United States Department of the Interior

FISH AND WILDLIFE SERVICE

Lake Champlain Fish and Wildlife Conservation Office 11 Lincoln Street Essex Junction, Vermont 05452

March 9, 2020

Jon Kart, Permit Specialist Vermont Fish & Wildlife Department 1 National Life Drive, Davis 2 Montpelier, VT 05620-3702

Dear Mr. Kart:

The following pages comprise our complete application for a Vermont Endangered & Threatened Species Takings Permit. This application addresses potential effects of our proposed lampricide treatment of the Missisquoi River, scheduled for the fall of 2020.

Past applications for lampricide usage have included long histories of information repeated from previous applications and issued permits. This year, we pared our application down and directly addressed the questions asked on the application form. All new, current, relevant, and requested information is included in the application. Our last application for takings associated with a lampricide treatment of the Missisquoi River was approved, a permit was issued, is included here as an appendix, and is referenced in our current application.

We included our Vermont Department of Environmental Conservation (DEC), Aquatic Nuisance Control (ANC) permit application as an appendix where we list specific treatment parameters and methods. In coordination with the ANR Secretary’s Legal Counsel, we are working to keep operational methods in one location for both permit applications to ensure one common set is approved for use by both permits. For that reason, methods and techniques only appear in the ANC application, but are open for comment as part of the E&T application review process. The ANR Secretary’s Legal Counsel will coordinate comments on treatment methods and strategies.

To facilitate the review process and eliminate the need for submission of multiple files, we produced this application as a single PDF file. It contains this cover letter, the application form, and 3 appendices. To aid in navigation of the PDF document, we used section bookmarks. To open and view the bookmark pane, first save this file to your computer, then open it with the standalone Adobe Reader or Adobe Acrobat program (opening it directly from the attachment in an Adobe web-browser add-on viewer may cause problems). With the PDF file open in Adobe Reader or Adobe Acrobat, click on the rightward-facing arrow in the left screen margin to open the bookmark pane. Sections of the document are listed there and can be clicked on to navigate back and forth as needed.

Thank you for considering our application,

Bradley A. Young Lake Champlain Sea Lamprey Control Program, Manager Agency of Natural Resources 1 National Life Drive, Davis 2 Montpelier, VT 05620-3702 802-828-1294 Application for Endangered & Threatened Species Taking Permits Statutory Authority: 10 VSA §5408 Application Fees $50 for permits issued for scientific, educational and noncommercial cultural or ceremonial purposes, to enhance the propagation or survival of a threatened or endangered species and for special purposes consistent with the federal Endangered Species Act. $250 for each listed animal/plant taken up to a maximum of $25,000 for zoological and botanical exhibition purposes, and for incidental take. The Secretary may also require the implementation of mitigation strategies and may collect mitigation funds, in addition to the permit fees, to mitigate the impacts of a taking. For research and survey projects for listed bats, please download the application form specifically for such projects from our endangered species permits page: https://vtfishandwildlife.com/conserve/conservation-planning/endangered-and-threatened-species/threatened-endangered-species-takings-permit

1. Permittee/Applicant Name: U.S. Fish & Wildlife Service Institution (if applicable): Lake Champlain Fish & Wildlife Conservation Office Principal Officer (CEO) of Institution: Bradley A. Young Physical Address/Town/St/Zip: 11 Lincoln Street, Essex Junction, VT 05452 Telephone: 802-662-5304 E-Mail: [email protected]

2. Name(s) & affiliation of subpermittee(s) Staff from U.S. Fish & Wildlife Service and the Vermont Fish & Wildlife Department

3. Which species, and how many of each, will be collected or impacted? Common Name Scientific Name # of individuals to be % of population collected/ impacted to be collected/ impacted Black sandshell mussel Ligumia recta Not Expected 0 Pocketbook mussel Lampsilis ovata Not Expected 0 Pink heelsplitter mussel Potamilus alatus Not Expected 0 Fluted shell mussel Lasmigona costata Not Expected 0 Fragile papershell mussel Leptodea fragilis Not Expected 0 Cylindrical papershell mussel Anodontoides ferussacianus Not Expected 0 Giant floater mussel Pyganodon grandis Not Expected 0 Eastern sand darter Ammocrypta pellucida Not Expected 0 Very low or no Lake sturgeon Acipenser fulvescens <1% mortality expected Very low or no Stonecat Noturus flavus <10% mortality expected American brook lamprey Lethenteron appendix Mortality expected >90%

last updated 11/1/2019 Vermont Agency of Natural Resources Application for Endangered & Threatened Species Takings Permit p. 2 4. Purposes for which you are applying for a takings permit (must meet one of the following): ___ Scientific Purposes _X_ Enhancing the propagation of a threatened or endangered species ___ Educational Purposes ___ Special purposes consistent w/ the federal Endangered Species Act ___ Zoological Exhibition _X_ Incidental Take Incidental Take All species will be exposed to a controlled concentration of the lampricide TFM for the purpose of controlling sea lamprey in Lake Champlain as part of a cooperative state and federal partnership to restore and enhance the fisheries of the lake.

Enhancing propagation of and endangered species

Of the 11 listed species, lake sturgeon will directly benefit as described in the Lake Champlain Lake Sturgeon Recovery Plan (MacKenzie 2016).

5. Detailed Explanation of Proposed Activities See Appendix A: 2020 Missisquoi ANC Permit Application; Pages: 6-12 (Treatment Strategy and Methodology)

6. Are survey data available to indicate the size and/or extent of the impacted population for each species listed in section 3? No ___, Yes _X__. Prior to commencing the proposed activities, a survey may be required to determine the extent and number of individuals of T&E species at the project location. The survey requires authorization from the Agency of Natural Resources (ANR) and shall be completed by an expert with experience/ qualifications acceptable to ANR. Mussels Black sandshell Pocketbook Pink heelsplitter Fluted shell Fragile papershell Cylindrical papershell Giant floater

The presence of all (7) mussel species is discussed in the Final Supplemental Environmental Impact Statement (FSEIS) page 71 and reports on their conservation status is listed on the of State of Vermont’s Natural Heritage Inventory. The densities and distribution of these mussels in the Missisquoi River are not known.

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Fish Lake sturgeon The Vermont Fish and Wildlife Department provides an assessment of the status of lake sturgeon in the Lake Champlain Lake Sturgeon Recovery Plan (Mackenzie 2016).

Eastern sand darter The Vermont Fish and Wildlife Department assessed the status and distribution of eastern sand darters in the Channel Darter and Eastern Sand Darter Sampling Using Trawls and Seines T&E Permit ER‐2017‐14 2018 Annual Report (Pientka and Good 2019).

Stonecats The population of stonecats in the treated reach of the Missisquoi River was sampled using trawls, trapping, and electrofishing from 2010 – 2014. (Cox and Parrish 2011, Puchala 2015).

American brook lamprey Larval lamprey surveys used to assess sea lamprey populations also serve to assess the population of American brook lamprey (ABL). American brook lamprey have been documented in four parts of the Missisquoi River Watershed; Youngman Brook, Missisquoi River proper between Swanton Dam and Highgate Falls, Kelly Brook, and Hungerford Brook (USFWS unpublished data). Youngman Brook is a tributary to the Dead Creek branch of the lower River, Kelly and Hungerford brooks are tributary to the Missisquoi between Swanton Dam and Highgate Falls. Larval surveys had previously failed to detect ABL in the lower river between Swanton Dam and the mouth (2002, 2003, 2007). American brook lamprey (ABL) were first documented in the Missisquoi River, below Swanton Dam, in the 2008 post-treatment mortality survey (Chipman 2009). Since the initial detection in 2008, ABL were detected in the larval survey below Swanton Dam in 2011(2 individuals) and again in the mortality survey following the 2012 treatment (1 individual). A larval survey of the proposed treatment area in 2019 did not detect ABL. We believe that if present, ABL exist in very low densities below Swanton Dam.

7. Provide a detailed explanation for the basis of the taking/impact. For instance, if the basis is Scientific Purposes, demonstrate how the benefits of the proposed activities outweigh the impact(s) to the individuals and the populations. If the basis is Incidental Take, explain: A) Steps taken to avoid, minimize, and mitigate impact to listed species and/or critical habitat; B) The benefits that would result if a permit is issued; C) Why you believe the taking is necessary; D) Why you believe the taking will not impair the conservation or recovery of T&E species; E) Any alternative actions to the taking that you considered and the reasons that the alternative(s) were not selected. Provide supporting documentation if applicable.

last updated 11/1/2019 Vermont Agency of Natural Resources Application for Endangered & Threatened Species Takings Permit p. 4 The information provided to answer the sub-parts of question 7 is either new, additional, or noteworthy relative to information submitted in our 2012 application that addressed each of these same species. That application was approved and issued as 2012 Missisquoi T&E Takings Permit #EH-2012-18 (Appendix B).

7A) The proposed treatment concentration has been lowered to 1.2 x the Minimum Lethal Concentration (MLC) for sea lamprey to minimize any potential impact on stonecats based on toxicity testing conducted by the Service. Other rivers in Vermont are routinely treated at 1.3 x MLC to minimize any potential impact to more tolerant Endangered and Threatened species. In the state of New York, and in Vermont streams where no sensitive Endangered and Threatened species are present, sea lamprey control treatments are conducted at concentrations up to 1.5 x MLC to ensure environmental variability in rivers is accounted for and addressed, thereby reducing the risk of exposing the environment to lampricide without achieving the desired result of eliminating sea lamprey.

The concentration of 1.2 x MLC carries a degree of risk in that environmental conditions may lead to areas of the river that do not receive an exposure of TFM that is lethal to sea lamprey. We have accepted that risk to provide additional protection to Vermont listed species sensitive to TFM.

7B) See Appendix A: 2020 Missisquoi ANC Permit Application; Page 18 (Public Benefits)

7C) See Appendix A: 2020 Missisquoi ANC Permit Application; Pages 2-4 (Reasons to Control the Aquatic Nuisance)

7D) Toxicity of lampricides to non-target species is described, for the purposes of the proposed treatment, relative to the Minimum Lethal dose required to kill 99% of sea lamprey (MLC), (Figure 1 below). Results from toxicity tests are reported as no observed effect concentration (NOEC) and the lowest observed effect concentration (LOEC). Standard operating procedures for acute toxicity testing (ASTM 2007; USEPA 1975) allow 10% mortality in the experimental control exposures to account for random mortalities not due to toxicity. Mortality that exceeds 10% is assumed to be a significant adverse effect. The highest lampricide concentration that exhibits less than 10% mortality is the NOEC. The next highest TFM concentration that test subjects are exposed to where mortality exceeds 10% is defined as the LOEC.

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Mussels The discussion on the toxicity of TFM to mussels in the FSEIS (pp. 126-130) concludes that mussels suffer little or no mortality during typical TFM treatments. After 100 stream lampricide treatments in the Champlain Basin, only 33 mussel mortalities have been recorded. No mussel mortalities have been recorded in the past 10 years. Research on mussel susceptibility to TFM is consistent with the low number of mussel mortalities observed following treatments (Table 1).

Table 1. NOEC values for selected mussel species are represented as a multiple of sea lamprey 9-hour MLC.

TFM Species Data Source NOEC LOEC Black sandshell 1.7 2.1 Boogaard et al. 2013 2.6 3.2 NYSDEC and Cylindrical papershell 2.3 2.9 VTDFW 2007 1.6 2.0 NYSDEC and Fluted shell 1.6 2.0 VTDFW 2001 1.5 1.9 Neuderfer 2001; Pocketbook (adult) 1.6 2.0 NYSDEC and ≥2.0 >2.0 VTDFW 2001 Pocketbook (juvenile) 1.5 1.9 Neuderfer 2001 Fragile papershell 1.5 1.8 Boogaard et al. 2004 Giant floater 1.6 2.0 Boogaard et al. 2004 Pink heelspliter ≥1.9 >1.9 Boogaard et al. 2004

The effects of TFM on mussel glochidia have long been of interest, but difficulty in culturing them has led to an inability to perform toxicity tests on that life stage until now. Boogaard et al. (2015) published a study that determined the acute toxicity of TFM to selected life stages of the snuffbox mussel (Epioblasma triquetra), a Great Lakes species and candidate for federal listing under the Endangered Species Act. TFM toxicity to free-floating glochidia and one-week-old juvenile snuffbox (collected one week after dropping from the infected fish host) life stages was tested for the first time. The study found no significant difference in survival among life stages at concentrations of up to 1.8 times what would be applied during a lampricide treatment. The host species for the glochidia, log perch, are more sensitive than the mussels themselves and would be the greater source of concern. While snuffbox is not a species that occurs in Lake Champlain, it does show for the first time that there is no evidence of additional sensitivity in the glochidia stage.

