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Part 329: Use Of Chemicals For The Control Or Elimination Of Aquatic Insects

(Statutory authority: Environmental Conservation Law, § 15-0313)

[Revised May 1, 1972]

[page 1 of 1]

Contents:

Sec.

§329.1 Permit required

(a) No person, individual, public or private corporation, political subdivision, government agency, municipality, industry, copartnership, association, firm, trust or estate, or any other legal entity whatsoever, shall use chemicals for the control or elimination of aquatic insects in or over any waters of the State without having applied for and obtained a written permit to do so from a designated permit-issuing official except as specified in subdivision (c).

(b) Such permit may be issued for the use, of chemicals in the control or elimination of biting aquatic, insects, subject to such limitations as maybe considered necessary to safeguard water quality. Such limitations shall prescribe what chemical or chemicals maybe applied to the waters under stipulated conditions to protect 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.

(c) Such permit, however, shall not be required for the use of chemicals for controlling biting aquatic insects in temporary ponds or ponds not containing fish and which have no outlet to other waters and lie wholly, within the boundaries of lands privately owned or ]eased by the individual making or authorizing such treatment, provided the chemicals are restricted to those listed in paragraph (1) of subdivision (a) of section 329.6 and are applied at dosages listed therein.

§329.2 Permit-issuing officials

The Commissioner of Environmental Conservation, or his designated representatives, may issue permits in accordance with the policy and procedures set forth in this Part.

§329.3 Policy

(a) It is recognized that:

(1) Owners of lands through which water passes or which are bordered by bordered by waters have certain vested riparian rights to the use of these waters.

(2) The provisions of article 12 of the Public Health Law safeguard uses of waters through the maintenance of water quality standards assigned by classification.

(3) Use of chemicals for controlling aquatic insects may result in need for temporary curtailment of certain water uses.

(b) In considering the use of such chemicals it is the intent that:

(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 insects over land. However, any treatment resulting in direct entry of chemicals into waters shall be deemed to be in violation of these regulations if the permit herein required has not been obtained.

(2) Permits shall be granted under such limitations as will protect to the greatest extent possible all terrestrial life, aquatic life other than the aquatic insects intended to be controlled or eliminated, all public and domestic water supplies and irrigational, recreational, agricultural and industrial water uses.

(3) Regardless of conformity with other limitations, no permit shall be issued for chemical treatment of water supply waters, if the resultant chemical concentration at a water supply intake will exceed New York State Department of Health drinking water standards. In addition, the permit-issuing official may require the approval of the water supply agency.

§329.4 Permits and permit issuance

(a) Permits. The Commissioner of Environmental Conservation or his designated representative:

(1) may issue the permits authorized by this Part; and

(2) in addition, after submission of copies of applications for special permits to State agencies that may be concerned for evaluation and recommendations, may issue, with appropriate limitations to safeguard the public interest, special experimental permits for the control of biting aquatic insects involving chemicals, dosages. methods or areas other than those provided for herein, provided such issuance will not be at variance with these regulations and with the regulations relating to restricted use pesticides.

(b) Applicant and applications.

(1) The applicant shall be an owner, or a lessee of an owner. or a duly incorporated association of such persons or a governmental agency.

(2) The applicant shall submit an application on a form provided by the department. It shall be accompanied by a scale drawing or map of the treatment area. If the applicant is an individual, the property line and location of the treatment area shall be marked. If the applicant is an incorporated association, a municipality, a governmental body or a commission, and if the application is for black fly control, the area to be treated shall be delineated, or, if the application is for mosquito control, the locations of larvicidal applications shall be marked.

(3) Applications that involve public water supply waters or their tributaries will be referred to the State Department of Health for approval before a permit is issued.

