed action was not addressed or was not adequately addressed in the generic EIS and the subsequent action may have one or more significant adverse environmental impacts. 6 NYCRR 617.10(d)(4).

Balancing of Alternatives in View of Risks

Use of copper sulfate may have one or more adverse environmental impacts upon Glen Lake, including: 1) restrictions of water use; 2) reduction in food supply and habitat for fish and other aquatic organisms which could result in lower fish populations; 3) possible buildup of copper in bottom sediments; 4) temporary increase in the biological oxygen demand which can be adverse to aquatic life; 5) decayed treated vegetation resulting in added nutrient load, possibly resulting in a profuse algae bloom in the short term and monotypic stands of fast growing algae species which are usually a greater nuisance than mixed vegetation stands, in the long term; 6) reduction in food supplies for aquatic mammals and birds; and 7) removal of aquatic vegetation used for escape cover and nesting. FPEIS IV and V. Therefore, a SEQRA balancing of needs, benefits and adverse impacts is triggered. However, Intervenors assert that no balancing can occur in this instance because Applicant has not established the necessity for use of copper sulfate in Glen Lake. Therefore, Intervenors conclude that the environmental risks are too great.

Failing a demonstration of necessity for the proposed pesticide treatment to waters of the state and in view of the potential impacts they have raised, Intervenors assert that the SEQR no action alternative should prevail. The FPEIS states that: "[t]he purpose [of the Department's aquatic vegetation control permit program] is to provide the public with regulated control of nuisance aquatic vegetation so as to assure aquatic vegetation control in an environmentally acceptable manner and assure protection of human water uses where humans may be exposed to aquatic vegetation control chemicals.

Overabundant aquatic vegetation is aesthetically unpleasing to some, may interfere with effective and proper harvest of the fishery resources, and may interfere with other recreational activities... A need, therefore, exists for proper aquatic plant management to insure that the environment and man's interests are mutually protected." (Emphasis supplied); FPEIS at 2.

On the other hand, the Applicant's contention is that the proper registration of the pesticide for use in New York State is presumptive evidence that the use will have no adverse environmental impacts when applied according to the manufacturer's label instructions. The Applicant states there is no requirement in the statute, the regulations, the FPEIS or the copper sulfate label that requires a demonstration of necessity or quantification of target species prior to an aquatic application of copper sulfate. Nonetheless, following the issues conference the Applicant, while reserving it rights, has demonstrated the existence of filamentous algae in Glen Lake through its Algae Survey, and asserts that nothing further is required.

Secondly, the Applicant asserts that the Department has no authority to require a demonstration of necessity for the proposed pesticide treatment because no specific statutory or regulatory authority exists to support such review. Instead, The Applicant asserts that the Department's review is limited, under 6 NYCRR 327.1(b), to a determination of whether nonconsenting riparian users will be significantly adversely affected by the water use restrictions in effect during the treatment period. The Applicant cites In the Matter of CBC Realty Corporation, Commissioner's Decision (February 5, 1986), 1986 WL 26268, in support of its position. However, in CBC Realty, the applicant demonstrated the necessity for the proposed copper sulfate treatment to waters of the state through photographic documentation. In CBC Realty, the applicant recognized its fundamental obligation to establish the necessity of the proposed aquatic pesticide treatment, and did so in its aquatic permit application. Intervenors in that matter did not dispute the applicant's demonstration of necessity. Necessity for the proposed copper sulfate treatment was not an issue in that matter. CBC Realty, supra.

The permit application identifies filamentous algae as the sole type of vegetation to be controlled by the proposed pesticide treatment. During the issues conference, the Applicant sought to amend its permit application to include planktonic algae and muskgrass/stonewart algae, the other two categories of algae identified in the FPEIS. FPEIS at 3. However, the Applicant has made no revised permit application filing. Consequently, the project under review is that project proposed by The Applicant's March 1, 1997 permit application -- i.e., limited to filamentous algae as the type of vegetation to be controlled.