In summary, TFM treatments are expected to have negligible impacts, on mussel populations at concentrations of up to at least 1.5 x MLC. No mortality is the most often observed effect. Thus, the proposed 1.2 x MLC maximum target TFM concentration for the Missisquoi River would mitigate the risk to resident mussels, including the listed species. Also, all the listed Missisquoi River mussel species, except for the cylindrical papershell, have been documented to occur upstream of the Swanton Dam, as well as in the treatment area. The mussel community above the application point will not be exposed to TFM.

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Fish Lake sturgeon Early life stages of lake sturgeon appear to be among the most sensitive of non-lamprey fishes to TFM. Boogaard et al. (2003) conducted a series of flow-through TFM toxicity tests on nine early life stages of lake sturgeon, from sac fry, through age 1+ (Table 2). Young-of-year lake sturgeon up to about 80 mm total length were found to be nearly as sensitive to TFM as sea lamprey, with NOEC’s ranging from 0.4 to 0.8 x MLC, depending on size class. Their tolerance to TFM increased with size. Average NOEC’s of three young-of-year size classes averaging 107, 157, 217 mm TL were equivalent to 1.0 x MLC, 1.0 x MLC, 1.2 x MLC, respectively; average NOEC for an age 1+ group averaging 261mm TL was equivalent to 1.5 x MLC.

Table 2. Toxicity of TFM and to four early life stages of lake sturgeon and comparison to observed sea lamprey MLC (Boogaard et al. 2003).

TFM NOEC Average Test # Multiple X Sea Length mm Lamprey MLC (range) 1 1.0 107.4 2 1.0 (85-125) 3 1.0 1 1.0 157.4 2 1.0 (131-181) 3 1.0 1 1.3 217.4 2 1.2 (183-255) 3 1.0 1 1.5 261.0 2 1.6 (219-301) 3 1.3

We will treat the Missisquoi River between Late September and Late November which will allow young-of-year sturgeon increased growth potential prior to Lampricide exposure.

The Vermont Department of Fish and Wildlife published its Lake Champlain Lake Sturgeon Recovery Plan in 2016 which lists its highest priority in Sturgeon Recovery as “A. Continue efforts to reduce sea lamprey numbers in Lake Champlain to reduce lamprey predation on sub-adult and adult lake sturgeon” (MacKenzie 2016). The plan reports that 62% of adult sturgeon collected in Vermont between 1998 and 2002 had fresh or healing sea lamprey wounds. The impacts of lamprey on sturgeon whereby they prevent sub-adults from maturing to spawning age and kill spawning age adults is the reason that the state of Vermont considers lamprey control of greater benefit than the cost of potential effects from lampricide. Reducing the effects of lampricide on young-of-the-year sturgeon was priority “E.”

Eastern sand darter Eastern sand darters are relatively tolerant of TFM exposure at treatment concentrations, with a NOEC of 1.4 x MLC in a laboratory toxicity test (Neuderfer 2000). Based on these above findings, a treatment concentration of up to 1.2 x MLC should not affect the eastern sand darters and thus mitigates the risk to the population.

last updated 11/1/2019 Vermont Agency of Natural Resources Application for Endangered & Threatened Species Takings Permit p. 7 Stonecats Twenty-two stonecat mortalities were observed during the 2008 treatment of the Missisquoi River below Swanton Dam, but that was an unfortunate result of an inadequate treatment apparatus (Chipman 2009). That insufficiency was rectified for the 2012 treatment of the Missisquoi where only one stonecat mortality was observed (Smith 2013). USFWS Lake Champlain Fish and Wildlife Resource Office conducted a series of 3 bioassays for stonecats with the lampricide TFM during the summer and fall of 2011 (Calloway 2012), which resulted in a mean LOEC of 1.4 X MLC. Based on our bioassay data and previous treatment experience, a 1.2 X MLC treatment concentration target should result in minimal stonecat mortality.

American brook lamprey The impacts of TFM on ABL are discussed in pp. 136-140 of the FSEIS. ABL are known to be slightly more resistant to TFM than sea lamprey (King and Gabel 1985), but substantial losses of ABL larvae are unavoidable during TFM treatments. Given our proposed treatment target concentration of up to 1.2 X MLC, we expect American brook lamprey mortalities in portions of the treated river where they are present. It should be noted that experience with sampling larval lampreys in the basin finds that ABL are typically and most frequently found in clearer and cooler streams (e.g. Trout Brook, Sunderland Brook, and several NY Adirondack tributaries to Lake Champlain). Sea lamprey are found in a wider range of habitat conditions. The lower Missisquoi River downstream of Swanton Dam would not be classified as preferred habitat for ABL, but areas of the main stem between the Swanton and Highgate Falls dams and adjacent tributaries to that reach are more consistent with ABL habitat. This is likely why only 4 individuals have ever been documented in the mainstem Missisquoi below the Swanton dam.

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Severity of toxic effects on species NOEC ≤10%

Chemical Concentration

0 10 50 100 Percent Mortality (any organism) NOEC (No Observed Effect Concentration) = Concentration at which 10% or less of organisms die LOEC (Lowest Observable Effect Concentration) = Concentration at which more than 10% of organisms die MLC (Minimum Lethal Concentration) = Concentration at which all organisms die

Toxicity of the Lampricide TFM to Vermont Threatened and Endangered Species of the Missisquoi River, Relative to Sea Lamprey Sea Lamprey

American Brook Lamprey Lake Sturgeon*

Stonecat

Black Sandshell juveniles Eastern Sand Darter

Fragile Papershell Fluted-Shell

Pocketbook Giant Floater

Pink Heelsplitter Cylindrical Papershell

0 0.5 1.0 1.5 2.0 2.5 Multiple of Sea Lamprey MLC, sustained for a minimum of 9 hours Figure 1. The chromatograph depicts the TFM toxicity tolerances of these species as reported in the text and tables 7, and 8. Green represents the NOEC, Yellow represents the LOEC, and Red represents the MLC for sea lamprey. For all other species red represents 20% more than the LOEC (whose MLC’s are not empirically determined) [Categorical acronyms defined in box above]. Grey highlighted species are Vermont State- threatened. Black highlighted species are Vermont State-endangered. The black vertical line indicates our proposed treatment concentration of 1.2xMLC. *Lake Sturgeon values based on the mean NOEC and LOEC for individuals in the 217mm size class.

7E) See Appendix A: 2020 Missisquoi ANC Permit Application; Page 13 (There is no reasonable non-chemical alternative available).

last updated 11/1/2019 Vermont Agency of Natural Resources Application for Endangered & Threatened Species Takings Permit p. 9 8. What is the time frame of proposed activities: We seek this ANC permit to become effective in the fall of 2020 and remain effective through the fall of 2024. This would allow the Missisquoi River to be treated twice under this permit (2020 and 2024). The span of 2020-2024 would accommodate the potential need for a postponement of the first treatment due to environmental conditions while maintaining our 4-year cyclical schedule. We recognize that a postponement of the second treatment would necessitate submission of a new permit. If issues arise, we understand the permit can be reopened. We understand this does not guarantee permission to conduct two treatments; instead, it allows a second treatment in 2024 if all contingencies and conditions in the permit continue to be fulfilled. The applicant will notify the Agency of Natural Resources at least 6 months prior to a planned second treatment to allow time for any questions or concerns to be raised and addressed.

9. What are the qualifications & experience of person(s) conducting the proposed activities? Professional and technical staff from the two agencies listed in #2 above are licensed pesticide applicators with special training and expertise in conducting lampricide treatments to control sea lamprey larvae while minimizing the effects on non-target species, including the Vermont state- listed endangered and threatened species listed above.

10. Which methods and equipment will you use? If, for example, you seek authorization to translocate/transplant Threatened & Endangered Species, attach a translocation/transplanting plan identifying how specimens will be found and moved, where to, and how you propose to monitor the effectiveness of the translocation/transplanting. See Appendix A: 2020 Missisquoi ANC Permit Application; Pages: 6-12 (Description of Proposed Control Activity)

11. Where is your project location? Be as specific as possible and identify the town(s) and county. If field-based activities are proposed, attach a detailed map of project site(s). Missisquoi River in the town of Swanton downstream of the Swanton Dam. Detailed map included in Appendix A: 2020 Missisquoi ANC Permit Application; Page 8 (Treatment Methodology).

12. What are the possible impacts of the proposed activities on the target species or habitat? Include details about the numbers of plants and/or animals that will be taken/impacted, and/or the extent and nature of habitat alteration or destruction and efforts to minimize impact. Addressed in Question 7D

13. What is your plan for conservation or mitigation of species or habitat impacted? Addressed in Question 7A

14. Final disposition of the specimens you collect (if any)? All dead fish (excluding lamprey), amphibians, mussels and other large invertebrates encountered will be identified and enumerated, if possible. Organisms not identified in the field will be collected, if possible, and retained for identification. As noted above, dead lamprey larvae will not be counted during the post treatment mortality survey, but the first 30 encountered in each transect will be retained and identified.

15. If your project is proposed for a time of year that is more likely to impact listed species than other

last updated 11/1/2019 Vermont Agency of Natural Resources Application for Endangered & Threatened Species Takings Permit p. 10 times of year, please explain why a permit should be granted during your proposed time period. The range of acceptable dates to perform treatments is set by the State of Vermont, to avoid conflict with the public whose use of the areas proposed for treatment decreases after Labor Day. We believe this date range also happens to be most advantageous for the survival of T&E species.

16. Impacts to Migratory Birds: Federal authorization is required for activities which might take birds (alive or dead, feathers, eggs and even nests). Federal migratory bird permits are issued by the US Fish & Wildlife Service Migratory Bird Office: 413-253-8643, https://www.fws.gov/birds/policies-and-regulations/permits.php.

My proposed project will impact migratory birds, feathers, eggs or nests: _X_ No, ____ Yes?

If yes: My migratory bird permit # is______, it is valid until ______(please include a copy with your application)

I don’t have a migratory bird permit but will apply for one ____ Yes.

17. Institutional Animal Care & Use Committee (IACUC) Protocol # (if applicable): NA

18. Required attachments *See Below _X*_ Permit fees: Make checks payable to: “VFWD T&E Permit Fund 20345” $50 for permits for scientific, educational and noncommercial cultural or ceremonial purposes, for enhancing the propagation of a listed species and for special purposes consistent with the federal Endangered Species Act. $250 for each listed animal/plant taken up to $25,000 for zoological exhibition and incidental take. _X__ Map/Site Plan: For field-based activities attach a map, of appropriate scale, identifying the location where field based activities will occur. ___ Scientific Research: Include a research proposal/description and IACUC review and approval application or report with any T&E permit application for scientific research. ___ Translocation/Transplanting Plan: If you seek authorization to translocate/transplant listed species, attach a plan identifying how specimens will be found and moved, where to and how you propose to monitor the effectiveness of the translocation/transplantation. ___ Importation: For permits authorizing the importation of live specimens of threatened or endangered species a Veterinary Health Inspection report is required certifying the disease-free status of the specimens to be imported.

* The USFWS was informed that application fees for T&E permits would not be required for activities initiated by ANR staff or for agents of ANR working cooperatively or at the direct ion of ANR staff. This applies in the case of lampricide applications which have been a cooperative endeavor between USFWS and VFWD. Therefore, the USFWS will not be required to pay fees of $50 for permits issued for scientific and education purposes, enhancing

the propagation of a species, and special purposes consistent with the federal Endangered Species Act. The $250 fee for each listed animal/plant taken, up to $25,000, will not apply to takings specified in the permit.

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18. Certification by signature: I hereby affirm, under penalty of perjury, that the information, as well as any exhibits, documentations, and maps, are truthful to the best of my knowledge, that I am not delinquent in any obligation to pay child support or that I am in good standing with respect to any unpaid judgment issued by the judicial bureau or district court for fines and penalties for a civil violation or criminal offense. I also understand that false statements made on this application are punishable pursuant to 10 V.S.A. 4267 of Vermont state law.

Signature: ______Date: ___March 9, 2020______Submit signed application via email to [email protected] or mail c/o “Permit Specialist” Vermont Fish & Wildlife Department, 1 National Life Drive, Davis 2, Montpelier, VT 05620-3702.

