Legislation could settle milfoil disputes in Environmental Services' favor

Mass. company fed up with delays and restrictions in faces applying chemicals in NH

The long running dispute between the New Hampshire Department of Environmental Services (DES) and the New Hampshire Fish and Game Department (NHF&G) over the use of chemical herbicides, especially 2,4 D, to treat milfoil could be settled when the Legislature takes up the so-called companion bill to the state budget today.

An obscure provision of the "trailer bill" (House Bill 2) would give DES the sole authority to sanction the use of chemical herbicides, requiring only that the department consult with Fish and Game. The amendment to the statute governing the Clean Lakes Program (RSA 487:17) reads: "Notwithstanding any other law or interagency agreement to the contrary, the department's decision to use herbicide applications shall be made in consultation with the Fish and Game Department and shall be implemented only if the Department of Agriculture, Markets and Food issues the permit pursuant to RSA 430:33, with or without the concurrence of the Department of Fish and Game."

The amendment originated with Representative Richard Drisko (R-Hollis), who chairs the Exotic Aquatic Weeds and Species Committee of the Legislature, and members of his panel who have grown increasingly frustrated with the reluctance of Fish and Game to approve the use of 2,4 D, which many consider the most effective means of treating dense infestations of milfoil.

The two departments have been at odds for the past two years over the use of chemical herbicides to treat infestations of milfoil. DES administers the state's exotic species program, which awards matching grants to lake associations and municipalities to treat milfoil, while Fish and Game is one six other departments that review the applications to apply herbicides and must approve their use on water bodies of 10 or more acres.

In 2005 Fish and Game began recommending against the use of herbicides, particularly where they had been used often in the past, citing the risk to the aquatic environment in general and fish populations in particular. Last year, the departments entered a memorandum of agreement intended to resolve their differences.

However, in 2006 Fish and Game approved the use of herbicides at only three locations on Lake Winnipesaukee — Lake Shore Park and Smith Cove in Gilford and the Meredith Yacht Club in Meredith — and withheld or conditioned its approval at 11 others, including Pickerel Cove on Paugus Bay in Laconia, the northern end of Lake Winnisquam in Meredith, and Fish Cove and Round Cove on Lake Winnipesaukee in Meredith.

Alice Chamberlain, who handles environmental issues for Governor John Lynch, said that complaints about the lack of treatment of milfoil represent a large share of calls from constituents.

This year DES prepared management plans for treating milfoil with chemical herbicides at 19 locations, including Smith Cove in Gilford. Although Fish and Game initially expressed reservations, it assented after the Policy Committee of the Fish and Game Commission, on the initiative of Commissioner Patti Costa of Barnstead, who represents Belknap County, brokered an agreement between the departments.

Meanwhile, the effort to reform the process for granting permits to apply chemical herbicides, which began with legislation sponsored by Drisko last year, cannot proceed quickly enough for Lee Lyman, who owns and operates Lycott Environmental, Inc of Southbridge, Massachusetts.

"I'm considering not doing any business in New Hampshire anymore, because I'm fed up with all the bureacratic garbage," Lyman said. "Every year it gets more and more difficult, and more lime-consuming and more cumbersome."

Lyman's company recently applied 2,4 D for the Town of Alton in Alton Bay.

Permits are granted by the Division of Pesticide Control in the Department of Agriculture, Markets and Food after a review by DES and NHF&G as well as the departments of Resources and Economic Development, Safety and Health and Human Services.

Lyman said that apart from Maine, where the use of chemical herbicides to control aquatic weeds is prohibited, the permitting process in New Hampshire is "more restrictive and cumbersome than any other state." He said that while other New England states issue permits in as few as seven days and no more than 30 days, New Hampshire takes 90 days. Furthermore, he said that no other state assigns an inspector to monitor the treatment.

Lyman said that the state imposes restrictions on the use of herbicides that are well in excess of those specified on the label, which are prescribed by the United States Environmental Protection Agency. In particular, he called prohibiting swimming in treated water for seven days "ridiculous," adding "no other state, not even the federal government, requires it," and described the rules for notifying abutters and neighbors "confused and convoluted."

To make matter worse, he said that Wendy Chapley, director of the Division of Pesticide Control, "vacillates in her interpretations of the rules, which drives my employees crazy."

Chapley could not be reached for comment, but Amy Smagula, who manages the Exotic Species Program at DES, said that after the passage of Drisko's bill directing the agencies to review and revamp the permitting process, state officials met with applicators, including Lyman and his principal competitor Marc Bellaud of Aquatic Control Technology of Sutton, Masschusetts.

"There were many discussions," she said. "Everyone who attended had a laundry list of complaints and there was general agreement that the process needs overhauling." She said that Chapley was drafting changes to the rules designed to ease and clarify the permitting process.

After treating New Hampshire waters for 37 years, Lyman is losing patience. "I've served on two committees over the last 15 years and told them how they could make the permitting process easier to manage and my competitor has done it as well," he said. "Almost none of our suggestions were ever taken. I've about had it with the state of New Hampshire."