APPENDIX E
Environmental Laws, Rules and Regulations Relating to Mosquito Control in New York State - Pesticide Use, Habitat Modification, Fish Stocking and Wildlife Collection
Acknowledgments
This manual is the result of the dedicated efforts of the Pesticide Work Group particularly Vincent Palmer Supervising Pesticide Inspector who contributed many extra hours to its timely completion. Special recognition is due to Ray Cowen, DEC Region 1 Director, and the entire Region 1 staff who made vital contributions to the development of this manual. Through the benefit of their experience a document was created that not only addresses pesticide regulations but also includes the other related DEC programs that must be considered when undertaking the subject activities.
Environmental Law, Rules and Regulations Relating to Mosquito Control in New York State - Pesticide Use, Habitat Modification, Fish Stocking and Wildlife Collection
EXECUTIVE SUMMARY
Since the West Nile arbovirus was discovered in the downstate area in the late summer of 1999, considerable attention has focused on pesticide-related activities that target control of the vector — the larval and adult stages of mosquitoes, primarily the Northern Household Mosquito. The purpose of this manual is to establish a comprehensive and consistent Statewide approach to complying with the requirements of environmental laws, rules and regulations of New York State as they relate to all activities associated with a mosquito abatement program, pesticidal and non-pesticidal. In addition, the manner in which these rules and regulations are influenced by public health emergencies is also addressed. Discussions in this manual do not extend to activities regulated by other agencies including permitting requirements of federal agencies responsible for the management of lands under their control.
Each of the major subjects covered in the Executive Summary are addressed in greater detail in the complete manual.
Impacts of Health Emergency on Environmental Laws & Regulations
Health emergencies can be declared by the New York State Department of Health (NYSDOH) in response to requests from County government. When a health emergency exists, authorization can be granted that influence some permit and regulatory requirements. However, these emergency authorizations are limited to the specific county or other area affected by the emergency, and applies only to the first season in which the emergency occurs. Furthermore, they do not influence all permits and regulatory requirements.
A public health emergency can influence Article 24/Part 663 Freshwater Wetland Permits; Article 25/Part 661 Tidal Wetland Permits; Special Wildlife Permits, and SEQRA. Public health emergencies have no influence on the other regulatory and permit requirements associated with mosquito abatement programs.
The following discussion of the New York State requirements associated with mosquito abatement note the influence of public health emergencies where applicable:
ECL ARTICLE 24/PART 663 FRESHWATER WETLAND PERMITS — Pesticide Use and Habitat Modification activities are subject to Article 24/Part 663 Freshwater Wetland Permits. With respect to pesticide use, these permits are often necessary regardless of whether an Article 15/Part 329 Aquatic Pesticide Permit is required. Habitat Modification activities, such as water management or draining a wetland area, are also regulated activities subject to Article 24/Part 663 Freshwater Wetland Permit requirements.
Certain activities are allowed under a public health threat or a health emergency that would not be allowed under a routine mosquito control program.
The agency proposing to conduct regulated mosquito control activities is charged with evaluating impacts associated with regulated activities in a stepwise fashion. Specifically, if alternatives exist which allow the applicant to avoid impacts to the wetland, the Department will require that the best alternative be used. Since quite often all impacts cannot be avoided, alternatives that minimize impacts will be required. If alternatives to the proposed activity cannot be found, and impacts to the wetland and its benefits are severe enough, the Department can require that the applicant mitigate damages.
In all but exceptional circumstances, the Department has the ability to determine and require the best alternatives for control.
Habitat modification should be considered only as a last resort. The Department generally does not support the alteration of freshwater habitats if other alternatives exist. Permanent alteration or loss of wetlands is not consistent with the Environmental Conservation Law. It would be difficult to imagine circumstances that would warrant such an extreme action especially with all of the alternatives that exist in today's mosquito control arsenal.
In addition, Article 24/Part 663 Freshwater Wetland Permits are included under the umbrella of the Uniform Procedures Act. Uniform Procedures Act Emergency Authorization procedures authorize only public agencies to undertake emergency actions if prior notification to the Department is not possible.
If regulated freshwater wetlands or their adjacent areas are potential target sites to receive application of larvicide, pupicide or adulticide in connection with any mosquito control activities, the applicator or health department employee responsible for such proposed use of pesticide must contact the appropriate DEC Regional Permit Administrator to pursue compliance with Article 24 of the ECL, and Parts 621 and 663 of Title 6 of the NYCRR.
ECL ARTICLE 25/PART 661 TIDAL WETLAND PERMITS — Pesticide Use and Habitat Modification activities, such as water management, are also regulated activities subject to Article 25/Part 661 Tidal Wetland Permit requirements.
In cases in which an Article 15/Part 329 Aquatic Pesticide Permit is required, and has been issued, the action is regarded as "otherwise authorized by law"; and a separate Article 25/Part 661 Tidal Wetlands Permit is not issued.
Article 25/Part 661 Tidal Wetland Permits are also included under the umbrella of the 6 NYCRR Part 621 UPA regulations. Consequently, only public agencies are authorized to undertake emergency actions if prior notification to the Department is not possible.
If regulated tidal wetlands or their adjacent areas are potential target sites to receive application of larvicide, pupicide or adulticide in connection with any mosquito control activities, the applicator or health department employee responsible for such proposed use of pesticide must contact the appropriate DEC Regional Permit Administrator to pursue compliance with Article 25 of the ECL, and Parts 621 and 661 of Title 6 of the NYCRR.
SPECIAL WILDLIFE PERMIT — The Environmental Conservation Law of
New York State (ECL) contains provisions which regulate the taking of Wildlife. In addition, the State Sanitary Code and Public Health Law contain provisions authorizing local and state health agencies to diligently investigate and ascertain the existence and causes of disease outbreaks.
In a health emergency situation, State and local health agencies have the authority to collect wildlife in support of an investigation, without obtaining special licenses issued by the Department of Environmental Conservation.
STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) — Mosquito surveillance and control activities are subject to review under the State Environmental Quality Review Act (SEQRA) if any state or local agency has the authority to issue a discretionary permit, or other type of approval for that action. SEQRA also applies if an agency funds or directly undertakes a project.
When a public health emergency exists, an Environmental Impact Statement (EIS) or Negative Declaration (Neg Dec) is not required. However, the local agency must establish a record of the decision to undertake the activity.
6 NYCRR PART 325 PESTICIDE APPLICATOR CERTIFICATION REQUIREMENTS — Any individual engaged in the commercial application of pesticides must be a Certified Pesticide Applicator, a Certified Commercial Pesticide Technician, or Commercial Apprentice. An individual engaged in the private application of restricted pesticides must be certified as a Private Applicator, or be working under the direct supervision of a Certified Private Applicator.
AGENCY AND BUSINESS REGISTRATION is required of each agency that applies mosquito larvicide, pupicide or adulticide, and each business offering, advertising or providing the services of commercial application of such mosquitocides.
NEW YORK STATE PESTICIDE PRODUCT REGISTRATION must be in effect on the date each mosquitocide is in use. Any pesticide must be registered with the New York State Department of Environmental Conservation prior to its sale and use in New York State. Any sale or use of non-NYS-registered pesticide is an unlawful act that subjects the offending party to administrative, civil or criminal sanctions.
ECL ARTICLE 15/PART 329 AQUATIC PESTICIDE PERMITS are required if any mosquito larvicide or pupicide is to be used in or over any surface waters of the State, with limited exception. Waters are exempt from Article 15/Part 329 Aquatic Pesticide Permit requirements only if they meet all four specific criteria presented in the manual.
Application of adulticides in non-aquatic sites does not constitute use of pesticide in or over surface waters; therefore, such pesticide use is not subject to Article 15/Part 329 Aquatic Pesticide Permit requirements.
6 NYCRR PART 190 TEMPORARY REVOCABLE PERMITS, when required, are handled in concert with Article 15/Part 329 Aquatic Pesticide Permits.
With respect to the use of larvicide and pupicide in surface waters, the Regional Natural Resources Supervisor indicates authorization to treat such lands by counter-signing the Article 15/Part 329 Aquatic Pesticide Permit. Any concerns related to the proposed action are incorporated as additional terms and conditions of the Article 15/Part 329 Aquatic Pesticide Permit.
With respect to the proposed use of larvicide or pupicide that is not subject to Article 15/Part 329 Aquatic Pesticide Permit requirements, or the proposed use of any adulticides in or over State lands under the jurisdiction of the Department of Environmental Conservation, the applicator must contact the Regional Land Manager to discuss making Application for Revocable Permit for the Temporary Use of State Land.
PESTICIDE LABELING REQUIREMENTS — All pesticide label directions, precautions and restrictions must be followed. This is mandated under both federal and State law. Interpretations and clarifications of label requirements i.e., acceptable wind speeds, acceptable target sites will be provided by the Department when necessary.
PRE-APPLICATION LABEL INFORMATION NOTIFICATION of both larviciding, pupiciding and adulticiding activities are included in the manual. It presents options for the prior notification for the different types of pesticide applications.
DAILY USE RECORDS must be kept on a daily basis and created contemporaneously with time of application (to provide a true and accurate account of total amount used at each target site). Required elements can be found in the manual. In contrast to annual reporting requirements, daily use records are not required to be kept on a specific form. However, the Department has available a recommended form for recording each instance of pesticide use.
ANNUAL REPORTS of pesticides used must be filed by February 1 of each year, and must account for every instance of pesticide use during the previous calendar year.
COMMERCIAL LAWN APPLICATION CONTRACTS are required when providing a barrier or perimeter delivery of mosquito adulticide, but are not required when applying adulticide by ultra-low volume aerosol or fog delivery, or when applying larvicide or pupicide to surface waters. This contract requirement does not apply to the application of pesticides by or on behalf of agencies; therefore, State, regional and local municipal mosquito control programs applying pesticides to ground, trees and shrubs are exempt from this requirement.
VISUAL NOTIFICATION is required when providing a barrier or perimeter delivery of mosquito adulticide, but is not required when applying adulticide by ultra-low volume aerosol or fog delivery, or when applying larvicide or pupicide to surface waters. This visual notification requirement does apply to the application of pesticides by or on behalf of agencies when such application is within 100 feet of a dwelling, multiple dwelling, public building or public park; therefore, State, regional and local municipal mosquito control programs applying pesticides to ground, trees and shrubs must comply with this requirement.