Endangered and threatened species taking permits are issued under the authority of 10 VSA §5408. Permits are issued for the purposes of taking (including collecting, disturbing or possessing) individuals (or parts of) of species listed as Endangered or Threatened by the State of Vermont. Collection on lands posted according to 10 VSA §5201 or 13 VSA §3705 is unlawful without landowner permission.

last updated 11/1/2019 Vermont Agency of Natural Resources Application for Endangered & Threatened Species Takings Permit p. 12 References ASTM 2007. Standard Guide for Conducting Acute Toxicity Tests on Test Materials with Fishes, Macroinvertebrates, and Amphibians. Designation: E729 – 96 In: 2007 Annual Book of ASTM Standards, American Society for Testing and Materials, West Conshohocken, PA. 10.1520/E0729-96R07. Boogaard, M. A., T. D. Bills, and D. A. Johnson. 2003. Acute toxicity of TFM and a TFM/niclosamide mixture to selected species of fish, including lake sturgeon (Acipenser fulvescens) and mudpuppies (Necturus maculosus), in laboratory and field exposures. Journal of Great Lakes Research. 29 (Supplement 1):529–541. Boogaard, M. A., C. S. Kolar, and D. L. Waller. 2004. Acute toxicity of 3-trifluoromethyl-4-nitrophenol (TFM) and a TFM-1% niclosamide mixture to the giant floater (Pyganodon grandis), fragile papershell (Leptodea fragilis), and the pink heelsplitter (Potamilus alatus) unionid mussels and sea lamprey (Petromyzon marinus) larvae. Completion report prepared for Lake Champlain Fish and Wildlife Management Cooperative. Boogaard, T. D. Hubert, and B.D. Chipman 2013. Acute toxicity of 3-trifluoromethyl-4-nitrophenol (TFM) and a TFM:1% niclosamide mixture to the juvenile black sandshell mussel (Ligumia recta). For submission to the Lake Champlain Fish and Wildlife Management Cooperative. 5 pp. Boogaard, M.A., T.J. Newton, T.D. Hubert, C.A. Kaye, and M.C. Barnhart. 2015. Evaluation of the short term 12 hour toxicity of 3-trifluoromethyl-4-nitrophenol (TFM) to multiple life stages of Venustaconcha ellipsiformis and Epioblasma triquetra and its host fish (Percina caprodes). Environ Toxicol Chem. 34:1634-1641. doi: 10.1002/etc.2959. Calloway, M.T. 2012. Report on Stonecat Toxicity after exposure to TFM (lampricide). USFWS Lake Champlain Fisheries Resource Office Essex Junction, 05452. Chipman, B.D. 2009. Chemical Treatment Summary: Missisquoi River, Vermont, 2008. Vermont Department of Fish and Wildlife 111 West Street Essex Junction, VT 05452 29 pp. Cox, K.M. and D.L. Parrish. 2011. Summary of experimental application of the mini-Missouri trawl for sampling benthic fish populations in the Winooski, Lamoille and Missisquoi Rivers, July 11-14, 2011. Report to Vermont Agency of Natural Resources Secretary Deborah Markowitz. 11 pp. King, E.L., and J.A. Gabel. 1985. Comparative toxicity of the lampreicide 3-trifluoromethyl-4-nitrophenol to Ammocoetes of Three Species of Lampreys. Great lakes Fishery Commission Technical Report No. 47 pp. 25 MacKenzie, C. 2016. Lake Champlain Sturgeon Recovery Plan. Vermont Fish and Wildlife Department. Agency of Natural Resources. 1 National Life Drive, Davis 2, Montpelier, VT 05620. Neuderfer, G. 2000. Summary of eastern sand darter (Ammocrypta pellucida) laboratory toxicity test results on the Poultney River on September 9, 2000. New York State Department of Environmental Conservation, Avon, NY. Neuderfer, G. N. 2001. Toxicity of the lampricide TFM (3-trifluoromethyl-4-nitrophenol) to juvenile and adult pocketbook mussels (Lampsilis ovate), black sandshell (Ligumia recta), and the channel darter (Percina copelandi). NYSDEC Administrative Report. Avon, NY. 34 pp. NYSDEC and VTDFW 2001. Preliminary Results of TFM Toxicity Tests of the Fluted Shell (Lasmigona costata) and Pocketbook (Lampsilis ovata) Mussels. New York State Department of Environmental Conservation, Avon, NY. 10 pp. NYSDEC and VTDFW 2007. Summary of TFM Toxicity Tests of the Cylindrical Papershell (Anodontoides ferussacianus) Mussel. New York State Department of Environmental Conservation, Avon, NY. 4 pp. Pientka,B., and S. Good. 2019. Channel Darter and Eastern Sand Darter Sampling Using Trawls and Seines T&E Permit ER‐2017‐14. Vermont Department of Fish and Wildlife, Essex Junction, VT. 38 pp.

last updated 11/1/2019 Vermont Agency of Natural Resources Application for Endangered & Threatened Species Takings Permit p. 13 Puchala, E. 2015. The Status of Stonecats (Noturus Flavus) In The Laplatte And Missisquoi Rivers, Vermont. University of Vermont Graduate College Dissertations and Theses. 83 pp.Smith, S.J. 2013. Lake Champlain sea lamprey control program, chemical treatment summary: Missisquoi River, VT 2012. USFWS Lake Champlain Fisheries Resource Office, Essex Junction, VT. USEPA. 1975. Methods for acute toxicity tests with fish, macroinvertebrates, and amphibians. EPA-600/3-75-009. U.S. Environmental Protection Agency, Corvallis, OR. 61

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Appendix A

Proposed Lampricide Treatment of the Missisquoi River in 2020 and 2024

Detailed Project Description and Supporting Narrative

March 10, 2020

Reasons to Control the Aquatic Nuisance

Parasitic Sea Lamprey Population of Lake Champlain Programmatic targets of 15 lamprey wounds per 100 Atlantic salmon (Salmo salar) and 25 lamprey wounds per 100 lake trout (Salvelinus namaycush) were set in 1990 (FSEIS, page 4). These targets are based on experience and historic data that indicated these species could withstand and persist at those levels of lamprey wounds. Because these targets are the maximum level of lamprey parasitism believed to be consistent with healthy and sustainable populations of each host species, the FSEIS identifies ideal targets for lamprey wounds as 5 for Atlantic salmon and 10 for lake trout.

Our most recent lamprey wounding data (November 2019) are 20 for Atlantic salmon and 57 for lake trout (Figure 1). While lamprey wounds have been reduced substantially since their high mark in 2006, the 2019 data and data from recent years show that we are not meeting our programmatic goals. For this reason, it is important that we continue to control all known sea lamprey populations as we continue to identify sources of sea lamprey production that contribute to the unacceptable levels of parasitism on these and other host species in Lake Champlain.

Lake Champlain Sea Lamprey Wounds per 100 fish

100

90

80 Atlantic Salmon (432-533 mm) Lake Trout (533-633 mm) 70 (17-21 in) (21-25 in)

60

50

40

30

20

10

0 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

Figure 1. Sea lamprey wounding rates on Atlantic salmon and lake trout in Lake Champlain from 2005-2019.

Appendix A - 2 / Project Description

Larval Sea Lamprey Population of the Missisquoi River

Sea lamprey larval population assessments conducted by the United States Fish and Wildlife Service, Lake Champlain Fish and Wildlife Conservation Office (Service) are used to identify the distribution and density of larval sea lamprey in Lake Champlain tributaries and their associated deltas. When larval lamprey are located, methods to control those populations are evaluated and implemented based on the characteristics of each tributary.

Sea lamprey annual reproduction in the Missisquoi River gradually increased from the commencement of the sea lamprey control program (1990) until a thorough and successful 2012 lampricide treatment. After the 2012 treatment, larval densities did not rebound to pre-treatment levels as measured by the 2015 larval assessment survey that yielded 10 larvae.

Our 2019 survey data spanned the entire length of Missisquoi River inhabited by larval sea lamprey (Figure 2). We positioned 24 equidistant transects in the Missisquoi River and its Dead Creek distributary from the Swanton Dam to the mouth of each branch in Missisquoi Bay. We electrofished 15 m2 of preferred lamprey habitat at each even-numbered transect and 15 m2 of less-preferred habitat at every fourth transect when available. This produced 17 sampled plots totaling 251 m2 of habitat sampled. As we have found in previous surveys, the population is more concentrated below Swanton Dam. Of the 19 larvae collected in 2019, 15 were collected within the first mile below the dam. While these numbers may appear relatively low, it is important for context to consider the size of the Missisquoi River relative to the fraction (0.02%) of sampled habitat. As explained in the previous section, it is important to control populations of larvae where we can as we continue to focus our efforts in ways that will reduce the parasitic population of the lake.

Appendix A - 3 / Project Description

Figure 2. Number (N) of sea lamprey collected in preferred (white callout boxes) and less-preferred (gray callout boxes) larval lamprey habitat in the Missisquoi River during the 2019 QAS survey. Associated densities reported as larvae per square meter sampled.

Appendix A - 4 / Project Description

Brief History of the Aquatic Nuisance in the Waterbody

The Lake Champlain Fish and Wildlife Management Cooperative (Cooperative) comprises the Vermont Fish and Wildlife Department (VTFWD), New York State Department of Environmental Conservation (NYSDEC), and U.S. Fish and Wildlife Service (Service) and serves to manage the aquatic resources of Lake Champlain. The Cooperative conducted an experimental program from 1990-1997 to determine the feasibility of controlling sea lamprey (Petromyzon marinus) in Lake Champlain to support the restoration of native lake trout and Atlantic salmon and promote a sport fishery (Fisheries Technical Committee 1999). A Final Supplemental Environmental Impact Statement (FSEIS), titled A Long-term Program of Sea Lamprey Control in Lake Champlain (2001) defines purpose and need: pp. 3-10; history of the problem: pp. 27-31; lampricide methodologies: pp. 34- 36; and other aspects of Figure 3. Lake Champlain tributaries included in the sea lamprey the program that have control program. been in place from then

Appendix A - 5 / Project Description

until present. There are currently 24 tributary systems controlled as part of the long-term program: 14 in New York, 8 in Vermont, the border-forming Poultney River, and the Pike River in Quebec (Figure 3). Between the conclusion of the experimental program (1997) and commencement of the long-term program (2002), the sea lamprey wounding rate returned to and exceeded pre-control levels as the population rebounded. With the effects of not maintaining aggressive and continuous control made clear, the Cooperative has committed to suppressing sea lamprey populations in Lake Champlain to enable the protection of existing fishery resources, the restoration of native fishes, and the promotion of recreational sport fisheries. By assessing populations and using multiple techniques, methodologies, and technologies as part of an integrated pest management approach, the Cooperative has succeeded in lessening the effects of sea lamprey parasitism in Lake Champlain and produced measurable benefits to populations of Atlantic salmon, lake trout, lake sturgeon, walleye, and other species. We intend to continue implementing the long-term program of sea lamprey control to maintain the gains achieved thus far while increasing and improving efforts that move us closer to our goals. The Missisquoi River was previously treated with lampricide in 2008 and 2012. The 2008 treatment was the first treatment on this river and presented unanticipated challenges. We successfully eliminated a large number of larval lamprey from the Missisquoi River in 2008, but the lateral distribution of chemical across the channel was not even and led to sub-optimal results. The 2012 treatment benefitted from the experience of 2008 and led to technological improvements that ensured a more even application of lampricide and a successful treatment that year. We planned a treatment for 2016, but our submitted ANC Permit application was withdrawn after a change to Vermont State human health advisory conditions was made in June 2016. The Vermont Department of Health lowered the advisory threshold for 3-trifluoromethyl-4-nitrophenol (TFM) from 35 ppb to 3 ppb, which made monitoring lampricide concentrations in Missisquoi Bay logistically infeasible. Data from a new TFM toxicology study provided to the Vermont Department of Health in 2019, allowed them to calculate and establish a new human health advisory threshold at 100 ppb. We are now able to resume lamprey control in the Missisquoi River under this established threshold.

