State of Vermont - Lake Fairlee Associationlakefairlee.org/docs/herbicide_permit_2010.pdf · 2010. 5. 26. · Internet ([email protected]) at least five days prior to each

Permit #2009-C08 (HB) Page 1 of 41

State of Vermont

Department of Environmental Conservation Aquatic Nuisance Control Permit Program

10 V.S.A. Chapter 47 § 1263a

Re: Lake Fairlee Association Application No. 2009-C08(HB) c/o Tracy Brown District ID. #BR09-0389 PO Box 102 Fairlee, VT 05045

Lycott Environmental, Inc. c/o Robert Wheaton 600 Charlton Street Southbridge, MA 01550 Project: To implement the chemical and non-chemical control methods associated with a five-year

integrated management plan for the control of Eurasian watermilfoil in Lake Fairlee. The chemical control method includes the use of the aquatic herbicide, Renovate flake formulation “On Target Flakes” (OTF), in spot/partial-lake treatments. The non-chemical control methods include the use of a diver-operated suction harvester and the use of bottom barrier material in designated locations of Lake Fairlee in Fairlee, Thetford and West Fairlee, Vermont.

BACKGROUND

On February 25, 2010, the Vermont Department of Environmental Conservation (Department) received a completed application from the Lake Fairlee Association (Applicant and Permittee) and Lycott Environmental, Inc. (Co-Applicant and Co-Permittee) seeking a permit to implement the chemical and non-chemical control methods associated with a five-year Integrated Management Plan (IMP) for the control of Eurasian watermilfoil in Lake Fairlee. The chemical control method includes the use of the aquatic herbicide, Renovate OTF (flake formulation) in multiple spot/partial-lake treatments. Renovate is a trademark of SePRO Corporation, Carmel, IN, active ingredient triclopyr. Non-chemical control methods include the use of a diver-operated suction harvester and the use of bottom barrier material. This permit is a multiple chemical treatment permit and IMP for Lake Fairlee. Chemical control permits may be issued for a period of five years and non-chemical control permits may be issued for a period of ten years. The Applicant was previously permitted for suction harvesting (#2004-H06) and bottom barrier installation (#2002-B03). In order to better implement and monitor the five-year IMP chemical and non-chemical control activities, the current proposed chemical control methods and the existing non-chemical control permits (above) will be incorporated into this single permit for a period of five years. Therefore, this permit supersedes ANC Permits #2002-B03 (bottom barrier) and #2004-H06 (suction harvesting). On March 4, 2010, the Department notified the public, state and local officials and others having an interest in the project of the permit application. The Department provided an opportunity to file written comments and to request a public information meeting. The Department gave written notice in the legal classified section of the Valley News on March 5, 2010 with comments or requests for a public information meeting due on March 19, 2010. No requests for a public information meeting were received.


The Findings that support the Decision and Conditions of this permit follow the specific permit conditions in Part I, Part II, Part III and IV of this permit. Part V contains all of the findings relating to each of the individual control methods authorized by this permit.

DECISION AND PERMIT Based on the Findings in Part V of this permit, the permit application and other supporting documents on file with the Department, the Department finds that the requested use of the aquatic herbicide, Renovate OTF in multiple spot/partial-lake treatments, the use of a diver-operated suction harvester in designated areas of the lake, and the use of bottom barrier material in designated locations of the lake in order to control Eurasian watermilfoil growth in Lake Fairlee, Thetford and West Fairlee, Vermont, is in conformance with 10 V.S.A. § 1263a.

Parts I, II and III set forth conditions for each of the individual control methods identified above. Part I contains all of the conditions pertinent to the use of chemical control method (Renovate OTF). Part II contains all of the conditions pertinent to the non-chemical control method, suction harvesting. Part III contains all of the conditions pertinent to the non-chemical control method, bottom barrier. Permit conditions that are common to all control methods (chemical and non-chemical) are included in Part IV. Part V contains all of the findings relating to each of the individual control methods authorized by this permit.

Part I. Conditions Relating to Herbicide Application

In accordance with 10 V.S.A. § 1263a(e), the Lake Fairlee Association (Permittee) and Lycott Environmental, Inc. (Co-Permittee) are authorized to use Renovate in Lake Fairlee in compliance with the conditions in Parts I and IV of this permit. Unless otherwise specified, the term “treatment” in Part I refers to each and all treatments of Lake Fairlee with Renovate OTF. 1. This permit is valid upon signing and shall expire five years from the date of signing. 2. In any of the years (2010, 2011, 2012, 2013, 2014), the Permittee and Co-Permittee are

authorized to conduct one spot/partial-lake treatment of up to 130 acres total in Lake Fairlee in an area (or areas) approved by the Department as soon as the watermilfoil is actively growing with the aquatic herbicide, Renovate OTF, active ingredient triclopyr, EPA Registration No. 67690-42, to achieve a target triclopyr concentration (concentration) between 1.5 – 2.0 parts per million (ppm) in the bottom four feet of water depth. The areas approved by the Department are described in Attachment B. Attachment B will be annually revised and updated as needed and including the associated restricted use areas, in accordance with this permit.

3. The Permittee and Co-Permittee shall only conduct any and all spot/partial-lake treatments in

locations that have been approved in writing by the Department and described in Attachment B. The Permittee and Co-Permittee may conduct a spot/partial-lake treatment, only in areas of Lake Fairlee containing predominantly watermilfoil and only in locations approved in advance by the Department. Prior to conducting the spot/partial-lake treatment each year, the Permittee shall submit a request to the Department for written approval to treat proposed areas based on the year before, late season aquatic plant survey and year of, early season watermilfoil search. The request(s) shall include a map of the lake identifying the area(s) in the lake where treatment is proposed. The Department will consult with the Vermont Department of Fish and Wildlife when approving or denying such requests.


4. The treatment shall only occur on a Monday, Tuesday, Wednesday or Thursday to avoid the

need to close Lake Fairlee to recreational use over a weekend. 5. The specific product used, Renovate OTF, must be registered with the Vermont Agency of

Agriculture, Food and Markets for use in Vermont at the time of the treatment, and shall be applied in full conformance with all label requirements and state and federal regulations in effect at the time of the treatment.

6. The disposal of surplus Renovate OTF, container rinseate, and empty product containers shall

be conducted according to product label requirements and federal and state law and regulations. 7. Renovate OTF shall only be applied by a pesticide applicator certified by the Vermont Agency

of Agriculture, Food and Markets in Category Five - Aquatics, and only by a Co-Permittee of this permit. Renovate shall only be applied in the presence of someone with prior experience in its application.

8. The Permittee and Co-Permittee shall submit to the Department an Herbicide Application

Record Form (Attachment A) along with chemical treatment quantity calculations associated with each treatment within seven calendar days following the date of the treatment.

9. A duly authorized representative(s) of the Department may at any time inspect the project,

including the operation and maintenance thereof. Agency of Natural Resources staff may boat on Lake Fairlee to conduct official business as soon as the Renovate OTF application has been completed.

10 The Permittee and Co-Permittee shall notify the Department of each treatment date(s) via

Internet ([email protected]) at least five days prior to each treatment taking place. A copy of the electronic message shall be sent to [email protected] and [email protected]. Alternatively, the Permittee and Co-Permittee may call Susan Brittin (802-241-3786), Rich Kirn (802-485-7566) and Bob Popp (802-476-0127) to notify them at least five days prior to each treatment taking place.

11. The Permittee and Co-Permittee shall meet with the Department on an annual basis to discuss

the level of watermilfoil control achieved/maintained, the impacts to non-target species, and other pertinent issues as well as the most effective strategy to be implemented as the next phase of the five-year IMP. The Permittee and Co-Permittee shall implement each phase of the IMP as mutually agreed upon by the Department and the Permittee and Co-Permittee at the annual meeting and shall not change the IMP without prior written approval from the Department. The Permittee and Co-Permittee’s obligations under this condition shall continue until the five-year IMP is completed.

12. The Permittee and Co-Permittee shall maintain all data and records relating to the activities

authorized by this permit and the associated five-year IMP for a period of ten years after the effective date of this permit.

13. For each treatment there shall be no use of Lake Fairlee as described in Attachment B or any

amendments thereto for the pertinent year for any purpose beginning the day of the treatment through the entire day after the treatment, which includes but is not limited to:

swimming/wading

boating

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fishing

irrigation

domestic use, including toilet flushing.

14. For each treatment there shall be no irrigation use of the water from Lake Fairlee as shown in Attachment B or any amendment thereto for the pertinent year, including use for watering lawns, trees, shrubs or plants, beginning the day of the treatment and continuing for 120 days or until the Department provides notification to the Permittee and Co-Permittee that the restriction has been lifted, whichever comes first. [If lifted prior to 120 days, the Department will base its decision to allow lifting the irrigation use restriction on the results of chemical analyses of representative water samples, as specified in Conditions 19 and 20 below, that indicate that the concentration of triclopyr is equal to or less than 1.0 parts per billion by laboratory analysis].