FISH STOCKING PERMIT — Fish or fish eggs shall be placed in any waters of the State unless a permit is first obtained from the Department. All fish stocking permits, including those for mosquito control, are reviewed and issued on a case-by-case basis by the Regional Fisheries Manager in each DEC Region.
COMPLAINT RESPONSE — The Department will fully investigate complaints relating to the use of pesticides in connection with mosquito control. Violators of pesticide law, rule or regulation are subject to administrative, civil and criminal sanctions. An emergency situation does not reduce, suspend or otherwise modify the Department's enforcement responsibilities.
This information regarding State requirements pertains to any individual or party engaging in activities identified in this guide. For example, the information relating to pesticide use is as relevant to the independent commercial pesticide applicator performing nuisance mosquito control at a single residential property as it is to the municipality planning a large-scale vector control program that involves community-wide, county-wide, or city-wide operation associated with the threat of arboviral transmission.
Environmental Law, Rules and Regulations Relating to Mosquito Control in New York State - Pesticide Use, Habitat Modification, Fish Stocking and Wildlife Collection
March 30, 2000
TABLE OF CONTENTS
COMPLAINT RESPONSE
Appendix A: Contacts at the New York State Department of Environmental Conservation
Appendix B: Article 33 of the Environmental Conservation Law of New York State, and Portions of Article 15 and 71
Appendix C: Part 325 of Title 6 of the New York Codes, Rules and Regulations
Appendix D: Part 326 of Title 6 of the New York Codes, Rules and Regulations
Appendix E: Part 329 of Title 6 of the New York Codes, Rules and Regulations
Appendix F: Summary of Certification Requirements Associated with Use of Mosquitocides
Appendix G: Mosquito larvicides presently registered for use in New York State, and corresponding expiration dates
Appendix H: Instructions to Complete an Article 15/Part 329 Aquatic Pesticide Permit
Appendix I: Application for Article 15/Part 329 Aquatic Pesticide Permit
Appendix J: Technical Administrative Guidance Memorandum (TAGM) No. 2007 - Aquatic Pesticide Permit Program
Appendix K: Sample Article 15/Part 329 Aquatic Pesticide Permit
Appendix L: Sample of Article 15/Part 329 Aquatic Pesticide Permit
Appendix M: Tolerances for Residues of the Mosquito Adulticides Malathion, Naled, Permethrin, Piperonyl Butoxide, Pyrethrins, and Resmethrin.
Appendix N: List of 144 Mosquitocides Registered for Use in New York State for Community-Wide Programs, and for Use by Commercial Applicators, Technicians and Apprentices Treating Individual Properties.
Appendix O: Listing and Labeling of 43 of the Most Commonly Used Commercial Mosquitocides.
Appendix P: Application for Registration As a Pesticide Business/Agency, and the Associated Information and Instructions
Appendix Q: List of Endangered, Threatened and Special Concern Fish and Wildlife Species of New York State
Appendix R: Record-Keeping Form for Daily Pesticide Use
Appendix S: Technical Administrative Guidance Memorandum (TAGM) No. DSHM-97-05 Pesticide Reporting Law
Appendix T: Technical Administrative Guidance Memorandum (TAGM) No. DSHM-99-10 Pesticide Reporting Law
Appendix U: Annual Reporting Forms
Appendix V: Commercial Lawn Application Guidance
Appendix W: Negative Declaration Input for Bacillus thuringiensis var. israelensis
Appendix X: Negative Declaration Input for Bacillus sphaericus
Appendix Y: Negative Declaration Input for Methoprene
Appendix Z: Negative Declaration Input for Monomolecular Surface Film
Appendix AA: Bureau of Fisheries Application for a Permit to Stock Fish
Appendix AB: CDC's Guidelines for Surveillance, Prevention, and Control of West Nile Virus Infection — United States
This information pertains to any individual or party engaging in the activities identified in this guide. For example, the information relating to pesticide use is as relevant to the independent commercial pesticide applicator performing nuisance mosquito control at a single residential property as it is for the municipality planning large-scale vector control activities that involve community-wide, county-wide, or city-wide operations associated with the threat of arboviral disease transmission.
Since the West Nile virus was discovered in the downstate area in the late summer of 1999, considerable attention has focused on pesticide-related activities that target control of the vector - the larval and adult stages of mosquitoes, primarily Culex pipiens pipiens Linnaeus, the Northern Household Mosquito. Referring to this document when considering mosquito surveillance and control activities will provide the reader with information needed to comply with the environmental laws, rules and regulations of New York State. By adhering to the requirements set forth in this manual, those engaged in mosquito surveillance and control activities to combat West Nile virus will be protective of human health and the environment, and will be in compliance with applicable laws, rules and regulations.
The uniform regulatory procedures summarized below take into consideration the information contained in the CDC document. This discussion of New York State environmental laws, rules and regulations complements the CDC guidelines for prevention and control.
Any influence an emergency situation has on environmental laws, rules and regulations is limited by two important factors. One, the influence is limited to the specific area affected by the emergency. Two, the influence applies only to the first season in which the emergency occurs, as further discussed below. The Department does not recognize a "continuing emergency" that extends beyond the first year it is so classified, nor does it recognize the emergency as existing in municipalities adjacent to, or near the area where the emergency exists.
This is also the case with respect to (1) the exclusions to activities subject to Article 24/Part 663 Freshwater Wetlands Permits found at ECL §24-0701(5) and 6NYCRR Part 663.2(z)(3); (2) the exclusions to activities subject to Article 25/Part 661 Tidal Wetlands Permits found at ECL §25-0401(4), and (3) the emergency authorizations found in the Uniform Procedures Regulations found at 6NYCRR Part 621.
Although 10NYCRR Part 44 (State Aid for Approved Vector Surveillance and Control Programs) recognizes a "public health threat" as extending beyond a single year under certain circumstances, such recognition relates to conditions under which a municipality is eligible for State aid reimbursement. Such a situation is not to be viewed as a "continuing emergency" for the purposes of determining whether surveillance and control activities are subject to the environmental laws, rules and regulations of the State.
Mosquito surveillance and control activities are exempt from certain requirements of environmental law, rule and regulation, only during the season in which the emergency is based on current activity of an arthropod-borne disease. This is determined by the presence of human vector-borne disease or the presence of disease-specific etiologic agents in a known or suspected vector, and by the substantiation by specific risk assessment activities described in 10NYCRR Part 44.51.
Mosquito surveillance and control activities are not exempt from subject requirements of environmental law, rule and regulation, during any season in which those activities are associated with the historical risk an arthropod vector-borne disease. For State aid reimbursement purposes, the New York State Department of Health identifies a historical risk as the presence of human vector-borne disease or the presence of disease-specific etiologic agents in a known or suspected vector once in the previous three years, or two or more times in the previous ten years. This presence must be in combination with the finding (based on risk assessment), that the conditions pose a substantial risk to human health.
In each of the individual sections of this manual, the influence of an emergency is explained. In addition to individual requirements relating to each permit discussed in this manual, the provisions of 6NYCRR Part 621.12 of the Uniform Procedures Regulations provide general and specific requirements for all permit applications covered by these regulations. These provisions do not relate to Article 15/Part 329 Aquatic Pesticide Permits, Article 11 Fish Stocking Permits, or Special Wildlife Permits. They do relate to Article 24/Part 663 Freshwater Wetlands Permits, Article 25/Part 661 Tidal Wetlands Permits, and Part 190 Temporary Revocable Permits.
With respect to emergencies, Part 621.12 of the Uniform Procedures Act (UPA) regulations states:
Emergency authorizations. For projects carried out in response to an emergency, the following procedures shall apply:
(a) All procedural requirements of this Part related to application processing are waived, except as provided in this section.
(b) Prior to commencement of the project, the department must be notified and must determine whether to grant approval pursuant to subdivision (c) of this section. If circumstances warrant immediate action by a state or local government agency and prior notice to the department is not possible, then the department must be notified by that agency within 24 hours after commencement of the project and must subsequently respond. In either case notification may be by certified mail, telegram, mailgram or other written form of communication. This notification must be followed within 24 hours by submission of the following information:
(1) a description of the proposed action;
(2) location map and plan of the proposed project; and
(3) reasons why the situation is an emergency.
All notifications, requests for authorizations and information submitted to support such requests shall be sent to the appropriate regional permit administrator as listed in Appendix 1.
(c) Prior to issuing an emergency authorization, the department must:
(1) make a finding of emergency stating why immediate action is needed and the consequences if the action is not immediately taken; and
(2) determine from the available information that the project will be carried out in a manner that will cause the least change, modification or adverse impact to life, health, property or natural resources. The department may attach conditions to emergency authorizations and enforce them to assure compliance with the authorization and other regulatory standards that would apply to such actions absent an emergency.
(d) The department will issue a decision granting or denying the emergency authorization within two business days of receipt of the information required in subdivision (b) of this section.
(e) An emergency authorization may be issued for a term not to exceed 30 calendar days. It may be renewed for one term not to exceed 30 calendar days. On or before 60 calendar days after the department's original approval, the project must be concluded or the authorized person must file with the department a complete application for any necessary permit and be subject to all the procedural requirements of this Part.
(f) The department may issue an order summarily suspending either an action begun before the grant of an emergency authorization, if the department finds that no emergency exists, or an emergency authorization, if the department finds that an action is no longer immediately necessary to protect life, health, property, or natural resources. Such action must cease immediately upon receipt of the order by the responsible party.
(g) A person who violates any provision of this section or any term or condition of an emergency authorization will be ordered to perform any necessary restoration or mitigation of environmental damage resulting from that action. In the event that the person fails to undertake the work ordered, the department or its agent may enter upon the lands or waters where the action took place and perform restoration or other activities necessary to mitigate or eliminate environmental damage caused by the action. If the department undertakes the remedial action, or causes it to be undertaken, the full cost for the work will be charged to and become the responsibility of the person who conducted the action.