Treatment Strategy and Methodology

Proposed Treatment Strategy

The proposed treatment strategy is designed to provide an effective sea lamprey control treatment while providing a margin of safety for listed species in the Missisquoi River. A 14-hour treatment duration may be required under certain flow and water chemistry conditions in order to achieve a minimum 9- hour lethal exposure duration in all areas of larval habitat. The Service will coordinate with the Village of Swanton and Missisquoi LLC, owners of the Highgate Falls and Sheldon Springs hydropower stations, respectively, to assure that these upstream facilities are operated to maintain stable flows during TFM application. There are no maintenance (boost) application points proposed for this treatment. Given the need for an effective treatment while mitigating potential risks to certain listed non-target species, the specific proposed treatment strategy for the Missisquoi River is as follows:

1. The primary TFM application point (AP) is less than 100 meters upstream of Swanton Dam (river mile 7.8). Applicators will attempt to spread the applied lampricide evenly from bank to bank in order to quickly and thoroughly mix the target TFM concentration into the River. Applying upstream of the dam will facilitate mixing due to the uniform water depth and velocity at the head of the dam and the turbulence created on the drop.

Appendix A - 6 / Project Description

2. Application rate: TFM will be applied for 12 to 14 consecutive hours to achieve a target in-stream treatment concentration of no greater than 1.2 x Minimum Lethal Concentration (MLC).

3. MLC will be determined by the results of an on-site toxicity test in conjunction with pH/alkalinity prediction charts. Diurnal stream pH and alkalinity analysis in the days prior to treatment will be used to calculate target TFM concentration. Concentration will be adjusted during treatment to compensate for shifts in pH or alkalinity that differ from pre-treatment conditions to maintain the MLC.

4. TFM Bars and/or adjustable rate pumps may be used as supplemental applications (SAP) on up to 4 small tributaries (SAP 1-4 on Figure 4, Table 1) near their confluences with the Missisquoi River, concurrent with passage of the mainstem lampricide block at those points, to block lamprey escapement into untreated water from these streams. Flows on the day of treatment will determine the need for these supplemental applications.

5. Liquid TFM may be used as supplemental (secondary) applications on up to 2 selected backwater areas (SAP 5 and SAP 6 on Figure 4, Table 1) of larval habitat where the primary TFM block cannot penetrate effectively. TFM will be applied to these areas to achieve a target concentration of no more than 1.0 x MLC. Flows on the day of treatment will determine the need for these supplemental applications.

Treatment Methodology

Treatment planning and execution will be like that of previous treatments. Two lampricide products, TFM-HP and TFM Bar are proposed for use (Safety Data Sheet = TFM-HP TFM-Bar). All lampricides will be applied according to the Standard Operating Procedures (TFM-HP TFM-Bar). Results of an on- site toxicity test in conjunction with pH/alkalinity prediction charts will be used to determine the sea lamprey MLC prior to treatment. The MLC may change during treatment in response to shifts in pH or alkalinity that differ from pre-treatment conditions, target concentration will be adjusted accordingly.

Lampricide(s) will be applied at concentrations equivalent to a factor of up to 1.2 x MLC for a period of 12 to 14 hours. Amount of chemical applied and application rate is based on measured stream conditions at the time of treatment (i.e. discharge, pH, and alkalinity). The toxicity of lampricides varies depending on stream water pH and total alkalinity levels. The Service estimates that between 700 to 1,500 gallons of TFM-HP formulation may be applied to the Missisquoi River over a 12-14 hour period based on anticipated river discharge rates between about 700 and 1,500 cubic feet per second (cfs). Up to approximately 20 TFM Bars may be used in up to 4 supplemental application points (Figure 4).

Pre-treatment and Treatment Water Chemistry Monitoring

Pre-treatment: Monitoring the daily fluctuations in stream pH and total alkalinity is necessary to determine corresponding changes in lampricide toxicity. Diurnal pH fluctuations will be monitored for at least 24 hours prior to treatment, and usually for a longer period. Total alkalinity will also be measured periodically over the same time frame. The pH and alkalinity data will be considered with the results of the pre-treatment toxicity test to determine the stream MLC (SMLC) which is the instantaneous concentration (mg/L) of TFM needed to achieve 1.0 x MLC for lamprey at any given time or place in the

Appendix A - 7 / Project Description

river. This value fluctuates over time and space due to many factors. Water chemistry will be monitored at stations with pH/temperature data recorders, supplemented by periodic hand sampling for lab measurements; total alkalinity will be measured at least at the times of deployment and retrieval of the data recorders at these stations. Based on these data, lampricides may be applied at less than the maximum proposed treatment concentrations (but not lower than 1.0 x MLC) if conditions forewarn that the SMLC may drop (toxicity goes up), downstream of the application.

Treatment: Water samples collected at the most upstream sampling station below the AP, to control the application rate, will also undergo water chemistry analysis. Water chemistry will be monitored at least once every 2 hours at downstream stations during the periods that the lampricide block is present at each station, as well as immediately below each supplemental application point, if used. Adjustments will be made to the application rate and target concentration to compensate for unexpected changes in pH and/or total alkalinity at the most upstream sampling station (or at downstream stations if applicable) during the treatment. Water chemistry will be monitored at stations with pH/temperature data recorders, supplemented by periodic hand sampling for lab measurements; total alkalinity will be measured at least at the times of deployment and retrieval of the data recorders at these stations.

Lampricide Monitoring

Treatment: Lampricide concentrations will be monitored during the treatment to precisely measure the efficacy of the application throughout the treated reach and to regulate the application rate in response. TFM concentrations are measured with accuracy to within 0.1 mg/L (0.1 ppm). Locations of application points and analysis stations are shown in Figure 4, Table 1. Water samples may also be collected at other points on the stream to track progress of the block. Table 1. Description of the location of each application and analysis site on the Missisquoi River

Analysis Station Description of Location M1 Approximately 1,000 to 1,500 ft downstream of Swanton Dam (river mile 7.5 to 7.6) M2 At the Missisquoi main stem-Dead Creek Fork (river mile 5.4) M3 Mac’s Bend Access (river mile 3.0) M4 Missisquoi main stem middle mouth (river mile 0.0) D4 Dead Creek Mouth (river mile 0.0) SAP 1 Small tributary on river left ~.5 miles downstream of dam (river mile 7.3) SAP 2 Small tributary on river right ~ 0.85 miles downstream of dam (river mile 6.95) SAP 3 Small tributary on river left ~ 1.1 miles downstream of dam (river mile 6.7) SAP 4 Small tributary on river right ~ 1.8 miles downstream of dam (river mile 6.0) SAP 5 Large backwater area adjacent to Rt. 78, centered at river mile 4.8 SAP 6 Large backwater area at river mile 3.5

Station M1, will be monitored every 30 minutes to meet permit condition requirements. TFM concentrations will be monitored hourly at Stations M2 and M3, and at least every 2 hours at Stations M4 and D4, to assess concentrations and duration of the TFM block passing each point. Automatic water samplers will be deployed at Stations M3, M4, and D4. Automatic water samplers may also be deployed at Station M2 after lampricide application has ceased at the AP. Water sampling below supplemental application points using TFM bars is less frequent since the bars release the active ingredient at a constant rate. Once the target concentration is achieved with a TFM Bar application, at least two additional water samples will be collected over the duration of the dissolution period.

Appendix A - 8 / Project Description

Supplemental, liquid TFM applications by backpack sprayer may be required in backwater areas within the Missisquoi River channel that are isolated from treatment level exposure to the passing TFM block. Supplemental applications using liquid TFM applied with a metered pump or TFM-Bars may also be necessary near the mouths of small tributaries entering the passing treatment TFM block to eliminate untreated refuge areas created by these freshwater inputs. Procedures for supplemental application of TFM and TFM-Bar and potential locations for supplemental applications are shown on Figure 4. The need for supplemental applications will vary depending on lake level, flow, and weather conditions.

A lampricide plume transport modeling study for the Missisquoi River and bay was conducted by Applied Science Associates, Inc. (Sabbayya et al. 2008). The study has the dual purpose of estimating in-stream time of travel and attenuation of a TFM block, as well as estimating the extent and duration of a TFM plume into Missisquoi Bay under various simulated TFM concentrations, river flows, wind patterns, lake levels, and application durations. Results of the in-stream modeling indicate that there may be considerable downstream TFM block attenuation (i.e. concentration strength gradually decreases as distance from the application point increases in response to uncontrollable variables). If TFM was applied for 12 hours at a 1.0 x MLC target concentration, the predicted effects of attenuation could result in sub-lethal exposure to sea lampreys in most of the Missisquoi main stem and Dead Creek and failure to meet the 9-hour period of lethal exposure necessary to achieve a successful treatment. The loss of downstream control effectiveness can be minimized by applying TFM at a slightly higher concentration, applying for a longer duration, or employing both methods in combination. It is for these reasons that we have proposed to treat at 1.2 x MLC for up to 14hrs.

Post-Treatment: Lampricide concentration will be measured and monitored at low levels in the lake following the treatment. Monitoring will continue and advisories will remain in place until 24 hrs. after measured levels fall below the Vermont Department of Health’s Advisory threshold value of 100 ppb. The low-level lake monitoring strategy and methodology is detailed in the Water Use Advisory Zone Monitoring Plan for Lampricide Treatments in Lake Champlain (Smith 2019a).

Appendix A - 9 / Project Description

Figure 4. Missisquoi River TFM Application Point, Analysis Stations (M1-4 and D4), potential tributary mouth supplemental TFM application sites (SAP1-4), and potential backwater supplemental liquid TFM application sites (SAP 5-6).

Target/Non-target Species Mortality Monitoring

Post-treatment mortality assessment crews will survey systematically, pre-defined sections of each treated stream reach within 36 hours of the lampricide block passage. All visible river-bottom in each section will be inspected and observations of non-target organism mortalities, except lamprey, will be recorded. Non-target assessment sections comprise 23% of the treated reaches and are defined based on the locations of sea lamprey assessment transects as follows: One section will start immediately below

Appendix A - 10 / Project Description

each lampricide application point, equal in length to the distance between two transects. Four additional sections will be assessed on each stream reach between transects 3-4, 8-9, 13-14, 18-19, 23-AP. Transect locations and assessment sections are presented in Figure 5.

All dead fish (excluding lampreys), amphibians, mussels, and other large invertebrates encountered will be identified and enumerated, if possible. Organisms not identified in the field will be collected, if possible, and retained for identification. As noted above, dead lamprey larvae will not be counted during the post treatment mortality survey, but the first 30 encountered in each transect will be retained and identified. Assessment of treatment effects on lamprey populations will instead be accomplished by means of a larval survey completed within one year following the treatment. Larval surveys following treatments provide a more direct and statistically sound means of comparison with pre-treatment population surveys. Results of non-target mortality surveys will be submitted to the VTDEC by May 1 of the year following the treatment. The post-treatment larval survey results will be submitted by December 31 of the year following the year of treatment.

Appendix A - 11 / Project Description

Figure 5. Missisquoi River assessment transects and post-treatment non-target assessment sections.

Appendix A - 12 / Project Description

Fulfillment of 10 V.S.A. Chapter 50, § 1455 (d), 5 Statutory Criteria

(1) There is no reasonable non-chemical alternative available

The Service uses an integrated pest management approach to determine appropriate long-term control strategies on a stream-specific basis (FSEIS pp. 41-47).

The most recent and comprehensive review of all sea lamprey control techniques and methods can be found in Chapter 5 of Docker (2019). Additionally, the Great Lakes Fishery Commission (Commission) lists over 400 lamprey research publications accessible in their database, underscoring the attention and resources that have been committed to finding ways to better control lamprey. A brief summary and overview of the wide variety of new and emerging non-chemical alternative control techniques that are being investigated and invested in can be found on the Commission’s Future of Sea Lamprey Control website. The Lake Champlain program does not have the resources to engage in the level of research done by the Great Lakes, but we work closely with them and benefit from their findings.

A 5-year concerted effort made by the Lake Champlain program to investigate non-chemical alternatives locally is summarized in the Status Report for the Lake Champlain Sea Lamprey Alternatives Workgroup (USFWS 2006) which summarizes nine studies conducted from 2002 through 2006 that assess potential alternatives to lampricide. Since then, projects such as Pheromone-assisted trapping, Microelemental natal stream statolith signatures, and identifying cross-sectional flow patterns in streams to target the trapping of out-migrating transformers have been undertaken. To date, these efforts have not resulted in development of additional, feasible alternative control methods. In addition, recent studies conducted in Lake Champlain and the Great Lakes, focusing on the use of pheromones as attractants to manipulate spawning runs, have not progressed to the point of an applicable management technique.

