Home » 2012 Issues » August 15, 2012 » ENV-33-12-00005-E Section 326.2(b)(4)(ii) is Amended to Allow Use of Fluridone Pellets in Waters Less Than Two Feet Deep
ENV-33-12-00005-E Section 326.2(b)(4)(ii) is Amended to Allow Use of Fluridone Pellets in Waters Less Than Two Feet Deep
8/15/12 N.Y. St. Reg. ENV-33-12-00005-E
NEW YORK STATE REGISTER
VOLUME XXXIV, ISSUE 33
August 15, 2012
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
EMERGENCY RULE MAKING
I.D No. ENV-33-12-00005-E
Filing No. 756
Filing Date. Jul. 30, 2012
Effective Date. Jul. 30, 2012
Section 326.2(b)(4)(ii) is Amended to Allow Use of Fluridone Pellets in Waters Less Than Two Feet Deep
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 326.2(b)(4)(ii) of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, section 33-0303
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
Subparagraph 326.2(b)(4)(ii) of 6 NYCRR prohibits fluridone applications of pellet formulations in waters less than two feet deep. A change to the regulation will allow certified applicators to use fluridone pellets in waters less than two feet to adequately control invasive plant species. Hydrilla (Hydrilla verticillata) is considered among the most invasive aquatic plants in North America, and has resulted in significant ecological, recreational and economic impacts in other regions of the country. Its biological traits enable it to out-compete native species and dominate aquatic ecosystems, due to its ability to grow in a variety of environmental settings and to propagate and spread from fragments, turions (overwintering buds) and tubers (reproductive structures attached to plant rhizomes).
The plant was first discovered in New York in 2008. Prior to 2011, this plant was limited in New York to small isolated occurrences in Long Island and Orange County, where the populations can be contained and the risk of spread is greatly reduced. However, dense stands of hydrilla were found in the Cayuga Inlet in late summer of 2011, near the Allen Treman Marine State Park and several private boatyards. The plant has been found throughout this area, ranging in densities from sparse to dense, and in depth from water less than 1 foot deep to the center of the Inlet, in water 8-12 feet deep. Rooted plants have not been found in Cayuga Lake, although floating fragments were observed during the fall 2011 surveys. If this plant escapes from an approximately 166 acre infestation zone within Cayuga Inlet and its tributaries, it will be extremely difficult to prevent its rapid spread throughout the Finger Lakes and Great Lakes regions.
The areas affected by this emergency rule making correspond to very shallow regions where hydrilla tubers have been found. These areas are flow-isolated from the rest of the Inlet and are therefore not likely to be exposed to adequate herbicide from the proposed metered distribution ports in three locations throughout the treatment area. These areas also tend to have warmer water and sediments due to depth and flow isolation, so it is anticipated that hydrilla germination will occur at a different time scale than in the rest of treatment area. This will require the use of direct application pellets to prevent this growth.
If fluridone pellets cannot be applied to shallow waters, hydrilla tubers will not likely be exposed to sufficient herbicide migration from deeper waters to effectively prevent germination. This could lead to production of hydrilla biomass that will quickly reach the water surface, significantly increasing the likelihood of fragmentation and spread from boat traffic, waterfowl, or even wind. This fragmentation will substantially increase the risk of hydrilla spread to Cayuga Lake and to surrounding waterways visited by boaters using Cayuga Inlet.
Subject:
Section 326.2(b)(4)(ii) is amended to allow use of fluridone pellets in waters less than two feet deep.
Purpose:
Allow the use of fluridone pellets in waters less than two feet deep to control hydrilla, an invasive plant.
Text of emergency rule:
Subparagraph 326.2(b)(4)(ii) is amended to read as follows:
(ii) applications of pellet formulations are not permitted in waters less than two feet deep. The use of pellet formulations in waters less than two feet deep may be authorized for the control of invasive species. This use will be authorized by the issuance of an Article 15 permit and the pellet formulations shall only be applied in accordance with label and labeling directions or as modified and approved by the Department of Environmental Conservation.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire October 27, 2012.