15. For each treatment recreational uses such as swimming/wading, boating and fishing may resume at the beginning of the second day following the treatment. 16. For each treatment domestic uses other than drinking and using waters to prepare food or drink may resume at the beginning of the second day following treatment. 17. For each treatment there shall be no use of the water from Lake Fairlee as shown in the

amended Attachment B for the pertinent year for drinking or to prepare food or drink beginning the day of the treatment and continuing until the Department provides notification to the Permittee and Co-Permittee that the restriction has been lifted. [The Department will base its decision to allow lifting this restriction on the results of chemical analyses of representative water samples, as specified in Conditions 19 and 20 below, that indicate that the concentration of triclopyr is at or below 75 parts per billion by laboratory analysis].

18. For each treatment the Permittee and Co-Permittee shall supply bottled water for the duration

of the required water use restriction to all persons affected by the restricted use of the waters for drinking and/or to prepare food or drink, unless other arrangements are made by those affected.

19. For each treatment the Permittee and Co-Permittee shall collect water from the sites as shown in

Attachment C or any amendments thereto for the pertinent year in Lake Fairlee for the analysis of triclopyr. Samples shall be collected within the bottom four feet of water at each sample site using sampling equipment designed to collect samples at a discrete depth, beginning approximately 24 hours after completion of the treatment and continuing at least monthly until all sample results demonstrate that triclopyr is at or below 75 parts per billion by laboratory analysis. Sampling at one or more sites may be discontinued prior to this time if the Permittee and Co-Permittee receive prior written approval from the Department to discontinue the sampling. Additional sampling locations and samples may be required if sample results from the sampling site farthest from the treated area reveals detectable amounts of triclopyr.

20. For each treatment water samples collected in accordance with Condition 19 above shall be

analyzed at the SePRO Corporation laboratory or another laboratory qualified to analyze triclopyr. The Permittee and Co-Permittee shall submit all sampling results to the Department as described in Condition 21, below. Individuals collecting water samples for analysis shall be trained directly by SePRO Corporation or the Co-Permittee.

21. For each treatment the Permittee and Co-Permittee shall arrange for the laboratory performing

the analyses to fax (fax number 802-241-4537, attn: Susan Brittin) or send via Internet


([email protected]) the sample results to the Department within 24 hours of completion of analysis.

22. For each treatment the Permittee and Co-Permittee shall conduct public notification in the

following manner:

a. An informational notice and map of the treated and restricted-use areas shall be either hand-delivered, sent via electronic mail, sent with a stamped (Permittee contact addressed) return postcard, sent Certified Mail-Return Receipt or by other method that provides proof of receipt of the notice, to all property owners of land that abuts Lake Fairlee as shown in Attachment B or any amendments thereto at least 15 days prior to the treatment taking place.

A list of all property owners who received hand delivered notices, sent notices with return postcard, notices sent via electronic or certified mail, and a list of those property owners who signed for the hand delivered notices, returned postcards, responded via electronic mail and certified mail receipt, shall be provided to the Department no later than five days prior to each treatment taking place.

A list of those property owners who did not return postcards, respond via electronic mail or certified mail receipt shall also be provided along with a photo of each posted notice or a detailed description of where and when the notice(s) were posted to ensure that each of these property owners who did not respond to the notice will receive the notice and map describing the treatment and water use restrictions. The informational notice shall include:

● The proposed date of the treatment;

● The aquatic herbicide to be used; ● A map of the treated and restricted-use areas;

● A statement that signs posted along shoreline properties and roadways will provide the exact treatment date/time;

● A statement that signs posted along shoreline properties and roadways will provide specific water use restriction dates;

● A list of all water use restrictions: - NO USE of Lake Fairlee FOR ANY PURPOSE, including boating,

fishing, swimming, domestic (household) use or irrigation, on the day of and the entire day after the completion of the treatment.

- Swimming/wading, boating, fishing and domestic use (except drinking or for food or drink preparation) may resume the beginning of the second day following completion of the treatment.

- Use of water from Lake Fairlee for drinking or for food or drink preparation shall not resume until water sample analyses reveal that the active ingredient in Renovate OTF (triclopyr) is at or below 75 parts per billion by laboratory analysis.

- Use of water from Lake Fairlee for irrigation, including use for watering lawns, trees, shrubs or plants, shall not resume for 120 days or until water sample analyses reveal that triclopyr is at or below 1.0 part per billion by laboratory analysis, whichever comes first;

● A statement that bottled water will be provided, if requested, to any person restricted from using their domestic water supply for drinking or in the preparation of food or drink; and

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● The contact name(s), address(es), and telephone number(s) for the Permittee

and Co-Permittee for further information. The notice shall also state that notification of the exact treatment date will be posted in the locations described in Condition 22c below. The notice shall inform property owners in bold print that if a residence or cottage will be rented at any time after the treatment and prior to December 31 of the year in which the treatment occurred, the property owner is responsible for informing all tenants of the treatment and the water use restrictions. A copy of the notice shall be provided to the Department when the notice is sent to property owners.

b. The same informational notice described in Condition 22a above shall be provided at least 15 days prior to the treatment to any commercial camps abutting Lake Fairlee as shown in Attachment B or any amendments thereto, and shall be provided, prior to the children attending, to all parents of children who will be attending the camps in the year of treatment. A list of those commercial camps shall be submitted to the Department prior to the treatment taking place.

c. Signs and maps of the treated and restricted-use areas shall be posted:

(1) along the road facing the approaching traffic, at an angle that provides the greatest amount of eye contact for passing vehicles, at least once every 1,000 feet along the lakeward side of the roadways in the vicinity of the shoreline of Lake Fairlee; (2) at all public and private campgrounds, hotels, inns, beaches and access points where the public might enter or use these waterbodies; and (3) at the Fairlee, West Fairlee and Thetford town offices. The signs posted at locations (1) and (2), above, shall be at least 25 inches in height by 19 inches in width. The signs posted at location (3), above, shall be at least 11 inches in height by 8.5 inches in width. Signs at locations (1) and (2), above, shall be mounted on wood or similar material and staked into the ground at vehicle and/or eye level in locations where they will be most visible to vehicle traffic, shoreline property owners and potential lake users. All signs shall be made of waterproof paper and printed with waterproof ink. The signs shall state:


WARNING AQUATIC PESTICIDE IN USE

There are water use restrictions on Lake Fairlee due to a treatment with the aquatic herbicide Renovate OTF

on _______ (date).

IN LAKE FAIRLEE THERE SHALL BE:

NO USE of the water in the areas shown for ANY PURPOSE the day of treatment and the entire day after treatment. NO USE of the water for Drinking or for Food or drink preparation UNTIL FURTHER NOTICE (may resume on _________) Domestic uses OTHER THAN drinking or food or drink preparation may resume on ________ NO USE of the water for Irrigation for 120 days (may resume on _______) NO USE of the water for Recreation (swimming, boating, fishing) until the second day following the treatment (may resume on _______) For information contact: __________________________________ Permittee and Co-Permittee contact name/telephone numbers

The signs and maps shall be posted at least 48 hours prior to each treatment. A representative copy of the sign and map shall be provided to the Department when the signs and maps are posted. When water use restrictions have been lifted, the signs shall be updated to indicate which use of the waters may resume as of the date specified by the Department.

d. When all use restrictions have been lifted by the Department, the Permittee and Co-Permittee shall clearly indicate on all signs that the treatment is completed, all water use restrictions have been lifted, and all normal uses are again allowed. These signs shall remain posted for a minimum of two weeks. The Permittee and Co-Permittee shall remove the signs after the two-week period has passed.

