Part 328, Section 6 - Use Of Chemicals For The Control Or Extermination Of Undesirable Fish - Regulatory Impact Statement
Regulatory Impact Statement
1. Statutory Authority
Section 15-0313 of the Environmental Conservation Law (ECL) authorizes the Department of Environmental Conservation (department) to adopt and enforce rules and regulations governing the direct application of pesticides to or in surface waters. In addition, such rules and regulations may specify the pesticides, chemicals, quantities, and concentrations thereof which may be directly applied or used in such waters.
2. Legislative Objectives
Specifying allowable dosage limits of authorized chemicals in regulation for the extermination of entire fish complexes where reasonable and for purposes of sound fisheries management is an important and valuable function of the department, consistent with intent of the Legislature to protect the welfare of the people. Dosage limits were set in regulation over four decades ago to deal with certain types of fish species. However, with the transport of invasive species through the live food trade and secondarily through the aquarium trade, it is a reality that invasive species are being introduced into water bodies in New York State (NYS) and can pose a threat to many of our rare fish and wildlife species. When the department confirms the presence of an invasive species, immediate action may be necessary. Current dosage limits for rotenone in regulation are known to be ineffective against invasive species based on actions that other states have taken. A regulatory change to allow a higher dosage of authorized chemicals, in certain situations, to eliminate an invasive fish is within the legislative intent when the chemical is used properly and for a valuable and necessary purpose.
3. Needs and Benefits
Subdivision 328.6(c) of 6 NYCRR allows a dosage limit not to exceed .5 to 1.0 ppm rotenone to be used for the extermination of entire fish complexes where reasonable as a basis for sound fisheries management. This regulation was promulgated July 16, 1964 and has not been amended since that time. Prentox Prenfish Toxicant, which contains rotenone, has an allowable limit of rotenone up to 5 ppm, for specific fish species, pursuant to a State and Federal approved label. However, the dosage limitation in regulation prohibits a dosage beyond 1.0 ppm rotenone. By amending the regulation to allow a dosage beyond 1.0 ppm rotenone, State and Federal agencies will be able to use rotenone at a higher dosage in full compliance with the State and Federal approved label, for certain fish species. Depending on the type of invasive fish species, it may be necessary for the department to issue a Special Local Need label to control invasive species. Such label will permit the use of rotenone on a target pest not specified on the label currently registered with Environmental Protection Agency and the department, such as the Northern snakehead.
In mid June 2009, department fisheries staff conducted an investigation and verified the presence of at least two adult Northern snakehead (Channa argus), a species native to Asia, in Catlin Creek below Ridgebury Lake in the Town of Waywayanda, Orange County. The department has determined that the use of rotenone to eradicate the Northern snakehead will not be effective at the current dosage limits allowable by regulation. Although there is little information available on the toxicity of rotenone to this species, recent work indicates that a higher dosage of rotenone is required to ensure complete mortality of adult snakehead. (North American Journal of Fisheries Management 26:628 - 630, 2006). Eradication using 5 ppm rotenone was successful in a small pond in Crofton, MD and in Ridgebury Lake in 2008. Rapid response using effective treatment is critical to successful eradication. Once into a large lake or riverine system, eradication is impossible. Eradication may be effective in smaller waters, particularly if the population is isolated.
The Northern snakehead entered the United States primarily through the live food trade and secondarily through the aquarium trade. This species has been prohibited from importation by the U.S. Fish and Wildlife Service under the Lacey Act 18 U.S.C. 42. The draft National Management Plan for the Northern Snakehead lists several objectives including: prevent new introductions and control the spread of established populations in new areas; detect and rapidly respond to Northern snakehead introductions in U.S. waters; and contain and eradicate newly discovered populations of Northern snakehead.
There is no evidence that any Northern snakehead survived the 2008 treatment of Ridegebury Lake. The discovery of two adult Northern snakeheads in Catlin Creek in June of 2009 indicates that some did survive our reclamation efforts in Catlin Creek or in adjacent wetlands. It is imperative that we take action to prevent this population from growing and expanding.
4. Costs
Enactment of the emergency regulation described herein allowing a higher dosage of rotenone to be used by State and Federal agencies will not result in any cost to regulated parties, State or local governments, or the general public.
5. Local Government Mandates
The amendment of subdivision 328.6(c) 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 a dosage limit of rotenone.
8. Alternatives
Options that have been evaluated include containment, electrofishing, and netting. Containment strategies have already been employed, but any blocking device is subject to failure in the face of natural episodic events such as flooding. In addition, electrofishing and/or netting would remove only a portion of the population due to accessibility and size selectivity of the gear.
The alternative to the regulatory change would be to take no action against this invasive species, which the department finds unacceptable. In the absence of a regulatory change, there will be no viable way to control this invasive fish species, which poses a threat to many of our rare fish and wildlife species. The Northern snakehead will have the ability to enter other bodies of water and change the ecosystem of our water bodies in NYS.
9. Federal Standards
There are no minimum federal standards that apply to the dosage limit regulations.
10. Compliance Schedule
This regulation will take effect immediately upon filing with the Department of State. The allowable dosage limit of 1.0 ppm rotenone can be exceeded by State and Federal agencies when controlling invasive species as of October 1, 2009.