A barrier in Quebec was put into use in 2014 that can be installed and removed annually during lamprey migration season. While this is a creative and innovative technique for blocking sea lamprey from reproducing, it can only work on the smaller streams in the Lake Champlain Basin. Additionally, the project cost over $1.3M on a stream that could have been controlled safely with TFM for $8K once every 4 years. The use of this technology is not only cost-prohibitive in most cases, it also becomes difficult to justify the expense when a safe, chemical alternative is available at a fraction of the cost.

Non-chemical alternatives are being used in Vermont tributaries now and more are in development. We use seasonally installed barriers and traps on Pond Brook, Trout Brook, and Sunderland Brook as described in our Vermont ANC permit #2014-S01. We are working on another innovative barrier and trap at Malletts Creek to improve on the ineffective barrier and trap that has been used there for years.

Despite the completed and ongoing research on non-chemical control methods, the use of barriers and traps to block and intercept spawning-phase sea lamprey remains the only currently feasible, non- pesticide control alternative in the Lake Champlain Basin. The use of barriers (both seasonal and permanent) is limited to streams where suitable sites are available and where significant adverse impacts of barriers on other aquatic organisms can be mitigated. The only feasible method of control for large tributaries remains chemical lampricide application.

Appendix A - 13 / Project Description

(2) There is acceptable risk to the non-target environment The FSEIS (pp. 104-170; 188-197; and 307-311) and data post-treatment data from the last 30 years of Lake Champlain sea lamprey control efforts provide an extensive record of the successful use of TFM. Except for silver lamprey and American brook lamprey, non-target species have been protected through the careful application of TFM at appropriate concentrations that eliminate sea lamprey, yet limit, if Table 2. History of lampricide post-treatment not completely avoid, impacts to non-target species. mortality surveys of the Missisquoi River. Because TFM is a lampricide, it does result in the mortality of other lamprey species. 2008 2012 Table 2 presents post-treatment mortality survey data River Miles Treated 10.4* 10.4* from the previous two Missisquoi River treatments in River Miles Surveyed 10.4* 1.9 2008 and 2012. The 2008 survey included the entire % of Survey Area Visible 5.0 6.0 length of the river while the 2012 surveys used the transect sampling method and covered 23% of the length % Sea Lamprey Reduction 41 100 of the river at equal intervals. In both cases, the data % Lamprey Spp. Comp. show few non-target species found following treatments. Sea Lamprey 37.6 55.5 The 531 leopard frog mortalities found in 2008 were Silver Lamprey 61.9 44.1 confirmed by state biologists as being attributed to “red- American Brook Lamprey 0.5 0.3 leg syndrome” not lampricide mortality. FISH (non-lamprey) TOTAL There are no federally listed species in the Lake Golden shiner 2 2 Champlain Basin affected by lampricide treatments. Bridle shiner 1 1 There are 7 mussel species and 4 fish species in the Mimic shiner 3 3 Missisquoi River that are listed by the State of Vermont Unid. Cyprinid 1 1 as having an endangered or threatened conservation Brown bullhead 6 5 11 status. We address these 11 species in detail in Appendix Channel catfish 4 4 Stonecat 22 1 23 C (Vermont Endangered and Threatened Species Pumpkinseed 2 2 Takings permit application) being submitted Bluegill 5 2 7 simultaneously. Smallmouth bass 1 1 Tessellated darter 13 13 26 Mussels Yellow perch 5 5 Black Sandshell (Endangered) Logperch 23 6 29 Fragile Papershell (Endangered) Unidentified fish 1 1 Fluted-Shell (Endangered) Pocketbook (Endangered) AMPHIBIANS Mudpuppy 1 1 Pink Heelsplitter (Endangered) Leopard frog adult 531 531 Giant Floater (Threatened) Green frog adult 6 6 Cylindrical Papershell (Threatened) Green frog tadpole 4 4 Bullfrog 1 1 Fish Unid. Frog adult 1 1 Lake Sturgeon (Endangered) Stonecat (Endangered) INVERTEBRATES Eastern Sand Darter (Threatened) Crayfish 2 2 American Brook Lamprey (Threatened)

* Missisquoi River mileage includes 2.6 miles of the Dead Creek fork.

Appendix A - 14 / Project Description

Two non-listed species of concern (silver lamprey and mudpuppy) in the Missisquoi River may be adversely affected by the proposed treatment. Silver lamprey are effectively equal to sea lamprey in their susceptibility to lampricide. We have no expectation that their survival during a treatment would differ from sea lamprey. Research and previous treatment data on mudpuppies show that they are more tolerant of TFM at the concentrations we apply. Mudpuppy mortality is expected, but we do not expect population level effects.

Silver Lamprey

The impacts of TFM on silver lamprey are discussed in pp. 136-140 of the FSEIS. Lampreys of the genus Ichthyomyzon (which includes silver lamprey I. unicuspis and northern brook lamprey I. fossor) are known to be slightly more resistant to TFM than sea lamprey (King and Gabel 1985), but substantial losses of silver lamprey larvae are unavoidable during TFM treatments. It has been suggested that reductions in larval sea lamprey abundance may benefit silver lamprey because invasive sea lamprey are highly adaptable and have a competitive advantage. When sea lamprey populations are suppressed, that decrease in competition may allow native lamprey species to reestablish their numbers (Schuldt and Goold 1980).

Silver lamprey have persisted in all Lake Champlain lampricide treated tributaries. In the Missisquoi River, silver lamprey numbers are currently at their highest sampled densities (Table 3). Although we cannot confidently conclude that sea lamprey control directly results in an increase in silver lamprey numbers, we can confidently conclude that despite lampricide treatments, silver lamprey have persisted in the Missisquoi River.

Table 3. Missisquoi River Silver Lamprey population estimates Year # (N) Density (N/m2) 2007 101 .374 2008 Treatment 2011 69 .256 2012 Treatment 2015 32 .142 2019 107 .426

Appendix A - 15 / Project Description

Mudpuppy

The effects of lampricides on the mudpuppy and other amphibia are discussed in the FSEIS on pp.153- 159. Four laboratory studies have been conducted on mudpuppies of different ages to specifically identify the effects of TFM on the species (Table 4).

Table 4. Summary of toxicity test results for TFM tests conducted on mudpuppies. No observed effect concentrations (NOEC) and lowest observed effect concentrations (LOEC) expressed as factors of sea lamprey minimum lethal concentration (MLC).

TFM Species NOEC LOEC Data Source 1.6 2.0 Boogaard et al. 2003 Mudpuppy (adult)a 1.6 1.9 M. Boogaard unpub. data Mudpuppy (age 1-4)b 1.0 1.3 Neuderfer et al. 2004 Mudpuppy (1 year-old)c 0.8 1.0 Durfey and Neuderfer 2009 Mudpuppy (young of year)d 0.8 0.9 Neuderfer et al. 2004 a Average total length = 304 mm b Total length range = 60-150 mm c Average length = 60 mm d Total length range =32-41mm

Results from the toxicity studies indicate a trend of increasing resistance to lampricides with increasing mudpuppy age. This is consistent with reported field observations where Breisch (1996, 2000a, 2000b) reported larger proportions of juvenile than adult mortalities were observed in post-treatment assessments in the Great Chazy River and Ausable River which were treated with TFM at concentrations up to 1.5 x MLC. Weisser et al. (1994) reported that 100% of caged mudpuppies greater than 50 mm Total Length (TL) survived the 1987 TFM treatment of the Grand River, Ohio at TFM concentrations up to 1.3 times MLC, but no caged mudpuppies less than 50 mm survived. There was no mortality of juvenile mudpuppies (86 - 165 mm TL) caged in Lewis Creek, Vermont during a 2002 TFM treatment targeted for an average of 1.3 x MLC, but reached as high as 1.6 x MLC for short periods (Chipman 2003). All the 29 dead mudpuppies observed following 2004 Winooski River TFM treatment as well as the 19 individuals noted following the 2008 Winooski River treatment were juveniles ranging from 34 to 169 mm TL. Lampricide was targeted at a concentration of 1.0 x MLC for those treatments with small areas exposed to 1.1 x MLC in 2004 and 1.3 x MLC in 2008 due to pH shifts (Chipman 2005 and 2009). Seven mudpuppies were collected in the Poultney River after the 2007 TFM treatment at 1.2-1.3 x MLC (Durfey and Chipman 2008) where five were juveniles ranging from 72 to 87 mm TL (VTDFW unpublished data).

In 2011, the Service’s Marquette Biological Station conducted a cage study with captive, reared mudpuppy juveniles that were approximately 40 mm in length. The study resulted in 3 mortalities among 63 test organisms for an overall mortality rate of 4.8%. The mudpuppies were held at 3 separate locations during a TFM treatment that ranged in concentration from 1.3 x MLC to 1.5 x MLC (Fodale et al. 2012).

Mudpuppies are a species that is notoriously difficult to sample. In the absence of population survey data, much of the species population status in lampricide-treated rivers has been inferred from post- treatment mortality surveys. However, the 30-year record of post-treatment mortality survey data in Lake Champlain tributaries provides ambiguous evidence for the effects of lampricide treatments on

Appendix A - 16 / Project Description

mudpuppies. Using post-treatment mortality survey data, rivers such as Lewis Creek and the Winooski River show a trend of declining mudpuppy numbers collected in those rivers following lampricide treatments. In the Great Chazy and Poultney rivers, post-treatment mortality survey data show no evidence of decline or impact from lampricide treatments over time. Rather than reflecting the response of mudpuppy populations to lampricide treatments over time, these post-treatment mortality data reveal the inherent inability of these type of surveys to provide meaningful information on the species’ population status. Because many variables can contribute to mudpuppy population persistence and abundance and because not every river and lampricide treatment are identical, using post-treatment mortality survey data as indication of any trend or status of the population is untenable and of limited value at best. The best way to assess the impact of a lampricide treatment on a population is to conduct a replicated survey before and after a treatment. This is how we evaluate the effectiveness of treatments on larval sea lamprey populations. The same approach is applicable to the assessment of other species and populations and is defensible and informative in judging the effects of a lampricide treatment on a population.

Despite the challenges associated with collecting mudpuppies, this before and after a lampricide treatment survey approach was conducted in the Lamoille River by the Vermont Cooperative Fish and Wildlife Research Unit (Chellman and Parrish 2010). They trapped and released 80 mudpuppies from December 2008 through May 2009; 75 of these were tagged. The Lamoille River was treated with lampricide on October 1st, 2009. The post-treatment mortality survey found 508 dead mudpuppies of which juveniles (25-200 mm TL) represented 77% of the collection (VTDFW unpublished data). Following the treatment, with the objective to assess the population-scale impact from the treatment, the trapping effort was repeated from December 2009 through May 2010. This replicated post-treatment survey effort resulted in the collection of 81 mudpuppies. Ten of these mudpuppies were tagged recaptures from the previous effort conducted in the winter of 2009.

Post-treatment mortality survey data show conflicting trends of long-term effects on the numbers of mudpuppies in lampricide-treated rivers and are unreliable as an assessment technique. In the Lamoille River (2009) where localized high mortality occurred during the treatment, a before and after study showed no appreciable effect on mudpuppy population numbers. The above evidence and experience in treating rivers with lampricide show that a proposed treatment concentration of 1.2 x MLC may cause young-of-year and yearling mudpuppy mortalities but would have limited impacts on older breeding-age classes.

(3) There is negligible risk to public health The risk of human exposure to lampricides and measures to mitigate exposure are discussed on pp. 101- 104 and 178-187 in the FSEIS, based on information available in 2001. A history of the State of Vermont’s interpretation and guidance on the risk of TFM exposure to human health can be found throughout the span of ANC permits issued for sea lamprey control from that point through 2018. In 2019, the Vermont Department of Health participated in developing parameters and later reviewed the findings of a study commissioned to establish a new, better-informed human health advisory threshold value for TFM (Murphy and Goodnight 2019). A human health advisory value of 100 ppb was empirically derived by the Vermont Department of Health using the results of the study and in accordance with accepted toxicology practices as detailed in the State’s Drinking Water Guidance document. Page 12 of the Drinking Water Guidance document, now lists 100 ppb as their established human health advisory value for TFM.

Appendix A - 17 / Project Description

The following steps will be taken to protect public health and inform the public on how to avoid exposure to concentrations of TFM above the advisory threshold.

