Chautauqua Institution Files Lawsuit

Nonprofit Alleges Ellery, DEC Shouldn’t Have Approved Herbicide Use

Chautauqua Institution filed an Article 78 proceeding against the state Department of Environmental Conservation and town of Ellery to prevent future use of herbicides on Chautauqua Lake. The institution filed the lawsuit July 30 in State Supreme Court in Erie County. P-J photo by Jordan W. Patterson

BUFFALO — Chautauqua Institution has filed an Article 78 proceeding against the state Department of Environmental Conservation and town of Ellery seeking to stop future use of herbicides on Chautauqua Lake by declaring a Supplemental Environmental Impact Statement approved in April invalid.

Attorneys representing the institution filed the lawsuit July 30 in State Supreme Court in Erie County. The case will be heard at 9:30 a.m. Oct. 4.

The institution alleges the town didn’t adequately consider comments it received during the SEIS process and acted in an “arbitrary and capricious manner” by adopting an SEIS that institution officials allege wasn’t supported by evidence within the public record. That reasoning is used throughout seven causes of action the institution’s lawyers state should prompt the court to overturn the Supplemental Environmental Impact Statement approved by Ellery in April and prevent Ellery from acting as lead agency for any future SEIS proceedings. The institution is also asking the state to prevent the DEC from issuing any further permits based on the April SEIS.

The institution’s attorneys allege the town of Ellery should have prepared a full environmental impact statement rather than filing a Supplemental Environmental Impact Statement to a previous SEIS document finalized in 1990. The Ellery Town Board approved the SEIS on April 5. Concurrently to the SEIS process, the towns of Ellery, Busti, North Harmony, Ellicott and village of Celoron applied to the state DEC for permits to use herbicides and pesticides on the lake to control Eurasian milfoil and curlyleaf pondweed. Those permits were approved on May 15 before they were rescinded and reissued on June 1. Herbicide treatment took place the weekend of June 13-14.

Among the biggest problems institution officials saw in the SEIS is that estimated herbicide concentrations at drinking water intakes provided were too general and poorly documented; that the toxicity of herbicides for native ecological species and sensitive areas were not clearly stated; pesticide drift wasn’t adequately evaluated; the possibility of increased phosphorus due to the herbicide application could cause more algal blooms on the lake, a possibility the lawsuit says was ignored; there was no comparison between risks of herbicide use with the public need for and benefits of herbicide use; and no consideration of long-term alternatives.

P-J photo by Jordan W. Patterson

“Neither the Draft SEIS nor the Final SEIS for Chautauqua Lake provide adequate and clear documentation to support a conclusion that the herbicide/pesticide application would be safe for human health and the environment,” the lawsuit states. “Specific issues and concerns raised by Petitioner in comments on the Draft SEIS are either incompletely addressed in the SEIS or ignored entirely.”

Specific causes for action in the lawsuit include:

FAILURE TO COMPLY WITH PROCEDURAL REQUIREMENTS OF SEQR

Institution officials allege Ellery did not fulfill the strict requirements of the SEQR process because the SEIS isn’t a complete statement or evaluation of the environmental impacts of herbicide use in Chautauqua Lake and did not give complete consideration to the public comments received during the SEIS public comment period.

Particularly, institution officials say the stated concentrations of herbicide use in the lake are too general and don’t account for concentrations expected at drinking water intake areas or recreational areas; that the SEIS didn’t clarify the toxicity of herbicides for native ecological species, spawning areas, rare, threatened and endangered species, and in other sensitive areas; and that the SEIS failed to address the public need and benefits of pesticide and herbicide use, discussion of alternatives and including the benefits of doing nothing or taking voluntary action.

P-J file photo

“The piecemeal SEIS responses to these significant issues raised in public comments are so lacking in substance and logical reasoning that they are essentially equivalent to having these required sections not even included in the SEIS,” the institution alleges in its lawsuit.

FAILURE TO ADEQUATELY CONSIDER AND ADDRESS SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACTS AND THEIR LIKELIHOOD IN VIOLATION OF SEQR

Institution officials say the SEIS violated SEQR requirements by not taking a hard look at the human health impacts in terms of potential drinking water and recreational use impacts related to lake water and groundwater or considering the toxicity of herbicides for native species, spawning areas or on rare or threatened species. The SEIS, the lawsuit alleges, suggests uncertainty about how many private residences use lake water for drinking and does not provide documentation showing how pesticide and herbicide applications would not exceed drinking water standards.

The lawsuit also alleges the SEIS concludes that outflows to Chautauqua Lake to not recharge groundwater and didn’t provide evidence about the impacts of herbicide and pesticide use on groundwater while not providing calculations backing up the SEIS’ recommended restrictions on swimming and fishing within 24 hours of herbicide use.

“The failure to take a ‘hard look’ at the human health impacts of the pesticide and herbicide application is a fatal flaw in the SEIS,” the lawsuit states.