The C-SLAP Report Supports the No Action Alternative

Intervenors have presented an offer of proof regarding need and the no action alternative including the Citizen's Statewide Lake Assessment Program Annual Report (August 1996), with the 1996 Interpretive Summary for Glen Lake (April 1997; the "C-SLAP Report")The C-SLAP program is a volunteer lake monitoring program conducted by the New York Federation of Lake Associations and the Department. The program currently monitors more than 125 lakes, ponds and reservoirs in the state, and has 1,000 volunteer members. and a summary of Dr. Singer's findings and conclusions. The C-SLAP Report describes Glen Lake as having no significant recreational use impairment, due to favorable water clarity and little weed growth. Further, the Report states that recreational use of Glen Lake is at or close to optimal levels, due to water clarity high enough and weed growth low enough to support most lake uses. Intervenors have provided excerpts of the C-SLAP Report, in furtherance of their contention that Glen Lake is not subject to nuisance algae. Glen Lake has been monitored by C-SLAP since 1986.

The C-SLAP Report explains that all lakes and ponds undergo eutrophication, an aging process that involves stages of succession in biological productivity and water quality. Oligotrophic lakes are characterized by low biological productivity and high clarity. Eutrophic lakes are characterized by high biological productivity and low clarity; lakes that are mesotrophic have intermediate or moderate productivity and clarity. Trophic classifications are not interchangeable with water quality. C-SLAP Report, Interpretative Summary, page 2.

The C-SLAP Report identifies Glen Lake as having no significant recreational use impairment, due to favorable water clarity and little weed growth; recreational use of Glen Lake is at or close to optimal levels, due to water clarity high enough and weed growth low enough to support most lake uses. Therefore, the focus of lake management is to stay at the same place on the trophic continuum. C-SLAP Report, Interpretative Summary, page 15. Although this report was available during Staff's project review, Staff did not require the Applicant to address this report as it relates to alternatives to the proposed project, nor did Staff consider the C-SLAP Report in its review of this proposed project.

Site Inspection and Expert Opinion Support the No Action Alternative

Dr. Singer conducted a site inspection on August 17, 1997. Dr. Singer's conclusion is that Glen Lake exhibits no evidence of abnormal or nuisance growths of macrophytes or algae. Dr. Singer further concludes that copper sulfate is the wrong treatment for Glen Lake; due to the short term effectiveness of copper sulfate, its use will commit the Applicant to a regular treatment cycle that will result in future adverse environmental impacts. Dr. Singer recommends that any treatment be delayed until further studies clarify the nature of The Applicant's concerns and relate these concerns to tangible water quality issues. Then, a management plan can be developed to deal with the source of the perceived water quality issues. 6 NYCRR 617.10(d)(4).

As noted above, the Applicant filed a Survey of the Algae for Glen Lake, Warren County, New York (August 24, 1997; the "Algae Survey"), prepared by limnologist, Lawrence Eichler. Based upon his August 1997 field assessment, Mr. Eichler reports extensive carpets of filamentous algae in both the inlet and outlet areas of Glen Lake. He also reported other algal species typical of what he characterized as moderately productive lake waters. Mr. Eichler identified nine species of benthic (bottom dwelling) algae in Glen Lake, including three species of filamentous algae (Anabaena, Spirogyra and Mugeotia). He has also identified fifteen species of phytoplanktonic (free floating) algae in the lake. However, although Mr. Eichler identified the presence of filamentous algae in Glen Lake, he omitted to provide any opinion regarding the presence of a nuisance algal condition in Glen Lake.

II. ECL Article 15 and General Statutory Authority

ECL Article 15 and the Department's general statutory authority require that in Departmental review of aquatic pesticide permit applications to waters of the state, Staff must determine whether the proposed pesticide treatment is necessary. Yet, Staff states generally, and with respect to its review of this aquatic permit application, that a nuisance algal condition is a condition identified by the public. Further, Staff states that it is extremely difficult for Staff to determine what constitutes a nuisance algal condition. In Staff's view, what constitutes a nuisance algal condition, and what is necessary to control algae, are matters best left to the residents who use the lake.