• Adherence to all requirements printed on the lampricide product label. • Adherence to the Prior Notification, Posting, and Water Supply Plan for Lake Champlain Lampricide Applications (Smith 2016) • Adherence to the Water Use Advisory Zone Monitoring Plan for Lampricide Treatments in Lake Champlain (Smith 2019a) • Adherence to the Contingency Plan for Accidental Spillage of Lampricides during Lake Champlain Sea Lamprey Control Operations (Smith 2019b) • Coordinate with the Federal, Provincial, and Municipal governments in Canada to ensure awareness and notifications are provided to all parties deemed appropriate by those authorities.

(4) Long-range Management Plan

The entire FSEIS constitutes a long-range management plan for sea lamprey control. When the need arose, an additional EA was written to incorporate the Lamoille River into the control program as well. A commitment to pesticide minimization over time through an integrated pest management approach is detailed in the FSEIS. Lampricide is applied at levels necessary to effectively kill the target organism (sea lamprey), but great care is given to use no more than is necessary thereby limiting the impacts on the non-target environment to the greatest extent possible. Our proposed long-term control strategies include non-chemical control methods in 4 of the 12 Vermont tributaries inhabited by sea lamprey (Figure 3). We will continue to support and participate in research and investigations into new technologies and methodologies that seek to develop ways to reduce the amount of lampricide needed to control sea lamprey effectively.

(5) Public Benefits

Substantial public benefits of sea lamprey control in Lake Champlain were demonstrated during the 8- year experimental program (Fisheries Technical Committee 1999). At the end of the experimental program, fishery benefits and angler satisfaction increased. Responses from surveyed anglers showed that they planned to spend an estimated additional 1.2 million angler days annually fishing Lake Champlain. This additional effort was estimated to generate an additional $42.2 million in fishing- related expenditures if sea lamprey control was fully implemented and its resulting benefits were to accrue and continue. This value increases to an estimated $59.2 million when all water-based recreational activity is considered (Gilbert 1999; Marsden et al. 2003). Further details of public benefits can be found on pp. 198-202 of the FSEIS.

While more recent empiric data are not available, the results of the large, lake-wide fishing derbies, the numbers of participants, increased fishing in Lake Champlain, angler satisfaction, and wide-spread public support of the lamprey control program point to many increased public benefits for the citizens of Vermont.

Appendix A - 18 / Project Description

Conclusion

Considering the 5 Vermont statutory criteria discussed above, the Service requests an Aquatic Nuisance Control Permit to conduct a controlled application of the lampricide TFM at a concentration of up to 1.2 x MLC to control the population of larval sea lamprey present in the Missisquoi River. Proposed permit conditions are presented in Appendix B.

We seek this ANC permit to become effective in the fall of 2020 and remain effective through the fall of 2025. This would allow the Missisquoi River to be treated twice under this permit (2020 and 2024). The span of 2020-2025 would accommodate the potential need for a postponement of the first treatment due to environmental conditions while maintaining our 4-year cyclical schedule. We recognize that a postponement of the second treatment would necessitate submission of a new permit. If new issues arise, we understand the permit can be reopened. We understand this does not guarantee permission to conduct two treatments; instead, it allows a second treatment in 2024 if all contingencies and conditions in the permit continue to be fulfilled. The applicant will notify the Agency of Natural Resources at least 6 months prior to a planned second treatment to allow time for any questions or concerns to be raised and addressed.

Appendix A - 19 / Project Description

References

Boogaard, M. A., T. D. Bills, and D. A. Johnson. 2003. Acute toxicity of TFM and a TFM/niclosamide mixture to selected species of fish, including lake sturgeon (Acipenser fulvescens) and mudpuppies (Necturus maculosus), in laboratory and field exposures. Journal of Great Lakes Research. 29 (Supplement 1):529–541.

Breisch, A.R. 1996. Effects of lampricides on amphibians: Little Ausable and Ausable Rivers and deltas, Lake Champlain, NY (1990 - 1995) [L. Nashett, ed.]. Bureau of Fisheries. New York State Department of Environmental Conservation, Ray Brook, NY. 23pp.

Breisch, A.R. 2000a. Non-target amphibian mortality associated with the 1999 lampricide treatment. New York State Department of Environmental Conservation Administrative Report. Delmar, NY. 6pp.

Breisch, A.R. 2000b. Non-target amphibian mortality associated with the 2000 lampricide treatment. New York State Department of Environmental Conservation Administrative Report. Delmar, NY. 2pp.

Chellman, I.C., and D.L. Parrish. 2010. Developing methods for sampling mudpuppies in Vermont tributaries of Lake Champlain. Final Report. State Wildlife Grants Program, Vermont Fish and Wildlife, Waterbury.

Chipman, B. D. 2003. Lake Champlain sea lamprey control program chemical treatment summary: Lewis Creek, Vermont, 2002. Vermont Department of Fish and Wildlife, Essex Junction, VT. 20 pp.

Chipman, B. D. 2005. Lake Champlain sea lamprey control program, chemical treatment summary: Winooski River, Vermont, 2004. Vermont Dept. of Fish and Wildlife, Waterbury, VT. 33 pp.

Chipman, B. D. 2009. Lake Champlain sea lamprey control program chemical treatment summary: Winooski River, Vermont, 2008. Vermont Department of Fish and Wildlife, Essex Junction, VT. 20 pp.

Docker, M. F. (ed.) 2019. Lampreys: Biology, conservation and control, Volume 2. Dordrecht, The Netherlands: Springer (Fish & Fisheries Series, volume 38). 577 pp.

Durfey, L. E. and B. D. Chipman 2008. Chemical treatment summary: Poultney River and Hubbardton River. New York State Department of Environmental Conservation, Ray Brook, NY. 27 pp.

Fodale, M., C. Kaye, and J.V. Adams. 2012. In situ determination of mudpuppy mortality from exposure to TFM. U.S. Fish and Wildlife Service Marquette Biological Station. Marquette MI. pp. 14.

Fisheries Technical Committee. 1999. Comprehensive evaluation of an eight-year program of sea lamprey control in Lake Champlain. Lake Champlain Fish and Wildlife Management Cooperative. 209 pp. plus appendices.

Appendix A - 20 / Project Description

Gilbert, A. H. 1999. Benefit-cost analysis of an eight-year experimental sea lamprey control program on Lake Champlain. Federal Aid Job Performance Report. Final Report. Revised 2000. F-23-R, Job 5. Vermont Department of Fish and Wildlife, Waterbury, VT. 40 pp.

King, E. L. Jr., and J. A. Gabel. 1985. Comparative toxicity of the lampricide 3-trifluoromethyl4- nitrophenol to ammocetes of three species of lampreys. Great Lakes Fisheries Commission Technical Report 47. Ann Arbor, MI. 5 pp.

Marsden, J. E., B. D. Chipman, L. J. Nashett, J. K. Anderson, W. Bouffard, L. Durfey, J. E. Gersmehl, W. F. Schoch, N. R. Staats, and A. Zerrenner. 2003. Sea lamprey control in Lake Champlain. Journal of Great Lakes Research 29 (Supplement 1):655-676.

Murphy, C. and S.Y. Goodnight. 2019. Final Report: 4-Nitro-3-(trifluoromethyl)phenol (TFM): 90-Day Oral Toxicity Study Following Administration via Drinking Water to Sprague Dawley Rats with a 28-Day Recovery Period. Study Number 2410-14374. Smithers Avanza Toxicology Services. Gaithersburg, MD.

Neuderfer, G. N., B. D. Chipman and L. Durfey. 2004. Acute toxicity of TFM and a TFM-1% niclosamide mixture to juvenile mudpuppies. Draft report. New York State Department of Environmental Conservation, Ray Brook, NY. 17 pp.

Sabbayya, S., C. Swanson and A. Vidal. 2008. Missisquoi River and lampricide plume modeling. Great Lakes Fishery Commission Project Completion Report. Applied Science Associates, Narragansett, RI. 85 pp.

Schuldt, R. J., and R. Goold. 1980. Changes in the distribution of native lampreys in Lake Superior tributaries in response to sea lamprey (Petromyzon marinus)) control, 1953-77. Canadian Journal of Fisheries and Aquatic Sciences 37:1872-1885.

Smith, S. 2016. Prior Notification, Posting, and Water Supply Plan for Lake Champlain Lampricide Applications. USFWS Lake Champlain Fish and Wildlife Conservation Office. Essex Junction, VT. 10 pp. plus attachments.

Smith, S. 2019a. Water use advisory zone monitoring plan for lampricide treatments in Lake Champlain. USFWS Lake Champlain Fish and Wildlife Conservation Office. Essex Junction, VT. 34 pp.

Smith, S. 2019b. Contingency plan for accidental spillage of lampricides during Lake Champlain sea lamprey control operations. USFWS Lake Champlain Fish and Wildlife Conservation Office. Essex Junction, VT. 12 pp. plus attachments.

U. S. Fish and Wildlife Service. 2006. Status report for the Lake Champlain Sea Lamprey Alternatives Workgroup. U. S. Fish and Wildlife Service, Essex Junction, VT. 12 p.

Weisser, J. W., G. A. Baldwin, and R. J. Schuldt. 1994. Effect of the lampricide 3-trifluoromethyl-4- nitrophenol (TFM) on fish, aquatic insects, and an amphibian in the Grand River in Lake County, Ohio, 1987. USFWS Project Completion Report. Marquette, MI. 18 pp.

Appendix A - 21 / Project Description

Appendix B-1 / 2012 Missisquoi E&T Issued Permit Appendix B-2 / 2012 Missisquoi E&T Issued Permit Appendix B-3 / 2012 Missisquoi E&T Issued Permit Appendix B-4 / 2012 Missisquoi E&T Issued Permit Appendix B-5 / 2012 Missisquoi E&T Issued Permit Appendix B-6 / 2012 Missisquoi E&T Issued Permit Appendix B-7 / 2012 Missisquoi E&T Issued Permit Appendix B-8 / 2012 Missisquoi E&T Issued Permit Appendix B-9 / 2012 Missisquoi E&T Issued Permit Appendix B-10 / 2012 Missisquoi E&T Issued Permit Appendix B-11 / 2012 Missisquoi E&T Issued Permit Appendix B-12 / 2012 Missisquoi E&T Issued Permit Appendix B-13 / 2012 Missisquoi E&T Issued Permit Appendix B-14 / 2012 Missisquoi E&T Issued Permit

United States Department of the Interior

FISH AND WILDLIFE SERVICE

Western New England Complex

Lake Champlain Fish and Wildlife Conservation Office 11 Lincoln Street Essex Junction, Vermont 05452

July 09, 2020

Julie Moore, Secretary Agency of Natural Resources 1 National Life Drive, Davis 2 Montpelier, VT 05620-3901

Secretary Moore:

The following responses are provided to address questions related to the Aquatic Nuisance Control (ANC) permit applications and Endangered and Threatened (E&T) Species permit applications submitted by the U.S. Fish and Wildlife Service for the control of Sea Lamprey using lampricides in Vermont tributaries. All questions are related to either nontarget or E&T species. Because many questions are common to both the ANC and E&T permitting process, we are combining answers to both in this document.

Many of the questions and comments received this year have been addressed by both the applicant and the Office of the Secretary of the Agency of Natural Resources during the permitting process in previous years. We have provided the most recent Findings and Responses from the Agency or Natural Resources that previously evaluated nontarget species information to make determinations and decisions. Three excerpted sections from two issued ANC permits and one ANR response summary document are appended to the end of this document (pages 6-11). We selected these findings because all three were written after the frequently referenced mudpuppy mortality seen in the 2009 Lamoille River lampricide treatment. Other recent nontarget species findings are addressed as well. The U.S. Fish and Wildlife Service has no objection to those previous findings, as written. Because our current applications do not differ from previous applications in ways that would necessitate the reevaluation of existing facts, we chose to reference and defer to these existing findings to answer questions addressed previously. Where new questions have been asked, we provide responses below.