23. For each treatment the Permittee and Co-Permittee shall submit to the Department one paper

copy and one electronic copy of an annual report on the treated areas, and any areas where sample analysis showed the concentration of Renovate OTF was at or above the treatment target concentration, in the year of treatment and for two consecutive years thereafter on or before December 31 of each year. An extension of time may be granted for cause. A request for an extension must be received by the Department prior to the December 31 due date. The annual report shall include (a) an assessment of the status of Eurasian watermilfoil growth and distribution in the Renovate-treated areas; (b) a map of the waterbody identifying the Renovate-treated areas and with Eurasian watermilfoil growth and distribution depicted; and (c) a log of the non-chemical control strategies used in the Renovate-treated areas including the dates, activity, length of time spent, and the names of the individuals conducting the activity; and (d) a discussion of the educational efforts implemented as part of the five-year integrated management plan. The Permittee and Co-Permittees’ obligations under this condition shall


continue until the integrated management plan is completed, regardless of the expiration date of

this permit. 24. For each treatment the Permittee and Co-Permittee shall conduct three post-treatment aquatic

plant surveys of the Renovate-treated areas using the same survey methods and during approximately the same time period each year (August to early-September) as the pre-treatment plant survey conducted by the Co-Permittee for comparative purposes (these three post-treatment surveys shall include the September 2009 survey points as well as a subset of the August 2009 survey points, as determined by the Department). The post-treatment plant surveys shall occur in the year of treatment and two consecutive years thereafter. The Permittee and Co-Permittee shall submit one paper copy and one electronic copy of the report to the Department within 45 calendar days following each post-treatment plant survey. The report shall include at a minimum (a) the date(s) of the post-treatment survey; (b) the names of survey crew members; (c) treatment effectiveness on Eurasian watermilfoil; (d) specific information on impacts on non-target aquatic plants in the Renovate-treated areas; and (e) a map depicting specific areas surveyed, with associated text describing species present and their abundance (include abundance key) for each area.

25. The Permittee and Co-Permittee shall conduct each Renovate treatment and implement the

updated associated IMP as described in Finding 6 (Long-range Management Plan) in Part V of this permit in strict accordance with the permit application dated November 30, 2009 and received on February 25, 2010, and any amendments thereto; the associated Findings in Part V; and the conditions of this permit, with such minor modifications as may be approved in writing by the Department.

26. For each treatment for which Lycott Environmental, Inc. is not the project applicator, the new

project applicator shall apply to become the Co-Permittee, submit the required documentation (see Attachment D) to the Department, and receive written authorization from the Department to become the Co-Permittee prior to performing any and all activities authorized or required of the Co-Permittee under this permit.

Part II. Conditions Relating to Suction Harvesting

In accordance with 10 V.S.A. § 1263a(g), the Permittee is authorized to use diver-operated suction harvesting in Lake Fairlee in compliance with the conditions in Parts II and IV. 1. This permit supersedes ANC Permit 2004-H06. 2. The Permittee shall only suction harvest in locations that have been approved in writing by the

Department and described in Attachment E. The Permittee may conduct a suction harvesting operation only in areas of Lake Fairlee containing predominantly watermilfoil and only in locations approved in advance by the Department. Prior to suction harvesting each year, the Permittee shall submit a request to the Department for written approval to suction harvest proposed areas. The request(s) shall include a map of the lake identifying the area(s) in the lake where suction harvesting is proposed. The Department will consult with the Vermont Department of Fish and Wildlife when approving or denying such requests.

3. The Permittee shall ensure that the suction harvester hoses are operated by certified scuba divers

trained in Eurasian watermilfoil (Myriophyllum spicatum) identification and how to distinguish it from native aquatic plant species. The Permittee shall make all reasonable attempts to ensure


that only Eurasian watermilfoil plants are harvested from approved areas in Lake Fairlee.

4. A silt/fragment curtain suspended in the water column shall be used in conjunction with any

use of a suction harvester in Lake Fairlee to minimize turbidity and prevent fragments of watermilfoil from spreading in the lake. The silt/fragment curtain shall be placed in the area in which the suction harvester is operating in either a horseshoe shape or a total enclosure in such a manner that silt and fragments are contained within the work area. The silt/fragment curtain shall be positioned no further than 15 yards behind the suction harvester plant collection system.

5. The Permittee shall submit to the Department an annual report on the suction harvesting

operation on or before December 31 of each year that the permit is in effect. An extension of time may be granted for cause. A request for an extension must be received by the Department prior to the December 31 due date. The annual report shall include (a) a map of the harvested areas with height/density of watermilfoil at the time of harvesting and the date(s) of harvesting and; (b) the amount of watermilfoil removed.

6. The Permittee shall ensure that the suction harvesting equipment is mechanically sound. Only

personnel trained in the operation of the equipment shall operate the equipment. 7. Suction harvesting shall not occur while people other than the workers associated with the

project are in the work area. 8. The Permittee shall remove all harvested vegetation from the water and dispose of it in upland,

nonwetland non-riparian disposal site(s). The Permittee shall ensure that any vehicles transporting vegetation to disposal sites are covered to prevent loss of vegetation en route.

9. The Permittee shall conduct the suction harvesting project in strict accordance with the original

permit application dated July 14, 2004 and received July 15, 2004; the following Findings; and the conditions of this permit, with such minor modifications as may be approved in writing by the Department.

10. A duly authorized representative(s) of the Department may at any time inspect the project,

including the operation and maintenance thereof.

Part III. Conditions Relating to Bottom Barrier Installation In accordance with 10 V.S.A. § 1263a(g), the Permittee is authorized to use bottom barrier material in Lake Fairlee in compliance with conditions in Part III and Part IV. 1. This permit supersedes ANC Permit 2002-B03. 2. The Permittee may install AquaScreen, Palco, fish-grade polyvinyl chloride fabricated liner or

similar material as a bottom barrier, and coated rebar or similar material as a weighting device, only in areas of Lake Fairlee containing predominantly watermilfoil and only in locations approved in advance by the Department. Prior to the initial installation of bottom barrier material, the Permittee shall submit a request to the Department for written approval for the bottom barrier locations. Such request shall include a map of the lake(s) identifying the area(s) in the lake(s) where bottom barrier is proposed, the approximate date(s) of installation, the size of each area, and a list of the non-target plant species found in each area with the date of the survey. Bottom barrier material shall only be installed after the Permittee has received written approval from the Department with a bottom barrier location map that shall serve as


Attachment F of this permit. The Department will consult with the Department of Fish and Wildlife when approving or denying the request.

3. The Permittee shall ensure that a qualified professional or those under the supervision and

guidance of a qualified professional perform the bottom barrier installation in Lake Fairlee. The bottom barrier shall not be installed while people other than the installer are in the work area.

4. Prior to moving the material to another location(s) in the lakes or installing additional material,

the Permittee shall submit a request to the Department for written approval to move the bottom barrier material and/or for additional installation of bottom barrier in Lake Fairlee. Such request(s) shall include a map of the lake(s) identifying the area(s) in the lake(s) where bottom barrier is proposed to be relocated from and to, the area(s) where new bottom barrier material is proposed to be installed, the approximate date(s) of installation, the size of each area, and a list of the non-target plant species observed in each area with the date of the survey. Bottom barrier material shall only be relocated or additional bottom barrier installed after the Permittee has received written approval from the Department with a revised Attachment F. The Department will consult with the Department of Fish and Wildlife when approving or denying such requests.

5. Once installed, bottom barrier material shall not be removed for a minimum of six weeks

without prior written approval from the Department. A maximum of three acres of bottom barrier material may be installed in the lake.

6. At the same time that approval of bottom barrier locations in Lake Fairlee is requested from the

Department (as described in Conditions 2 and 4, above), the Permittee shall notify the nearest landowner(s) to the proposed bottom barrier location(s) and provide at least 10 days for the landowner(s) to comment. The Permittee shall submit to the Department any comments received.

7. The Permittee shall adequately maintain the bottom barrier to ensure that the material is securely

weighted to the lake bottom and does not billow. Any watermilfoil plants growing on top of the barrier shall be removed. The Permittee shall conduct and record weekly bottom barrier inspections through October 31 of the calendar year in which bottom barrier is installed or relocated. The Permittee shall submit to the Department a bottom barrier maintenance report (Attachment G) after October 31 but by December 31 of the calendar year in which bottom barrier is installed or relocated. In subsequent years, the Permittee shall conduct and record bottom barrier inspections at intervals sufficient to assure that no billowing or watermilfoil growth occurs. The Permittee shall submit an annual bottom barrier maintenance report (Attachment G) to the Department after October 31 but by December 31 for each year the bottom barrier is in place.

8. The Permittee shall ensure that no bottom barrier material remains in any one location in Lake

Fairlee for longer than 28 months. Removal of bottom barrier material and weighting devices shall be performed by a qualified professional or by those under the supervision and guidance of a qualified professional.

9. The Permittee shall ensure that a qualified professional or those under the supervision and

guidance of a qualified professional remove from the lake all bottom barrier material and weighting devices authorized by this permit at the expiration of this permit.

10. The Permittee shall conduct the bottom barrier project in strict accordance with the original

permit application dated July 18, 2002 and received July 22, 2002; the following Findings; and


the conditions of this permit, with such minor modifications as may be approved in writing by the Department.

11. A duly authorized representative(s) of the Department may at any time enter the Permittee’s

property to inspect the project, including the operation and maintenance thereof.

