The issue that initiated this case is not uncommon in Massachusetts—a lake in Massachusetts was choking on an invasive species (Eurasian Watermilfoil). In response, the local Lake Association as Applicant filed a Notice of Intent seeking to treat the invasive plant with a licensed herbicide. A heated hearing ensued, ending with the Commission’s denial of the Project.

The hearing process was also not uncommon, focusing heavily on issues not relevant to the Commission’s legal jurisdiction, and statement that were rebutted by science and contradicted by state and federal standards.

For example, the Commission at its public hearing, according to the Superior Court, wrongly fixated on potential “toxicity” of the herbicide, presence of cyanobacteria in the Lake, anecdotal stories of those opposing the project, and how herbicides were ineffective in the 1960s and 1970s.

In contrast, also at the hearings were the Association’s professional lake management company and two experts: a professional limnologist (expert in the study of inland aquatic ecosystems) who has been working on lakes and reservoirs since 1978, and a professional wetlands scientist.

The Commission based its denial of the Association’s Project on four main points which the Commission claimed were founded in the local bylaw, and none of which were supported by the expert testimony or the document record before it.

The Association appealed to Superior Court under the local wetlands bylaw. There, the Superior Court addressed those four points in turn. The Court found that none of the reasons the Commission offered in support of its’ denial were supported by substantial evidence.

I. Preemptive Effect of the Pesticide Control Act

The Association first argued that the Massachusetts Pesticide Control Act precluded and prevented the Commission from denying the application. They essentially argued that the Commission had to approve the NOI because Commission doesn’t have the authority to regulate pesticides (which for the sake of the Massachusetts Pesticide Control Act, include all substances intended to regulate plants).

The Massachusetts Pesticide Control Act is the exclusive authority for the use and application of pesticides, but the courts have interpreted the law to allow for other entities to address the collateral effects of pesticide use.

The Court disagreed with the Association’s argument, finding that the ability to deny a project under a local bylaw is not a direct regulation of pesticides. The local bylaw gives the Commission the authority to deny projects which may impact wetlands in the town. The Commission’s decision to deny this project was made under that authority. Therefore, the Commission has the ability to deny a project that proposes the use of pesticides, but that decision must rest properly on whether “the collateral consequences of using [the herbicide] will have an undesirable impact on the environment and wildlife in the [lake].”

II. The Commission’s Decision

Having determined that the Commission did have the authority to deny an NOI that proposed the use of herbicides (but only if the consequences of that use would undesirably impact the environment and wildlife of the lake), the Court turned to the justifications for denial offered by the Commission.

The Commission’s decision must be “supported by substantial evidence,” meaning the Commission’s decision must be set aside “if the evidence points to no felt of appreciable probability of the conclusion” or if it “points to an overwhelming probability of the contrary.” Rodgers v. Conservation Com’n of Barnstable, 67 Mass. App. Ct. 200 (2006). In short, the Commission’s decision must be supported, and not contradicted, by the facts in the record.

The Commission’s first justification for denying the Project was that proposed herbicide would harm other plants in addition to the invasive plant, and would reduce the number of plants available for fishery and wildlife habitat.

After review of the record, the Court found that “this conclusion is not supported by the evidence in the record, and is in fact contradicted by the DFW [Division of Fisheries and Wildlife] and [the Commission’s own expert].” The Division of Fisheries and Wildlife, the Applicant’s materials, and the Commission’s own expert testified that the treatment would in fact remove the invasive species, allow native plants to grow, thus providing more habitat for wildlife.

Secondly, the Commission’s denial was based on the reduction of abundance of fish in other lakes and ponds that received the same herbicide treatment. This reduction was supposedly evidenced by a count of fish during “fish runs” at the Lake in question, and at another lake that had been treated with the same herbicide.

The Court criticized the lack of credibility of this “evidence,” noting the multitude of reasons why the “so-called study” did not show what it said it shows. The Commission also relied on anecdotal evidence of local fishermen “who believe that the fish population in nearby lakes lessened after [herbicide] application.”

The Court found that, “like the comparison of fish in the lakes, this type of anecdotal connection is not substantial evidence in support of fluridone causing a decrease in the fish population, particularly in the face of the opinions of DFW’s and Dr. Kortmann, the Commission’s expert.”

Thirdly, the Commission claimed the Applicant failed to address the expert’s concern of how the treatment could affect calcite formation in the lake. However, the record showed that the expert voiced this concern, and then proposed a solution, which the Applicant agreed to.

The Commission’s fourth justification for denying the Project was a lack of studying the effects of the herbicide on the lake in question. However, the Commission’s own expert supported the herbicide treatment, saying “I think fluridone should be a component of a management plan for the lake,” and also supported a study of the lake while the treatment was taking place.

III. Science Outweighed Emotions

This Commission’s proceedings were particularly rife with panic over issues outside of the scope of the Commission’s jurisdiction, and reliance on personal opinions over those of studies and evidenced conclusions. The Court specifically noted that it was “impossible to ignore the anti-herbicide emotion that surrounded” the Commission’s decision.

In the end, the law sided with scientifically supported use of an herbicide to treat an invasive plant species for proper lake management. It’s vital that Commissions use the evidence before them to consciously weigh the danger that invasive species pose, against the scientifically studied use and efficacy of herbicides and the relevant impacts if any from the particular treatment on the particular lake or pond.