Bradley A. Young Sea Lamprey Control Program Coordinator

2020 Responses to questions from the ANC permit review process

The larval surveys in Lamoille River have detected low numbers: 2005 (12), 2008 (3), 2012(3), 2013 (3), 2015 (0), 2019 (19).  How did the 2019 larval sea lamprey survey efforts compare to prior years? Was the same sampling method/effort utilized? The Standardized Quantitative Assessment Sampling (QAS) protocol developed by the Great Lakes Fishery Commission is used to conduct larval sea lamprey surveys in the Lake Champlain Basin. Sampling is standardized, but the total amount of habitat sampled during each survey may vary based on conditions at the time of sampling. Total area sampled during Lamoille River larval lamprey assessments was – 2005 (270 m2), 2008 (210 m2), 2012 (255 m2), 2013 (270 m2), 2015 (217.5 m2), and 2019 (283 m2).  How do these numbers relate to the larval sea lamprey estimates in other Lake Champlain tributaries? QAS estimates have wide confidence intervals, but based on the latest QAS survey, the Lamoille River larval sea lamprey population was second only to the Winooski River population in the Champlain Basin. This was in part due to the fact that we treated many lamprey producing rivers in New York between the Boquet River and the Great Chazy River in the fall of 2018. As explained in our application, larger rivers tend to have lower total numbers of larvae collected as a result of the ratio of sampled area to total river area. Low sample densities in large rivers and high sample densities in small rivers can produce equally-sized population estimates. Total number of lamprey sampled without consideration of the area of habitat available is not directly comparable between tributaries.  What is percent contribution of larval sea lamprey from the Lamoille River for the Lake Champlain basin? While it is not possible to produce a detailed basin-wide larval population estimate, using the latest QAS estimates for each of the 21 rivers that are regularly surveyed, plus the Pike River and Morpion Stream, then the Lamoille River larval population estimate made up over 17% of the known and surveyed larval populations in Champlain tributaries.  Please explain why you believe these numbers and percent contribution justify the risk to non-target species. Principles of integrated pest management, our past experience in Lake Champlain, and decades of experience in the Great Lakes show that leaving sources of production left uncontrolled has consequences. Considering the estimated figure of 17% above, if that population were left uncontrolled, it would not result in 17% increase in the parasitic population. Recruitment from larval to parasitic phase is not a linear relationship, nor independent from other populations and environmental variables. Parasites, by nature, exploit their host populations. We have a level of suppression in place that is currently achieving a substantial reduction (50-70% depending on which years you compare) in parasitism presently. Releasing the full reproductive potential of the Lamoille would result in those larvae recruiting to parasites and exploiting an abundant host population, without competition or density dependent effects acting to limit their recruitment. When a control program actively suppresses nuisance species recruitment to the parasitic phase to promote host survival, allowing new unchecked recruitment in selected areas results in disproportionate, compensatory recruitment and a higher parasitism rate. What this means quantitatively is that 17% of the basin’s larval population (i.e. the Lamoille River) would become more than 17% of the lake’s parasitic population. Maintaining larval suppression from all sources maintains limited recruitment and minimizes resulting parasitism. Our goal as a sea lamprey control program to is bring the lake wide sea lamprey population into balance with the rest of the Lake Champlain ecosystem. We have set goals for wounding rates that show that lamprey numbers need to be reduced. A larval survey conducted in the Lamoille River in 2019 showed that a sizeable larval sea lamprey population was present. To meet management objectives we need to control large larval populations like the one found in the Lamoille River when we find them.

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 Table 2 page 16 presents % sea lamprey reduction from 2009 and 2013 treatments, can the applicant provide actual # density of reduction. Following the 2009 lampricide treatment of the Lamoille River sea lamprey larval density was reduced from 0.014/m2 (3 larvae captured in 2008) to 0.004/m2 (1 larvae captured 2009). Following the 2013 lampricide treatment of the Lamoille River sea lamprey larval density was reduced from 0.012/m2 (3 larvae captured in 2012) to 0.000/m2 (no larvae captured in 2014).

Mudpuppies  Statement: Significant mudpuppy mortality occurred in 2009 (528 counted), which represented a fraction of the treated area. The entire visible treated area of the Lamoille River from Peterson Dam to the mouth was surveyed by boat and shore in 2009.  Comment: The mudpuppy mortality observed in 2009 illustrates that toxicity data provided in Table 4, page 18 is not reflective of toxicity observed in the Lamoille River; if this data were correct there should not have been any adult mudpuppy mortality observed in 2009 treating at 1.2 MLC. Comment presumes that chemical concentration and number of mortalities are independent of other environmental and biological variables that can affect organism responses. Many variables, some known and accounted for and others yet unknown, can affect how organisms respond under different conditions. Real treatment results line up very well with published toxicity values that prove to be consistent and reliable, but anomalies can occur.  What is the applicant doing to ensure that the mudpuppy population in the Lamoille River can sustain continued lampricide treatments? Refer to the three appended excerpts  Comment: Observing continued mudpuppy mortality after each treatment is not assurance that the population can sustain lampricide treatments. Refer to the three appended excerpts  Comment: Prior recommendations included capturing mudpuppies before treatment and moving them upstream to establish population. Please contact Vermont Fish and Wildlife Department for comment on this. These efforts are separate from our application.  What efforts have been taken to establish mudpuppy population upstream of treated area? Please contact Vermont Fish and Wildlife Department for comment on this. These efforts are separate from our application.  What efforts are in place to remove mudpuppies from treated section prior to this treatment? We have no plans in place to capture and remove mudpuppies prior to treatment.  What data is available to show that these levels of mortality can be sustained? We are unclear on what is being asked. We expect the 2020 treatment to be similar to the 2013 (last) treatment when all observations of mortalities were consistent with toxicity data. Please contact Vermont Fish and Wildlife for current mudpuppy sampling information for the Lamoille River.  Comment: Lewis Creek and Winooski River show declining mudpuppy numbers, in fact Lewis Creek mudpuppy population has been either eliminated or reduced to very low levels from lampricide treatments based on post-treatment mortality surveys. Fewer mudpuppy mortalities found following a treatment are an indication of fewer mudpuppies being killed during that lampricide treatment, alone. When mortalities are low or not found, it is possible that fewer or no individuals are present or it is possible that more individuals survived the treatment. Absence of evidence is not evidence of absence, nor is it proof of survival. Post-treatment assessments are thus not valid population monitoring or estimation tools.  Application (page 17) states mudpuppy mortality is expected, but we do not expect population level effects. What data support this conclusion? Refer to the three appended excerpts

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 Comment: Observations from lampricide treatments reported in this application have indicated entire age classes have been missing after treatment, would this not be a population level effect? Refer to the three appended excerpts  Will pre and post mudpuppy surveys be conducted for this proposed 2020 application? No  SEIS notes pH declines during predawn hours may lead to greater nontarget mortality than predicted, how will this “known” effect be accounted for in the dosing to prevent greater nontarget mortality? Knowledge of this phenomenon has led to diurnal water chemistry monitoring protocols to measure these trends and allow us to prevent those type of events. Water chemistry monitoring takes place in the days leading up to treatment so that pH cycles and toxicity are understood. This information is combined with known time-of-travel data so that we have a time-based expected toxicity factor for each section of the River. This process is undertaken for every lampricide treatment in the Lake Champlain Basin. Treatment application start times and concentrations are adjusted using this knowledge whereby pH cycles are incorporated into treatment planning and strategies that ensure compliance with permits.  Have mudpuppy distribution studies been conducted elsewhere in the state as directed by previous ANR Secretaries? Internal state agreements between Vermont Fish and Wildlife and the Secretary should be discussed with them.

Target/Non-target Species Mortality Monitoring  When will post-treatment mortality assessments begin? It’s identified assessments will be conducted within 36 hours. Please specify how the post treatment assessments will be conducted (e.g., when will they begin, how long will they last, areas to be covered, etc.). This is described in our application in detail, including a map with the location of sections.

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2020 Responses to questions from the E&T permit review process

The questions below were common to both the Missisquoi River and Lamoille River. There were no river-specific questions.

Permit Conditions: If a permit is granted, what specific conditions/restrictions do you recommend be included? 1. The post-treatment, non-target mortality survey be conducted at each survey location no later than the next daylight period following the lampricide block passage.

Rationale: To provide a more representative picture of non-target fish mortality resulting from a lampricide treatment, observations should be made as soon after treatment as is practical to minimize predation on dead or dying fish. Additionally a shorter period between treatment and survey would reduce the risk of sudden increased flows that would impair or prevent observations.

Post-treatment surveys are currently conducted the next morning following lampricide application. The application point is surveyed <14hrs afters the addition of chemical concludes. Downstream sites are sampled in that direction until the tail end of the chemical block is met, meaning that there are fewer hours between block passage and surveys as the survey team moves downstream. The chemical block progression continues to be monitored as it moves downstream and successive sites are sampled once the block has passed, within daylight hours. The only exception to this standing practice would be when high water conditions make surveys unsafe for staff.

2. The lampricide application point shall be located downstream from the Swanton Dam in the area directly below the hard bottom reach.

Rationale: The proposed location, immediately above the dam, was selected by the applicant because of the increased mixing of the lampricide in the river provided by the water passing over the dam. Sensitive Stonecats reside in the hard bottom, higher current section directly below the Swanton Dam. Moving the lampricide introduction point downstream will spare the riffle section of lampricide exposure without significantly sacrificing area treated for Sea Lamprey.

As stated, the application point was selected to promote mixing of lampricide. This site maximizes mixing which serves to both 1) provide greater protection to nontarget species by eliminating “hot- spots” caused by insufficient mixing and 2) ensures that lamprey larvae that reside in their highest densities near the dam are exposed to a steady and lethal concentration of lampricide. The width of the Missisquoi River, the relatively slow flow downstream of the hard-bottom stretch at the base of the dam, and the channel morphology that includes a bend, would not allow an even mix of lampricide to occur, negating both benefits listed above and potentially rendering the treatment ineffective.

3. The USFWS increase its sampling intensity to provide more precise estimates of larval lamprey populations in rivers that are scheduled for lampricide treatment.

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Rationale: The purposeful additional of toxic chemicals to a waterbody should be done with a more complete understanding of the populations dynamics of the target organism. Given the data on larval abundance in the Lamoille River, sampling intensity is insufficient to provide needed data on lamprey demography.

We believe sampling is sufficient to establish the presence of sea lamprey and the extent of their distribution in the river. A highly precise population estimate is not necessary to justify the need to control sea lamprey. Based on 30 years of experience in surveys and treatments, we do not believe more sampling precision would change or affect decisions on which rivers should be treated. We do not believe producing more precise population estimates is worth the expense of resources that would be required.

Concerns and Questions: What concerns or questions do you have about the application or the proposed project that should be noted? 1. See statement above.

Additional information: Is there any other feedback or information that you would like to share about this permit application?

We suggest a treatment that would be conducted during the latter part of the period proposed in the application to minimize impact on young-of- the-year Lake Sturgeon.

Rationale: As lampricide-sensitive Lake Sturgeon mature during their first year of life, they quickly build resistance to lampricides. Consequently the later in the year the treatment, the lower the risk of mortality from a lampricide treatment.

The following statement appears on page 6 of our application: “We will treat the Missisquoi River between Late September and Late November which will allow young-of-year sturgeon increased growth potential prior to Lampricide exposure.” Data presented in the application are consistent with this time providing protection to sturgeon. Because growth rates slow later in the year as temperatures decline, we do not believe an additional 2-4 weeks provides meaningful, additional protection. The distinction in juvenile sturgeon protection based on size is made between treating in the fall rather than in the summer.

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ANC Permit 2010-C05 State of Vermont Department of Environmental Conservation Aquatic Nuisance Control Permit Program 10 V.S.A. Chapter 50 § 1455 Re: Vermont Department of Fish and Wildlife Application No. 2010-C05 103 South Main Street, 10 South District ID #RU09-0230 Waterbury VT 05671-0501

Project: Use of an aquatic pesticide to control sea lamprey ammocoetes (larvae) in the Poultney and Hubbardton Rivers in the Town of West Haven, Lewis Creek in the Towns of Ferrisburgh and Charlotte, the Winooski River in the Cities of Winooski and Burlington and the Town of Colchester and the Lamoille River in the Town of Milton, Vermont.

3. Findings – Acceptable Risk to the Non-target Environment

Unlisted Non-target Organisms -Amphibians While TFM toxicity tests and treatment cage studies conducted on mudpuppies have indicated that at the proposed treatment concentrations no mortality should be expected for this species, mortalities have been recorded following Vermont TFM treatments. Mudpuppy mortality occurred during both the 1990 and 1994 TFM-formulation treatments of Lewis Creek. Following the 1990 treatment (1.0 x MLC), 23 dead mudpuppies were found, with 18 found following the 1994 treatment (~1.1 x MLC). No dead mudpuppies were found following the 2002 (1.1-1.3 x MLC) or 2006 (1.2 x MLC) treatments of Lewis Creek. Eight dead mudpuppies were recorded from the Poultney River after the 2007 TFM treatment conducted at 1.3 x MLC. The 2004 and 2008 TFM treatments of the Winooski River resulted in 17 and 16 mudpuppy mortalities respectively. Two cage studies, one from Lewis Creek in 2002 (n=16) and the other from the Winooski River in 2004 (n=45) showed no mortalities. The 2009 treatment of Lamoille River resulted in over 500 mudpuppy mortalities.

