Vermont agency: Paraquat not permitted on utility rights-of-way; explains opt-out, notice and permit rules

Dave Huber, deputy director of the Division of Plant Industry at the Vermont Agency of Agriculture, Food and Markets, told a legislative committee that the agency has no permits that allow Paraquat for use on utility rights-of-way and outlined how rights-of-way herbicide use is regulated and communicated to the public.

Huber said the agency requires a permit from the secretary before any herbicide may be applied for the purpose of clearing or maintaining a right-of-way, and that agency specialists inspect, investigate complaints and can sample if an application appears to fall outside permit terms. “We don't have any permits that have paraquat allowed for rights away,” he said.

The rules governing rights-of-way date to 1991 and were updated in 2023 as part of a broader pesticide rule amendment. A complete permit application must be filed on a secretary-provided form before March 1 of the year of proposed application and include a digital map that shows right-of-way boundaries, surface waters, public potable water sources, and locations of threatened or endangered species, Huber said. Applicants must also publish a notice of intent and meet additional public-notification requirements.

The notice of intent must be published not less than 25 days nor more than 60 days before the anticipated first application and must run one day a week for two consecutive weeks in each county newspaper that would be affected. Huber said permit conditions require further notice by one of several methods: three daily radio spots on each of two stations during the two-week period; written mail or email to residents adjacent to the right-of-way at least two weeks before application; or other methods the secretary deems appropriate.

Separate from those notices, many utilities include an opt-out insert in customers’ electric bills. Huber said the opt-out insert is distinct from the notice of intent and does not list specific products planned for application; it typically tells customers how to request that herbicide not be applied adjacent to their property. He said he personally receives roughly a dozen to 15 opt-out letters a year and forwards them to the utility listed on the insert (for example, Green Mountain Power or Vermont Electric Cooperative). The agency placed a permit condition this past cycle requiring utilities to contact chemically sensitive individuals directly about scheduled applications so those residents are informed if an application proceeds or is canceled due to weather.

Huber also described Integrated Vegetative Management (IVM) plans required of permanent permit applicants: an IVM plan must be submitted every five years and cover standards and practices for wetlands, pollinator habitat, wildlife, erosion control and aesthetics; failure to submit the plan can result in denial of a permit. He said utilities frequently include pollinator-friendly measures in their five-year vegetative management plans.

On public access, Huber said the agency’s interpretation of a right-of-way treats it as an interest that allows the holder to pass over land for the transmission of utilities, but that interpretation does not automatically preclude others from walking across a right-of-way; property owners or the holder may characterize access differently and put up signage.

Huber directed members to the agency website for rights-of-way materials and public-review pages, noting the agency posts responsiveness summaries for public comments. He said electrical-company comments on rights-of-way have been rare: “there's only been four comments” for electrical companies in 2023, and those were all to Green Mountain Power. The committee recessed for lunch at the conclusion of the briefing.