In addition, Type II emergency provisions found in 6NYCRR Part 617.5(c)(33) of the State Environmental Quality Review Act (SEQRA) regulations identify conditions related to any agency when they invoke this provision. For example, the agency needs to provide (and have on file) ample written justification and should have the appropriate, responsible agency official sign a letter explaining justification for invoking the Type II provision. See the section relating to SEQRA for additional information.
Any individual engaged in the commercial application of pesticides must be a Certified Pesticide Applicator, a Certified Commercial Pesticide Technician, or Commercial Apprentice. An individual engaged in the private application of restricted pesticides must be a Certified Private Applicator, or must work under the direct supervision of a Certified Private Applicator. Depending on the situation, an individual may engage in the residential application(2) of unclassified (general use) pesticide without certification authorization.
Use of pesticide devices(3) does not require certification authorization.
There are certain eligibility requirements that must be met before an individual can be admitted to take a certification examination. Eligibility requirements for Commercial Pesticide Applicator and Private Pesticide Applicator are detailed at 6NYCRR Part 325.8. Those for Commercial Pesticide Technician are detailed at 6NYCRR Part 325.9. A summary of these requirements appears in Appendix F.
The eligibility requirements for a Commercial Apprentice are detailed at 6NYCRR Part 325.10.
Applicators certified by other states should contact the Department regarding reciprocity possibilities.
Appendix C consists of a copy of the publication entitled: "Part 325 Rules and Regulations Relating to the Application of Pesticides, Revised January 21, 2000."
For information about registering for an exam, and for a list of parties that offer training approved by the Department of Environmental Conservation (DEC), please contact your regional office of the DEC, listed in Appendix A.
Below is a summary of certification requirements as they relate to use of mosquito larvicide, pupicide and adulticide by (A) Certified Commercial Pesticide Applicators; (B) Certified Commercial Technicians; (C) Commercial Pesticide Apprentices; (D) Certified Private Applicators; (E) Non-Certified Private Applicators, and (F) homeowners and other non-certified individuals engaged in residential application of pesticide.
Applicator certification requirements are not reduced, suspended or otherwise modified as the result of an emergency situation.
Certified Commercial Pesticide Technicians engaged in the ground application of microbial larvicide,(5) who have not successfully completed a Department-approved, 30-hour certification course related to this specific type of application, can only engage in such activity if working under the on-site direct supervision(6)
6NYCRR Part 325.7(d)(3) - During pesticide use by an individual under the supervision of a certified private pesticide applicator, a technician, or an apprentice, that requires on-site direct supervision, the certified pesticide applicator must be physically present at the application site and within voice contact of the individual being supervised . . . . of a Certified Commercial Pesticide Applicator.(7)
Certified Commercial Pesticide Technicians engaged in the ground application of unclassified(8) non-microbial larvicide(9) and pupicide can operate without working under the on-site or off-site direct supervision of a Certified Commercial Pesticide Applicator.
Certified Commercial Pesticide Technicians engaged in the ground application of restricted non-microbial larvicide, such as the biochemical(10) larvicide methoprene (Altosid), and restricted pupicide such as a monomolecular surface film (Arosurf® MSF and Agnique™ MMF, containing the active ingredient Poly(oxy-1,2-ethanediyl), a -isooctadecyl- w -hydroxy/hydroxyl), are required to work under the on-site direct supervision of a Certified Commercial Pesticide Applicator, except that on-site direct supervision is not required when a Certified Commercial Pesticide Technician applies larvicide or pupicide to temporary pools of water (e.g., snow melt pools) that do not have an outlet. This exception is adopted from provisions relating to the lower tier of commercial applicator classification - that of Commercial Pesticide Apprentice expressed at 6NYCRR Part 325.7(d)(2)(i)(b). For purposes of this certification provision, containerized waters are considered temporary pools of water.
For off-site supervision to apply, however, these containerized waters must not have an outlet. Such containerized waters would include bird baths, flower pots, tree holes, rain barrels, roof gutters, unused swimming pools, old automobile tires, and water gardens.
Certified Commercial Pesticide Technicians engaged in the ground application of unclassified adulticide can operate without working under the on-site or off-site direct supervision of a Certified Commercial Pesticide Applicator.
Certified Commercial Pesticide Technicians engaged in the ground application of restricted adulticide must be working under the off-site (or on-site) direct supervision(11) of a Certified Commercial Pesticide Applicator.
Certified Commercial Pesticide Technicians engaged in the use of any larvicide, pupicide or adulticide that bears a label requiring on-site supervision must work under the on-site direct supervision of a Certified Commercial Pesticide Applicator in compliance with such label directions.
A Certified Commercial Pesticide Technician engaged in the aerial application of any larvicide, pupicide or restricted adulticide must be working under the on-site direct supervision of a Certified Commercial Pesticide Applicator. If applying unclassified adulticide by aerial delivery, a Certified Commercial Pesticide Technician can work under the off-site direct supervision of a Certified Commercial Pesticide Applicator, but the Certified Commercial Pesticide Technician must maintain radio contact with the Certified Commercial Pesticide Applicator.
Certified Commercial Pesticide Technicians are subject to the same category and subcategory interpretations discussed in Section III. A. - Applicator Certification.
| CERTIFIED COMMERCIAL PESTICIDE TECHNICIAN | ||
|---|---|---|
| No Direct Supervision | Off-Site Direct Supervision | On-Site Direct Supervision |
| microbial larvicide w/ 30-hr. course by ground 325.7(a)(7)/325.7(d)(1)(iv) |
any larvicide to temporary pool of water (including containerized water) without outlet 325.7(d)(2)(i)(b) |
microbial larvicide w/o 30-hr. course 325.7(a)(7) |
| unclassified non-microbial larvicide by ground (none NYS-registered for use in surface waters) 325.7(a)(1) |
restricted adulticide by ground 325.7(a)(2)/325.7(d)(4) |
any pupicide or non-microbial larvicide 325.7(d)(1)(iv) |
| unclassified adulticide by ground 325.7(a)(1) |
aerial delivery of unclassified adulticide 325.7(d)(6)/325.7(d)(4) |
any label requiring on-site direct supervision 325.7(d)(1)(iii) |
| aerial delivery of any larvicide, pupicide or restricted adulticide 325.7(d)(4)/325.7(d)(6) |
||
Commercial Pesticide Apprentices engaged in the use of any mosquito adulticide must work under the on-site or off-site direct supervision of a Certified Commercial Pesticide Applicator.
When required to work under the off-site direct supervision of a Certified Commercial Pesticide Applicator, the certified applicator must ensure that the Commercial Pesticide Apprentice has a means to contact and is able to contact the supervising Certified Commercial Pesticide Applicator within a reasonable time not to exceed 30 minutes.
Commercial Pesticide Apprentices are prohibited from engaging in the aerial application of any mosquito larvicide, pupicide or adulticide.
Commercial Pesticide Apprentices engaged in the use of any larvicide, pupicide or adulticide that bears a label requiring on-site supervision must work under the on-site direct supervision of a Certified Commercial Pesticide Applicator in compliance with such label directions.
Commercial Pesticide Apprentices engaged in the use of any mosquitocide within or on the premises of licensed day care facilities, elementary and secondary schools, and hospitals must work under the on-site direct supervision of a Certified Commercial Pesticide Applicator.
| COMMERCIAL PESTICIDE APPRENTICE | ||
|---|---|---|
| No Direct Supervision | Off-Site Direct Supervision | On-Site Direct Supervision |
| any larvicide to temporary pool of water (including containerized water) without outlet 325.7(d)(2)(i)(b) |
any larvicide or pupicide 325.7(a)(3)/325.7(d)(2)(i)(b) |
|
| any adulticide 325.7(a)(3)/325.7(d)(4) |
federally restricted 325.7(a)(3)/325.7(d)(2)(i)(a) |
|
| any label requiring on-site 325.7(a)(3)/325.7(d)(2)(i)(c) |
||
| any mosquitocide within or on the premises of licensed day care facilities, elementary and secondary schools and hospitals | ||
| aerial application is prohibited 325.7(d)(2)(iii) | ||
The characteristics of the particular body of water will determine if any of the permits discussed in this manual are required. See individual sections of this report for further information about the permits.
Non-Certified Private Applicators are authorized to engage in the use of restricted use larvicide, pupicide and adulticide while working under the direct supervision of a Certified Private Applicator, but only if such use is associated with the production of an agricultural crop, or is related to the care of agricultural animals.
At present, there are no unclassified pupicides registered for use in New York State. A single unclassified larvicide is presently registered for residential application in New York State — Mosquito Dunks (EPA Reg. No. 6218-47). Application of this microbial larvicide (a.i.: Bacillus thuringiensis var. israelensis) is restricted to small areas of standing water located on residential property owned or leased by the individual applying the larvicide.
Examples of labeled target sites include containerized standing water found near the home such as bird baths, flower pots, tree holes, rain barrels, roof gutters, unused swimming pools, old automobile tires, and water gardens. In addition, residential application of Mosquito Dunks (EPA Reg. No. 6218-47) also extends to small temporary pools (e.g., snow melt pools) that are wholly situated on residential property owned or leased by the individual making application.
Mosquito Dunks (EPA Reg. No. 6218-47) can only be used to treat containerized water and small temporary pools of standing water around the home. They are prohibited from use on any commercial, institutional, industrial, recreational, agricultural, or any other non-residential properties.
A Certified Applicator is also authorized to apply Mosquito Dunks (EPA Reg. No. 6218-47) to a limited number of residential target sites as indicated. Other larvicides are also available to the Certified Applicator seeking to manage a mosquito larvae population on residential property.
Regardless of who applies Mosquito Dunks (EPA Reg. No. 6218-47), an Article 15/Part 329 Aquatic Pesticide Permit is required for any temporary pool that measures one acre or more in size; for any temporary pool that has an outlet to other waters; for any temporary pool that contains fish, and for any temporary pool that is not wholly situated on property privately owned or leased by the individual making or authorizing the application.
