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Court Dismisses Ellery, CLP Lawsuit Against DEC

The New York State Supreme Court has dismissed a lawsuit by the town of Ellery and Chautauqua Lake Partnership against the state Department of Environmental Conservation.

Ellery and the CLP filed the lawsuit in October, claiming the state DEC’s limitations on herbicides Ellery wanted to apply in its waters in 2020 were arbitrary given the town and CLP wanted to use ProcellaCor, a product that can be used without water restrictions.

“Upon information and belief, the NYSDEC’s June 17, 2020, and June 29, 2020, determinations rest on nothing more than speculation, conjecture, and surmise, including generalized community opposition from a small, but vocal and well-funded non-governmental source, none of which tends to refute the undeniable science-based findings of safety and effectiveness in the record.”

Supreme Court Justice Lynn Keane did not rule on the merits of the filing, but agreed with the DEC that the lawsuit was moot because the permits had already expired.

Supreme Court justices have used similar logic in dismissing previous lawsuits aimed to annul DEC permits for herbicides on Chautauqua Lake.

Keane wrote that the DEC permits were issued in June and the herbicides were applied, but the lawsuit wasn’t filed until October. The CLP and Ellery argued that the court could still decide on the lawsuit because applications for herbicides on the lake are likely to reoccur and will typically evade review in the courts.

“It is reasonable to assume that the town will apply to the NYSDEC each and every year in the future for an aquatic herbicide permit, but the repeated act of reapplying is not sufficient to meet the first prong,” Keane wrote. “We must recognize that the subsequent application and permit would be based upon different environmental circumstance and characteristics. The court agrees with the (DEC) that the lake is a dynamic ecosystem and its characteristics are everchanging for any number of reasons. This requires the respondent to consider the complex ecosystem of the lake at the time it renders its management decisions.”

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