A dangerous lake management plan

The management of invasive species presents difficult challenges. We acknowledge that the leadership of the Sand Dam Reservoir Association has spent long hours developing a lake management plan. Through the establishment of Save The Lakes, they have developed a mechanism to extend their plan state-wide. At public meetings, STL has articulated that the organization will give them large-scale buying power and the ability to purchase chemicals at discounted rates. The STL chairman has stated “we plan on doing this to a total of 49 lakes and ponds in the state.”

When concerns about invasive milfoil in Smith and Sayles first developed, the initial management study was performed by Aquatic Control Technologies. Given that this company provides the chemicals for treatment, the conflict of interest is clear. Though the Sand Dam Reservoir Association held public meetings, the voices of those opposing toxic treatment were stifled by very strong pro-chemical positions in the leadership. At least two former presidents of the SDRA organization have vocally opposed chemical treatment. One was left to feel so powerless and marginalized that she resigned from the organization. The other deferred her vote (1 family, 1 vote) to a family member who was in support of chemical treatment.

The use of poisons like 2, 4 D to treat milfoil is shortsighted.

The Massachusetts Environmental Trust sponsors a Clear as a Lake website that describes non-toxic approaches to lake management at
https://www.oursecureserver.org/toxicsaction/Clear_As_A_Lake.pdf

From the website:

The dumping of herbicides into our water bodies can cause nutrient and pH imbalances, kill off
beneficial organisms, contaminate drinking water supplies, and harm people. For example, the
Vermont Fish and Wildlife Department recently released two studies detailing a history of failure for chemical treatments in two Vermont lakes. The state’s studies claim that not only did herbicides fail to control milfoil over a number of years, but they also posed a substantial threat to fish populations and native vegetation.

2,4-D (Stands for 2,4 –Dichlorophenoxyacetic Acid)
2,4-D is a systemic herbicide, which means that the chemical is absorbed by roots or foliage and
distributed throughout the plant. It inhibits cell division in new tissue and stimulates growth in older tissue resulting in cell disruption. 2,4-D can be applied as a liquid or in granular form, usually during the early growth stages of the plant.

2,4-D made up about 50% of Agent Orange, a defoliant used in the Vietnam war that has been
linked with widespread poisoning, birth defects and health problems. It is the oldest organic
(containing carbon) aquatic herbicide approved for use in the United States. 2,4-D has been detected in groundwater in at least 5 states. Treatment costs are estimated around $300-$800 per acre, depending on degree of infestation and company used. Repeat treatments will be necessary at least once per season.

2,4-D is fast acting and allows for some selectivity depending on application timing and
concentration. It is most commonly used to control Water Chestnuts, Eurasian Milfoil and Curly-
Leaf Pondweed.24 2,4-D has been linked to cancer, endocrine disruption, reproductive toxicity,
neurotoxicity, and kidney/liver damage. It does not affect seeds, which means that applications must be repeated every season. It restricts the use of water for irrigation or recreation after application.

2,4-D cannot be used in water for drinking and has the ability to leach into nearby groundwater
supplies.

Clearly, this is approach to lake management is bad for Rhode Island lakes and Rhode Island residents.

The purpose of the Smith and Sayles website

Recently, a person commented on the rationale for the Smith and Sayles website. As you can see, we published that comment, even though I, as one of the hosts, felt it was contrary to the objective of this website, which is to share information not vitriole. We want a variety of voices to be heard. And we felt that a blog --- which is free for you to visit whenever you like, as there are no dues --- allows a forum of shared facts.

There is a lake association that raises and lowers the water level of the lake by deed, and that association is called the Sand Dam Reservoir Association. Several of us who are authors of this site have been involved or are still involved in Sand Dam Reservoir Association (SDRA). However, one must be a lake owner to participate, and owners must pay dues to participate. In recent years, decisions made regarding the Reservoir have effects that reach beyond owners or ability to pay dues, and, so, we wanted others to be involved.

We felt there needed to be a modern and accessible way to communicate important happenings than the way that SDRA communicates with the local folks. We have asked the SDRA board to be more transparent with their decision-making, but, as those requests have gone unheard, we felt that we needed to create an alternative means to get information out. This blog is that attempt.

