Group wants state to overrule local conservation panel

Stockbridge Bowl Association wants state OK to use herbicide to fight Eurasian milfoil

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STOCKBRIDGE — The Stockbridge Bowl Association is asking the state Department of Environmental Protection to overturn the Conservation Commission's denial of a limited herbicide program to combat an intensifying weed infestation that threatens the health of the state-owned lake.

In a second legal action, the SBA filed a civil complaint with the Berkshire Superior Court against the commission and its individual members, appealing the denial of the lake cleanup project based on the town's wetlands protection bylaw. The lawsuit cites MassWildlife's recent approval of the fluridone herbicide treatment "which has been used safely for decades nationwide in thousands of other lakes."

"We take the position that the state's authority to control the Stockbridge Bowl is paramount," SBA attorney Elisabeth C. Goodman wrote in an email to The Eagle. "In any event, the next step in the [Superior Court] lawsuit is a motion for judgment on the pleadings."

In the appeal filed with the DEP's Wetlands Program office in Springfield, the Bowl Association is seeking to overturn the Conservation Commission's unanimous rejection of the SBA's application for a fluridone treatment on 40 acres within the southern third of the lake this spring. The commission based its denial on the state's Wetlands Protection Act.

Goodman said the state DEP has "previously and consistently approved" fluridone treatments for numerous other lakes across Massachusetts.

She also cited the SBA's observation that the Conservation Commission denied the application "based on a longstanding belief previously announced in writing that the commission would never permit the use of herbicides in Stockbridge Bowl, a belief without basis in science or fact and which was specifically refuted by Dr. Kortmann."

Robert Kortmann, the commission's hired expert, supported a limited, one-season test of the herbicide treatment.

According to the SBA's appeal, the treatment would benefit the Bowl "by removal of aquatic invasive vegetation" to slow down oxygen depletion in the lake, which would kill fish and healthy plant life.

Once the DEP is satisfied that it has received all the information it needs, it is required to issue its decision within 40 days, Goodman told The Eagle.

In her appeal, the SBA's attorney noted that the Conservation Commission voted 4-0 on Jan. 22 to deny the herbicide treatment even though it had acknowledged unanimously that the project would meet the definition of an ecological restoration project under state law.

Goodman added that the commission also had agreed, again by a 4-0 vote, that the treatment would not harm the rare snails and small minnows in the Bowl, a requirement of MassWildlife's Natural Heritage and Endangered Species Program.

She struck back at the commission's conclusion that the SBA application failed to describe how the project would protect fisheries and wildlife habitat in the lake.

The association's Notice of Intent "clearly demonstrates that the removal of invasive Eurasian Milfoil that results from the work will enhance wetland resources and protect fisheries and wildlife," the appeal stated.

"The Commission was arbitrary and exceeded its authority by requiring a full lake management plan before approving the project," the attorney argued, noting that even Kortmann and MassWildlife "would not require a full lake management plan."

"Despite Dr. Kortmann's expert testimony that the project should be approved, the Commission made two findings that the SBA failed to address his concerns," according to the appeal.

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Goodman also pointed out that the SBA's Notice of Intent had been approved by MassWildlife last December. She cited "30-plus years of successful application of fluridone to control Eurasian Milfoil in thousands of U.S. lakes and waterways."

The civil complaint filed with the Superior Court cited a survey by SOLitude Lake Management last July showing the spread of the Eurasian milfoil weeds in nearly two-thirds of the sites sampled "impedes the growth of native aquatic plants and impairs the lake for human use."

The document contends that the Conservation Commission's decision rejecting the use of fluridone on the lake "is unsupported by substantial evidence and adversely affected the the rights" of the Bowl Association."

The appeal also argued that the commission's denial "will adversely impact the real interests of the general public, in that it severely impacts the ecological integrity and overall health of Stockbridge Bowl."

The complaint to Superior Court seeks a reversal of the commission's rejection of the project after a review of the commission's recorded proceedings. The SBA also asks the court to determine "the legality of the commission's authority to regulate licensing and permitting for the Bowl" since it is state-owned and is under jurisdiction of MassDEP.

Because the state approved the fluridone treatment, the complaint noted, the town cannot prohibit the project under its local wetlands bylaw which "conflicts directly with the Commonwealth's authority to control activities in the Stockbridge Bowl."

The SBA complaint asks the Superior Court for a "declaratory judgment," which determines the rights of parties to a dispute without ordering anything be done or awarding damages.

The Conservation Commission's agenda for its meeting on at 7 p.m. Tuesday in the Town Offices includes a discussion of the SBA's legal actions.

In its unanimous votes following a public hearing on Jan. 22, the commission contended that the herbicide treatment project would not "significantly improve the capacity of the Stockbridge Bowl to protect and sustain" the ecological restoration of the lake under the state's Wetlands Protection Act.

It also rejected the treatment program under the town's wetlands bylaw, declaring that the fluridone herbicide would "harm the environmental quality of the Bowl," and "would have unacceptable significant or cumulative effects upon the resource area values protected by the bylaw."

Longtime member Sally Underwood-Miller said the commission voted in 2003 to forbid chemical treatment of the lake "in perpetuity." She also cited a town meeting vote prohibiting a herbicide solution.

"It's imperative that the people who live around the lake become stewards of the lake," she said during the meeting. "We need a cohesive plan that addresses all the issues we have, and not just one. It worries me more than anything else that we'll do this one thing, get rid of the weeds, and then nobody will care anymore. So we can paddle around happily and that's all we care about. That scares me to death."

Dr. Charles Kenny, chairman of the town's Board of Health, described the limited fluridone treatment as a "reasonable risk if and only if we have the full cooperation of the Stockbridge Bowl Association and everybody involved in working toward watershed and whole-lake management in the future."

"Ten years from now, if we don't cooperate, the lake is doomed," he said. "I see that [the commission's hired expert] Dr. Kortmann's ideas are sound, and I would recommend them from that point of view."

The commission met again on Feb. 5 to review and sign the decision written by Underwood-Miller with Rebekah Lacey, the town counsel. For the Bowl Association, attorney Goodman filed the appeal to the state DEP two days later, well within the 10 business day deadline. The appeal to Berkshire Superior Court, which had a 60-day deadline, was dated Feb. 11.

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


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