Chautauqua Lake near the Veterans Memorial Bridge is pictured. The area is one where an application to use herbicides have been requested, but a positive jurisdictional determination under the state’s new Freshwater Wetlands Act is prompting the use of a permit with a new level of review this year. Submitted photo

The other shoe may be dropping for herbicide use in Chautauqua Lake in 2025.

The towns of Ellery and Ellicott have received letters from the state DEC’s Region 9 office advising the towns that their permit applications filed with the DEC in February to use the aquatic herbicide Clearcast will require further review because the treatment area requested falls in an area where the DEC has made a positive jurisdictional determination under the Freshwater Wetlands Act that took effect Jan. 1.

As of Friday, it’s unknown if Lakewood, Busti, Celoron or Bemus Point had received a similar letter. If they have not it would indicate there is no positive declaration of freshwater wetlands in their respective jurisdictions.

A positive jurisdictional determination means there are protected wetlands within the area indicated in the request and a more specialized permit is needed.

“Under the newly adopted freshwater wetlands regulations that went into effect on January 1, 2025, the department has made a positive jurisdictional determination regarding these proposed treatment areas,” wrote Robert Freese, a DEC pesticide control specialist to Larry Anderson, Ellery town supervisor, on March 14. “Therefore, a Freshwater Wetlands Permit under Article 24 of the Environmental Conservation Law will be required for this project.”

Requiring an Article 24 permit could mean delays that could threaten the use of herbicides to eradicate curly leaf pondweed on the lake this year. Those treatments typically take place in April or early May. It may not be possible to receive a permit depending on how long it takes to move through the Article 24 permit process.

The Post-Journal reached out to the state DEC to ask if a jurisdictional determination request was necessary to determine if the herbicide area in the lake in Ellery or if the DEC made the determination on its own. Jurisdictional determinations on land are made upon a request of the DEC. The Post-Journal also asked:

– what criteria were used to come to a positive jurisdictional determination of the proposed herbicide treatment in Ellery.

– if off-shore positive jurisdictional determinations extend on-shore and if property owners have been notified so they can begin an appeal process if they so choose and,

– if Article 24 permits be required for herbicide applications in future years, or if a lake permit that has been discussed for the past year be ready for future years?

T.J. Pignataro, state DEC Region 9 assistant public information officer, replied with a statement on behalf of the DEC.

“Protecting freshwater wetlands is critical to safeguarding water quality, preserving wildlife habitat, mitigating flooding, and promoting resilience in New York State’s communities and along its shorelines, including at Chautauqua Lake, in the Southern Tier, and across the state. The new regulations implementing the Freshwater Wetlands Act, as amended by statute in 2022, substantially enhance and modernize the state’s freshwater wetland protections to ensure the long-term health and vitality of these important ecosystems for future generations.”

ACT’S IMPACTS HAVE BEEN A MOVING TARGET

Throughout the past year, DEC officials have told those with questions that the Freshwater Wetlands Act won’t have an impact on Chautauqua Lake.. In early March 2024, both Sen. George Borrello and former Assemblyman Andrew Goodell said they had been told by DEC officials that the new regulations would not affect property owners or recreational use of the lake. Further discussions involving the DEC and local elected officials shortly after those March 2024 statements included creation of general permits that would simplify the process for permits in Chautauqua Lake.

After Borrello and Goodell expressed reservations last spring that included introduction of legislation that would exempt freshwater inland lakes from the wetlands regulations, the state lawmakers began pushing Sean Mahar, who was then the interim DEC commissioner, expressing their concerns with the way proposed wetlands regulations could affect Chautauqua Lake. They specifically asked that the proposed DEC regulations not designate lakes as wetlands because that designation would be inconsistent with both existing statutory language and decades of precedent. Mahar replied that much of the south basin of Chautauqua Lake will be considered a wetland regulated by the DEC because there are more than 12.4 contiguous acres of submerged vegetation in the area. Before the new regulations, wetlands had to be included on a map before they could be regulated by the DEC.

“In Chautauqua Lake, much of the south basin and other bays and shoals with more than 12.4 contiguous acres of submergent vegetation have been functioning as wetland for many decades,” Mahar wrote in his response to Goodell and Borrello.

In a reply dated Sept. 9, Borrello and Goodell reiterated their call to exempt navigable waters from Article 24 regulation by the DEC. They say state Environmental Conservation Law defines freshwater wetlands as lands and submerged lands commonly called marshes, swamps, sloughs, bogs and flats” that support designated plant species. Another paragraph in the Environmental Conservation Law says freshwater wetlands include land and water substantially enclosed by designated plant species. In other words, the state Legislature didn’t intend for lakes to be classified as wetlands, according to Borrello and Goodell. Mahar reiterated in his exchange of letters with Borrello and Goodell that a streamlined permit will be created for Chautauqua Lake and, by extension, for use on other lakes that find themselves home to wetlands under the proposed regulations and the review of new areas that fall under review under Article 24

Borrello continued his questioning of Mahar during a joint legislative budget hearing in Albany.

“That’s based on biological conditions and factors in the ground and the way that wetlands were defined in the legislation,” Mahar said in response to Borrello’s question during budget hearings this week. “The general permits that we’re advancing will help address Chautauqua Lake. I”ll pivot back and circle back with you on that.”

Public comments recently ended on a proposed Freshwater Wetlands General Permit (GP-0-25-003), according to the DEC’s website, though use of herbicides or pesticides aren’t mentioned on the DEC’s website as something that would fall under the permit’s jurisdiction.