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Part 328: Use Of Chemicals For The Control Or Extermination Of Undesirable Fish

(Statutory authority: Environmental Conservation Law, §427, subd. (3))

[Revised April 10, 1973]

[page 1 of 1]



§328.1 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 extermination of undesirable fish in 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 extermination of undesirable fish, subject to such limitations as may be considered necessary to safeguard water quality. For the protection of riparian uses, no such permit shall be issued except where the applicant has certified that the affected riparian users have agreed to temporary curtailment of their uses incidental to treatment or unless the applicant demonstrates to the satisfaction of the commissioner that any non-consenting riparian users will not be significantly adversely affected by the use of the chemicals subject to such limitations as are set forth in the permit. Such limitations shall prescribe what chemical or chemicals may be applied to the waters under stipulated conditions to protect the public health, safety or welfare, and terrestrial and aquatic life or the growth and propagation thereof, other than fish contained in the water for which chemical treatment is proposed.

(c) Such permit, however, shall not be required: for removing undesirable fish by netting, trapping, drawing down of water or any other method not involving the use of chemicals when it is legally authorized by the Department of Environmental Conservation; or for chemical control of fish by the Department of Environmental Conservation on waters completely enclosed by or bordered by lands owned or leased by the department or the State.

§328.2 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.

§328.3 Policy.

(a) It is recognized that:

(1) Owners of lands through which water passes or which are bordered by waters have certain vested riparian rights to the use of the 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 undesirable fish 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) Permits shall be granted under such limitations as will protect to the greatest extent possible all terrestrial life, aquatic life other than fish in the water to be treated, all public and domestic water supplies and irrigational, recreational, agricultural and industrial water uses.

(2) The permit-issuing official shall not make recommendations on the method, use, general handling, efficiency of the chemicals and treatment operation or other aspects involving responsibilities of the applicant, except as may be related to the public health and conservation programs and to avoid adverse effects on water uses.

(3) Regardless of conformity with other limitations, no permit shall be issued for chemical treatment of water supply waters, or waters closely contiguous to and tributary to such waters, without the approval of the water supply agency.

§328.4 Permits and permit issuance.

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

(1) may issue permits for the use of any chemical listed as an authorized chemical (see §[WW] 328.6) and conforming with specifications relating to purpose, dosage, area to be treated, method of application and other limitations provided herein;

(2) may issue special permits for operations relating to the control of undesirable fish by State and Federal agencies, which permits are subject to conditions and limitations consistent with the other sections of this Part;

(3) may issue special permits for controlling undesirable fish involving chemicals, dosages, methods or areas other than those provided for herein, provided such issuance will not be at variance with these regulations and the regulations relating to restricted use pesticides.

(b) Applicant and applications.

(1) The applicant shall be a riparian owner, or lessee of a riparian owner or an association of such persons.

(2) The applicant shall submit an application on a form provided by the department. It shall be accompanied by a scale drawing or map including depth soundings adequate to determine: the size, depth and volume of the water; the concentration of the chemical therein and conformity to the limitations set forth herein; the location of inlets and outlets of the water; the location of water users in the area and along the inlets and outlets; and any further information required by the permit-issuing official.

(3) The applicant shall submit with the application a written authorization from the water supply agency, if the waters to be treated are public water supply waters or so closely tributary to public water supply waters that they may be affected. Applications that involve such 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 obtained agreements to the treatment from water users as set forth in his application whose use may be restricted; 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.

(5) The commissioner, or his designated representative, shall reject the application and issue no permit when the application involves:

(i) only partial treatment of a lake or pond;

(ii) treatment of a stream, or part of a stream or a small pond in the course of a stream;

(iii) treatment of a pond or lake with a tributary system so extensive that their treatment is impracticable or where the tributaries are not to be treated in whole or in part because permission cannot be obtained from the owner or owners;

(iv) treatment of a pond or lake with no barrier to prevent repopulation from downstream and such a barrier cannot feasibly or legally * be provided.

*Footnote - See Conservation Law, §429.

(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 approximate date of treatment;

(iii) the permissible concentration of chemical and the maximum dosage to be applied in the water to be treated 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) 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) Permits shall require and be issued upon the condition that prior actual notice of the date or dates of treatment and water-use restrictions be given to all affected riparian users and known users.

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

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

(1) False or inaccurate statements in the application or 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 or welfare.

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

§328.5 Violations

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

§328.6 authorized chemicals and specifications.

Rotenote for extermination of undesirable fish. (Removal of entire fish populations.)

(a) Purpose. Authorized for extermination of entire fish complexes where reasonable as a basis for sound fisheries management. Not authorized for partial treatments or elimination of a single species from the population.

(b) Periods of treatment. In waters with outlets, or possible outlets at high water, treatment will be authorized from July to mid-September. Waters without outlets may be treated up to October 15. Later treatment will require special authorization.

(c) Dosage. Not to exceed 0.5 to 1.0 ppm rotenone and vehicle of five percent by weight emulsifiable rotenone, or two and one-half percent synergized emulsifiable rotenone. The high dosage should be considered only for waters which are weedy, turbid or of high alkalinity.

Note: The issuing agent should check the volume and dosage and for this purpose insist that an adequately sized scale map complete with soundings be provided by the applicant.

(d) Treatment area. Entire lakes and ponds shall be treated, including any tributary system. Permits will not be issued for streams or parts of streams unless within such tributary system.

(e) Method of application. Diluted solution shall be sprayed for effective coverage and to avoid uneven distribution. Shallow waters and ponds up to five acres and tributaries should be treated by hand pumps. Larger waters and those over 15 feet in depth should be treated with pressure or centrifugal pumps. The suction side may be used to draw and mix water and chemical before they are sprayed on the surface. A proportionate amount should be distributed to the deeper water by dragging a weighted discharge hose. Tributaries are to be treated for several days after the pond treatment.

(f) Posting of treated area. If the applicant is unable or does not desire to control access and use of the area, he shall post it to indicate the treatment given.

(g) Water-use restrictions. While rotenone at the recommended concentration is not harmful to man or animals after distribution, less is known of the effect of vehicle and additives. Due to the possibility of high localized and surface concentrations:

(1) Watering animals shall be restricted for two weeks following treatment.

(2) Swimming shall be restricted until the water has become non-toxic to fish or for not less than two weeks if the toxicity is dissipated sooner.

(3) Use as a private water supply shall be restricted for the same time and same reasons as swimming. Treatment of a public water supply must be authorized by the supply agency. In this case, restriction shall be left to the supply agency.

§328.7 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 this Part. 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.

§328.8 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 exterminating undesirable fish.