(4) The applicant shall certify that the listed chemical will be employed in conformance with all the conditions specified in the permit issued,, that he agrees the issuance of the permit be based on the assumed accuracy of all statements presented by him; that he is legally responsible for damage resulting from the application of the chemical, or from the inaccuracy of any computations or from improper application of the chemical; and that he assumes full legal responsibility for the accuracy of all representations made in obtaining approvals or releases, and for any failure to obtain approval or releases from the persons likely to be adversely affected.

(c) Permits - additional provisions.

(1) Each permit shall be issued in terms that indicate:

(i) that its issuance is based on the statements, agreements and restrictions made or accepted by the applicant in his application;

(ii) the authorized date of treatment;

(iii) the permissible concentration of chemical, the maximum dosage to be applied in the treatment area and the methods of application to be used;

(iv) any restrictions imposed on the use of waters during and following the application and the duration of these restrictions;

(v) any special restrictions made by the permit-issuing official to implement the stated intent;

(vi) that the application of chemicals shall be deemed to be in violation of the provisions of the Conservation Law and of article 12 of the Public Health Law, if the applicant fails to comply with the permit terms.

(2) A copy of the required scale drawing or map submitted with the application shall be attached to and become part of the permit.

(3) When it appears to the permit-issuing official that damage or injury is likely to be caused to any person or persons, he shall require that reasonable notice be given to such persons.

(4) No permit shall be issued under this Part for lands under control of the Department of Environmental Conservation unless it is counter-signed by the director of the division of the department having jurisdiction over the lands involved.

(5) 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.

(6) No permit shall be construed as conveying to the applicant any right to trespass upon the lands of others to perform the permitted work, or authorizing the treatment of waters lying on or, passing through the property of others without their consent or relieving the applicant of any legal necessity to obtain such consent before treatment. Nor shall any permit be construed as authorizing the impairment of any right, title or interest in real or personal property held by or vested in a person not a party to the permit.

(d) Suspension or revocation of permit. A permit may be suspended or, revoked by the permit-issuing official at any time upon notice to the applicant upon one, or more of the following grounds:

(1) False or inaccurate statements in the application and accompanying papers.

(2) Change in any condition by reason of which treatment may impair the quality of the waters for the best usages assigned to them or endanger the public health, safety and welfare.

(3) Failure to abide by the terms of the permit or the application for the permit.

§329.5 Violations

Failure to abide by the terms of the permit or the application of chemicals without a permit shall be deemed to be in violation of the provisions of the Conservation Law and article 12 of the Public Health Law.

§329.6 Authorized chemicals and specifications

Based on available information, the chemicals or pesticides to be applied to the waters of the State, as well as the dosages and the methods of application, are those indicated to be beat in respect to safety of non-target organisms, accumulation in tissues and persistence in the environment.

(a) Control of mosquito larvae ( flowing streams and open waters of ponds and lakes containing fish are not to be treated).

(1) For the individual on his own or leased property.

