Magistrate finds insufficient evidence spraying would harm water supplies.

By Cynthia McCormick
Cape Cod Times
March 28, 2017

A state agency has dismissed an appeal filed by several Cape towns that oppose Eversource Energy’s annual plan to spray herbicide under transmission lines.

The towns failed to demonstrate that the spraying would damage municipal water supplies, James P. Rooney, first administrative magistrate with the state Division of Administrative Law Appeals, wrote in his decision.

“It is clear that the towns object to the use of certain pesticides,” Rooney wrote. But the towns did not establish that there was a potential impact on town water supplies, he said.

The towns of Brewster, Dennis, Eastham and Orleans had appealed the 2016 yearly operating permit issued by the Massachusetts Department of Agricultural Resources to Eversource to spray herbicide on utility rights-of-way on Cape Cod and Martha’s Vineyard as part of its plan to control invasive and tall-growing plant species.

The spraying historically has drawn stiff opposition from the Cape’s elected officials, environmental groups and residents who fear it could affect health as well as the region’s fragile ecological system if chemicals remain in the soil or seep into the aquifer.

“All the towns want to do is have a hearing,” said Laura Kelley, who represents a local environmental group called Protect Our Cape Cod Aquifer.

“The towns want to communicate with the state, and the state is saying, ‘We are not going to allow this to happen,'” Kelley said.

The next step is to see if the agricultural department approves Eversource’s 2017 spray list for 13 towns on the Cape and Islands and work to appeal that decision, Kelley said.

The public comments on the plan closed at 5 p.m. Monday. After the department signals it has received and reviewed the comments, there is a 21-day period during which an appeal can be filed, Kelley said.

Brewster, Orleans, Dennis and Eastham each contributed $15,000 last summer to an effort to overturn the department’s approval of the 2016 spray plan.

Attorney Bruce Taub, acting on behalf of the towns, has said that the magistrate’s decision was important even though 2016 has ended because it could have set a precedent.

With the magistrate’s ruling against the four towns, Kelley said it was time for the other towns scheduled for herbicide spraying this year to also get involved.

Those towns include Barnstable, Bourne, Chatham, Falmouth, Harwich, Sandwich, Yarmouth, Edgartown, Oak Bluffs and Tisbury.

Eastham is not on the spray list this year.

There is increasing evidence that glyphosate, the main ingredient in the herbicide set to be applied to leaves, stumps and bark by workers using backpack sprayers, is more dangerous than originally thought, Kelley said.

“The towns don’t want this on their land,” Kelley said. She said they plan to have an expert witness from Washington State University, John Stark, testify as to the dangers if they can ever get a hearing.

But Michael Durand, a spokesman for Eversource, said the type of integrated vegetation management plans operated by the energy company “have proven time and again to be the most effective in providing long-term sustainability of the natural habitat.”

Glyphosate is the product that is used least often because “it kills grass that we want to promote,” Durand said. He said selected use of herbicide is better for plant and animal habitats than mowing under the power lines.

State Sen. Julian Cyr, D-Truro, and state Rep. Sarah Peake, D-Provincetown, have written to the Department of Agricultural Resources and state Pesticide Bureau objecting to Eversource’s 2017 yearly operational plan, noting that Monsanto, the manufacturer of glyphosate, is a defendant in a federal lawsuit that says exposure to the herbicide causes cancer.

 

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