We have chosen to be anonymous as authors because we feel it's important to separate information from personalities. Please do know, however, that the authors of this website are professional writers/ researchers/ educators/ doctors in their fields who have been formally trained to analyze and report findings. Anonymity allows people who post to have privacy in their personal lives and to be able to infuse alternative ideas into important discussions.

Keep in touch, and let us know how we can help you to be more informed of the events around Smith and Sayles Reservoir. Share your information and peer-reviewed research --- not hyperbole, anger, or conjecture ---and you will see your point of view, too, included here, as we have done since this blog was introduced.

Keep in mind that we have offered information in the brief time that this blog has been running about three important matters:

a) chemicals were added to the lake each of the last two years that have been linked to cancers;

b) Bridge 951 over Chestnut Hill Road is scheduled to be closed in the spring of 2010 for repairs; and,

c) riparian rights issues are still unresolved regarding SDRA's claims that they own the water of Smith and Sayles Reservoir.

Sometimes it's not easy to discuss issues and topics about which friends and neighbors disagree. But democracy is messy, and we need to be able to share ideas about the future of Smith and Sayles Reservoir in ways that all people can be heard. We care about Smith and Sayles Reservoir, and we know that you do, too.

Enjoy the autumn leaves as they deepen in color, and savor the last mild days.

Who Owns The Water?

Who owns the water in the lake? The answer may surprise you. The doctrine of "riparian rights" is part of the common law that America inherited from England, although water rights vary across the US. Most of the western states have gravitated away from the common law version, but here in New England, the common law still governs.

According to the common law, riparian rights are attached to the land. As such, they cannot be sold to others or transferred to any organization, such as SDRA. These rights cannot legally be separated from the land.

Here are several items that may help you understand the concept of riparian rights in Rhode Island.

First up, Wikipedia:

General principle

Under the riparian principle, all landowners whose property is adjacent to a body of water have the right to make reasonable use of it. If there is not enough water to satisfy all users, allotments are generally fixed in proportion to frontage on the water source. These rights cannot be sold or transferred other than with the adjoining land, and water cannot be transferred out of the watershed.

Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations. Riparian rights also depend upon "reasonable use" as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners.^[1].

In the western United States, water rights are generally allocated under the principle of prior appropriation.

Next, a law review article from Roger Williams Law School regarding the law in Rhode Island:

A Summary of the Requirement that Uses of Water Rights in Rhode Island Must be Reasonable

By Dale B. Thompson

Roger Williams University School of Law

February 5, 2003

For over one hundred and seventy-five years, the common law of Rhode Island has
restricted water rights by requiring that the use of these rights be reasonable. These restrictions
have applied to surface waters, including both those that are part of well-defined water bodies
and those that are not; and to groundwater.

In 1827, in the famous case Tyler v. Wilkinson, 24 F. Cas. 472 (D.R.I. 1827), the court
examined surface water rights under the riparian system of Rhode Island. It held that a surface
water right is the right to use water, not a property right in the water itself:
Prima facie every proprietor upon each bank of a river is entitled to the land, covered
with water, in front of his bank, to the middle thread of the stream, or, as it is commonly
expressed, usque ad filum aquae. In virtue of this ownership he has a right to the use of
the water ... . But, strictly speaking, he has no property in the water itself; but a
simple use of it, while it passes along. 24 F. Cas. 474 [emphasis added].

The court then examined what this riparian right to use water entailed. The court held
that “reasonable use[s]” of these waters were permitted: “There may be, and there must be
allowed of that [right], which is common to all, a reasonable use.” Id. In determining whether a
use was reasonable, “The true test of the principle and extent of the use is, whether it is to the
injury of the other proprietors or not.” Id.

To assess whether an injury occurred, the court then relied upon the principles of
nuisance law, quoting the maxim that serves as its starting point, “‘Sic utere tuo, ut non alienum
laedas.’” [Roughly: Thus to use yours so that you do not injure the property of another.] Id.