Part IV. Common Permit Conditions Applicable to Herbicide Application Suction Harvesting and Bottom Barrier Installation

1. Prior to any treatment or control method occurring in Lake Fairlee with equipment (e.g. airboat,

boat, distribution system, suction harvester) that has been in or on any other waterbody, the Permittee and Co-Permittee shall provide the Department with written documentation that describes the spread prevention measures to be taken to assure that no non-native species will be transported into or out of Lake Fairlee with the project equipment. At a minimum, the Permittee and Co-Permittee shall ensure that the following occur before and after equipment is placed in Lake Fairlee: all visible plants, plant fragments, and animals shall be removed from the project equipment; all water from bilges, etc. on all project equipment (boats, motors, etc.) shall be

drained; all project equipment shall be rinsed with water at a temperature at or above 140 F for a minimum of one minute and/or washed with an appropriate disinfectant; and all absorbent items that have come into contact with water (e.g. felt-bottom wading boots) shall be soaked in an appropriate disinfectant for a minimum of thirty minutes to ensure complete decontamination. As an alternative to rinsing or washing, the project equipment may be thoroughly dried and kept dry for at least five days before and after being placed in Lake Fairlee as a means of preventing the introduction of non-native species into or out of Lake Fairlee. Documentation of the spread prevention measures to be taken shall be submitted to the attention of Susan Brittin, Water Quality Division, either by Internet [email protected] or facsimile (802-241-4537). No project equipment shall be placed into Lake Fairlee until the Department has given the Permittee and Co-Permittee written approval of the spread prevention measures and those spread prevention measures have been implemented. No project equipment shall be removed from the Lake Fairlee shoreland until the approved spread prevention measures have been implemented. The Permittee and Co-Permittee shall be responsible for making certain that the party or parties using/transporting the project equipment adhere to the approved measures.

2. This permit may be modified for cause upon written request for modification that contains facts

or reasons supporting the request, or upon the Department’s own motion. If the Department determines that modification is appropriate, only the conditions subject to modification shall be reopened. Any modification under this condition shall be performed in accordance with the public notice requirements of the Public Review and Comment Procedures for Aquatic Nuisance Control Permit Applications and General Permits under 10 V.S.A. § 1263a dated January 30, 2003 and approved by the Secretary of the Agency of Natural Resources on February 18, 2003. Cause for modification of this permit includes, but shall not be limited to:

a. Alterations to the activities authorized by this permit which occurred after permit

issuance and which justify the application of conditions that are different or absent in the existing permit; or

b. The receipt of information concerning the activities authorized by this permit which was

not available at the time the permit was issued and which would have justified different permit requirements at the time of permit issuance.

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3. After notice and opportunity for a hearing, this permit may be suspended or revoked for cause

in whole or in part, upon a written request for suspension or revocation which contains facts or reasons supporting the request, or upon the Department’s own motion. Cause for suspension or revocation includes:

a. Violation of any of the terms or conditions of this permit; b. Failure by the Permittee or Co-Permittee to disclose all relevant facts during the permit

application process;

c. Misrepresentation of any relevant fact or providing false information at any time during the permit application process;

d. A determination by the Department that a reasonable non-chemical alternative is

available;

e. A determination by the Department that the risk to public health resulting from the activities authorized by this permit is more than negligible;

f. A determination by the Department that the risk to the non-target environment resulting

from the activities authorized by this permit is unacceptable; or

g. A determination by the Department that this activity does not provide a public benefit.

4. Nothing in this permit shall be construed to relieve the Permittee, Co-Permittee or their agent(s) from civil or criminal penalties for noncompliance with the conditions of this permit.

5. Nothing in this permit shall be construed as having relieved, modified, or in any manner affected

the Permittee’s obligation to comply with all other federal, state or local statutes, regulations or directives applicable to the Permittee, nor does it relieve the Permittee of the obligation to obtain all necessary state, local and federal permits.

6. Issuance of this permit does not convey any property rights in either real or personal property,

or any exclusive privileges, nor does it authorize any injury to private property or any invasion of personal rights, nor any infringement of federal, state or local laws or regulations.

7. The provisions of this permit are severable, and if any provision of this permit, or the

application of any provision of this permit to any circumstance, is held invalid, the application of such provision to other circumstances, and the remainder of this permit, shall not be affected thereby.

Part V. FINDINGS

Findings Relating to Use of Renovate OTF The Department has reviewed all the information received from the Lake Fairlee Association (Applicant), Lycott Environmental, Inc. (Co-Applicant), and others relative to the proposed project to use Renovate OTF in Lake Fairlee to control Eurasian watermilfoil growth and makes the following Findings as required under 10 V.S.A. § 1263a(e).


1. Jurisdiction

Lake Fairlee is located in the Towns of Fairlee, Thetford and West Fairlee, Vermont. The lake is designated as waters of the state. Since the proposed activity is to use an aquatic pesticide to control an aquatic nuisance in portions of these waters, the Secretary of the Agency of Natural Resources has jurisdiction under 10 V.S.A. § 1263a. Furthermore, 10 V.S.A. § 1263a(e) directs the Secretary to issue a permit for pesticide use when the Secretary can make the following five findings: 1) There is no reasonable non-chemical alternative available; 2) There is acceptable risk to the non-target environment; 3) There is negligible risk to public health; 4) A long-range management plan has been developed which incorporates a schedule of

pesticide minimization; and 5) There is a public benefit to be achieved from the application of the pesticide, or in the

case of a pond located entirely on a landowner’s property, no undue adverse effect upon the public good.

The Secretary has designated the Commissioner of the Department of Environmental Conservation or the Commissioner’s designated representative to act on the Secretary’s behalf in the issuance or denial of these permits. 2. Background and General Description Lake Fairlee, located in the Towns of Fairlee, Thetford and West Fairlee, Vermont, is a 457-acre waterbody with a maximum depth of 50 feet and an average depth of approximately 23 feet. The waterbody drains into the Ompompanoosac River. The Department first confirmed Eurasian watermilfoil (Myriophyllum spicatum) in Lake Fairlee in 1995. Eurasian watermilfoil is an aggressive, nonnative, aquatic plant that has the ability to completely dominate the aquatic plant community in a lake lakes once introduced. Several non-chemical controls for Eurasian watermilfoil have been used in Lake Fairlee including benthic barrier, mechanical (diver-operated suction) harvesting and handpulling conducted by the Applicant, individuals with residences on the lakeshore, and/or private contractors. Control efforts have been conducted using private and municipal funds and funds derived from the Department’s Grant-in-Aid Program. Upon discovery of the Eurasian watermilfoil in the lake in 1995 the Applicant and many dedicated volunteers have been working to control and prevent further spread of Eurasian watermilfoil in the lake. Control efforts began with handpulling watermilfoil plants. In spite of the organized efforts this method on its own soon proved inadequate to maintain control of the invasive species. In 1999, the Applicant proposed to install bottom barrier in areas of Lake Fairlee with dense Eurasian watermilfoil growth which totaled approximately 120,000 square feet of bottom barrier at two sites, each one acre or less in size. ANC Permit B99-01 was issued. The bottom barrier was not installed upon issuance, however, and in 2002 a third area of approximately the same size was added and all three areas were installed under ANC Permit 2002-B03. Following issuance of ANC Permit 2002-B03 the Lake Fairlee Association, the Town of Thetford and many individuals continued to work to control watermilfoil in an integrated fashion utilizing bottom barrier, pulling of individual watermilfoil plants by hand, and education and outreach


