Appeal forces Brandon-area mosquito district permit review
BRANDON, LEICESTER, SALISBURY, GOSHEN, PITTSFORD — The entire Pesticide General Permit issued to the Brandon Leicester, Salisbury Goshen Mosquito Control District in 2017 is reviewable per the Vermont Environmental Court.
The de novo treatment of the permit (de novo is Latin meaning “from the beginning” or “anew”) means that the court may look at all of the documentation related to the permit application to make confirm that state and federal regulations were followed.
The Environmental Court permit review is the result of an appeal of the BLSG permit filed by The Toxics Action Center and the Environmental Natural Resources Law Clinic at Vermont Law School on June 13.
The permit allows the BLSG to spray the pesticides Malathion and Permethrin along the district’s roadways to kill adult mosquitoes.
The BLSG, which now also includes Pittsford, has been using the same two insecticides to control mosquitoes in the district for roughly 20 years, and the battle between property owners who do not want to be sprayed and the quality of life issues for those who do has gone on just as long.
The BLSG uses an organic larvicide to treat the swamps in the area where mosquitoes breed. The appeal is challenging the adulticide spraying program, not the larvicide program, The adulticide, which kills fully grown, flying mosquitoes, is applied from sprayers mounted on the back of BLSG trucks that follow certain routes around Lake Dunmore, Brandon and Goshen.
The Vermont Agency of Agriculture is the sole permitter and regulator of pesticide application in the state. The DEC’s main concern is waterways and water quality with regard to pesticides.
But officials from the BLSG say that the de novo treatment of the permit shows that the TAC and VLS are trying to shut down the district.
“They want to make it as difficult as possible for us and bury us in paperwork,” said BLSG Board Chair Dr. Ben Lawton. “I don’t know why, but the judge ordered that we’re starting all over. The hearing will focus on the three questions raised.”
Those three questions were filed by the appellants on July 3, challenging the permit authorization of Intent for coverage awarded to the BLSG in May by the Vermont Agency of Natural Resources.
The questions are:
1. Does the Authorization comply with the terms and conditions of the Permit where the Pesticide Discharge Management Plan fails to document how the District evaluated each management option considering impact to water quality in developing the Pest Management Measures?
2. Does the Authorization comply with the terms and conditions of the Permit where the Pesticide Discharge Management Plan fails to document how the District evaluated each management option considering impact to non-target organisms, including federal and state threatened and endangered species in developing the Pest Management Measures?
3. Does the Authorization comply with the terms and conditions of the Permit’s mandates that the District must “minimize the discharge of pesticides to waters of the State” and that a pesticide “shall only be used if all other measures are unreasonable and have been exhausted” where the District’s Pesticide Discharge Management Plan deploys adulticide spraying when other integrated pest management strategies are not sufficient to reduce mosquito populations to a manageable level.
Lawton said the money used to defend the BLSG in this case is coming right out of the district’s mosquito abatement budget. The BLSG gets $70,000 a year from the state to treat 6,000 acres, and Lawton said that funding has not increased since 1990.
The state did pay for an aerial spraying of both the BLSG District and the Lemon Fair Mosquito District, a total of 16,000 acres, in 2012 following the deaths of two area men from Eastern Equine Encephalitis. They were the first two cases of EEE ever in Vermont.
EEE is a rare but often-deadly virus carried by a specific breed of mosquito that was found in the Whiting swamp. Two area men died of EEE in 2012, and a number of cases of West Nile Virus have been reported in the area over the last two decades, although there have been no fatal human cases. EEE was detected again in mosquitoes in Whiting in 2013 and 2014, as well as in Grand Isle in 2014, but there have been no other human EEE cases since 2012.
Lawton said that while the BLSG was originally formed in 1990 to combat nuisance mosquitoes in the area, the goal has shifted.
“We feel the district has a responsibility in its program above and beyond treating nuisance mosquitoes,” he said. “It’s a public health issue. We want to be proactive to prevent situations like EEE.”
Will Mathis is the BLSG District Coordinator, one of the few paid employees of the district. He appeared at the interview in waders, having just come from the Whiting Swamp applying more larvacide.
“We just had a large hatch and we expect those mosquitoes to be flying and biting now,” he said. “We’re doing a lot of hand treatment with the larvacide to get the population down and to tolerable levels.”
Like most pesticides, Malathion and Permethrin are not without their drawbacks. According to the National Pesticide Information Center, Malathion is highly toxic to bees, some fish and birds, but is considered lowly toxic to mammals. Permethrin is more toxic to fish than insects or mammals, according to the National Pesticide Information Center. Neither pose known cancer risk to humans, and the risk to pregnant women is considered low as well.
Woody Little is the Vermont and New Hampshire Community Organizer for Toxics Action Center, a Boston-based environmental action non-profit that addresses air and water pollution issues across New England.
In a press release accompanying the original appeal, Little wrote that “Neighboring areas have developed successful programs to reduce mosquitos that do not include spraying chemical pesticides, and Toxics Action Center is calling on the DEC to force the (BLSG) District to consider safer alternatives instead, as is required by the law.”
Little cited the neighboring Lemon Fair Insect Control District, which comprises Bridport, Weybridge and Cornwall as an example of a district that only uses the organic larvacide that the BLSG uses, and does not spray any pesticide to kill adult mosquitoes.
However, the BLSG district is not only a larger district, but also a more populated one, with thousands of visitors flocking to Lake Dunmore and Fern Lake at this time each year.
“(The appeal) is not going to lead to the BLSG not using adulticide,” Little acknowledged, “but based on talking to folks in the area, there are lots of things the DEC can do to improve the impacts.”
Little said that the appellants would also like to see a more thorough evaluation of impact the pesticides have on non-target organisms, meaning other insects that are not mosquitos, and fish and wildlife, as well as public health.
Currently, there is a BLSG policy for property owners to opt out of spraying, creating “no spray zones” near organic farms or near property owners with health problems that may be exacerbated by the adulticide. They must submit their request in writing, and requests must be submitted each year.
OFFENSE VS. DEFENSE
When the appeal was first filed, it was filed against ANR, which the district thought would defend the case and pay the legal costs on the district’s behalf. But ANR attorney Hannah Smith said in a phone interview Monday that that was never the case.
“The state will participate in this case,” she said. The object is to ensure that the court interprets our regulations the way we interpret them.”
When asked if ANR would have ever fought the case and funded the defense on the BLSG’s behalf, she said no.
“We wouldn’t be able to do that,” she said. “We’re not able to fund private litigation. We don’t have the budget or the ability to provide funding for the defense of a permit. The state has entered a notice of appearance.”
The BLSG is slowly trying to inform the paying member towns in the district about the litigation. Lawton said they are hoping the towns will issue letters of support on the district’s behalf.
Jeff Whiting is vice-chair of the BLSG Board.
“It’s turning out to be a long, drawn out process,” he said. “Who knows what will happen? We may see additional regulation placed on us and it cost the towns more money, and we’ll have to do more documentation, which is man hours and cost.”
“A lot of people are saying, ‘I wish they’d follow the law,’” he said, “and we are following the law. Everything is documented, documented, documented.”
There is a conference call scheduled in this case with the Environmental Court on Aug. 27 at 9 a.m.
The BLSG meets on the third Thursday of each month at the Stephen A. Douglas House in Brandon at 7 p.m.
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