A Question Of Risk: State Agency And Science Panel Disagree On Permit To Protect Bats
The Fish and Wildlife Department and a state science advisory panel disagree over how to protect endangered bats in Vermont from a large-scale pesticide spraying program.
Bats are not doing well here. They’ve been ravaged for years by a fungal disease known as White-Nose Syndrome, which has killed more than 5 million bats in the Northeast and Canada since 2006. Five bat species found in Vermont are listed as threatened or endangered.
The state endangered species committee – made up of six prominent scientists – now says the state needs to do more to protect these five species from pesticide exposure in Addison and Rutland counties.
The committee says a local municipal spraying program needs a state endangered species permit to limit its impact on bats.
The committee outlined its reasoning in a memo to Natural Resources Secretary Julie Moore, concluding that the "statute sets a high bar for requiring an incidental takings permit and the evidence in this case exceeds that threshold."
But the Department of Fish and Wildlife opposed that recommendation. The department and the committee are at odds over questions of law, science and the level of risk needed to justify additional protection.
Chris Fastie has been following this issue for years. He lives in a rural area of Salisbury in Addison County, an area known both for its prodigious swarms of mosquitoes – and for its bats.
“There’s just a lot of very rural, and wild, and lowland and wetland areas in this part of Addison County and northern Rutland County,” he said. “So it’s just a hot spot for bats.”
Fastie is a forest ecologist whose recent work took him to study in Alaska. He’s not a bat biologist. But he’s long been concerned about a large-scale annual mosquito spraying program in his area. He said the airborne, bug-killing pesticides could harm bats that both eat mosquitoes and feed in the areas that are sprayed at night
“This sets up a unique situation in Vermont where there are pesticides lingering in the air at exactly the time bats are flying around looking for food,” he said.
"This sets up a unique situation in Vermont where there are pesticides lingering in the air at exactly the time bats are flying around looking for food." - Chris Fastie, Salisbury resident and member of the Moosalamoo Woods and Waters environmental group
The spraying is done by a municipal organization, called the Brandon, Leicester, Salisbury, Goshen insect control district, or BLSG. Fastie said 190 miles of road in the district are sprayed with two different pesticides: malathion and permethrin. The nightime spraying is usually conducted in June, the height of mosquito season.
Fastie's local environmental group, Moosalamoo Woods and Waters, along with state and national organizations, asked the state endangered species committee to consider whether the district needs an endangered species “takings” permit for the spraying.
The permit would likely require some sort of mitigation measures to limit the killing of the endangered bats. For example, instead of spraying the most rural sections of the 190-mile route, the pesticides could be restricted to residential areas.
The state endangered species committee met in late February to vote on the takings permit issue. The vote capped a two-year process, involving hours of debate, legal research and a study submitted by the environmental groups that concluded the spraying could hurt bats. At the end, all six members voted to recommend the mosquito district apply for the permit.
But the Department of Fish and Wildlife – the state agency charged with protecting wild creatures – was not convinced.
"The crux of the disagreement here is how much of a risk, how significant a risk, does something have to pose in order to require a takings permit for a threatened or endangered species." - Louis Porter, Fish & Wildlife Commissioner
“The crux of the disagreement here is how much of a risk, how significant a risk, does something have to pose in order to require a takings permit for a threatened or endangered species,” said Fish and Wildlife Commissioner Louis Porter.
Porter said there's a theoretical risk from the spraying, but not a proven danger. He says his department has worked hard over the years to study and restore Vermont's fragile bat populations. He said the same biologists weighed in on the takings permit issue.
“And we would not have hesitated to require a takings permit if the circumstances of it fit the biological and legal definitions for such a permit,” he said. “The department has done much more to protect bats in Vermont than any other of the organizations that are seeking to curtail mosquito spraying.”
But Porter’s argument of insufficient evidence clearly did not reassure the various biologists on the endangered species committee.
Committee member Elizabeth Thompson, an ecologist and botanist at the University of Vermont, disputed the department’s assessment at the committee meeting last month
“So our job is to decide whether we think there is a risk of injury. And it seems clear from the evidence that I’ve seen that there is a risk of injury,” she said.
"Our job is to decide whether we think there is a risk of injury. And it seems clear from the evidence that I've seen that there is a risk of injury." - Elizabeth Thompson, botanist and member of state endangered species committee
There’s also the legal question. Mason Overstreet of Vermont Law School’s environmental law clinic represents the coalition of groups that’s pressed the issue. Overstreet said Vermont law is quite clear on the legal threshold that needs to be cleared.
“The term ‘take’ under the statute is intentionally defined broadly by the Legislature to include activities that 'create a risk of injury to wildlife, whether or not the injury occurs,’” he said.
But Catherine Gjessing, general counsel for the Fish and Wildlife Department, said Vermont statute does not require a permit for spraying. She acknowedlged the Vermont law goes further than its federal counterpart in preventing harm to a species, but she said the legal bar still hasn't been cleared.
"Here, unlike the federal ESA [Endangered Species Act], actual prospective injury or death is not required," she wrote in a memo to the panel. But "the Agency’s position is that there must be a reasonable likelihood (risk) of adverse impact such as injury or harm to the species."
Pat Parenteau is a Vermont Law School professor with decades of experience both teaching and litigating endangered species cases. He told the committee that the Vermont law is the strongest in the country. He said Gjessing's interpretation was wrong.
“This is a law designed to get in front of injury and harm and mortality and sub-lethal effects, particularly for species like bats that are so critically endangered, that have been hammered by White-Nose Syndrome, that are being affected by climate change,” he said.
The law professor then followed with a not-so-subtle warning of a possible court battle ahead.
"The only determination here that a permit would not be required would be proof of no harm, no credible threat of harm to the species. That simply doesn't exist... and it would be a precedent that I do not believe would survive judicial review." - Patrick Parenteau, professor at Vermont Law School
“The only determination here that a permit would not be required would be proof of no harm, no credible threat of harm to the species. That simply doesn’t exist,” he said. “So if the question is precedent, what I’m here to tell you is that that would be a very bad precedent for species protection in Vermont, and it would be a precedent that I do not believe would survive judicial review.”
Commissioner Porter said his department has required a takings permit for wind turbines in Vermont that are known to kill bats. But Porter said there is no direct evidence that the pesticide spraying has killed bats. He argued the committee’s work also sets a bad precedent.
“A takings permit in this case would likely not prevent mosquito control. But it’s important to maintain and protect the standards under which these permits are required,” he said.
For Chris Fastie in Salisbury, the potential for continued legal wrangling could be avoided if the state simply followed the advice of its own experts on the endangered species committee.
“And I don’t have any experience with how Vermont state agencies work, but I would be very surprised and disappointed if any Vermont agency made a decision knowingly ignoring a scientific consensus like this,” he said.
The decision now lies with Agency of Natural Resources Secretary Julie Moore. Porter said she’ll review both his department’s work, and the lengthy deliberations of the endangered species committee.
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