initiatives. In spite of these efforts the methods proved inadequate to control the watermilfoil growth in many areas of the lake. In 2004 the Applicant proposed to use a suction harvester operated by scuba divers to remove Eurasian watermilfoil from designated areas in Lake Fairlee where dense areas of watermilfoil plants were found. ANC Permit 2004-H06 was issued for suction harvesting to take place in six areas along the west, northwest, and north shore of the lake and in others areas of the lake where dense beds are found in the future. The Applicant continued to utilize the non-chemical methods to control the watermilfoil in Lake Fairlee. However, in 2009 the Applicant noted that the level of control achieved using solely non-chemical methods over the years was no longer effective at watermilfoil control in the lake. Therefore, in 2009 the Applicant hired Lycott Environmental, Inc. to conduct an aquatic plant survey to identify the locations and extent of the watermilfoil in the lake at that point in time. Surveys were conducted in August and September of 2009. The August 2009 survey consisted of a vegetative survey utilizing observations/data from 206 random points. The September 2009 survey consisted of a point/intercept aquatic plant survey utilizing 120 points with approximately sixty percent (60%) of the points located within the littoral area. The survey report dated October 5, 2009 utilized the data collected from the September 2009 survey to represent aquatic plant percent cover and frequency of occurrence. The permit will require that the annual proposed areas for each chemical treatment, suction harvesting activity and bottom barrier installation be identified based on the previous year’s late season aquatic plant surveys and the early-season watermilfoil searches. These surveys and searches will be used to prioritize the areas and the appropriate control method (chemical treatment, suction harvesting, bottom barrier, etc.) to be implemented in each treatment season. The Applicant and Co-Applicant propose the use of Renovate OTF in 2010 on between 100 to 130 acres of dense watermilfoil as designated in 2009. The Applicant and Co-Applicant have indicated that the exact total acreage will be based on an early 2010 spring survey to verify the 2009 data and to identify any new dense watermilfoil areas not observed (or not existing) in 2009. A. Aquatic Herbicide Description Renovate On Target Flakes (OTF) is a U.S. Environmental Protection Agency-registered aquatic pesticide (EPA Registration No. 67690-42). Manufactured as a flake formulation by SePRO Corporation, the active ingredient in Renovate OTF is triclopyr: [(3,5,6-trichloro-2-pyridinyl) oxy]acetic acid, triethylamine salt. Triclopyr comprises 14 percent of the formulation. Inert ingredients comprise the remaining 86 percent of the formulation. The inert ingredients are known to the Vermont Agency of Agriculture, Food and Markets, and the Vermont Department of Health (DOH). The Renovate OTF label indicates that the product should be applied as a surface application using mechanical or portable granule-spreading equipment to control Eurasian watermilfoil. The product will be evenly applied throughout the treatment areas at the prescribed treatment dose. The flake will be sprayed over the surface of the water using airboats with Herd seed spreaders mounted on the bows. The boats are equipped with Global Positioning System (GPS) tracking devices. One airboat will be used to apply the appropriate rate of herbicide to the northern portion of the lake while the second airboat will be applying the appropriate rate to the southern portion of the lake. A third boat (pontoon boat) will be utilized to transport the herbicide from the staging area to each of the airboats.


Triclopyr is a selective broadleaf herbicide that can be used to control a variety of nuisance and invasive aquatic plant species in ponds, lakes, reservoirs, marshes, wetlands and non-irrigation ditches or canals. Triclopyr rapidly enters through a plant’s leaves and stems, then translocates down into the roots, disrupting the plant’s metabolism. Replicated pond studies conducted by SePRO at their Research and Technology Campus in 2006 indicate that approximately 50% of the triclopyr is released from the flakes in less than an hour, with the remainder of the triclopyr released within 24 - 48 hours. Triclopyr should be applied when Eurasian watermilfoil is actively growing. Laboratory tests show that photodegradation is a major route of triclopyr degradation in aquatic environments. Field dissipation studies indicate that microbial degradation is also important. Field and whole pond studies indicate that the first order half life for Renovate OTF (once the product has released from the flakes) in the aquatic environment ranges from 0.5 to 7.5 days. Unlike the aquatic herbicide Sonar A.S., active ingredient fluridone, which typically requires a contact time of up to 90 days or more to be effective on Eurasian watermilfoil, triclopyr is taken up by the plants in just 1 to 2 days, with control of Eurasian watermilfoil generally seen within approximately 3 to 4 weeks. Triclopyr is highly selective for Eurasian watermilfoil at the concentrations proposed so impacts to non-target species are anticipated by the Applicant and Co-Applicant to be minimal.

B. Proposed Chemical Treatment Plan The Applicant and Co-Applicant are proposing to treat portions of Lake Fairlee in 2010, 2012, 2013 and 2014 in areas where watermilfoil is too dense to be controlled using suction harvesting, bottom barrier material and/or handpulling. (The Applicant and Co-Applicant did not propose the use of Renovate in year two of the five year IMP however, the need to treat may be demonstrated in any year of the five year IMP Renovate OTF (flake formulation) is proposed for use.) The Applicant and Co-Applicant indicate that approximately 30% of the points sampled during the September 2009 survey included the presence of watermilfoil. In addition, the 2009 surveys revealed by observation, watermilfoil in areas not included in the established sample points (located outside of these points). The treatment areas will be within the littoral areas of the waterbody as shown on Attachment B. The total number of acres to be proposed in any one season will not exceed the initial 130 acres proposed for treatment in 2010. The proposed acreage for years 2012, 2013 and 2014 is 30 acres, 15 acres and 10 acres, respectively. The actual acreage treated may differ and will be based on the late season year of treatment survey and early spring watermilfoil search, as well as Department approval. On an annual basis, the Applicant and Co-Applicant will prepare and submit a map identifying the proposed treatment areas following the early season watermilfoil search to be conducted in mid-May of each year that treatment is proposed. The Applicant and Co-Applicant are proposing to treat at an application rate of 1.5 parts per million in the northern basin which the Applicant indicates has a gently sloped shoreline and shallow depth. A rate of 2.0 parts per million is proposed for the southern basin which the Applicant describes as having a larger volume/greater average depth and a potential for increased product dilution. The Applicant and Co-Applicant will use the 2009 late season aquatic plant survey map for comparison purposes during the early season (May) watermilfoil search for the purpose of finalizing the priority areas for treatment. The Applicant would like to conduct the treatment at the time when active watermilfoil growth is at optimum for triclopyr uptake which is estimated to be between late May and late June.


The Renovate treatment will be performed by Vermont-licensed aquatic applicators. The boundaries of the areas to be treated will be marked with temporary buoys and a GPS system will be used to track the path of the airboat to ensure an even distribution of Renovate throughout the designated treatment areas at the prescribed doses. The Applicant and Co-Applicant anticipate that the treatment can be completed in one day using two airboats and a johnboat for transporting the product to the airboats from the staging area. There are no municipal wells or water services provided by the towns of Fairlee, Thetford and West Fairlee. All homes are supplied by either private wells or direct water intakes. There are domestic and irrigation uses of Lake Fairlee. For the purposes of reviewing this project, the Department made the very conservative assumption that shoreland residents drink the lake water. There is a public boat access area on the north central shore of Lake Fairlee. The Applicant and Co-Applicant propose that at a minimum, the temporary water use restrictions specified on the current label will be followed. The Applicant recognizes that additional restrictions may be applied in the conditions of a permit, restrictions that could extend to the use of the outlet stream. The Applicant and Co-Applicant are prepared to carry out these restrictions as required by the Department. 3. No Reasonable Non-chemical Alternative Eurasian watermilfoil was discovered in Lake Fairlee in 1995. The Lake Fairlee Association, the Town of Thetford and many individuals have worked annually since then to control the watermilfoil in the lake and prevent lakewide spread utilizing bottom barrier material, pulling of individual watermilfoil plants by hand, education and outreach initiative and diver -suction harvesting as the primary management methods. Due to the expansion of the watermilfoil population in spite of the ongoing non-chemical control measures, the Applicant and Co-Applicant are requesting the use of Renovate OTF in 2010, 2012, 2013 and 2014. In 2010, the use of Renovate is proposed to control a maximum of 130 acres of dense watermilfoil beds identified during the September 2009 survey with locations to be confirmed in the early season watermilfoil search in 2010. Potential Alternatives Before an Aquatic Nuisance Control Permit can be issued authorizing the use of a chemical pesticide under 10 V.S.A. § 1263a, the Applicant must demonstrate and the Secretary must find that there are no reasonable non-chemical alternatives available.

Installation of bottom barrier and associated barrier maintenance for an area the size of that proposed for chemical treatment (up to 130 acres) is not feasible. The Applicant’s long-range management plan anticipates the use of bottom barriers in small areas with a high density of infestation. Experience has shown that installing and maintaining acres of bottom barrier in a lake is prohibitively labor intensive and expensive and the method is typically an effective control in small areas of concentrated growth. Bottom barriers are not selective for Eurasian watermilfoil. All plant species beneath the barriers are killed in the areas covered by bottom barrier. The use of bottom barriers in an extensive area of Lake Fairlee would have significant adverse effects on benthic organisms, cause significant destruction of aquatic habitat and pose an unacceptable risk to non-target organisms.

Diver-operated suction harvesting is primarily an effective control for small infestations because it is a slow and labor intensive manual removal of the plants by SCUBA divers.


Suction harvesting is an important part of the long-range Eurasian watermilfoil management plan for Lake Fairlee, for use particularly in areas where scattered re-growth has outpaced handpulling efforts. However, there are multiple areas of watermilfoil re-growth in Lake Fairlee that combined are too extensive to be managed by suction harvesting alone. The density and extent of watermilfoil growth in Lake Fairlee far exceeds the capacity for divers to successfully manage it lakewide through suction harvesting. To attempt to control the watermilfoil using suction harvesting in the denser areas proposed for treatment would redirect resources away from managing scattered Eurasian watermilfoil in the less dense areas of the lake. This action would lead to an increase in the density of watermilfoil elsewhere in the lake, ineffective control in the areas proposed for chemical treatment, and a more rapid re-infestation of watermilfoil. This is not a reasonable approach to take to achieve effective Eurasian watermilfoil control lakewide. The Department intends to require an early-season watermilfoil search prior to any treatment occurring to confirm that the watermilfoil growth in each area is too extensive to be controlled by suction harvesting.