Nuisance law itself makes reference to the principle of reasonableness, finding that intentional
invasions of the use and enjoyment of land that are substantial and unreasonable are nuisances.
Thus, for a long time, the common law has held that riparian rights in Rhode Island are
limited by the requirement that the uses to which they are put must be reasonable.

A more recent case, Butler v. Bruno, 115 R.I. 264; 341 A.2d 735; 1975 R.I. LEXIS 1149;
93 A.L.R.3d 1183 (R.I. 1975), extended this principle to surface waters that are not “part of a
well-defined body of water or a natural watercourse.” 115 R.I. 267. In this case, the defendant
deflected rainwater runoff that previously had collected on defendants property instead onto the
plaintiffs’ property. To determine whether the defendant would be liable for damages from this
particular use of the water, the Rhode Island Supreme Court “adopt[ed] the rule of reasonable
use.” 115 R.I. 274.

The common law has also held that the use of groundwater must also be reasonable. In
1934, the Rhode Island Supreme Court in Rose v. Socony-Vacuum Corporation, 54 R.I. 411; 173
A. 627 (R.I. 1934), held that groundwater rights did not permit unreasonable conduct in the use
of that groundwater. See, 54 R.I.414-416. The court held that negligent acts in the use of
groundwater, and which injured another’s legal rights, would constitute a nuisance. Recall that a
negligent act is an act that is found to be “unreasonable” under the circumstances. Extension of
nuisance liability for negligent acts in the use of groundwater thus implies a limitation that
groundwater rights are limited to reasonable uses.

More recently, the Rhode Island Supreme Court extended this principle to find that
“unreasonable injuries” resulting from the use of groundwater would also constitute a nuisance.
In Wood v. Picillo, 443 A.2d 1244 (R.I. 1982), the Court held that in determining whether a
particular use of groundwater constituted a nuisance, “liability in nuisance is predicated upon
unreasonable injury rather than upon unreasonable conduct.” 443 A.2d 1247. Thus, under this
holding, groundwater rights do not entitle someone to use groundwater in such a way that causes
an unreasonable injury.

The upshot is that the property owners who abut Smith & Sayles Reservoir cannot transfer their riparian right to any other person or organization. Therefore, SDRA does NOT own the water in the lake. Never has. Never will.

Basic Information For Lake Management

The State of Massachusetts has prepared a booklet on lake management that is comprehensive and readable. It describes how lakes form, change over time and decline. It covers indigenous aquatic animal and plant life. It also looks at virtually all of the available treatment options for invasive species control and details the strengths and weaknesses of each. Pages 129 and 130 deal specifically with Navigate 2,4,D.

In other words, it is an indispensible source for accurate, up to date information for anyone who is involved in lake management.

The booklet is offered in pdf format, so you will need Adobe Reader on your computer to view it. This program is available free at Adobe.com.

To view the booklet online, follow this link: Practical Lake Guide

Bridge construction on Chestnut Hill Road, Chepachet

Did you know that the Rhode Island Department of Transportation is currently planning a reconstruction of the bridge on Chestnut Hill Road across from the transfer station? Here is the text of a correspondence that took place recently with the PARE engineering firm who is the conteact for the project.

What is the anticipated duration of the project?
Construction is anticipated to take about 1½ years beginning in Spring 2010, pending available funding.

Will a temporary bridge be constructed for those of us who need to access Rte. 44 for a commute?
The bridge will be closed to traffic during construction. Signs will detour traffic via Pine Orchard Road and Route 44. If advertised in Fall 2009, the bridge closure is anticipated to last from Spring 2010 to late Fall 2010. There is insufficient room beside the bridge to construct a temporary bridge for use during construction.

Will there be an reconfiguration of the spillway/ gatehouse on Smith and Sayles Reservoir?
The spillway will be reconstructed. It will be relocated approximately 8 feet to the south from it's current location to bring it out from under the bridge. The low-level outlet gate will not be modified, but the downstream end of the outlet pipe will be uncovered and reset.

What are your thoughts about the bridge reconstruction? How will it affect your life? Do you feel it is a good idea to reconstruct this bridge, and, if so, why?

