State backs local conservation panel, blocks fluridone use at Stockbridge Bowl
STOCKBRIDGE — In a blow to the 400-member Stockbridge Bowl Association, the state has moved to block a test chemical treatment this spring in a portion of the lake.
The Department of Environmental Protection on Tuesday rejected an appeal by the association, which was pushing for the use of the herbicide fluridone to combat a weed infestation at the southern tip of the lake.
In a letter to association, the DEP ruled against the chemical trial based on a May 2005 Conservation Commission order prohibiting pesticides, herbicides and fertilizers in the lake "in perpetuity."
The ruling, issued by David Cameron, chief of the DEP's Division of Wetlands and Waterways, found that the use of any aquatic herbicide, including fluridone, in Stockbridge Bowl would violate the commission's no-chemicals order, which has been extended until May 12, 2020.
"The Department reserves the right, should there be further proceedings in this matter, to raise additional issues and present further evidence as may be appropriate," the written ruling stated.
In fact, the legal tussle on the herbicide issue is continuing.
The Stockbridge Bowl Association plans to ask a DEP administrative law judge "to reverse this error of law," association President Richard Seltzer told The Eagle in an email Wednesday.
"The decision by Massachusetts DEP ignores and fails to address the Massachusetts law that bars any municipality from prohibiting the use of herbicides," he said. "This is clearly stated under the Pesticide Control Act and has been repeatedly upheld by the courts. Just as the town cannot set the speed limit for the Massachusetts Turnpike running through the town, neither can it prohibit all use of herbicides in the state-owned Stockbridge Bowl."
Nevertheless, a Conservation Commission member welcomed the initial legal victory.
"This gives us time to prove to folks especially frustrated with the nuisance vegetation in the southern part of the lake that we will attack the problem," Patrick White told The Eagle. Noting that the commission had received 20 letters from concerned lake-area taxpayers, he said that "the reprieve we got from the DEP allows us the opportunity to see if we can deliver on our new strategy with the town's weed harvester."
Contending that the state DEP's "hands were tied by what the Conservation Commission has stated in the past," White said the ruling "should have been no surprise to anyone, based on our long-standing policy. From the point of view of home rule, this is an important win."
White said that "ever since the World War II era, Stockbridge has been remarkably consistent in projecting what it wants to be. The Conservation Commission has applied its values and approaches to managing the lake, and that's why we won this short-term battle. It doesn't mean this will hold up in the long term."
An infestation of Eurasian milfoil has been choking off portions of the lake in the warm-weather months — and dividing members of the community. While the commission is opposed to the use of chemicals in the lake, many members of the homeowners association advocate for the limited use of herbicides to combat the problem, which has taken a toll on summer recreation.
Last summer, in order to protect a rare snail in residence along the shoreline, MassWildlife turned down a Stockbridge Bowl Association plan supported by the town for a deep mechanical dredging project that would have allowed a 5.5-foot winter drawdown of the lake to remove the silt buildup, freeze the invasive weeds and stunt their warm-weather growth.
Still pending in Berkshire Superior Court is a second appeal filed by the association in February against the Conservation Commission and its individual members.
SBA attorney Elisabeth C. Goodman, of Cain Hibbard & Myers, based that legal action on the commission's use of the town's wetlands protection bylaw as another reason to reject the herbicide treatment proposal. Goodman's lawsuit cites MassWildlife's recent approval of the fluridone herbicide approach "which has been used safely for decades nationwide in thousands of other lakes."
On Monday, White asked the Select Board to let voters decide on an "more efficient" lake management equipment plan costing $55,000, "a drop in the bucket," for this summer.
The goal is to use the town's current weed harvester in tandem with a new mobile trailer-conveyor hooked to a pickup truck to dump harvested weeds at the town beach and the town-owned parking lot by the waterfall at the lake's outlet. The weeds would be transported to property on Route 183 owned by landscaper Mark Faber, where he would turn them into mulch.
The selectmen approved the proposal, 3-0, for the annual town meeting warrant after White assured them that Highway Superintendent Leonard Tisdale had determined that the town-owned harvester has at least one final season of usable operation.
"This would literally be a game changer for us in terms of providing real relief for taxpayers from nuisance vegetation, and keeping docks and pathways open to boating and recreation," White said. The trailer-conveyor would work with any new harvester the town might purchase in the future, he noted.
For summer 2020, the Select Board voted last month to approve a limited dredging plan for the southern portion of the lake as another step toward an overall lake management strategy.
It acted after an impassioned plea from lakefront homeowner Michael Nathan, who also is a Stockbridge Bowl Association executive committee member, to adopt the hydro-dredging plan to attack a decadeslong silt buildup threatening the health of the lake.
He pointed out that $1.5 million in funding had been raised by SBA members, along with contributions from the town's other taxpayers. He also noted that lake-area taxpayers, many of them part-time residents, pay the town about $1.5 million a year in property taxes.
Clarence Fanto can be reached at firstname.lastname@example.org, on Twitter@BE_cfanto or at 413-637-2551.
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