Handpulling has been conducted as one of the non-chemical control methods in each of the years since watermilfoil was first discovered in the lake. The Eurasian watermilfoil growth continues to expand despite the Applicant’s handpulling efforts. Handpulling is slower and more labor intensive than suction harvesting, and the watermilfoil growth in the areas identified for Renovate treatment are too extensive and too dense to be effectively controlled by handpulling.

Mechanical methods have not been used for Eurasian watermilfoil control on Lake Fairlee. Using mechanical harvesting or other mechanical methods to control the watermilfoil in the areas proposed for Renovate treatment would fragment the Eurasian watermilfoil, increasing its potential to spread into less-infested areas of Lake Fairlee. In addition, experience in Vermont shows that mechanical harvesting can actually increase the density of Eurasian watermilfoil since it can regrow more quickly than native species following cutting. At this point these methods would exacerbate the problem, not manage it. Hydroraking and rotavating on the scale necessary to control Eurasian watermilfoil in the designated areas would also have significant impacts to non-target organisms, including native plants and macroinvertebrates.

A water level drawdown of Lake Fairlee is not an option because there is not an existing outlet structure that would enable a significant lowering of the lake. Even if a significant lowering of the lake could be achieved, the potential for negative impacts to area wetlands makes this non-chemical method inappropriate. Drawdowns are not selective for Eurasian watermilfoil and they can have severe negative impacts on many types of native plants that are important for fish and wildlife habitat, as well as having negative impacts on other aquatic biota. In addition, the success of this method is not predictable.

Weevils (Euhrychiopsis lecontei) have not yet proven to be effective in open-water field settings where the insects have been intentionally introduced. No conclusive data is available at this time that documents that weevils can be used as a predictable and reliable Eurasian watermilfoil control method. Although weevils have occurred naturally in Lake Fairlee, they have not been successful at controlling the Eurasian watermilfoil in the waterbody to-date. Allowing the Eurasian watermilfoil to continue to grow in the areas proposed for treatment in hopes that weevils will eventually control the growth would enable the Eurasian watermilfoil to auto-fragment and spread to other areas, accelerating infestation of the lake.

Based on the Department’s own work on Lake Fairlee and the other lakes around the state where non-chemical methods have been used, and based on the information submitted by the Applicant


and Co-Applicant, the Department does not know of a reasonable non-chemical alternative available for use in Lake Fairlee in the areas designated for Renovate OTF treatment that would be effective at reducing Eurasian watermilfoil re-growth to a level that would not jeopardize the success of lakewide control efforts begun in 1999 using handpulling, bottom barrier installation and diver- operated suction harvesting. The Department finds that the density of Eurasian watermilfoil in Lake Fairlee has increased to the point where, despite years of dedicated use of non-chemical controls, these methods are no longer adequate to control the plant lakewide. Based on the above information, the Department finds that the Applicant has met the statutory requirement to demonstrate that “there is no reasonable non-chemical alternative available.” 4. Acceptable Risk to the Non-target Environment Renovate is a selective broadleaf herbicide that can be used to control a variety of nuisance and invasive aquatic plant species in ponds, lakes, reservoirs, marshes, wetlands and non-irrigation ditches or canals. The active ingredient, triclopyr, rapidly enters a plant’s leaves and stems, then translocates into the roots, disrupting the plant’s metabolism. Triclopyr’s auxin-type herbicidal activity generally controls woody and broadleaf (dicot) species while most monocot species are tolerant. Potential impacts to non-target organisms from the use of Renovate may be through direct toxic effects, or indirectly, through a physical change in habitat or shift in water quality conditions caused by the chemical that may affect some other component of the lake ecosystem.

A. Potential Direct Effects of Renovate Lake Fairlee has a diverse native aquatic plant community. The Department conducted six aquatic plants surveys on Lake Fairlee between 1984 and 1999 and has recorded at total of 34 aquatic plant species, including Eurasian watermilfoil. Two aquatic plant surveys were conducted in 2009 (and a report prepared) by the Co-Applicant identifying a total of 18 species of submerged, floating-leaved, and emergent plants found in the waterbody including Eurasian watermilfoil. The August 2009 survey identified the following four species not seen in the September survey: Brasenia schreberi, Decodon verticillatus, Potamogeton sp. and Typha sp. The September 2009 survey identified one species, Ceratophyllum demersum, which was not seen in the August survey. Neither Brasenia schreberi or Ceratophyllum demersum were noted in any of the Department surveys. Table 1 below presents frequency of occurrence data for species identified in Lake Fairlee during the August and September 2009 surveys conducted by the Co-Applicant. In August 206 randomly selected points were surveyed and in September 120 points on a grid were sampled throughout the lake’s littoral zone and the number/frequency of occurrence’s (FOC) below represent presence/absence at each site.


Table 1: Lake Fairlee Species List and Frequency of Occurrence (FOC), September 2009.

Macrophyte Species

Common Name

August 2009 Frequency of

Occurrence (%)

September 2009 Frequency of

Occurrence (%)

Potamogeton robbinsii fern pondweed 26% 33%

Myriophyllum spicatum Eurasian watermilfoil 48% 30%

Potamogeton amplifolius large-leaf pondweed 33% 21%

Potamogeton perfoliatus clasping pondweed 1% 3%

Potamogeton pusillus small pondweed


Table 2: Lake Hortonia Frequency of Occurrence (FOC) of species potentially susceptible during Renovate treatments.

2005 FOC (pre-treatment)

2006 FOC (after 1st treatment)

2007 FOC (after 2nd treatment)

2008 FOC (after 3rd treatment)

Elodea canadensis 0.7% 1.4% 10.5% 16.1%

Megalodonta beckii 0 1.4 0 0

Nuphar variegata 0.7 0.7 0.8 0.7

Nymphaea odorata 5.1 5.0 3.8 7.3

Potamogeton zosteriformis 6.6 2.9 8.3 7.3

P. epihydrus 0 0 0 0.7

P. amplifolius 0 0 0 0

P. gramineus 0 0 1.5 3.6

Utricularia macrorhiza 3.7 7.2 3.0 3.6

Zosterella dubia 5.1 2.9 12.0 8.8

Table 3: Lake Morey Frequency of Occurrence (FOC) of species potentially susceptible during Renovate treatments.

2006 FOC (pre-treatment)

2007 FOC (after 1st

treatment)


2009 FOC (after 3rd

treatment)

Elodea canadensis 10% 3% 1% 7%

Megalodonta beckii 11 19 30 24

Nuphar variegata 0 0 0 0

Nymphaea odorata 2 3 4 3

Potamogeton zosteriformis 15 5 16 14

P. epihydrus 0 0 0 0

P. amplifolius 27 23 31 21

P. gramineus 14 12 16 13

Utricularia macrorhiza 0 0 0 0

Zosterella dubia 18 28 25 9


Table 4: Lake St. Catherine Frequency of Occurrence (FOC) of species potentially susceptible during Renovate treatments.

2005 FOC (after 1st

treatment)*


2007 FOC (after 3rd

treatment)

2008 FOC (after 4th

treatment)

2009 FOC (after 5th

treatment)

Elodea canadensis 0% 0.8% 4.7% 51.9% 71.3%

Megalodonta beckii 0 0 0 0 0

Nuphar variegata 0 0.8 0.8 0 0

Nymphaea odorata 2.3 3.1 3.1 3.1 3.1

Potamogeton zosteriformis 31.0 41.9 27.9 18.6 19.4

P. epihydrus 5.4 2.3 0.8 3.9 0.8

P. amplifolius 25.6 34.1 38.8 38.0 41.1

P. gramineus 4.7 1.6 2.3 6.2 3.1

Utricularia macrorhiza 0.8 0 0 1.6 0.8

Zosterella dubia 31.0 41.9 27.9 18.6 19.4

* Pre-Renovate treatment data not included because a Sonar® herbicide treatment occurred in 2004. In Lakes St. Catherine, Hortonia and Morey, none of the potentially susceptible species can be said to have experienced a decline in frequency of occurrence due to the herbicide treatments. In most cases the Frequency of Occurrence (FOC) of the most recent year is the same or more than the beginning FOC, with some variability in intermediate years. Zosterella dubia had a lower FOC in the final year of treatment than pre-treatment in both Lake St. Catherine and Lake Morey. However, since the FOC in a mid-treatment year in both cases exceeded the pre-treatment FOC, it is not likely that this variation was caused by the herbicide treatment. The same observation is relevant in the FOCs of Potamogeton zosteriformis in Lake St. Catherine. (Note that all of the above Renovate treatments were spot or partial lake treatments, so plants at all locations would not have been exposed to the target concentration. The proposed treatment will also be a spot or partial lake treatment.) A fisheries biologist with the Vermont Department of Fish and Wildlife reviewed the proposed project and made the following recommendations: remove all bottom barrier material within proposed chemical treatment areas; schedule the treatment between Monday and Thursday to avoid conflict with fishing derbies typically scheduled between Friday and Sunday; there will be no use of the Fish and Wildlife access areas for project staging purposes; and provide fisheries biologist with date of treatment and any schedule changes that may occur. According to the 2009 aquatic plant surveys conducted by the Co-Applicant, Eurasian watermilfoil was dominant at between 12 and 15% of the sampling points, and present at an additional 15 to 36% of the points: Table 5. Density of Eurasian watermilfoil (EWM) in August and September, 2009. Sample date Number of points Sites at which