As always, we welcome comments of all kinds to this blog. Your voice is important for us in Chepachet to establish a dialogue which all interested members are invited to share.

Save The Lakes: The Other Side of the Story

Several newspaper articles, like a front page story from the July 19th, 2008 Providence Journal, have presented a one-sided view of efforts to control milfoil on Smith and Sayles reservoir (aka Sand Dam Pond). The 7/19/08 article quotes the president of the Sand Dam Reservoir Association (SDRA) as claiming “the lake was useless” in reference to the summer of 2007.

During that summer, my family used the lake almost every day for swimming, fishing, kayaking, and canoeing. Sometimes the milfoil was thick, and my husband and I would rake it out to clear the area for swimming. But overall we had a lovely summer enjoying the lake. Little did we know that it would be our last summer to enjoy our beautiful lake.

On June 11, 2008, the SDRA dropped more than 10,000 pounds of the herbicide Navigate 2,4 Dichlorophenoxyacetic acid into our lake. According to the Sierra Club “Despite industry efforts claiming the safety of this chemical, there is a large body of evidence indicating major health effects, from cancer to immunosupression, reproductive damage to neurotoxicity.”

The Sierra Club report can be obtained from http://www.sierraclub.ca/national/programs/health-environment/pesticides/2-4-D-overview.pdf.

Another source detailing the risks of this chemical can be found at:http://www.beyondpesticides.org/pesticides/factsheets/2,4-D.pdf

In November of 2008, the Natural Resources Defense Council petitioned the Environmental Protection Agency to ban 2, 4-D based on evidence of its neurotoxicity, link to cancers (especially non-Hodgkin's lymphoma), and negative health effects on many species (sadly, it is expecially toxic to dogs). Despite protests from concerned lake residents, the SDRA has arranged for the lake to be treated repeatedly (September 11th, 2008; July 22nd, 2009, with plans to treat in 2010 & 2011 as well).

DEM has binders of information documenting that 2, 4-D is not effective at eradicating milfoil (though sadly, it does seem to be effective at eradicating bullfrogs. Prior to the 2008 treatment, a bullfrog chorus sang me to sleep every night in the spring and summer. Since the treatment, I’m lucky to hear a lone bullfrog every now and then).

Since I am unwilling to expose my family to the risks of 2, 4-D, we can no longer swim, boat or fish on our lake.It is my hope that the efforts of groups like the Sierra Club and the Natural Resources Defense Council will eventually lead to a 2, 4-D ban. However, the leadership of Sand Dam Reservoir Association has now established an organization called Save the Lakes. The STL agenda includes treating 49 RI ponds and lakes with this toxic chemical.

Even if the repeated, wide-spread use of the chemical could eradicate milfoil (which it can’t), would it be worth the cost to human and ecosystem health? Will we be left with weed-free toxic soup lakes and ponds, great for powerboats and jet skis but deadly for wildlife? Any federal ban on 2, 4-D may come too late to protect RI lakes from the misguided efforts of the Save the Lakes group.

I urge readers to work to protect our lakes and ponds from this toxic chemical. Contact Save the Lakes at stlri.org and urge them to adopt a more sustainable approach to milfoil management.

Welcome to the Smith and Sayles information site

Hello!

A group of interested community members around Smith and Sayles Reservoir, Chepachet, Rhode Island has decided to gather together electronically to share information, insights, community, news, events, and happenings.

There are no dues or required meetings. You do not have to be a lakeowner to participate.

We want to have a place to share what we know about our wonderful lake with others. This is that space. If you'd prefer to receive information via the U.S. Postal service, we'll send along a periodic newsletter that summarizes the information on this site.

We cherish community, as do you. We want to hear about your observations, items you've retrieved from other publications, and your memories of this very special body of water. You, too, can become an author by sending us your short articles. We value your voice and opinions.

If you'd like to be included in this conversation, send us a quick e-mail or a quick snail mail to let us know. Each time we post new information about Smith and Sayles Reservoir, we'll send you a note so you'll be informed.

Welcome.