Regardless of who applies Mosquito Dunks (EPA Reg. No. 6218-47), an Article 24/Part 663 Freshwater Wetlands Permit or Letter of Permission may be required if the temporary pool is located in a regulated freshwater wetland or its adjacent area; an Article 25/Part 661 Tidal Wetlands Permit may be required if the temporary pool is located in a tidal wetland or its adjacent area, and a Part 190 Temporary Revocable Permit may be required if the temporary pool is located in lands under the jurisdiction of the Department of Environmental Conservation. See those sections of this manual for further information.
Pesticides "labeled for direct application to or in surface waters" are classified as restricted use. For the purposes of this provision of the 6NYCRR Part 326 regulations, small temporary pools of water (i.e., snow melt pools) that do not have an outlet, that do not contain fish, and that are located on residential property, are not regarded as surface waters for the purposes of this provision of the 6NYCRR Part 326 regulations. However, they do constitute waters of the State subject to other statutory and regulatory requirements such as Article 15/Part 329 Aquatic Pesticide Permit.
To apply for a DEC registration as a Pesticide Business or Agency, a business or agency using pesticides in Category 5-Aquatic Pest Control, Category 7-Industrial, Institutional and Structural Pest Control, or Category 11-Aerial must employ at least one Certified Commercial Pesticide Applicator who is certified in the appropriate categories.(17) To apply for registration as a Pesticide Business or Agency, a business or agency using pesticides in Category 8-Public Health need only employ a Certified Commercial Pesticide Technician if engaged only in the use of unclassified mosquitocides.
Appendix P consists of a Pesticide Business/Agency Registration Application (Form No.44-99-1 (11-99), and the associated Directions for Pesticide Business/Agency Registration Application.
Agency and business registration requirements are not reduced, suspended or modified as the result of an emergency situation.
This is an important consideration when Article 15/Part 329 Aquatic Pesticide Permits are issued to authorize use of mosquito larvicide and pupicide on a seasonal basis. The terms and conditions of each Article 15/Part 329 Aquatic Pesticide Permit will contain a statement identifying the acceptance date of the associated label of the specific pesticide permitted for use, as well as the expiration date if the registration is due to expire during the period the permit authorizes product use. The only product that can be used under the authority of an Article 15/Part 329 Aquatic Pesticide Permit is that which bears the exact same label as the one attached to the permit. When an applicant proposes to use more than one pesticide, a separate application for permit must be submitted for each product. Appendices K and L consist of two examples of permits issued during the 1999 season.
Appendix O consists of an alphabetized listing and the labeling of 43 of the mosquitocides most likely to be used during the upcoming season.
Appendix N identifies 144 mosquitocides registered for use in New York State as of March 2000. The corresponding expiration dates of each of these mosquitocides are also indicated. Products identified in Appendices N and O are those labeled for use in community-wide control programs, and for use by commercial applicators treating individual properties. Keep in mind that pesticide product registrations are renewable on a two-year cycle. A copy of the product label accepted for use in New York State will be attached to, and made part of, each Article 15/Part 329 Aquatic Pesticide Permit. Use inspections conducted by DEC staff will include a verbatim check to determine whether the label in actual use is the same as that accepted for registration by the Department, and the same as that which was attached to, and made part of, the corresponding Article 15/Part 329 Aquatic Pesticide Permit.
Pesticide registration requirements are not reduced, suspended or modified as the result of an emergency situation; however, the following situations may occur:
To approve an Emergency Exemption, the EPA must find that the pesticide use poses no unreasonable adverse effects and that there is a reasonable certainty of no harm to human health and the environment.
An Emergency Exemption can only be issued by the EPA and only under emergency conditions. It is not envisioned that such an Emergency Exemption would be needed in connection with control efforts directed at the West Nile virus situation, given the number of mosquito products currently available. However, if there is any indication that a product that is not federally-registered might be needed, it should be brought to the attention of the Pesticide Management Bureau of this Department as quickly as possible. That unit can be reached at: New York State Department of Environmental Conservation, Division of Solid and Hazardous Materials, Pesticide Product Registration Section, 50 Wolf Road, Albany, New York 12233-7254, Attention: Maureen Serafini, Section Supervisor; (518) 457-7446.
Exempt waters are those surface waters that meet all of the following criteria:
(1) lie wholly within the boundaries of lands privately owned or leased by the individual making or authorizing treatment, AND
(2) measure one acre or less in size, AND
(3) have no outlet to other waters, AND
(4) are temporary ponds, or are ponds that do not contain fish.
Waters are exempt from Article 15/Part 329 Aquatic Pesticide Permit requirements only if they meet all four criteria. Waters that do not meet all four criteria are subject to Article 15/Part 329 Aquatic Pesticide Permit requirements. Examples of waters that are subject to Article 15/Part 329 Aquatic Pesticide Permit requirements - if they do not meet all four of the above-referenced criteria, include snow melt pools; sumps; recharge basins; roadside swales; man-made ornamental ponds; fresh and tidal wetlands and their adjacent areas, catch basins and storm drains.
Catch basins and storm drains that divert collected water through a sewer network that terminates at a wastewater treatment facility (21) are viewed differently during the application review process than those catch basins that divert water to a wetland area, recharge basin, sump, or similar surface area.
Containerized waters are not subject to Article 15/Part 329 Aquatic Pesticide Permit and include bird baths; flower pots; tree holes; rain barrels; roof gutters; unused swimming pools; old automobile tires, and water gardens. Structural accumulations of water found on a rooftop or flooded basements are not subject to Article 15/Part 329 Aquatic Pesticide Permit.
Note that waters (other than containerized and structural waters identified in the foregoing paragraph) which are exempt from Article 15/Part 329 Aquatic Pesticide Permit requirements may nevertheless be subject to Article 24/Part 663 Freshwater Wetlands Permit, Article 25/Part 661 Tidal Wetlands Permit, and 6NYCRR Part 190 Temporary Revocable Permit (TRP) requirements. Note that Article 24/Part 663 and Article 25/Part 661 Permits are, in turn, governed by Uniform Procedures Act (UPA) regulations expressed at 6NYCRR 621, which control the application procedures and review requirements.
| Applications for permits governed by the Uniform Procedures Act (UPA) and its implementing regulations (ECL §70-0107 and 6NYCRR Part 621) are submitted to the Regional Permit Administrator. These include: |
|
Applications for permits not governed by the UPA and its implementing regulations are processed as follows: |
|
The application of adulticide by ultra-low volume (ULV) aerosol or fog space spray is prohibited in or over waters of the State. Ultra-low volume (ULV) aerosol or fog delivery of adulticide in non-aquatic sites would therefore not constitute use of pesticide in or over surface waters and would not be subject to Article 15/Part 329 Aquatic Pesticide Permit requirements. Application of adulticide in or over waters of the State would constitute a violation of federal and State law. As stated in 6NYCRR §329.3(b)(1),
These regulations permit control or elimination of biting insects whose life history involves an aquatic stage (e.g., mosquitoes, black flies, etc.) and which may be detrimental to the comfort and well-being of man, under such stipulated conditions as to protect the waters for the best usages assigned to them and the public health, safety and welfare, and terrestrial and aquatic life or the growth and propagation thereof, other than aquatic insects intended to be controlled or eliminated. These regulations do not apply to space treatment or residual treatment for controlling adult mosquitoes over land. However, any treatment resulting in direct entry of these chemicals into waters shall be deemed to be in violation of these regulations if the permit herein required has not been obtained.
"Lands privately owned or leased by the individual making or authorizing . . . treatment" does not extend to property owned by a corporation, association, organization, congregation, partnership, agency, municipality, or similar entity.
To be considered an ultra-low volume (ULV) aerosol or fog space spray, the pesticide must be delivered in accordance with label directions for ultra-low volume application. Application equipment must be capable of producing the droplet spectrum described on the label of the pesticide in use. Particle size is the description of the size of the individual spray droplets that comprise a spray pattern. Particles are measured in microns (micrometers).
If the size of individual droplets exceeds the measurement indicated by label directions, or if the percentages of droplet size ratios are exceeded, the application is considered a barrier or perimeter spray that leaves a residual deposit on vegetation and other surfaces in the target zone.
Consider the label directions for the following three adulticide examples:
FYFANON© ULV Insecticide (EPA Reg. No. 67760-34) - "1. The Mass Mean Diameter (MMD) of the droplets should not exceed 17 microns. The MMD is the drop diameter which divides the spray volume into two equal parts; i.e., 50% of the volume are drop sizes below the MMD and 50% are above the MMD. 2. Spray droplets should not exceed 32 microns in size. Three percent of the spray droplets (6 droplets out of 200) can exceed 32 microns, providing the MMD does not exceed 17 microns and no droplets exceed a maximum of 48 microns. Larger droplets, when transported by natural air currents, impinge more readily on objects in their pathway and will permanently damage automobile-type paints. 3. More than one-half of the total spray mass must consist of droplets in the 6 to 18 micron range to achieve adequate dispersal of insecticide over a 300-foot swath. 4. A minimum of two-thirds, preferably four-fifths of the total spray mass must consist of droplets not exceeding 24 microns in range."
Clarke Anvil® 10+10 ULV (EPA Reg. No. 1021-1688-8329) - "Ground ULV Application . . . may be applied undiluted with a non-thermal ULV portable 'backpack' spray unit capable of delivering particles in the 5 to 25 micron range." "Aerial applications should be done by suitable aerial ULV equipment capable of producing droplets with a MMD of 50 microns or less with no more than 2.5% exceeding 100 microns."
Scourge® Insecticide with SBP-1382®/Piperonyl Butoxide 4% + 12% MF Formula II (EPA Reg. No. 432-716) - "For use in nonthermal ULV portable backpack equipment . . . Adjust equipment to deliver fog particles of 18-50 microns mass mean diameter . . . For truck mounted nonthermal ULV equipment . . . adjust equipment to deliver fog particles of 8-20 microns mass mean diameter."