EWM was dominant

Sites at which EWM was present

Total number of sites where EWM was found

August 2009 206 24 (12%) 75 (36%) 99 (48%)

September 2009 120 18 (15%) 18 (15%) 36 (30%)


These data show that while Eurasian watermilfoil is wide-spread around the lake, it has not yet reached an abundance where it dominates the aquatic plant population. In August, four other aquatic plant species were found at a similar number of points, Megalodonta beckii (78 points), Potamogeton amplifolius (68 points), Potamogeton robbinsii (54 points) and Vallisneria americana (53 points). In September, six other species were found at a similar number of points Elodea sp. (27 points), Megalodonta beckii (36 points), Nitella sp. (23 points), Potamogeton amplifolius (25 points), Potamogeton robbinsii (40 points) and Vallisneria americana (27 points). Prior to a Renovate treatment in 2010, the Department intends to review proposed areas for treatment based on a spring survey. This process has been used successfully in other lakes, where it is not uncommon to identify additional areas that warrant treatment in the spring that were not evident in the previous fall. Typically in this process, partial lake or spot Renovate treatment is authorized in areas of abundant or moderate density, leaving areas of lower density to be controlled with the non-chemical control methods. In order to follow the affects of the proposed treatments on watermilfoil and native plant species, the Department intends to require the post-treatment surveys be conducted with a combination of sampling points from the 2009 August and September surveys conducted by the Co-Applicant. Specifically, it is likely that the 120 September points will be used along with selected points from the August survey to provide complete coverage of the littoral zone. The Department finds that proposed treatment of Lake Fairlee would leave substantial populations of native plants in place. Treatment in the early summer, as proposed by the Applicant and Co-Applicant, before the watermilfoil has reached its mid-summer maximum growth, will result in less impact on overall aquatic plant abundance and cover. Therefore, the impact on the available habitat at the time of treatment will be reduced because the watermilfoil will not have reached its maximum growth and the native plants are of sufficient abundance to provide habitat benefits. The Department believes that by controlling the Eurasian watermilfoil with Renovate at this time, i.e., before the littoral zone becomes dominated by watermilfoil, it will reduce the effects of sudden loss of aquatic vegetation on the available fish habitat in this or future years. The Nongame and Natural Heritage Program (Program) of the Vermont Department of Fish and Wildlife did not provide comments on the proposed project, however Program staff has reviewed permit applications for a number of non-chemical control methods in Lake Fairlee and noted at the time that there were no known occurrences of significant natural communities or rare, threatened or endangered animals or plants in Lake Fairlee. No comments were received from wildlife biologists with the Vermont Department of Fish and Wildlife regarding the proposed project. No comments were received from wetlands ecologists with the Department’s Wetlands Office regarding the proposed project. The Applicant has requested a target Renovate OTF concentration in the bottom four feet of the water column of 1.5 ppm in the northern basin of Lake Fairlee due to the gently sloped shoreline and shallow depth, and a target concentration of 2.0 ppm in the southern basin due to a greater average depth and potential for dilution. Renovate is not directly toxic to aquatic organisms such as fish, waterfowl, and invertebrates when used at the rates recommended on the product label, i.e. no greater than 2.5 parts per million in lakes. These levels have been found to be safe to the environment and non-target animal species based upon testing conducted for US EPA registration


purposes. There was a low order of toxicity for the fish species tested. The Department does not anticipate direct toxicity to amphibians or reptiles. Renovate may have a direct toxic effect on some terrestrial crop plants. The current label for Renovate OTF has an irrigation precaution that states: “Water treated with Renovate OTF may not be used for irrigation purposes for 120 days after application or until triclopyr residue levels are determined by laboratory analysis, or other appropriate means of analysis, to be 1.0 ppb or less.” If these precautions are followed it is unlikely that there will be toxic effects on terrestrial plants. Dense watermilfoil beds, particularly those that cover a high percentage of a lake’s surface area or littoral zone, have the potential to cause many changes in the lake environment, which can both directly and indirectly impact aquatic organisms. Some of these impacts include reduced oxygen levels; a significant increase in water temperature; changes in lake nutrient dynamics and sediment loading; displacement of native and/or endangered, threatened or rare aquatic plant species; changes in fish spawning site availability; changes in horizontal and vertical fish distribution; and reduction in feeding success of predatory fish. The displacement of native aquatic plants in particular has been seen in lakes in Vermont where Eurasian watermilfoil has become widespread and dense. The use of Renovate OTF in year one of the five year integrated management plan and in subsequent years if needed (and approved by the Department) will extend the length of time that watermilfoil growth can be controlled in other areas of the lake using non-chemical means and provide available habitat for the native aquatic plants in the lake. Uncontrolled, the Eurasian watermilfoil will eventually out-compete the native plants. The Department therefore finds that the direct impacts of the proposed Renovate OTF treatment, as described above, pose an acceptable risk to the non-target environment.

B. Potential Indirect Effects of Renovate

Indirect impacts to non-target organisms such as fish, waterfowl, and macroinvertebrates can occur from the use of an aquatic herbicide if the product used is not selective for the target plant or if the target plant growth is so extensive that it comprises a significant portion of the habitat in the lake. Extensive vegetation removal results in loss of substrate, cover, and food for these organisms. This situation is not expected to occur in Lake Fairlee because Renovate is selective for Eurasian watermilfoil at low concentrations and the 2009 surveys indicated watermilfoil was found to be dominant at between 12 and 15% of the points surveyed. It is anticipated that some native plant species will increase in abundance in Lake Fairlee following the Renovate OTF treatment due to less competition from Eurasian watermilfoil. The proposed treatment will not result in extensive vegetation removal and the subsequent loss of aquatic habitat in the littoral areas of the lake. When fast-acting herbicides are used in lakes, there is potential for aquatic organisms to be impacted indirectly due to temporarily depressed oxygen levels caused by rapidly decomposing aquatic plants. Experience in Vermont indicates that the loss of watermilfoil in the treated areas is gradual and does not result in immediate and significant dying off after the Renovate treatment. In addition, if the treatment occurs when water temperatures are still relatively cool, the potential for oxygen to be depleted to a critical level will be reduced. No critical oxygen depletions are anticipated following the proposed treatment. Another potential impact of herbicide treatments can be the release of the nutrient phosphorus from decomposing vegetation. While it is thought to be possible that an algae bloom caused by increased phosphorus levels could occur as a result of a Renovate treatment, no significant algae blooms have


been reported following any treatment in Vermont. No algae blooms due to phosphorus release from decomposing vegetation are anticipated to result from the proposed treatment. In Vermont, it has been demonstrated that chemical control methods that reduce watermilfoil growth result in an increase in native plant populations over time if a successful long-range management plan is implemented to address watermilfoil re-growth. In Lake Fairlee, it has been demonstrated that the sole use of non-chemical control methods cannot adequately manage the Eurasian watermilfoil population. The Department believes that the components of the Applicant’s and Co-Applicant’s long-range integrated management plan (IMP), as updated during annual meetings with the Department, including spot/partial-lake treatment with Renovate OTF and the use of non-chemical controls, will extend the length of time that watermilfoil is controlled. Having reviewed all of the potential negative impacts of the proposed treatment on the non-target environment of Lake Fairlee, and the potential negative impacts of not treating the Eurasian watermilfoil population in the areas proposed for treatment, the Department finds that the proposed spot/partial-lake Renovate OTF treatment targeting specific areas of watermilfoil re-growth in Lake Fairlee poses an acceptable risk to the non-target environment if it is conducted at a target concentration of 1.5 – 2.0 ppm, and in accordance with the product label, the submitted proposal as modified/conditioned by this permit, and the conditions of this permit. 5. Negligible Risk to Public Health The Vermont Department of Health has reviewed the proposed project to use Renovate OTF in spot/partial-lake treatments of Lake Fairlee. The Department of Health has examined the potential level of concern for public health that may be associated with exposure to water that has been treated with Renovate and has made the following comments, among others:

The federal product label for Renovate OTF establishes minimum setback distances for application to water bodies that contain functioning potable water intakes. The label also specifies that if the product is to be used around or within the appropriate setback distance “…the [potable water] intake must be turned off until the triclopyr level in the intake water is determined to be 0.4 parts per million (ppm) or less by laboratory analysis or immunoassay.” However, due to the influence of many site-specific factors, the label cannot indicate what the maximum concentration of active ingredient is expected to be in the waters of concern at any location at any point in time after application. In addition, it is not possible to predetermine the exact extent of product use that will occur as the LFA has requested approval to chemically treat up to 130 acres the first year, up to 30 acres the third year, up to 15 acres the fourth year and up to 10 acres in the final year of the permit period. Actual treatment needs will be finalized based on the results of pre-treatment surveys conducted shortly before application occurs. Therefore, if Renovate OTF is to be used as proposed, the Department of Health recommends that certain water use restrictions beyond the federal label requirements should be instituted in order to ensure protection of public health. In addition, if a multiple year permit allowing treatment on more than one occasion is issued, prior to each treatment DEC will need to perform a search to determine if updated toxicity and/or breakdown data has become available. DEC will need to provide such information to VDH for review in order to determine if the recommendations noted below warrant revision.