Text of rule and any required statements and analyses may be obtained from:
Anthony Lamanno, Department of Environmental Conservation, Division of Materials Management, 625 Broadway, 9th Floor, Albany, NY 12233-7254, (518) 402-8781, email: pestmgt@gw.dec.state.ny.us
Regulatory Impact Statement
1. Statutory Authority
Section 33-0303(3)(d),(e) of the Environmental Conservation Law ("ECL") authorizes the Department of Environmental Conservation (department) to promulgate a list of restricted use pesticides and the usages of such pesticides that may be permitted subject to whatever conditions or limitations which the commissioner deems appropriate to fully protect the public interest. In addition, rules and regulations may be promulgated to prescribe methods to be used in the application of pesticides, including the time, place, manner and method of application and equipment used, and may restrict or prohibit use of materials in designated areas to prevent damage or injury to health, property and wildlife.
2. Legislative Objectives
Promulgating regulations that limit or restrict where pesticides may be used is an important and valuable function of the department, consistent with the intent of the Legislature to protect property, health and welfare. The limitation placed on the use of fluridone pellets resulted from a concern by New York State Department of Health that the use of pellets in less than two feet of water may be an attractive nuisance to children wading or swimming in the water body. The use of fluridone pellets could prove very effective for the long-term control of invasive aquatic plants, such as hydrilla. When the department confirms the presence of an invasive species, immediate action may be necessary. A regulatory change will allow the use of fluridone pellets in waters less than two feet deep to control hydrilla.
3. Needs and Benefits
Subparagraph 326.2(b)(4)(ii) of 6 NYCRR prohibits fluridone applications of pellet formulations in waters less than two feet deep. A change to the regulation will allow certified applicators to use fluridone pellets in waters less than two feet to adequately control invasive plant species. Hydrilla (Hydrilla verticillata) is considered among the most invasive aquatic plants in North America, and has resulted in significant ecological, recreational and economic impacts in other regions of the country. Its biological traits enable it to out-compete native species and dominate aquatic ecosystems, due to its ability to grow in a variety of environmental settings and to propagate and spread from fragments, turions (overwintering buds) and tubers (reproductive structures attached to plant rhizomes).
The plant was first discovered in New York in 2008. Prior to 2011, this plant was limited in New York to small isolated occurrences in Long Island and Orange County, where the populations can be contained and the risk of spread is greatly reduced. However, dense stands of hydrilla were found in the Cayuga Inlet in late summer of 2011, near the Allen Treman Marine State Park and several private boatyards. If this plant escapes from an approximately 166 acre infestation zone within Cayuga Inlet and its tributaries, it will be extremely difficult to prevent its rapid spread throughout the Finger Lakes and Great Lakes regions.
Immediately after the initial discovery of hydrilla in August of 2011, State and local Task Forces were established to coordinate the response effort, including committees addressing management, surveys and monitoring, and outreach and prevention. The 2011 management plans were limited by the timing of discovery, and informed by the primary goal of reducing biomass and preventing spread of the known infestation. Endothal treatments for the initially discovered 73 acres of the Inlet took place in mid-October, and diver assisted hand harvesting occurred in late November/early December for a portion of the infestation discovered too late for the herbicide regulatory permit. The endothal treatment substantially reduced plant biomass and appeared to prevent continuing production of reproductive tubers and turions, but did little to control the existing tuber bank in the sediments. The reduction in biomass also prevented the fragmentation and spread of plants through the balance of the growing season. The deepest portions of the Inlet will be subject to navigational dredging starting in the fall of 2012; this will have little effect on the hydrilla populations in the majority of the proposed treatment area.
The hydrilla was found within a 166 acre area associated with the Cayuga Inlet north of the fish ladder, Cascadilla Creek west of the Route 13 overpass, and Linderman Creek to the Route 89 culvert. The plant has been found throughout this area, ranging in densities from sparse to dense, and in depth from water less than 1 foot deep to the center of the Inlet, in water 8-12 feet deep. Rooted plants have not been found in Cayuga Lake, although floating fragments were observed during the fall 2011 surveys.
The areas affected by this emergency rule-making correspond to very shallow regions where hydrilla tubers have been found. These areas are flow-isolated from the rest of the Inlet and are therefore not likely to be exposed to adequate herbicide from the proposed metered distribution ports in three locations throughout the treatment area. These areas also tend to have warmer water and sediments due to depth and flow isolation, so it is anticipated that hydrilla germination will occur at a different time scale than in the rest of treatment area. This will require the use of direct application pellets to prevent this growth.