P-J file photo

Institution officials also allege the SEIS didn’t adequately consider the toxicity of herbicides for native ecological species, spawning areas, the needs of rare, threatened or endangered species and other sensitive areas. Specifically, the lawsuit finds fault with the SEIS not providing statistics illustrating the extent and degree of overlap and potential impacts to threatened and endangered species and spawning habitat.

Chautauqua Lake is home to freshwater mussels and Hills pondweed which the SEIS suggests potentially vulnerable to herbicide toxicity. The lawsuit alleges the SEIS fails to adequately address mitigation of such toxicity. And, institution officials allege the SEIS does acknowledge the potential impacts of herbicide use on sensitive areas, such as wetlands, but concludes that wetlands will be protected by a required setback of 100 feet without providing reference or calculations supporting the conclusion that the 100-foot setback is protective.

FAILURE TO DESCRIBE THE ‘PUBLIC NEED AND BENEFITS’ OF THE HERBICIDE AND PESTICIDE APPLICATION IN VIOLATION OF SEQR

The institution also finds fault with the way the Supplemental Environmental Impact Statement justifies the public need and benefit for herbicide use. The draft SEIS, the institution says, includes a short discussion about the need to control invasive weed growth on the lake and concludes that using herbicides will help the lake’s ecology, tourism, recreation and public enjoyment of the lake.

Lawyers contend the SEIS does not actually mention the public need to use herbicides on the lake and alleges there are passing references the benefits of herbicide application while noting public comments raised concerns about herbicide use that aren’t weighed against the stated benefits.

P-J file photo

“Specifically, the SEIS does not evaluate net public benefits in terms of weighing the claimed economic benefits with the health, environmental, and economic costs to achieve those benefits,” the lawsuit states. “As such, the SEIS fails to take a hard look at the public need and benefits of the proposed action and does not include a reasoned elaboration of the basis for its determination that herbicide application in the Lake will in fact constitute a net benefit to the public.”

FAILURE TO DESCRIBE AND EVALUATE A RANGE OF REASONABLE ALTERNATIVES IN VIOLATION OF SEQR

Lawyers also argue that the SEIS should have provided alternatives to the use of herbicides on the lake as required by the State Environmental Quality Review because SEQR requires consideration of alternatives that avoid environmental harm. The lawsuit alleges the SEIS doesn’t meet the requirement because it doesn’t consider in good faith a genuine range of options, opting instead for “biased” rationale for pre-selected methods rather than an impartial assessment of alternatives.

“For example, the ‘no action alternative’ discussion essentially dismisses the use of voluntary actions and mechanical harvesting from the onset of the alternatives analysis,” the lawsuit states. “There is no acknowledgement of benefits of voluntary action or the degree of voluntary actions that may already be occurring in the watershed. Specifically, the Draft SEIS dismisses the “no action” alternative, involving no herbicide treatment and no weed harvesting, as infeasible, though numerous stakeholders suggested this alternative. The SEIS similarly ignores comments describing the environmental benefits of other management techniques such as mechanical harvesting, which would mitigate potential impacts on aquatic species, and green infrastructure, including the construction of wetlands, rain gardens, weirs, and erosion control elements, which could result in measurable reductions in phosphorus and nitrogen, thereby controlling unwanted aquatic vegetation.”

FAILURE TO IMPOSE MEANINGFUL MITIGATION MEASURES IN VIOLATION OF SEQR

In addition to an alleged failure to consider reasonable alternatives, the lawsuit alleges the town of Ellery’s SEIS didn’t do enough to make sure any impact of herbicide use was mitigated through imposed conditions that protect the environment. Institution officials state the mitigation measures in the Draft SEIS document are “grossly deficient” while the finished SEIS fails to address the deficiencies despite being highlighted in the public comment.

Specifically, the draft SEIS includes restrictions on recreational use and setbacks on herbicide use for drinking water but, according to the lawsuit, did not provide a basis for concluding those mitigations actually protect human health. The Draft SEIS also lists fish, wildlife and sensitive areas that may be effected by herbicides, but institution officials say the Draft SEIS didn’t provide a reasonable basis explaining how the mitigation procedures would protect aquatic species or sensitive areas.

ISSUING UNSUPPORTED SEQR FINDINGS

One of the SEQR requirements for an Environmental Impact Statement is that a decision-maker balance the benefits of the project against its environmental risks to determine if the project should move forward. The agency must then make an explicit finding in writing that environmental effects will be minimized or avoided.

The institution’s lawsuit alleges the state DEC did not meet this requirement in the SEQR law by adopting the town of Ellery’s lead agency findings despite the flaws outlined throughout the institution’s lawsuit.

VIOLATION OF THE DUE PROCESS CLAUSE OF THE NEW YORK STATE CONSTITUTION

Institution officials finally allege its due process rights were violated because Ellery didn’t properly consider and address public comments in issuing the SEIS.

“The application of herbicide and pesticide in reliance on the deficient SEIS deprives the petitioner, a riparian owner on Chautauqua Lake, of property without due process in violation of the New York State Constitution,” the lawsuit states.

COMMENTS