Staff thus accepts non-expert lay opinion rather than require Applicant to provide information necessary for Staff to determine whether filamentous algae exist in the lake; and if so, to determine whether filamentous algae are present in concentrations that would necessitate treatment with copper sulfate, as proposed by the Applicant. Staff's omission in review of this aquatic pesticide permit application is improper.

Contrary to this perspective, as discussed above, the Applicant asserts that the proper registration of the pesticide for use in New York State is presumptive evidence that the use will have no adverse environmental impacts when applied according to the manufacturer's label instructions. Further, The Applicant asserts that the Department has no authority to require a demonstration of necessity for the proposed aquatic pesticide treatment because no specific statutory or regulatory authority exists to support such review. Instead, Applicant asserts that pursuant to 6 NYCRR 327.1(b), the Department's review is limited to a determination of whether nonconsenting riparian users will be significantly adversely affected by the water use restrictions in effect during the treatment period. Applicant asserts that Intervenors have failed to make such a demonstration, and therefore the Department must issue the permit.

The Applicant's view cannot be reconciled with the language and statutory intent of ECL 15-0313(4), the general authority of the Department under the ECL and well established principles of administrative law. The legislature expressly has granted aquatic pesticide licensing authority to the Department in ECL 15-0313(4). The Department's general functions, powers, and duties, enumerated in ECL Article 1, Title 1 (and ECL 1-0101), ECL Article 3, Title 3 (and ECL 3-0301[1]Pursuant to ECL 3-0301(1), it is the Department's responsibility to carry out the environmental policy of New York, including the conservation, improvement and protection of the state's natural resources and environment. In so doing, the Legislature has delegated specific powers to the Department to promote and coordinate management of water, land and fish, to assure their protection, enhancement and balanced utilization, and take into account the cumulative impact upon such resources in making any determination in connection with any permit (ECL 3-0301(1)(b)); provide for the protection and management of marine and coastal resources and of wetlands and shorelines (ECL 3-0301(1)(e)); encourage residential and community development which maximizes environmental benefits and minimizes the effects of less desirable environmental conditions (ECL 3-0301(1)(g)); provide for prevention and abatement of all water pollution (ECL 3-0301(1)(I)); and promote control of aquatic growth and regulate herbicides (ECL 3-0301(1)(k)).), and also in ECL Article 15, Title 1 (and ECL 15-0105 The waters of the state shall be conserved and developed for all public beneficial uses (ECL 15-0105(2)); reasonable standards of purity and quality of the waters of the state shall be maintained and to that end, to require the use of all known available and reasonable methods to prevent and control unreasonable disturbance and defilement of the waters of the state (ECL 15-0105(7)).) and ECL Article 33, Title 3 (and ECL 33-0301 Pesticides properly used are valuable, important and necessary to the welfare, health and economic well-being and productive and industrial capabilities of the people of New York. However, such materials, if improperly used, may injure health, property and wildlife (ECL 33-0301).) provide a broad grant of power to the Department to carry out the environmental policy of New York, including the conservation, improvement and protection of the state's natural resources and environment.

Departmental authorization of a pesticide treatment to the waters of the state, if such treatment is unnecessary, amounts to an improper use of the pesticide, contrary to ECL 33-0301, and an improper exercise of the Department's permitting authority. Such a pesticide treatment would negatively impact the purity and quality of the waters of the state, constituting an unreasonable disturbance and defilement of such waters contrary to ECL 15-0105(7)For example, cooper sulfate pesticide may be used in public water supplies. But in those instances, health officials make a determination of necessity, balancing impacts to water quality with public need for potable water supply. However, if no need has been demonstrated, then authorizing use of the pesticide is unreasonable and improper.. Such an official act would amount to an abrogation of the Department's legislative mandate to carry out the environmental policy of the state, including the conservation, improvement and protection of the state's natural resources and environment. ECL 3-0301(l).

