Judge backs herbicide test to kill Stockbridge Bowl weeds

Waterfowl rest on the ice Monday at the Stockbridge Bowl. A judge has cleared the way for a group of homeowners to pursue a limited test of an herbicide in an effort to control a weed infestation.

STOCKBRIDGE — A judge has ruled that the Stockbridge Bowl Association must be allowed to pursue limited chemical treatment on a portion of the lake.

The ruling, issued last week by Berkshire Superior Court Judge John Agostini, dismisses as "misleading" the town Conservation Commission's rejection of the group's permit under the town's wetlands bylaw.

He acknowledged that "all parties involved clearly have the best interest of the Stockbridge Bowl in mind."

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However, the judge said the commission's denial of the project was "not supported by substantial evidence."

The 17-page ruling, which cited the findings of commission consultant Robert Kortmann, is a potential victory for the association's efforts to test an herbicide treatment to attack weed infestation in the state-owned lake.

Kortmann. a scientist specializing in the study of inland aquatic ecosystems, was hired by the commission for his expertise on the use of herbicide treatments for inland lakes. His work was billed to the SBA.

He recommended a pilot program testing the herbicide's effectiveness on a 40-acre portion of the 382-acre lake, but the commission remained opposed to any use of herbicide, even on a limited basis.

The judge's ruling described several of the commission's assertions as "disingenuous," "sophistry" and "rather misleading."

He stated that public comments by commission members referring to the herbicide — fluridone — as "toxic" and "a poison" were not relevant because the commission's job "was to determine whether the proposed fluridone application would have negative effects on the lake and the wildlife in and around it."

Agostini ordered the commission to approve the project under the town's wetlands bylaw, subject to conditions required by the state Division of Fisheries and Wildlife and Kortmann's recommendations.

But the decision comes with a caveat — Agostini acknowledged that the state Department of Environmental Protection must clear the way for the herbicide treatment.

Last April, the DEP ruled against the association's application for a permit allowing a chemical trial using fluridone, which is successfully applied on hundreds of lakes statewide — including many in Berkshire County — and thousands nationally.

The DEP decision was based on a May 2005 Conservation Commission order prohibiting pesticides, herbicides and fertilizers in the lake "in perpetuity."

Now, according to Agostini's decision, an association appeal to the DEP seeking approval of the fluridone application under the Wetlands Protection Act may differ from the Superior Court's support of the herbicide treatment.

"If so, the project will not proceed," Agostini wrote.

The association had placed an appeal of the state DEP's ruling against the project on hold pending the outcome of the Superior Court case.

Association President Richard Seltzer described the Superior Court decision as "gratifying."

"Next, we shall also have to convince the Massachusetts DEP that our use of fluridone will not violate the state's Wetlands Protection Act, a finding which DEP has previously made in favor of many neighboring lakes that have been using fluridone for years," Seltzer said in an email to The Eagle.

The association's attorney who argued the case before the court on Oct. 30, Dennis LaRochelle of Cain, Hibbard & Myers, told The Eagle that "Judge Agostini is an accomplished jurist and his decision in this case is well-reasoned and well-supported by the record and the law."

Conservation Commission Chairman Ron Brouker said that a closed-door session will be held Tuesday with town attorneys present "to see how the board feels" and that he plans to give Select Board members a "heads-up."

"The selectmen will have the final say" on whether to spend more taxpayers' money to continue the court fight by filing an appeal, he told The Eagle in a phone interview.

The Stockbridge Select Board holds its next regular meeting at 6:30 p.m. Thursday. Whether the court ruling will be on the agenda had not been determined on Monday.

In a nod to the commission's authority, the Superior Court ruling turned aside the association's contention that the state's Pesticides Control Act compelled the commission to approve the herbicide treatment. Agostini acknowledged that the local wetlands bylaw gives the commission authority to deny projects that may impact wetlands, and that the commission's rejection of a fluridone treatment was based on that authority.

"We are gratified that the Court recognized that the Pesticide Control Act does not trump the Conservation Commission's authority under the Stockbridge Wetlands Protection Bylaw," town attorney Rebekah

Lacey of Miyares and Harrington wrote in an e-mail message. "While we are disappointed that the Conservation Commission's denial was not upheld in full, we note that the proposal was also denied by Mass DEP and thus cannot move forward at this time."

The court ruling set aside the commission's denial of the project based on its contention that the proposed work could not be regulated to meet the standards of the Stockbridge Wetlands Protection Bylaw.

"This conclusion as well as the reasons given in the Commission's decision are not supported by substantial evidence when viewed in light of SBA's agreement to follow Dr. Kortmann's recommendation" to only treat a limited portion of the lake, the court ruled.

Agostini stated that there was no substantial evidence that a fluridone treatment would harm lake wildlife and habitat and that the commission's reasoning "is in fact contradicted by the Division of Fisheries and Wildlife and Dr. Kortmann."

He also described as "sophistry" the Commission's findings that fluridone could reduce the bowl's fish population. As for potential harm to native plant life, the judge found no substantial evidence and described the commission's position as "rather disingenuous."

Nor was there evidence to support the commission's ruling that there was a lack of studies showing that the herbicide would disrupt the lake habitat, the judge stated. "This finding is also not supported by substantial evidence and is again rather misleading," he wrote, citing Kortmann's recommendations and opinions that a fluridone application of the lake "was proper while a study of the lake was being performed."

In his decision, Agostini traced the background of the lake association's efforts since the 1960s to contain the spread of Eurasian watermilfoil, a non-native, invasive aquatic plant.

In November 2018, the association, which represents more than 400 lake-area property owners and other concerned citizens, applied to the Conservation Commission for a notice of intent for the SOLitude Lake Management company to apply herbicides to the lake in spring 2019. The application recommended against mechanical harvesting of the weeds based on the plant's ability to spread fragments of milfoil to other areas of the lake.

The Superior Court ruling pointed out that the state Division of Fisheries and Wildlife had approved the project as a one-year application of fluridone in limited concentrations.

The court decision included detailed accounts of multiple town board hearings from last December and January on the association's application for a fluridone-use permit.

On Feb. 5, the commission denied a permit for the fluridone treatment because "the project would have unacceptable significant and cumulative effects on fisheries, wildlife habitat and water quality."

It also stated that the local wetlands bylaw lacks a provision for a limited test project.

Clarence Fanto can be reached at cfanto@yahoo.com, on Twitter @BE_cfanto or at 413-637-2551.