Note that surface waters subject to Article 15/Part 329 Aquatic Pesticide Permit requirements include not only freshwater and tidal wetland areas that contain surface water at time of application, but also those areas that may not contain surface water at time of application. If "dry" areas of wetlands can be expected to contain surface water following the application of pesticide, and during the period the pesticide is expected to remain present in that target site, that activity is subject to permit requirements. For example, if a tidal wetland area proposed to receive a mosquito larvicide is dry at time of application, but is expected to be flooded by waters associated with the next scheduled high tide, the area is subject to Article 15/Part 329 Aquatic Pesticide Permit. If, on the other hand, the proposed target site is a dry adjacent area [as that term is defined at 6NYCRR Parts 663.2(b) and 661.4(b)(1)] that is not subject to tidal flooding, the area would not be subject to Article 15/Part 329 Aquatic Pesticide Permit, but there would also be no reason to treat such a dry area with mosquito larvicide.
Key issues often incorporated in the terms and conditions of Article 15/Part 329 Aquatic Pesticide Permits include reinforcement of the Department's interpretation and clarification relating to label directions, precautions and restrictions (e.g., weather conditions); protection of threatened and endangered species [e.g., Tiger Salamander (Ambystoma tigrinum), Piping Plover (Charadrius melodus), and Blue-spotted Salamander (Ambystoma laterale);(22) and provisions tailored to consider whether a mosquito-borne disease such as West Nile virus is present in a target area, or has a historic presence warranting continued attention. The following are examples of some terms and conditions that may be incorporated into an Article 15/Part 329 Aquatic Pesticide Permit:
Permittee will not use the authorized chemicals in any manner, nor under any wind or such other conditions as may disturb active osprey nests. Periods of osprey activity range between March 15 and July 15.
No wheeled or tracked vehicles are to enter upon vegetated tidal wetlands or freshwater wetlands for the purpose of pesticide application, except:
(1) low ground pressure tracked vehicles may be used for routine ditch maintenance and ground application of pesticides approved by this permit; and
(2) low ground pressure tracked vehicles may be used for the construction and maintenance of water circulation and control systems for open marsh water management (OMWM) provided that such OMWM system designs have been specifically approved by the appropriate regulatory agencies with the Department of Environmental Conservation.
Use of low ground pressure tracked vehicles in tidal wetlands is subject to Article 25 Permit requirements. Contact (the name, address and telephone number of the appropriate regional contact will be provided).
Use of low ground pressure tracked vehicles in freshwater wetlands is subject to Article 24 Permit requirements. Contact (the name, address and telephone number of the appropriate regional contact will be provided).
SANDOZ ALTOSID PELLETS MOSQUITO GROWTH REGULATOR (EPA Reg. No. 2724-448-64833) is prohibited from use in known fish habitat. This prohibition applies regardless of whether Eastern equine encephalitis virus (EEEV) has been isolated within the target area at any time.
SANDOZ ALTOSID PELLETS MOSQUITO GROWTH REGULATOR (EPA Reg. No. 2724-448-64833) is prohibited from use in tidal wetlands. This prohibition applies regardless of whether EEEV has been isolated within the target area at any time.
SANDOZ ALTOSID PELLETS MOSQUITO GROWTH REGULATOR (EPA Reg. No. 2724-448-64833) is permitted for use in non-tidal wetland areas, only when EEEV has been isolated in the target area within the past two years.
SANDOZ ALTOSID PELLETS MOSQUITO GROWTH REGULATOR (EPA Reg. No. 2724-448-64833) is prohibited from use in lakes, ponds or streams. This prohibition applies regardless of whether EEEV has been isolated in the target area at any time.
SANDOZ ALTOSID PELLETS MOSQUITO GROWTH REGULATOR (EPA Reg. No. 2724-448-64833) is prohibited from use within 100 feet of lakes ponds and streams, except when application is by ground equipment and EEEV has been isolated in the target area within the past two years.
SANDOZ ALTOSID PELLETS MOSQUITO GROWTH REGULATOR (EPA Reg. No. 2724-448-64833) is permitted for use by aerial application 100 feet from lakes, ponds and streams only when EEEV has been isolated in the target area within the past two years, and only when wind and other conditions will prevent drift from contacting lakes, ponds or streams.
Due to the documented occurrence of New York State and Federally-listed threatened and endangered species, delivery of pesticides by aerial application to the proposed target sites delineated on maps associated with this permit is prohibited, in all instances, within 300 feet of piping plover and tern nesting sites. This restriction will remain in effect until August 31. Hand and ground application is also prohibited within 300 feet of piping plover and tern nesting sites.
The New York State Department of Environmental Conservation, Region 1, Endangered Species Unit must be notified at least 48 hours prior to any aerial or ground application of pesticides in areas occupied by endangered or threatened species. Contact (the name, address and telephone number of the appropriate regional contact will be provided).
SANDOZ ALTOSID PELLETS MOSQUITO GROWTH REGULATOR (EPA Reg. No. 2724-448-64833) is permitted for use in protected wetlands and recharge basins (sumps) that are not fish habitats and that do not have any direct connection to a lake, pond or stream.
The application of SANDOZ ALTOSID PELLETS MOSQUITO GROWTH REGULATOR (EPA Reg. No. 2724-448-64833) into swales, basins or other water holding areas or structures that drain into any of the trout holding waters listed in the following areas is prohibited:
Town of Babylon: Carlls River, Santapogue Creek, Amityville Creek
Town of Islip: Orowoc Creek and tributaries, Connetquot River, Champlins Creek, Brown Creek, Green Creek, Sampwams Creek
Town of Brookhaven: Swan River, Patchogue River, Beaverdam Creek, Tuthills Creek, Terrel River, Mud Creek, Carmans River, Yaphank Creek, Hells Creek, Palace Brook
Town of Smithtown: Nissequogue River and tributaries
Note that each application for permit must be accompanied by a fifty-dollar ($50.00) fee, in accordance with ECL §15-0313(4)(b).
Article 15/Part 329 Aquatic Pesticide Permit requirements are not reduced, suspended or modified as the result of an emergency situation. In fact, in referring to the New York State Department of Health's declares a public health threat, 10NYCRR Part 44.60(d)(6) reinforces the need for Article 15/Part 329 Aquatic Pesticide Permit in stating:
Sources for public water supplies will not be subjected to direct spray applications nor to the drift of such activities. Surface water shall not be subjected to mosquito larvicide application without a NYSDEC aquatic pesticide permit, when required, and any such application shall comply with the label restrictions of the pesticide used.
If regulated freshwater wetlands or their adjacent areas are potential sites of pesticide application or habitat modification, the applicator or health department employee responsible for such proposed action must contact the Regional Permit Administrator to pursue compliance with Article 24 of the ECL, and Parts 621 and 663 of Title 6 of the NYCRR. Regional Permit Administrators can be located by contacting your regional office of the DEC. See Appendix A.
Within the Adirondack Park, Article 24/Part 663 Freshwater Wetlands Permits are issued by the Adirondack Park Agency (APA). In all other areas outside the Adirondack Park, these permits are issued by the Department of Environmental Conservation.
Note that Article 24/Part 663 Freshwater Wetlands Permits are governed by Uniform Procedures
Act (UPA) regulations expressed at 6NYCRR Part 621, which control application procedures
and review requirements. An emergency situation does influence Article 24/Part 663 Freshwater Wetlands Permit
requirements, whether relating to pesticide use or modification of the wetland. Public health activities conducted by the New York State Department of Health and mosquito
control are addressed by ECL §24-0701(5) and (6), and 6NYCRR Part 663.2(z)(3). Under the
authority of these laws and regulations, certain activities are allowed under a public health threat
or a health emergency that would not be allowed under a routine mosquito control program. The
statute also obligates the Department to exercise substantial control over a routine mosquito
control program even when imminent human health issues are absent. ECL §24-0701(5) states: Public health activities, orders and regulations of the department of health shall be
excluded from regulated activities. Copies of all such public health orders and
regulation affecting wetlands shall be filed with the department of environmental
conservation. The commissioner may request modification of such orders or
regulations if he deems such necessary to implement the policy of this article. 6NYCRR Part 663.2(z)(3) states: Public health activities, orders or regulations of the New York State Department
of Health are not regulated under the Act or this part provided copies of all such
orders or regulations affecting wetlands are filed with the Department of
Environmental Conservation in advance. The Commissioner may request
modification of these activities, orders or regulations if necessary to implement
the policy of the Act. ECL §24-0701(6) states: The Commissioner shall review all current mosquito control projects to determine
whether they are having any adverse impact on freshwater wetlands. Where any
adverse impact is found, the commissioner may require modification of such
projects if he deems such necessary for the implementation of the policies of this
article. In addition, permit standards explicitly regulate application of pesticides at items 6NYCRR Part
663.4(d)(39-41), which indicate: These laws and regulations are consistent with the intent of the law and its implementation. The
agency is charged with evaluating impacts associated with regulated activities in a stepwise
fashion. Specifically, if alternatives exist which allow the applicant to avoid impacts to the
wetland and its benefits, the Department will require that the best alternative be used. Since
quite often all impacts cannot be avoided, alternatives that minimize impacts will be required. If
alternatives to the proposed activity cannot be found, and impacts to the wetland and its benefits
are severe enough, the Department can require that the applicant mitigate for the damages.
Mitigation for severe impacts can be extensive and costly. The Department's original approach, which requires that vector control programs develop and
employ a comprehensive larvicide program as an alternative to adulticides or habitat
modification, is consistent with the Department's charge to identify alternatives which minimize
impacts to the resource. Additionally, if mosquitoes are effectively controlled in the larval or
pupal stages, the frequency and extent of public health issues are likely to be reduced as well.
This should effectively eliminate the need for habitat modification and extensive adulticiding.
