Spilling into Superior Court, Stockbridge Bowl milfoil herbicide fight gets into the weeds

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PITTSFIELD — The Stockbridge Bowl Association believes that the Department of Environmental Protection is the authority on which herbicides can be used across the state and therefore it has the right to use fluridone to eliminate invasive plants interfering with recreation in the lake.

The Conservation Commission, which has blocked the use of the herbicide in the 382-acre lake, believes that it has the final decision-making power over how and when it's used.

On Wednesday, attorneys for both sides made their case in front of Berkshire Superior Court Judge John Agostini, who took the case under advisement.

"If the DEP says everything's fine, then why are we here?" he asked the association's attorney Dennis M. LaRochelle, about the use of the widely used herbicide fluridone.

Last January, the Stockbridge Bowl Association, representing more than 400 homeowners around the lake and nearby, and the Conservation Commission hired Robert Kortmann, a consultant and specialist in lake management, to assess remedies for controlling weed infestation in the state-owned lake, which is maintained by the town.

Kortmann recommended a trial, one-season application of the herbicide fluridone, on a limited 40-acre portion of the 382-acre lake.

The Conservation Commission has opposed any herbicide use of the lake, voting in 2003 to ban chemicals "in perpetuity," a decision reinforced by a town meeting vote. Thus, the commission turned aside Kortmann's recommendation and voted on Jan. 22 to continue to use harvesters rather than chemicals to control invasive Eurasian milfoil weeds.

The association appealed the commission vote to the state DEP, which upheld the Conservation Commission denial. Then, last February, the SBA filed a civil lawsuit in Berkshire Superior Court against the commission and its individual members.

On Wednesday, LaRochelle argued that the chemical has been approved by the DEP to use in Massachusetts lakes, and the commission's only authority is to ensure that the application of the product complies with the state's regulations.

For example, LaRochelle said, if two groups both wanted to apply a herbicide, the commission would need to make sure that what was applied doesn't exceed the state's limits.

Citing a case out of Wendell, LaRochelle said that the Massachusetts' highest court has already ruled that the state pesticide law trumps local bylaws.

The court said that allowing Wendell to ban pesticides wasn't allowed because "that's allowing the town board to second guess the state's decision," LaRochelle said.

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Attorney Rebekah Lacey, who represents the commission, disagrees. Towns can set more stringent regulations than the state in their own jurisdictions, she argued.

While the DEP has allowed fluridone to be used in the state, that's just a determination that it's not too toxic.

That's not the local commission's concern, she said.

"It's a habitat issue, not a toxicity issue," Lacey said, of the use of the herbicide.

If the herbicide changes the environment in the lake significantly, it could change how fish are able to feed, she explained.

Agostini said that while he could remand the case back to the commission, with language that it sit down with the association to come to a thoughtful agreement on how to apply the herbicide that would satisfy both parties, he's not sure that would work.

After reviewing the commission's denial of herbicide use, Agostini didn't get the sense that the commission was looking for the association to "fine-tune" their plan, but rather that the commission didn't approve the use of the herbicide at all.

Lacey said that the commission would have considered a revised plan if the association provided one, but that it wasn't the commission's job to come up with a new plan for them.

"It shouldn't be a guessing game," Agostini responded. "To say, `Try it again and maybe we'll agree depending on the areas you pick,' that's just wasting people's time."

Agostini, who took the case under advisement, said he would review all materials related to the issue make a decision by the end of the year.

If approved, the association would plan to apply the fluridone around April, LaRochelle said.

Haven Orecchio-Egresitz can be reached at horecchio@berkshireeagle.com, @HavenEagle on Twitter and 413-770-6977.

Staff writer Clarence Fanto contributed to this report.


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