The following recommended water use conditions are based upon review of the most current scientific information available for triclopyr including any potential health effects, the half-life of the compound, an evaluation of the time for complete dissolution of the OTF flake formulation conducted by the DEC Aquatic Nuisance Control Division [sic], consideration of who is likely to come into contact with treated waters and in what manner, several very health protective assumptions and standard risk assessment procedures, and the assumption that Renovate OTF will be applied. Please note, based on a review by the State Toxicologist for the Department of Health, it is reasonable to conclude that human exposure to the inert compounds contained in the product proposed for use at the concentrations that would result under the following conditions, is not likely to result in an increase in the level of concern for public health. SPECIFIC RECOMMENDATIONS Because it is not possible to predict the nature and extent of Renovate OTF use in the permit application provided for review, the following whole water body use conditions are recommended as default. RENOVATE OTF (flake formulation) No use of the treated water body and its associated outlet stream(s) (for one mile downstream of the effluent) for any purpose (including recreational uses such as boating, fishing and swimming and all domestic uses including toilet flushing) is recommended on the day of application and the entire day after. Recreational uses such as boating, fishing and swimming may resume at the beginning of the second day following application. Domestic use other than drinking and using such waters to prepare food or drink, may resume at the beginning of the second day following application. Drinking and using such waters to prepare food or drink should not resume until the conditions that follow have been met. Forty-eight hours after the initial application of Renovate OTF, representative samples of the treated water body and its outlet stream(s) (within one-quarter mile of the effluent) should be chemically tested to determine if triclopyr is present at less than or equal to 75 ppb. Analysis of multiple samples is necessary in order to account for the influence of many chemical, media and site specific factors. If triclopyr is confirmed to be at or below 75 ppb, full use of the treated water body, its waters and outlet stream(s), including all domestic uses may resume. However, if triclopyr is detected in representative samples from these waters above 75 ppb, an additional 24 hour waiting period should occur during which time the treated water body and its outlet stream(s) (within one mile downstream of the effluent) should again not be used for drinking water or in the preparation of food or drink. At the end of this second 24 hour waiting period, representative samples of the treated water body and its outlet stream(s) (within one-quarter mile downstream of the


effluent) should again be taken and chemically analyzed for triclopyr. This process should be repeated until representative sampling indicates that the level of triclopyr in the treated water body and outlet stream(s) is at or below 75 ppb. Only once residues of triclopyr are confirmed to be below 75 ppb should full use of the treated water body and/or its outlet stream(s) resume. Until full use can be resumed, bottled water should be supplied by the applicant to those who may depend up on the treated water body and/or its outlet stream(s) (within one mile of the effluent) for their domestic drinking water or food and drink preparation water supply. Public notification of property owners and residents of the treated water body areas as well as commercial camps and parents whose children are attending camps which use the water body of concern and/or waters within one contiguous watermile of this water body will occur 30 days prior to application. Water body access areas as well as any nearby campgrounds should be posted.

In 2007 and 2008 decisions regarding spot/partial-lake treatment with Renovate in Lake St. Catherine, Lily Pond and Little Lake, the Department discussed with the Department of Health the recommendation to include the outlet stream of the treated waterbody for one mile downstream in the initial restricted-use area. In those decisions, the two Departments concurred that defining a 3,080-foot area of the northern portion of Lake St. Catherine as the restricted-use area downstream of Lily Pond, and defining all of Little Lake to the outlet dam (5,575 water-feet from the treatment area) as the restricted-use area downstream of the Little Lake treatment area (which was in the northern portion of the lake), would be sufficient to create no more than a negligible risk to public health. These distances exceeded the required setback distances from potable water intakes listed on the Renovate label. Based on this principle, the Department did not include the outlet stream for one mile downstream in the initial restricted-use area for either of the Lake St. Catherine treatments in 2007 and 2008. Restricted areas will be designated similarly for Lake Fairlee during this five-year permit period, based on the annual treatment locations. For the treatment proposed for 2010, the Department intends to require restricted areas approximately three quarters of a mile downstream from the outlet of Lake Fairlee. The Department has determined that 15 days public notification, rather than 30 days public notification, of property owners and residents adjacent to the treated and restricted waterbody areas as well as commercial camps and parents whose children are attending camps that use the waterbodies, will provide adequate notice to protect public health. Based on the above information, the Department finds that the proposed project will pose a negligible risk to public health if permit conditions are followed.

6. Long-range Management Plan Vermont law (10 V.S.A. §1263a) requires that a long-range management plan (IMP) be developed that incorporates a schedule of pesticide minimization before a permit may be issued to use pesticides in Lake Fairlee. The IMP proposed by the Applicant and Co-Applicant combines the use of chemical and non-chemical control methods over five years to manage the infestation of watermilfoil in Lake Fairlee. The goal of the five-year IMP is to effectively control the dense areas of watermilfoil growth with spot/partial-lake chemical treatments using the aquatic herbicide Renovate OTF and non-chemical control methods used simultaneously to control scattered


watermilfoil growth and re-growth to maximize the length of time that watermilfoil can be effectively controlled in the lake and reduce the frequency and scope of follow-up pesticide treatments. In years two through five, early- and late-season watermilfoil surveys will be used to determine if there are areas of dense watermilfoil requiring chemical treatment and the areas where non-chemical control methods – handpulling by divers, diver-operated suction harvesting and bottom barrier installation - will be effective. The Applicant and Co-Applicant do not propose chemical treatment in year two (2011) of the five-year IMP. The Department intends to include year two (2011) of the IMP as one of the years that spot/partial-lake treatment may occur in order to provide maximum flexibility to respond to unexpected watermilfoil abundance and locations. The Applicant provides updates on the Eurasian watermilfoil control program in the Lake Fairlee Association newsletter to increase awareness of the status of the control program and to recruit volunteers to assist with the IMP and spread prevention practices. The Applicant hires individuals to monitor the public boat access area during the summer. These monitors check boats entering and leaving Lake Fairlee to ensure they are not transporting aquatic invasive species, and also educate people about the management efforts underway on the lake and the threat that aquatic invasive species pose to other waterbodies. To effectively evaluate the best follow-up watermilfoil management strategy as the IMP is implemented, the Department intends to require a meeting with the Applicant and Co-Applicant on an annual basis prior to initiation of each phase of the IMP. The Applicant and Co-Applicant have outlined a preliminary budget for the IMP. Full implementation of the five-year plan is estimated to cost $256,200 in 2010 dollars, $169,200 for the chemical component of the plan, and $87,000 for the non-chemical components of the plan. The actual cost will depend on factors such as the amount of area needing spot/partial-lake treatment and the extent and type of non-chemical methods needed. The first year of the IMP is estimated to cost $100,000 for the Renovate treatment and associated activities. Future annual costs for the chemical portion of the IMP are estimated by the Applicant and Co-Applicant to be: year two - $34,700; year three - $27,000; year four - $13,500; and year five - $9,000. Annual costs for non-chemical components in years two through five are estimated by the Applicant to be: year two - $18,250; year three - $21,850; year four - $16,250; and year five - $15,650. By employing all of the components identified above in an integrated fashion over five years, the Applicant and Co-Applicant are seeking to selectively control watermilfoil in Lake Fairlee to restore recreational uses while preserving and promoting the recover

Documents

State of Vermont - Lake Fairlee Associationlakefairlee.org/docs/herbicide_permit_2010.pdf · 2010. 5. 26. · Internet ([email protected]) at least five days prior to each