Therefore, under all but exceptional circumstances, the Department has the authority to
determine and require the best alternatives for control. In accordance with the provisions of ECL §24-0701(5) and 6NYCRR Part 663.2(z)(3), public
health activities, orders and regulations of the New York State Department of Health are
excluded from regulated activities. In addition, there are exemptions for certain non-emergency
activities which are addressed in ECL §24-0701(6). The Commissioner of the New York State
Department of Environmental Conservation (the regional wetland managers/or directors) has the
ability to "require modification of such projects . . . to implement the policy of this article." The
Department is authorized to require that, as part of their routine mosquito control, vector control
agencies maintain a larvicide program that is an effective alternative to the use of adulticides or
habitat modification. All types of habitat modification should be considered only as an absolute last resort. It is
unlikely that the Department would support the alteration of freshwater habitats if other
alternatives exist, such as the removal of waste tires. The draining or filling of wetland is
considered a long term impact which, in some cases, may not be reversible. Therefore, the
permanent alteration or loss of wetlands is not consistent with the Environmental Conservation
Law. It would be difficult to imagine circumstances that would warrant such an extreme action,
or under which the Department would have to permit it, especially with all of the alternatives that
exist in today's mosquito control arsenal. In addition, Article 24/Part 663 Freshwater Wetlands Permits are included under the umbrella of
the 6NYCRR Part 621 Uniform Procedures Act (UPA) regulations. Both ECL §70-0105(6) and
6NYCRR Part 621.1(g) define an emergency as ". . . an event which presents an immediate
threat to life, health, property, or natural resources." 6NYCRR Part 621.12 contains emergency authorization procedures which are usually utilized
for Uniform Procedures Act permits, including those regulated by Part 663. Uniform Procedures
Act Emergency Authorization procedures have some distinct requirements. For example, only
public agencies are authorized to undertake emergency actions if prior notification to the
Department is not possible. See Section II. E. - Emergency Authorizations for additional
information.
ITEMS
ACTIVITIES
Procedure & Compatibility by Area
FWW
AA
39
Application of a pesticide conducted pursuant to a permit issued under Article 15 of the Environmental Conservation Law (see 6NYCRR Part 327, 328, 329).
P (N)
P(C)
40
Application of a pesticide where no permit is required under Article 15 of the Environmental Conservation Law (see 6NYCRR Part 327, 328, 329).
P(X)
P(X)
41
Application of a pesticide to the grounds of a private residence when such use is by the owner.
P(C)
L
FWW = Freshwater Wetland
AA = Adjacent Area
L = Letter of Permission required
P = Permit required
C = usually compatible; means that a regulated activity may be compatible with a wetland and its functions and benefits, although in some circumstances the proposed action may be incompatible.
N = usually incompatible; means that a regulated activity is usually incompatible with a wetland and its functions and benefits, although in some cases the proposed action may be insignificant enough to be compatible.
X = incompatible; means that a regulated activity is incompatible with a wetland and its functions and benefits.
Most often, authorization to engage in pesticide use activities subject to Article 25/Part 661 Tidal Wetlands Permit can be expressed as a component of the Article 15/Part 329 Aquatic Pesticide Permit process. Permission to use pesticides in regulated tidal wetlands is indicated by the countersignature of the Regional Natural Resources Supervisor within the authorization text of an Article 15/Part 329 Aquatic Pesticide Permit which bears reference to regulated tidal wetlands and their adjacent areas.(26)
Permit standards explicitly regulate application of pesticides at items 6NYCRR Part 661.5(b)(53 and 55), which indicate:
| ITEMS | USES | Area and Use Categories | ||
|---|---|---|---|---|
| FM, IM, HM | SM, LZ | AA | ||
| 53 | The use or application of any chemical, petrochemical or other toxic material, including any pesticide, where not authorized by law. | I | I | I |
| 55 | The use or application of any chemical, petrochemical or other toxic material, including any pesticide, where otherwise authorized by law. . . | NPN | NPN | NPN |
As indicated by table above, with respect to the classification of uses in coastal fresh marshes, intertidal marshes, coastal shoals, bars and flats, high marshes or salt meadows, littoral zones, and adjacent areas, 6NYCRR Part 661.5(b)(53) states: "The use or application of any chemical, petrochemical or other toxic materials, including any pesticide, where not authorized by law" constitutes a use classification of "I" - an incompatible use requiring Article 25/Part 661 Tidal Wetlands Permit authorization.
As indicated by the table above, with respect to the classification of uses in coastal fresh marshes, intertidal marshes, coastal shoals, bars and flats, high marshes or salt meadows, littoral zones, and adjacent areas, 6NYCRR Part 661.5(b)(55) states: "The use or application of any chemical, petrochemical or other toxic materials, including any pesticide, where otherwise authorized by law . . ." constitutes a use classification of "NPN" - uses not requiring a permit.
In cases in which an Article 15/Part 329 Aquatic Pesticide Permit is required, and has been issued bearing the countersignature of the Natural Resources Supervisor, the action is regarded as "otherwise authorized by law"; therefore, a separate Article 25/Part 661 Tidal Wetlands Permit is not issued. As determined necessary to protect tidal wetland resources, terms and conditions are incorporated into the Article 15/Part 329 Aquatic Pesticide Permit.
Due to the detrimental impacts of mosquito ditching on tidal wetlands, it is the policy of the Department not to permit such activities by anyone other than the appropriate government agencies. Poorly designed, constructed or maintained mosquito ditches are both damaging and ineffective and are the equivalent of dredging and filling the marsh. These activities are presumptively incompatible uses in regulated tidal wetlands. Similarly, the Department strongly encourages the use of Open Marsh Water Management (OMWM) principles when creating or maintaining mosquito ditches. These principles include techniques such as using ditch plugs to more effectively control mosquito populations while minimizing adverse impacts on the hydrology and values of the marsh. Implementing OMWM techniques requires an Article 25 Tidal Wetlands Permit.
Note that Article 25/Part 661 Tidal Wetlands Permits are governed by Uniform Procedures Act (UPA) regulations expressed at 6NYCRR 621, which control application procedures and review requirements.
An emergency situation does influence Article 25/Part 661 Tidal Wetlands Permit requirements. 6NYCRR Part 661.5 Use Category 2 pertains to "Activities of the department of health or units of local government with respect to public health, when conducted in conformance with section 25-0401 of the Act." This use category is classified as "NPN" - No Permit Necessary for all Area and Use Categories (FM, IM, HM, SM, LZ and AA).
ECL §25-0401(4) states:
Activities, orders, and regulations of the department of health or of units of local government with respect to matters of public health shall be excluded from regulation hereunder, except as hereinafter provided. Copies of all such public health orders and regulations affecting tidal wetlands shall be filed with the department of environmental conservation. The Commissioner may require modification of such orders or regulations if he deems it necessary to implement the policy of this act.
ECL §25-0401(5) states:
The commissioner shall review all current mosquito control projects to determine whether they are having any adverse impacts on tidal wetlands. Where any adverse impact is found, the commissioner following a public hearing, may require modification of such projects if he deems it necessary to implement the policy of this act.
In addition, Article 25/Part 661 Tidal Wetlands Permits are included under the umbrella of the 6NYCRR Part 621 Uniform Procedures Act (UPA) regulations. ECL §70-0105(6) and 6NYCRR §621.1(g) define an emergency as ". . . an event which presents an immediate threat to life, health, property, or natural resources."
6NYCRR Part 621.12 contains emergency authorization procedures which are those usually utilized for Uniform Procedures Act permits, including those regulated by Part 661. Uniform Procedures Act Emergency Authorization procedures have some distinct differences. For example, only public agencies are authorized to undertake emergency actions if prior notification to the Department is not possible. See Section II. E. - Emergency Authorizations for additional information.
If regulated tidal wetlands or their adjacent areas are potential target sites to receive application of larvicides or adulticides in connection with any mosquito control activities, the applicator or health department employee responsible for such proposed use of pesticide must contact the Regional Permit Administrator to pursue compliance with Article 25 of the ECL, and Parts 621 and 661 of Title 6 of the NYCRR. Regional Permit Administrators can be located by contacting your regional office of the DEC. See Appendix A.
6NYCRR Part 190.9 states:
No pesticide shall be applied to any State land under the jurisdiction of the Department of Environmental Conservation except by written authorization from the department.
With respect to the use of larvicides and pupicides in waters of the State, the Regional Natural Resources Supervisor indicates authorization to treat such lands by countersigning the Article 15/Part 329 Aquatic Pesticide Permit. Any concerns are related to the proposed action are incorporated as additional terms and conditions of the Article 15/Part 329 Aquatic Pesticide Permit.
This countersignature also attains conformance to the requirements of 6NYCRR §329.4(c)(4) which states:
No permit shall be issued under this Part for lands under control of the Department of Environmental Conservation unless it is countersigned by the director of the division of the department having jurisdiction over the lands involved.
Section IV.H.2.d. of TAGM No. 2007 states:
In the case of insect control programs which include lands under the control of the Department, the application should be reviewed by the person designated by the Regional Director. A Temporary Revocable Permit (Part 190) must be issued. The Director, Division of Lands and Forests or his/her designee may co-sign the permit in lieu of a separate Part 190 permit.
With respect to the proposed use of larvicide and pupicide that is not subject to Article 15/Part 329 Aquatic Pesticide Permit requirements, or the proposed use of any adulticides in or over State lands under the jurisdiction of the Department of Environmental Conservation, the applicator must contact the Regional Land Manager to discuss submitting an Application for Revocable Permit for the Temporary Use of State Land. See Appendix A for a listing of regional offices.
6NYCRR Part 190 Permit requirements are not reduced, suspended or modified as the result of an emergency situation.
For example, the applicator who uses mosquito adulticide over cropland must carefully consider use restrictions and tolerances. A tolerance is the maximum residue level of a pesticide that can legally occur in or on raw agricultural commodities transported in interstate commerce. Note that tolerances do not apply to home gardens.
In choosing an adulticide, you must consider whether any agricultural commodities are present within the target area. If so, you must identify which crops are in the proposed target site, and determine whether a tolerance has been established for the adulticide proposed for use, for each crop in question. If no tolerance has been established for the subject adulticide and crop, you must either choose an alternative adulticide for which a tolerance has been established, or avoid applying that adulticide in or over the area where the crop is located.
For example, if a target area includes a five-acre farm growing potatoes, you could perform an aerial application of FYFANON® ULV (EPA Reg. No. 4787-8) because tolerances have been established for its active ingredients - malathion. In contrast, AgrEvo Scourge® Insecticide with SBP-1382®/Piperonyl Butoxide 18% + 54% MF Formula II (EPA Reg. No. 432-667) could not lawfully be used because no tolerance has been established for one of its two active ingredients - resmethrin. In addition, the label for AgrEvo Scourge® Insecticide with SBP-1382®/Piperonyl Butoxide 18% + 54% MF Formula II (EPA Reg. No. 432-667) states: "Do not spray on cropland, feed or foodstuffs."
