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(4:50 PM) Chautauqua Institution Files Lawsuit Against Ellery, State DEC

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 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 Supplemental Environmental Impact Statement document finalized in 1990. The Ellery Town Board approved the Supplemental Environmental Impact Statement 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 Those permits were approved on May 15 before they were rescinded and reissued on June 1.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, 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.

“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.”

Complete coverage will appear in Tuesday’s edition of The Post-Journal.

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