Moreover,

". . . many of the cases in New York have stated and applied the rule that an administrative agency may have implied powers in addition to its express powers. (sic) where such implied powers are essential to the exercise of, or a necessary concomitant of, powers expressly granted. A particular administrative agency, in view of the nature, character, and extent of the powers reposed in it and the duties imposed upon it, may be deemed to possess implied powers necessary to discharge its implied functions. Where there is no prohibition against the exercise of implied authority, such authority may be deemed to exist under a realistic view of a statute as related to the evils it was designed to suppress. A power not expressly granted by statute is implied only where it is so essential to the exercise of some power expressly conferred as plainly to appear to have been within the intention of the legislature. The implied power must be necessary, not merely convenient, and the intention of the legislature must be free from doubt. (Citations omitted; emphasis supplied)" 2 NY Jur.2d (Administrative Law) 24, Implied and Inherent Powers.

The legislature has expressly granted power to the Department by statute to issues aquatic pesticide permits, including power to place limitations on such permits. ECL 15-0313(4); see, also, 6 NYCRR Part 327As noted above, 6 NYCRR Part 327 does not contain express language requiring the Department to make a determination of necessity for each aquatic pesticide permit application. However, 6 NYCRR 327.3(b) recognizes that aquatic pesticide permits will be granted under such limitations as will protect to the greatest extent possible all terrestrial life, aquatic life other than aquatic vegetation intended to be controlled or eliminated and recreational water uses. 6 NYCRR 327.3(b)(1). Further, 6 NYCRR 327.3(b) requires that the Department make recommendations on the use of the chemicals and treatment operation or other aspects involving the applicant to avoid adverse effects on water uses. 6 NYCRR 327.3(b)(2). . This power authorizes the Department to regulate by permit, the introduction of toxic chemicals such as copper sulfate into the waters of the state. Clearly, power to require an applicant to demonstrate necessity for the proposed pesticide treatment is so essential to the Department's exercise of the permitting power expressly conferred, as plainly to appear to have been within the intention of the legislature. Further, the implied power to require an aquatic pesticide permit applicant to demonstrate the necessity of the proposed pesticide treatment, is an essential element of the Department's rational and meaningful exercise of this permitting authority in light of its mission to achieve its legislative mandate. 2 NY Jur.2d (Administrative Law) 24, Implied and Inherent Powers.

Implicit in the Department's authority to set limitations for use of aquatic pesticides under ECL 15-0313(4), is authority to require an applicant to demonstrate necessity for the proposed aquatic pesticide treatment. If an applicant has not demonstrated the necessity of the proposed aquatic chemical pesticide use, denial of the aquatic pesticide permit application would be protective to the greatest extent possible of all terrestrial life and aquatic life. 13 NY Jur. 2d at 47, citing, Barton Trucking Corp. V O'Connell (1959), 7 NY2d 299, 197 NYS2d 138, 165 NE2d 163 [the power to withhold a permit or license for good cause, as well as the standards defining good cause, need not be expressly delegated where, by fair implication, in light of statutory purpose, such power has been implicitly delegated].

In conclusion, a reasonable view of ECL 15-0313(4) and its implementing regulations, requires that Department Staff determine, for each aquatic pesticide permit application, whether the proposed pesticide treatment of waters of the state is necessary. Clearly, such implied authority is not merely convenient to the Department's achieving its legislative mandate, but is a necessary power. To conclude otherwise would reduce the Department's aquatic pesticide permit review to a mechanistic approval process, based upon the fact that pesticide is registered for use in the state.

Rulings

1) The permit application, supplemented by the post-issues conference filings, does not contain facts and expert opinion demonstrating the existence of a nuisance algal condition in Glen Lake. Intervenors's offer of proof provides a summary of their expert's opinion regarding the condition of Glen Lake, concluding that Glen Lake is an oligotrophic to mesotrophic lake, and that no abnormal or nuisance algal condition exists in Glen Lake. Further, the C-SLAP Report describes Glen Lake as having no significant recreational use impairment, due to favorable water clarity and little weed growth; and that recreational use of Glen Lake is at or close to optimal levels, due to water clarity high enough and weed growth low enough to support most lake uses.