The other option is to use the AgrEvo Scourge® Insecticide with SBP-1382®/Piperonyl Butoxide 18% + 54% MF Formula II (EPA Reg. No. 432-667), but not over the five-acre farm, nor within a distance that would result in the drift of resmethrin onto the crop.
Keep in mind that you will encounter situations where a pesticide proposed for use contains an active ingredient for which a tolerance has been established for the crop located within the target zone; however, the label directions may prohibit its use in or over cropland. For example, Griffin Atrapa™ ULV Insecticide (EPA Reg. No. 1812-407) contains the active ingredient malathion for which a number of tolerances have been established; however, the label prohibits use over cropland with the statement: "Adult Mosquito Control: Use 2 to 4 fluid ounces of Atrapa ULV per acre to control adult mosquitoes on non-agricultural lands (wastelands, roadsides, soil bank lands)."
Any crop found to contain residues of a pesticide for which a tolerance is not in effect is regarded as unfit for human consumption and cannot be legally marketed.
State- and federally-enforced label directions, restrictions, and precautions are not reduced, suspended or modified as the result of an emergency situation.
Terms and conditions of Article 15/Part 329 Aquatic Pesticide Permits address notification
requirements relating to larviciding, pupiciding and adulticiding activities, even though the
permits authorize only the use of larvicide and pupicide. Note that failure to comply with terms
and conditions of an Article 15/Part 329 Aquatic Pesticide Permit may result in a denial of a
permit for future mosquito control activities. This is a means of reinforcing the notification
requirements relating to use of adulticide, as well as larvicide and pupicide. ECL §33-0905(5) states: (a) Every certified applicator shall, prior to the application of a pesticide within
or on the premises(27) of a dwelling,(28) supply the occupants therein with a written
copy of the information, including any warnings, contained on the label of the
pesticide to be applied. (b) Except as provided in paragraph c of this subdivision, every certified
applicator shall, prior to the application of pesticide within or on the premises of a
multiple dwelling,(29) building, or structure other than a dwelling supply the owner
or his agent, with a written copy of the information, including all warnings,
contained on the label of the pesticide to be applied. Such owner or agent shall
make available upon request at reasonable times such information to the
occupants or residents of such multiple dwelling, building, or structure. (c) In the case where an occupant of a multiple dwelling unit(30) retains a certified
applicator to apply pesticides within such unit, such certified applicator shall,
prior to the application of a pesticide, supply any information, including all
warnings, contained on the label of the pesticides to the occupants. Any commercial application of mosquitocide is subject to these notification requirements,
including ultra-low volume (ULV) aerosol or fog delivery of adulticide. If the treatment consists of a community-wide, county-wide, or city-wide ground or aerial spray
operation, you will be permitted to achieve compliance with statutory public notification
requirements by following the procedures outlined below. These general notification
requirements apply to all aerial and large-scale applications of pesticide within or on the
premises of dwellings, multiple dwellings, buildings, or structures other than a dwelling. The statutory requirements relating to pre-application label information notification are not
reduced, suspended or otherwise modified as the result of an emergency situation; however, in
emergencies, an alternative acceptable means of compliance may be authorized by the
Department. This is evaluated on a case-by-case basis. ECL §33-1205(1) - All
commercial applicators shall maintain pesticide use records for each pesticide application containing the
following: a. EPA registration number; b. product name; c. quantity of each pesticide used; d. date
applied; e. location of application by address (including five-digit zip code).: With respect to aerial and ground delivery of pesticide to large contiguous areas, the place of
application can be recorded using data generated by Global Positioning System (GPS)
technology, or other suitable means. The record must clearly delineate and quantify any areas
that were not treated within a particular target zone. If GPS technology is used, the data must be
accurate to within between 15 meters (49.2 feet) and 100 meters (328 feet). In contrast to annual reporting requirements, daily use records are not required to be kept on a
specific form. However, the Department does have available a recommended form for recording
each instance of pesticide use. See Appendix R. Daily use record-keeping requirements are not reduced, suspended or modified as the result of an
emergency situation. Annual reporting requirements are not reduced, suspended or modified as the result of an
emergency situation. The Department recognizes the problems associated with reporting
thousands, or even millions of individual addresses associated with a large-scale community-wide spraying operation (such as the large-scale aerial applications that took place in New York
City, Nassau County, Suffolk County, Westchester County and Rockland County in the late
Summer of 1999). Upon review of these unique scenarios, the inability at present time to obtain a precise database
with street addresses, and accuracy entailing the reporting requirements for large aerial spraying,
the Department will allow the applications to be reported by county, municipality and individual
zip code. This will not only aid the Department in gaining more accurate reporting, it will also
prevent an undue burden on the applicators who provide these services. Until the means of
obtaining such a database is widely available, the street address can be omitted in these instances
only. The Department will be revising TAGM DSM 99-10, issued January 21, 2000, to reflect
this change in policy. In any event, the aerial applicator would be required to furnish a detailed map of the area of
application so the Department and any health researcher could determine precisely where
pesticide had been applied within a zip code. Any areas within a larger area that were not
sprayed must be clearly identified and quantified. Total amount of pesticide used must be
consistent with the measurement of the area actually treated, and should reflect a rate of
application consistent with label directions (or as otherwise modified by a permit issued by the
Department). Two Technical Administrative Guidance Memoranda have been issued to provide guidance on
annual reporting requirements. See TAGMs DSHM-97-05, January 20, 1998, and DSHM-99-10,
January 21, 2000 at Appendix S and T. Sample reporting forms referred to in the Technical Administrative Guidance Memorandum are
attached as Appendix U. Ultra-low volume (ULV) aerosol or fog delivery of mosquito adulticide(34) (using ground or aerial
equipment) does not constitute commercial lawn application(35) because the pesticide is not applied
to the ground, to trees or to shrubs. It is intended to control adult mosquitoes in flight in the
target zone. Note that although ultra-low volume (ULV) aerosol or fog application is not
considered "commercial lawn application" subject to written contract requirements, it does
constitute a "commercial application of pesticide"(36) subject to other regulatory requirements such
as pre-application label information notification, record-keeping and annual reporting. Use of larvicides does not constitute commercial lawn application because the pesticide is
applied to water - as distinguished from a terrestrial "ground" application. Appendix V contains guidance relating to compliance with statutory commercial lawn
application requirements. Commercial lawn application contract requirements are not reduced, suspended or modified as
the result of an emergency situation. As discussed in the previous section relating to commercial lawn application contracts, ultra-low
volume (ULV) aerosol or fog delivery of mosquito adulticide (applied by aerial or ground
equipment) does not constitute commercial lawn application(39) because the pesticide is not applied
to the ground, to trees or to shrubs. As such, there are no posting requirements associated with
this type of space spray. Use of larvicides does not constitute commercial lawn application because the pesticide is
applied to waters, as distinguished from terrestrial "ground." Visual notification posting requirements are not reduced, suspended or modified as the result of
an emergency situation. Fish or fish eggs shall not be placed in any waters of the state unless a permit is
first obtained from the department; but no permit shall be required to place fish or
fish eggs in an aquarium. Fish stocking permits are reviewed and issued on a case by case basis by the Regional Fisheries
Manager in each DEC Region. Any person or agency wishing to stock fish for mosquito control
must submit an application for a Permit to Stock Fish to the Regional Fisheries Manager in the
DEC Region where the stocking will occur. A sample Stocking Permit Application is included in
Appendix AA. Although many species of fish eat mosquito larvae, the mosquitofish (Gambusia affinis and G.
holbrooki) is the species most widely used for mosquito control. These species (formerly
considered subspecies of the same species) have been distributed worldwide as mosquito control
agents. New York State is just north of the native range of the eastern species (G. holbrooki)
which extended up the east coast into southern New Jersey. Because New York is north of the
native range of Gambusia, stocked fish are susceptible to winter kill during cold winters. This
increases the likelihood that the fish will have to be restocked to provide mosquito control from
year to year, and reduces the possibility that stocked Gambusia will establish an undesirable
population in New York State. Factors considered in the review of applications to stock fish for mosquito control can include,
but are not limited to the following: Applicants who wish to use fish stocking for mosquito control will find that the review of their
application will be expedited if they provide answers to the above questions with their permit
application. In addition, answering the above questions will assist the applicant in determining if
fish stocking for mosquito control is a viable alternative. One situation where Gambusia stocking has been demonstrated to be effective for mosquito
control is in unused swimming pools and ornamental ponds. Regional Fisheries Managers will
consider applications from municipal agencies for a Stocking Permit that will allow the
municipal agency to provide Gambusia to private individuals for stocking in unused swimming
pools and privately owned ornamental ponds. Waters to be stocked under this permit must be
manmade and must not have an outlet to natural surface waters. See Appendix A for a list of
regional offices where the Regional Fisheries Manager in charge of your area can be contacted. Fish Stocking Permit requirements are not reduced, suspended or modified as the result of an
emergency situation. An emergency situation does influence Special Wildlife Permit requirements. Under the
authority granted to State, regional and local health agencies, wildlife may be collected in
support of an investigation, without requiring that special licenses issued by the Department of
Environmental Conservation be obtained. Consequently, any individual may collect, possess and
transport wildlife specimens if the State, regional or local health authority has directed that such
specimens are required in connection with an ongoing disease investigation. The requirement of need is a critical factor in the legality of wildlife collections without meeting
DEC licensing requirements. As an example, individuals, including health department staff,
municipal employees and private individuals, who are responsible for the collection of
surveillance and other specimens may consider collecting specimens from areas where such
surveillance is no longer needed to provide public service, and maintain contacts with sources in
the event that future surveillance collections may be required. If collection of wildlife specimens is not directed by health authorities or part of the
investigation/control program, an individual cannot take such actions without first obtaining a
license from DEC. Consequently, an individual must be licensed by DEC before they may
collect, transport, or possess any wildlife that is not part of a Health Department investigation.