Chemical: Spray Mixture: Dosage: Application: Areas to be Treated:
Methoxychlor (emulsifiable concentrate 25%) 1/2 ounce (4 teaspoons) of mixture per 100 square feet surface or proportional 4 teaspoons per quart of water Apply with "flit gun" or small atomizing sprayer containing no more than needed for the surface needed Temporary or permanent ponds without outlet to other waters and containing no fish or to similar small swampy areas containing water
Pyrethrins (if 0.1 or 0.2% pyrethrins) (if 20% concentrate) Undiluted; Use a 1/2 teaspoon to one quart kerosene 1 ounce (2 tablespoons) of either mixture to 100 square feet of surface As above As above and may also be applied to weedy margins of ponds containing fish when found to harbor larvae. This type of area may be treated even when ponds drain to other waters
Oil (kerosene or #2 fuel oil) Undiluted 3 ounces (6 tablespoons) oil per 100 square feet of surface or proportional As above Temporary or permanent ponds not containing fish, without outlet to other waters if browning or destruction of vegetation will not be objectionable. Localized areas of heavy vegetation on margins of ponds which contain fish may also be treated.
New oil "flit MLO" is nonphytotoxic and is effective at lower dosage Spray Mixture: If available, use undiluted 3/4 ounce (6 teaspoons) per 100 square feet As above Temporary or permanent ponds not containing fish, without outlet to other waters if browning or destruction of vegetation will not be objectionable. Localized areas of heavy vegetation on margins of ponds which contain fish may also be treated.
Methoxychlor (emulsifiable concentrate, oil solutions, wettable powders, or granulated formulations) Dilution based on delivery rate of equipment Not to exceed 0.2 lb/acre (active ingredient) Application: Positive pressure aircraft spray; large mechanical sprayers, or for small areas not readily reached, hand or canister sprayers-calibrated for exact delivery Temporary or permanent ponds and swamps and marshes not containing fish and without outlet to other waters
Malathion (emulsifiable concentrate) As above Not to exceed 0.5 lb/acre (active ingredient) As above As above
Abate (4 lb/gal emulsifiable concentrate) As above 0.5 ounce (of formulation) per acre usually to 1.5 ounce per acre in presence of high organic pollution As above - general even distribution to water surface Areas to be Treated: As above. At the dosage used not too toxic to fish in fresh waters, so small amount of drainage to other waters may be tolerated
Abate (Granular - 1% on sand) As obtained Not to exceed 5 lb/acre Calibrated spreader As above
Abate (Granular - 1% on sand) As obtained Not to exceed 2 1/2 lb/acre of formulation As above As above
Flit MLO Undiluted 2 1/2 gallons per acre Calibrated hydraulic hand or power sprayers (not to exceed 30 p.s.i.) Any water where phytotoxicity is a problem and marshes, swamps with outlet to other waters and weedy margins of ponds and lakes containing fish
#2 fuel oil plus 3-5% wetting agent such as Triton B 1956, Nopco 1216 or Amine 230X Undiluted 5-10 gal/acre if unpolluted, little vegetation. 20-50 gallons/acre, if heavily polluted, vegetated. Calibrated mechanical sprayer Catch basins, dumps and sumps

(b) Blackfly larvicide applications.

(1) Usually the holdings of an individual property owner are too small to gain any effective control by treatment of waters on his property. Black flies are reported to fly several miles and treatment of a stream must involve the treatment of the headwaters for the best effect. Airplane application is the only method of treatment that is authorized. If the individual's holdings are extensive enough to constitute a large-scale operation, a permit may be issued according to paragraph (2).

(2) Large scale operations (associations, municipality, governmental agency, etc.). (If area for which permit is requested is too small or incomplete, for effective control, the permit may not be granted.)

Chemical: Spray Mixture: Dosage: Application: Areas to be Treated:
Methoxychlor oil solution plus 0.5-0.75% emulsifier such as Triton X 100 in finished formulation Usually one gallon 15% methoxychlor per flight mile Not to exceed .075 lbs per swath acre of active ingredient Positive pressure aircraft spray only. Approximately 100 feet swaths, spaced 1/4 mile between centers, to cross streams at approximately right angles. All streams in spray area. Except for the outlets, direct spraying of lakes and ponds should be avoided.

Note: Aircraft operators should hold an agricultural operator's certificate from the Federal Aeronautics Agency and also a State license as custom applicator an soon an the State regulations are in effect. Aircraft must be certificated and properly equipped according to the Federal Aeronautics Agency regulations.

§329.7 Other chemicals

In addition to the authorized chemicals and specifications, permits may be issued for other chemicals and specifications, without the necessity of adding them to the list, when it is evident that their use will conform with the intent and purpose of the law and these regulations. Only chemicals labeled for the intended use, registered in the State of New York and not in conflict with the regulations relating to restricted use pesticides may be authorized for use pursuant to this section.

§329.8 General

The listing of a chemical as an authorized chemical, or any authorization for its use, in or pursuant to this Part does not imply that it is recommended by the Department of Environmental Conservation for controlling or eliminating aquatic insects.