Staff continues to assert that the Applicant's project will comply with all statutory and regulatory requirements. However, Staff concedes it has accepted non-expert citizen opinion as sufficient to establish the existence of nuisance filamentous algae in Glen Lake, rather than require the Applicant to demonstrate whether such an algae condition exists in Glen Lake. This omission in Staff's review of the permit application renders Staff's tentative determination defective, both under SEQRA and under ECL 15-0313(4) and related statutory and regulatory provisions, because Staff improperly accepted non-expert citizen opinion as sufficient to establish the existence of nuisance filamentous algae in Glen Lake. 6 NYCRR 624.4(c)(6)(i)(a).

Under SEQRA, the FPEIS analysis of need and alternatives is not adequate with respect to this proposed project. A supplemental EIS is required to address SEQRA need and alternatives, including the no action alternative, Dr. Singer's offer of proof, the C-SLAP Report for Glen Lake, demonstration of necessity for the proposed pesticide treatment and to address other alternatives as applied to this site. 6 NYCRR 617.10(d)(4). In preparation of the supplemental EIS, Staff must direct the Applicant to provide factual information and expert opinion sufficient to support a tentative determination by Staff that a nuisance algal condition exists in Glen Lake. Further, any subsequent draft permit that Staff may prepare in this matter, should require that the Applicant coordinate timing of any copper sulfate treatment to avoid the time period when Staff intends to stock Glen Lake and also to avoid trout spawning periods, and should address the Applicant's request that the treatment may occur prior to Independence Day weekend.

2) Separately, under ECL 15-0313(4) and related statutory and regulatory provisions, Staff is required to have the Applicant provide factual information and expert opinion necessary to support a determination that the proposed aquatic pesticide application to waters of the state is necessary. Staff must review that filing and render a tentative determination on the aquatic pesticide permit application that addresses necessity for the proposed pesticide treatment.

3) Intervenors have raised a substantive and significant issue regarding an omission in Staff's review of alternatives and need for this proposed aquatic pesticide treatment - - both under SEQRA and under ECL 15-0313(4). Intervenors are granted party status.

4) Staff should require the Applicant to file a freshwater wetlands application for the project, or in the alternative, require the Applicant to revise its aquatic permit application to reflect its stated intention to avoid the necessity of obtaining such a permit. At the same time, Applicant may revise its permit application to include other target organisms in addition to filamentous algae, if Applicant wishes to do so.

5) Any proposed issues not specifically addressed in this ruling are rejected.

6) Further, regarding future review of aquatic pesticide permit applications, Department Staff should modify its review consistent with this ruling - - that is, assure the applicant has provided factual information demonstrating the necessity of the proposed pesticide use and evaluated site specific alternatives to the proposed pesticide treatment.

7) This case is hereby remanded to Staff for further processing consistent with this ruling.

Appeals

A ruling of the ALJ to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner on an expedited basis [6 NYCRR 624.8(d)(2)]. Ordinarily, expedited appeals must be filed with the DEC Commissioner in writing within five days of the disputed ruling [6 NYCRR 624.6(e)(1)].

Allowing extra time due to the length of this ruling, any appeals must be sent to Commissioner John P. Cahill and received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York 12233-1010) before 4 p.m. on January 16, 1998. Any responses to appeals must be received before 4 p.m. on January 23, 1998. The parties shall ensure that transmittal of all papers is made to me and all others on the service list at the same time and in the same manner as transmittal is made to the Commissioner. Please ensure that I receive three copies of any appeal that is filed. No electronic submittal, including submittal by telecopier, will be allowed or accepted. Appeals should address these rulings, rather than merely restate a party's contentions. Any request for an adjustment to the appeal schedule must be made to DEC's Chief Administrative Law Judge, Daniel E. Louis, at the Office of Hearings and Mediation Services.

_____________/s/_____________

Kevin J. Casutto
Administrative Law Judge
Albany, New York

Dated: December 30, 1997

TO: GLPA Distribution List

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