There are a few exceptions to the licensing requirement depending on the species being taken or
the means of collection. Further information can be obtained from the Fish and Wildlife Unit
located in the regional office responsible for your area. See Appendix A. In addition, if violations are documented, the Department may revoke, deny, suspend, or
otherwise modify any permits authorizing mosquito surveillance and control activities, or any
certification, registration or other related authorizations to engage in this activity. An emergency situation does not affect the Department's enforcement of the Environmental
Conservation Law and its related rules and regulations. Enforcement activities are not reduced,
suspended or modified as the result of an emergency situation. People who allege to have suffered from exposure to pesticides should be referred to the
following: Long Island Regional Poison Control Center New York City Poison Control Center In addition, SEQRA applies if a State, regional or local agency undertakes a mosquito control
program that does not require any permits. In the case of such "direct actions," State, regional or
local agencies must comply with SEQRA requirements. When SEQRA became law on August 01, 1975, it established a process that requires the
consideration of environmental factors early in the planning stages of actions that are directly
undertaken, funded or approved by State, regional and local agencies. By incorporating a
systematic approach to environmental review in the early planning stages, projects can be
modified as needed to avoid adverse impacts on the environment. Compliance with SEQRA must occur prior to undertaking any mosquito surveillance or control
action that is subject to SEQRA. This requirement relates to activities that include pesticide use,
habitat modification, fish stocking, or wildlife handling and collection. The preparation of an
Environmental Impact Statement (EIS) is the viable long-range plan to address the issue of West
Nile virus. The application of pesticides is defined as a physical alteration [6NYCRR Part 617.2(ab)]. This
means that the application of pesticides that would affect more than ten (10) acres would be
classified as a Type I action and require the use of a full Environmental Assessment Form (EAF).
Applications that would affect less than ten (10) acres would be classified as "Unlisted Actions."
Use of a full EAF for unlisted actions is not required, but is strongly encouraged. In completing
the full EAF, agencies are encouraged to use Part 1D to provide a narrative description of the
proposed control activity and the affected environment to supplement the information contained
in Part 1. While larvicides and pupicides containing active ingredients listed at 6NYCRR §329.6 are
authorized for use, this does not exempt them from SEQRA requirements. Any proposed use of
these mosquito control agents requires that an assessment and declaration of environmental
impact be performed. Note that most of these materials listed in 6NYCRR §329.6 are outdated
and no longer available for use. More recently registered larvicides that contain active ingredients not listed as an authorized
pesticide in 6NYCRR §329.6(a)(1) and (2) also require assessment and declaration of
environmental impact. The Department of Environmental Conservation has prepared templates to help you prepare
Negative Declarations relating to the four most commonly used larvicides identified below.
These larvicides were introduced subsequent to Part 329 taking effect. Note that these templates represent approximately 80 percent of the type of information that
would normally be contained in a complete Negative Declaration Statement. The other 20
percent would consist of the details relating to your specific activity and project (i.e., site
description, potentially-impacted environmental resources, and application equipment).
Preparation of a Negative Declaration Statement would need to be accompanied by a completed
Environmental Assessment Form, and Public Notices pertaining to all Type I Negative
Declarations must be published in the Environmental Notice Bulletin (ENB). Type I Negative Declarations are no longer filed with the Commissioner of the New York State
Department of Environmental Conservation. The project-specific Negative Declaration Statement would also need to indicate monitoring and
surveillance activities that will be conducted to assess larval populations. Keep in mind that
6NYCRR §329.4(c)(5) requires the following: No permit shall be issued unless it appears to the permit-issuing official that the
biting aquatic insects to be controlled in the waters or portions of the waters to be
treated occur so as to be substantially detrimental to the health, safety, comfort or
repose of the applicant or of any considerable number of persons. This observation and assessment measure would be demonstrated by a detailed description of
your monitoring and surveillance activities. The terms and conditions of Article 15/Part 329
Aquatic Pesticide Permit will require that monitoring and surveillance be conducted as a
precondition to the use of larvicide and pupicide. Specific project details would also include time of day of application, days of the week of
application, precautions to protect public health and environmental quality, and the means by
which adequate advance public notice would be provided to people located in areas to be treated. Depending on the proposed activity, some adulticides are authorized for use in compliance with
SEQRA requirements because they are included within the assessment contained in the New
York State Department of Health's Generic Environmental Impact Statement (GEIS), which was
filed in 1985. Plans are underway for the New York State Department of Health to update this
generic EIS. Note that the updated GEIS will cover all aspects under which any proposed
application of adulticides may occur. Adulticides not evaluated in connection with the NYSDOH GEIS, will require SEQRA
compliance. This would include proposed use of such adulticides as resmethrin (Scourge) and
sumithrin/piperonyl butoxide (Anvil). Section 617.10 of the SEQRA regulations contains
specific criteria for environmental evaluation of specific actions undertaken subsequent to a
GEIS. See 6NYCRR Parts 617.10(c) and (d). For those adulticides not evaluated in connection
with the NYSDOH Environmental Impact Statement, proper SEQRA compliance could require
preparation of an Environmental Impact Statement. Note that the information relating to "SEQRA Compliance" at section G of TAGM 2007 is
outdated and no longer applies. Also note that the Aquatic Pesticide Programmatic
Environmental Impact Statement (PIES) prepared by the Department of Environmental
Conservation in 1981 applies to aquatic herbicides only, and does not include an address of
aquatic insecticides (larvicides, pupicides or adulticides). An emergency situation does influence SEQRA requirements. Control activities that are
undertaken following the declaration of a public health emergency would qualify as "emergency
actions" and be classified as a Type II action under SEQRA [6NYCRR Part 617.5(c)(33)]. The SEQRA regulations, unlike some other regulations reviewed herein, do not contain a
definition of an "emergency" or "emergency action." However, SEQRA does employ the term
in its list of Type II actions contained in Section 617.5 Type II actions are specifically
enumerated actions which will not result in a significant adverse environmental impact or those
actions which are exempt from SEQRA review for other reasons. Subsection 617.5( c)(33) is the specific provision of SEQRA which exempts emergency actions.
The subsection declares that Type II actions are those: Emergency actions that are immediately necessary on a limited and temporary
basis for the protection or preservation of life, health, property or natural
resources, provided that such actions are directly related to the emergency and are
performed to cause the least change or disturbance, practicable under the
circumstances, to the environment. However, the last portion of this provision cautions that: Any decision to fund, approve or directly undertake other activities after the
emergency has expired is fully subject to the review procedures of this Part. . . . Agencies are cautioned not to hastily invoke this Type II provision of the SEQRA regulations
without careful forethought. Agencies that want to invoke the emergency provisions of SEQRA
contained in 617.5( c)(33) should systematically work through the emergency action definition
and should prepare ample written justification which adequately addresses how and why the
agency believes the emergency action they are undertaking lies within the parameters of the
definition. It is recommended that this written justification include the SEQRA Type II
provision being invoked, that it be signed by an appropriate, responsible agency official and that
this justification be maintained in a file in the agency offices. Following this procedure will help
to ensure that the course of action ultimately chosen is not only the most effective response, but
also the most appropriate for human health and the environment. The emergency action provision contains several tests which must be met by the emergency action
in order to qualify for the Type II. These tests are as follows: In preparing the aforementioned written SEQRA Type II justification, the documentation should
address the following: Finally, as noted previously, the latter part of subsection 617.5 ( c)(33) notes that once the
emergency has ended, activities related to the emergency which had existed, such as preventive
measures undertaken thereafter to reduce or prevent the recurrence of the emergency, would need
to undergo a full SEQRA review. Accordingly, once a declaration has been made that an
emergency has ceased and/or that emergency actions are no longer necessary due the cessation of
the emergency, agencies should be careful to ensure they fully comply with SEQRA.
1) kind of pesticide (by name and EPA registration number)
2) total quantity of each pesticide used
3) dosage rate
4) method of application
5) target organism
6) date applied
7) location of application by address (including five-digit zip code)
8) place of application recorded with the degree of specificity required to allow a person to revisit the location and determine exactly where pesticide was applied
Waters with outlets will allow escapement of the stocked fish. This poses two potential
problems. First, the fish may move to another water where they are not desirable and
second, if the fish leave the area where they are stocked they will not achieve the goal of
mosquito control at that location.
Predation and competition from an existing fish community in the water body reduces the
likelihood that the stocked fish will be able to establish a population of sufficient density
to effectively control mosquitoes. Conversely, should the new species become
established, they may adversely affect the fish species in the existing community.
There are documented cases of Gambusia introductions resulting in the localized
extinction of native fish and amphibian species.
Studies conducted in New Jersey determined that Gambusia were effective in controlling
Culex and Aedes larvae, but in situations where there was extensive emergent or floating
vegetation, they were ineffective at controlling Anopheles larvae.
National Pesticide Telecommunications Network
Oregon State University
333 Weniger
Corvallis, Oregon 97331-6502
1-800-858-7378 (PEST)
FAX: 1-541-737-0761
New York State Department of Health
Bureau of Toxic Substance Assessment
Two University Place
Albany, New York 12203
1-800-458-1158 (extension 376).
One of the following three Local Poison Control Centers:
Hudson Valley Poison Center
Nyack Hospital
160 North Midland Avenue
Nyack, NY 10960
(800) 336-6997
(914) 353-1000
Winthrop University Hospital
259 First Street
Mineola, NY 11501
(516) 542-2323, -2324, -2325, -3813
N.Y.C. Department of Health
455 First Avenue, Room 123
New York, NY 10016
(212) 340-4494
(212) POISONS
(212) 689-9014 (TDD)Bacillus thuringiensis var. israelensis (Aquabac, Bactimos, Teknar, Vectobac) - See Appendix W
Bacillus sphaericus (Vectolex) - See Appendix X
Methoprene (Altosid) - See Appendix Y
Monomolecular surface film, containing the active ingredient Poly(oxy-1,2-ethanediyl), a -isooctadecyl- w -hydroxy/hydroxyl (Agnique MMF, Arosurf MSF)- See Appendix Z
Footnotes
This includes State, regional and local departments of health, and departments of public works.
ECL §33-1001 - Prior to any commercial lawn application the applicator shall enter into a written contract with the owner of the property or his agent specifying . . . .
Revised: May 2000