TOWN OF NORTH HARMONY
SPECIAL BOARD MEETING RESOLUTION HERBICIDE TREATMENT
THURSDAY, 5/24/2018, 4:00 PM
FRANK STOW, SUPERVISOR PRESENT
DICK SENA, COUNCILMAN PRESENT
DUNCAN MCNEILL, COUNCILMAN PRESENT
LOUISE ORTMAN, COUNCILWOMAN PRESENT
STEVE SENSKE, COUNCILMAN ABSENT
OTHERS PRESENT: Jim Wehrfritz, CLP; David Stapleton, Attorney; Susan Hayden; Nancy Thomas, Town Clerk
Mr. Stow opened the meeting at 4:00 PM. He said we are being asked to sign a Resolution for the herbicide permit application by Chautauqua Lake Partnership (CLP).
All Board Members indicated that they had received the resolution and reviewed it.
Mr. Stapleton said CLP had provided a copy of the Busti Resolution to him and a copy of one of the permits for Busti which had some changes incorporated.
Mr. Wehrfritz said on 5/15/18 the DEC had issued permits for approximately 181 acres of herbicide treatment (out of the 989 acres applied for) in the lake in areas offshore in the towns of North Harmony, Busti, Ellicott, Ellery and the Village of Celoron. He said those permits were not actionable because one permits had all 4 towns and 1 village on it, including areas all around the lake. He said this was not actionable because if you use one permit for all locations you would be taking on permit conditions that apply to other areas outside the Town of North Harmony (TONH). He said there were also a number of errors in the permit and as a result they had a 3-hour meeting with the DEC which included representatives of the Governor’s office. He said they had reviewed 6 pages of comments on the permits that had been issued. He said the first revised permit that came back was for the Town of Busti and that is the one Mr. Stapleton has. He said they corrected almost everything with the exception of the notes on the permit. He said the revisions were sent back to the DEC and they await the final permit for Busti. He said they have not yet received the revised permit for North Harmony, so there has been no opportunity to review it; note any revisions; or send it back to the DEC for correction/revision on behalf of North Harmony. He said they would like to have this before providing the copy to TONH.
Mr. Stapleton asked for a copy of the notes on revisions when received.
Mr. Wehrfritz said he would email them to him. He said the situation is that the original permits are not actionable by TONH. He said they will review the permits that the DEC sends back and then provide them to the town. He said the Resolution is about the Town Board giving the Supervisor the authority to act on the permit at that time without another noticed meeting. He said the treatment window is now 6/4-8/18 and the turnaround time is very short.
Mr. Stapleton noted that the resolution indicates that the funding needed for the application may be between $10-20,000.00 and at this point in time there is no source for that funding. He said it will be a question if the town wants to pay for it or whether there may be some private funding at that time.
Mr. Wehrfritz said they have been working on that but have not gotten too far with the County. He said they will continue to work on other sources of funding. He said they have $95,000.00 committed from NYS but they will not have those funds in time for this project.
Mr. Stapleton said that the $7,000.00 the TONH had given to the CLP was used for the expenses of the Supplemental SEIS required by the DEC. He asked that the CLP give the town certification of that.
Mr. Wehrfritz said the SEIS is about 1,700 pages and cost about $250,000.00. He said the foundations funded about $170,000 and Towns/Villages funded about $25,000, and another $60,000 came from individuals and businesses.
Mrs. Thomas asked what the treatment acreage is in North Harmony.
Mr. Wehrfritz said at this time approximately 20 acres. He said there will be no treatment in the Stow area. Areas to be treated will be in Bly Bay and Sunrise Cove.
There was discussion of wetlands and buffer zones as defined by the DEC as 500 ft. as it relates to weed harvesting. There was also discussion of fish spawning and nursery habitats being very broadly defined.
Mr. Wehrfritz said the treatment chemicals to be used in TONH are Aquathol K and Navigate. He said the Aquathol K has no restrictions on how far from offshore they can be used. He said the Navigate is the best for killing milfoil and is restricted to use in waters no greater than 6 ft. deep or greater than 200 ft. from shore; whichever is further out (or less). He said that is very restrictive and will limit the quality of the treatment. He reiterated that the treatments will only effect invasive species and not the native.
Mr. Stapleton noted that the Busti permit indicates that the DEC is requiring that the towns/villages indemnify the DEC against any and all claims except to the extent that the DEC is negligent due to intentional acts or omissions creating a liability situation. He said the applicants and corporation that administers the herbicides have liability and pollution insurance. He also noted that the Town of Ellery purchased pollution insurance for the treatment in Bemus Bay.
There was discussion of the need for separate coverage (i.e. pollution) for TONH.
Mr. Wehrfritz said the Resolution is asking the town to authorize Supervisor Stow to signify that the town is comfortable with whatever permit conditions there are; whatever sources of funding there is; whatever liability there is; and authorizes Mr. Stow to execute a contract with Solitude to perform the treatment that is provided for in the contract and permit. Mr. Wehrfritz indicated that Glen Sullivan, Solitude is very familiar with our lake as he had been involved in treatment of Burtis Bay in 2002 and Bemus Bay in 2017.
Mr. Stapleton said apparently there is some distinction between lakes in DEC Region 9 and the rest of the lakes in the DEC Regions in NYS. He said the state has been engaged in this process for many years in the other Regions.
Mr. Wehrfritz said Region 9’s experience with this type of permitting is much less than that in other Regions in NYS. He feels that is the reason for the need for the recycle. They are not familiar with it and that causes them to be very cautious. He said a lot of the limitations being placed on our permits do not exist anywhere else in the State. He said the SEIS that was done for the lake also does not exist anywhere else in the State.
Mr. Stow asked if the towns liability insurance would cover the treatment.
Mr. Stapleton said no. He said that is why they have discussed pollution insurance. He asked for a copy of the binder that Mike Latone, LJ Stein, provided to the Town of Ellery last year.
Mr. Wehrfritz said the liability insurance is very important.
Mr. Stapleton asked if CLP attorneys have a brief summary of liability cases that have occurred throughout NYS as a result of herbicide application.
Mr. Wehrfritz said Solitude has been doing this work all throughout NYS, the northeast and the mid-atlantic. He said the pollution policy that the Town of Ellery had taken out last year was on top of Solitude’s. He said that Ellery and Bemus Pt. were named on the Solitude Policy as co-insured’s.
Mr. Stapleton said if Solitude was being sued as a result of their work they would be out of business by now.
- MOTION # 84 OF 2018 (Copy of Resolution Attached)
- SENA MOTIONED TO ADOPT THE FOLLOWING RESOLUTION AND FURTHER TO AUTHORIZE THE SUPERVISOR TO ACT ON A PERMIT FROM THE NYS-DEC AND EXECUTE A CONTRACT WITH SOLITUDE, INC. TO PERFORM HERBICIDE TREATMENT ON CHAUTAUQUA LAKE IN AREAS IN THE TOWN OF NORTH HARMONY OFF SHORE OF BLY BAY AND SUNRISE COVE WITHOUT ANY FURTHER PUBLIC HEARINGS AND AS OUTLINED IN THESE MINUTES. MRS. ORTMAN SECONDED. ROLL CALL VOTE: ORTMAN: YES; MCNEILL: YES; STOW: YES; SENA: YES; SENSKE: ABSENT. THE MOTION WAS CARRIED.
- MOTION # 85 OF 2018
ON A MOTION MADE BY MR. SENA, SECONDED BY MR. MCNEILL AND NONE BEING OPPOSED, THE MEETING WAS ADJOURNED AT 4:40 PM.
Nancy M. Thomas