If fluridone pellets cannot be applied to shallow waters, hydrilla tubers will not likely be exposed to sufficient herbicide migration from deeper waters to effectively prevent germination. This could lead to production of hydrilla biomass that will quickly reach the water surface, significantly increasing the likelihood of fragmentation and spread from boat traffic, waterfowl, or even wind. This fragmentation will substantially increase the risk of hydrilla spread to Cayuga Lake and to surrounding waterways visited by boaters using Cayuga Inlet.
4. Costs
Enactment of the emergency regulation described herein allowing the use of fluridone pellet in waters less than two feet will not result in any cost to regulated parties, State or local governments, or the general public.
5. Local Government Mandates
The amendment of Subparagraph 326.2(b)(4)(ii) of 6 NYCRR will not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district, or fire district.
6. Paperwork
No additional paperwork will be required as a result of this change in regulation.
7. Duplication
There are no other state or federal regulations which govern the use of fluridone pellets in waters less than two feet.
8. Alternatives
Options that have been evaluated by the Task Force and the external reviewers include the use of the just the contact herbicide endothal, diver assisted hand removal and benthic mats. While the fall 2011 Hydrilla treatment for Cayuga Lake Inlet consisted of only endothal treatment, this is not the most ideal long term approach as it does not adequately address the large tuber bank produced by this aquatic invasive species. The systemic herbicide fluridone does impact the tuber bank, thus more effectively controlling hydrilla and reducing the long-term use of herbicides, but requires a long exposure/contact time at a low dosage rate. A balance of endothal and fluridone applications takes advantage of the benefits from both control strategies. The use of diver assisted hand harvesting removed a small percentage of the biomass, but significant turbidity and hard clay substrates prevented effective removal via this method. Small scale use of benthic mats is being considered for 2012, but only in areas that will be challenging to address via herbicide application. High boater usage of these waters makes large scale use of this approach challenging. The department does not see any viable alternative to the emergency rule making to deal with this invasive aquatic weed.
9. Federal Standards
There are no minimum federal standards that apply to use of fluridone pellets in waters less than two feet.
10. Compliance Schedule
This regulation will take effect immediately upon filing with the Department of State. The use of fluridone pellets in waters less than two feet can be applied by certified applicators when the proper permits have been obtained from the department.
Regulatory Flexibility Analysis
This rule making will not impose an adverse impact on small businesses or local governments. In addition, it will not impose reporting, recordkeeping or other compliance requirements on small businesses or local government.
The new regulation will give certified applicators the ability to use fluridone pellets in waters less than two feet deep in order to control an invasive aquatic weed. The regulation, on its face, will not require any reporting or recordkeeping requirements for anyone. Certified applicators that use fluridone pellets in waters less than two feet deep will need to comply with permitting requirements and obtain a permit for such application.
However, since the regulation will not apply to small businesses or local government, there will be no adverse effect. For these reasons, the Department of Environmental Conservation has determined that a regulatory flexibility analysis for small businesses and local government is not required.
Rural Area Flexibility Analysis
This rule making will not impose any adverse impacts on rural areas and will not impose any additional reporting, recordkeeping or other compliance requirements on public and private entities in rural areas. There will be no initial capital costs or any annual costs to comply with the rule.
The new regulations will give certified applicators the ability to use fluridone pellets in waters less than two feet deep in order to control an invasive aquatic plants in waters across New York. The regulation, on its face, will not require any additional reporting or recordkeeping requirements. Certified applicators that use fluridone pellets in waters less than two feet deep will need to comply with permitting requirements and obtain a permit for such application, which is an existing requirement.
However, since the regulation will apply equally to all certified applicators in rural areas Statewide, there will be no adverse effect. For these reasons, the Department of Environmental Conservation has determined that rural area flexibility analysis is not required.
Job Impact Statement
The Department of Environmental Conservation (department) has determined that this rule will not have a substantial adverse impact on jobs and employment opportunities. There are no jobs or employment opportunities that will be affected, since the nature and purpose of the emergency rule making is simply to allow the use of fluridone pellets in waters less than two feet to control invasive aquatic weeds.
This rule will not eliminate any jobs or limit what a certified applicator can apply. The rule making will allow the use of fluridone pellets in waters less than two feet, which will not affect applicator certification requirements. Therefore, the department has determined that a job impact statement is not required.