What is known of the distribution of the mudpuppy in Lake Champlain is largely due to observed mortalities from lampricide treatments. Otherwise there are scattered records of occurrence throughout the Lake Champlain valley of Vermont. This secretive, nocturnally active species is very difficult to sample efficiently, which has contributed to a lack of occurrence and density information for this species.

The mudpuppy is not federally or state-listed as endangered or threatened. In a listing decision dated September 6, 2002, the Secretary determined that the March 16, 2002 recommendation by Vermont’s Endangered Species Committee to list the mudpuppy in Vermont as a threatened species was not then supported by the available data. The Secretary chose not to list this species at that time and it remains unlisted.

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Comments dated March 31, 2006, submitted by the Vermont Endangered Species Committee to Canute Dalmasse, Deputy Secretary of the Agency of Natural Resources, regarding an Endangered and Threatened Species Takings Permit application for the proposed Lewis Creek lampricide treatment, conveyed “much concern about the status of the mudpuppy and its vulnerability to lampricide.” The Committee “strongly recommended” that research be conducted in an effort to develop more information on the mudpuppy’s status. In addition, ANC Permit 2005-C05 authorizing TFM treatment of Lewis Creek included a permit condition requiring that prior to treatment, the Permittee submit to the Department a detailed plan describing how the Permittee would generate mudpuppy population data to clarify the status of this species in Lewis Creek and other Lake Champlain tributaries. As a result, the Permittee submitted a detailed plan describing how the Permittee would generate mudpuppy population data to clarify the status of the species in Lake Champlain tributaries. A study, partially funded by a State Wildlife Grant, was conducted during 2009-2010. This effort evaluated collection techniques and provided age and sex distribution characteristics and population size estimates for mudpuppies in the Lamoille River. The total mudpuppy population estimate for the 1 km reach below Peterson Dam for winter 2008- winter 2009 (prior to the fall 2009 lampricide treatment) was greater than the estimate for the same time period during 2009-2010. However, this finding was not statistically supported. The decline in the population estimate for females was more pronounced than for males and may have indicated an actual decline in numbers following the 2009 lampricide treatment. Small sample sizes and low recapture rates, typical of mudpuppy sampling efforts, widened confidence limits of estimates thereby precluding firm conclusions on abundance for males, and to a lesser extent, females.

The Lamoille River study recommended that further similar efforts be made to monitor the population and to provide additional estimates of population size to more accurately characterize population status.

Mortalities of frogs and tadpoles (usually northern leopard, Rana pipiens) have ranged widely from none in one third of the Vermont’s previously permitted TFM treatments to 549 adults resulting from the 2008 Missisquoi River treatment. The latter number is unusually high, comprising 74% of frog mortalities in all of the Vermont treatments up to that date. The Department finds that the cosmopolitan distribution of this species in Vermont assures its stability in relation to observed mortalities from lampricide treatments.

Based on the permit application and other supporting documents on file with the Agency and the above information, the Secretary finds that the proposed treatments of the authorized treatment tributaries with TFM-HP alone or in combination with Bayluscide EC poses an acceptable risk to the non-target environment if it is conducted in accordance with the product label, the application, the conditions of this permit, and the conditions of an Endangered and Threatened Species Takings Permit issued for the authorized treatment tributaries.

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State of Vermont Department of Environmental Conservation Aquatic Nuisance Control Permit Program 1 NATIONAL LIFE DRIVE, MAIN 2 MONTPELIER, VT 05620-3522 10 V.S.A. Chapter 50 § 1455 Re: Winooski River Lampricide Application - Permit No. 2015-C04

3. FINDINGS

3d. Nontarget Environment – 10 V.S.A. 1455(d)(2). The USFWS states that the Final Supplemental Environmental Impact Statement (FSEIS), and more recent research provides support the conclusion that controlled applications of TFM at a concentration of 1.3 x MLC for no longer than 14 hours will pose an acceptable risk to nontarget species in the Winooski River. While there have been some mortality of nontarget organisms observed during prior treatments; generally, however, the wide distribution of these nontarget amphibians, fish, and some invertebrates in Vermont, and especially in the Lake Champlain, basin assures their population stability. As indicated above, successful lampricide treatments have occurred at lower concentrations in the Winooski River. Therefore, to minimize potential nontarget impacts but ensure sufficient efficacy, the Secretary has authorized 1.2 x MLC for no longer than 12 consecutive hours. Given the USFWS improved the accuracy and precision of treatments over the last 25 years, a carefully executed lampricide treatment at this concentration poses acceptable risk to all nontarget organisms, including mudpuppies, in the Winooski River.

An Endangered and Threatened Species Takings Permit (Takings Permit) will be obtained by the USFWS from the VT Agency of Natural Resources prior to any use of lampricide.

Generally, mussels suffer little or no mortality during typical TFM treatments. The USFWS reports that after 67 stream lampricide treatments in the Champlain Basin, only 33 mussel mortalities have been recorded. Of those 33, only nine have been recorded in the past 10 years. Research on mussel susceptibility to TFM is consistent with these results. Studies also indicate that mussels do not suffer delayed mortality within at least 10 months post exposure.

While there are scattered records throughout Vermont, what is known of the distribution of the mudpuppy (Necturus maculosus) within the Lake Champlain Basin is largely due to observed mortalities from lampricide treatments. Mudpuppies are very challenging to scientifically survey, which has contributed to a lack of reliable distribution, frequency of occurrence and density data for this species. The USFWS has attempted to generate population data to clarify the status of this species. However, small sample sizes and low recapture rates, typical of mudpuppy sampling efforts, have widened confidence limits of population estimates thereby precluding definitive population density conclusions – particularly before and after lampricide use. The USFWS’s experience in treating rivers with lampricide shows that a treatment concentration of 1.3 x MLC may cause mortality to young-of-

8 year and yearling mudpuppies and other salamanders, but has limited impacts on older breeding-age classes. A total of 29, 19, and 1 mudpuppies were collected in 3 post- treatment collections in 2004, 2008, and 2012, respectively. While the exact population status of mudpuppies within the Winooski River is unknown, the data reported on mudpuppy impacts do not directly support the conclusion that this species has been unacceptably impacted because of its use. However, the Secretary has determined a slightly reduced concentration for a shorter duration poses an acceptable risk to all nontarget organisms, especially mudpuppies, and based on prior treatment concentrations will ensure effective control of sea lamprey. Given that the USFWS has improved the accuracy and precision of treatments over the last 25 years, the Department has concluded that a carefully executed lampricide treatment at 1.2 x MLC is an acceptable approach to minimizing possible adverse effects on the mudpuppy population within the Winooski River. In a listing decision dated October 28, 2011, the Secretary of the Agency of Natural Resources determined that the 2011 recommendation by Vermont’s Endangered Species Committee to list the mudpuppy as a threatened species was not supported by available information. While the Secretary recognizes that additional surveying efforts are needed, she does not believe the proposed use of lampricide will or has posed an unacceptable risk this species’ population in the Winooski River.

However, the Secretary reserves the authority to require additional studies if determined necessary to maintain this finding.

Impacts of TFM on silver lamprey (Ichthyomyzon unicupsis) are discussed in detail within the FSEIS. With a treatment concentration of 1.2 times MLC, losses of silver lamprey larvae are expected. Nonetheless, despite repeated treatments of rivers containing populations of silver lamprey, regular assessment surveys show that they continue to persist at acceptable populations.

The mottled sculpin (Cottus bairdii) is considered to be a rare fish in Vermont and is known to occur in several waterways in the Champlain Basin, some of which are treated with lampricide. Mottled sculpin are relatively resistant to TFM exposure at typical concentration treatment levels.

The brassy minnow (Hybognathus hankinsoni) and the blacknose shiner (Notropis heterolepis) are considered to be a rare fish in Vermont and are known to occur in several waterways in the Champlain Basin. One mortality of the brassy minnow and only 3 mortalities of the blacknose shiner have been documented during post-treatment surveys of the 67 total lampricide treatments that have occurred. These species have not been tested in bioassays or cage studies because it is considered to not be at significant risk of mortality during typical lampricide applications. In general, the Cyprinidae family is considered to have a relatively high tolerance to lampricide. Therefore, the proposed lampricide treatment poses an acceptable level of risk to brassy minnows and blacknose shiners.

The Secretary has determined that there is acceptable risk to any wetlands directly adjacent to the Winooski River.

To mitigate the risk of introduction or transport of non-native, aquatic invasive species proper spread prevention measures must be taken. Thus, prior to any control activity occurring, all

9 equipment (such as a boat, trailer, vehicle, and gear) that has been in or on any other waterbody, will be decontaminated in accordance with the Voluntary Guidelines to Prevent the Spread of Aquatic Invasive Species through Recreational Activities, Aquatic Nuisance Species Task Force, November 2013, or its approved replacement.

Having reviewed all of the potential negative impacts of the proposed pesticide treatment on the nontarget environment, the proposed activity poses an acceptable risk if it is conducted in accordance with this permit and the all other applicable regulations.

The Secretary has determined that there is acceptable risk to the nontarget environment.

10

AGENCY OF NATURAL RESOURCES DEPARTMENT OF ENVIRONMENTAL CONSERVATION WATERSHED MANAGEMENT DIVISION 1 NATIONAL LIFE DRIVE, MAIN 2 MONTPELIER, VT 05620-3522

RESPONSE SUMMARY TO COMMENTS RECEIVED REGARDING AQUATIC NUISANCE CONTROL PERMIT DECISION #2015-C04 Re: Proposed use of lampricide in Winooski River Municipalities of Winooski, Burlington, and Colchester

8. COMMENT There is concern over a reduction of the mudpuppy (Necturus maculosus) population throughout Vermont allegedly caused by the use of lampricide. Listing the mudpuppy as threatened or endangered and reducing the use of lampricide may help protect this species. Adversely affecting mudpuppy populations with TFM, and expecting them to rebound, does not make sense.

8. RESPONSE The abundance and distribution of mudpuppies within the Lake Champlain basin is largely due to observed mortalities from lampricide treatments. Mudpuppies are very challenging to scientifically survey, which has contributed to a lack of reliable frequency of occurrence and density data for this species. In a listing decision dated October 28, 2011, the Secretary of the Agency of Natural Resources determined that the 2011 recommendation by Vermont’s Endangered Species Committee to list the mudpuppy as a threatened species was not supported by available information. While the Secretary recognizes that additional surveying efforts are needed, she does not believe the proposed use of lampricide will or has posed an unacceptable risk this species’ population in the Winooski River. The USFWS has requested to treat at 1.3 x MLC, as is standard in most other Vermont streams. The USFWS’s experience in treating rivers with lampricide shows that a treatment concentration of 1.3 x MLC may cause mortality to young-of-year and yearling mudpuppies and other salamanders, but has limited impacts on older breeding-age classes. While the exact population status of mudpuppies within the Winooski River is unknown, the data reported on mudpuppy impacts do not directly support the conclusion that this species has been unacceptably impacted because of its use. However, the Secretary has determined a slightly reduced concentration for a shorter duration poses an acceptable risk to all nontarget organisms, especially mudpuppies, and based on prior treatment concentrations will ensure effective control of sea lamprey. Given that the USFWS has improved the accuracy and precision of treatments over the last 25 years, the Department has concluded that a carefully executed lampricide treatment at 1.2 x MLC is an acceptable approach to minimizing possible adverse effects on the mudpuppy population within the Winooski River.

11

Vermont Endangered Species Committee T&E Permit Application Review

Application: USFWS Lampricide Treatment of the Missisquoi River in 2020

Date: 29 June 2020

Summary: The applicant proposes surveys to treat the Lamoille River with the lampricide TFM.

Species Potentially Impacted: Black sandshell mussel, Pocketbook mussel, pink heelsplitter mussel, fluted shell mussel, fragile papershell mussel, cylindrical papershell mussel, giant floater mussel, eastern sand darter, lake sturgeon, Stonecat, and American brook lamprey.

Advice: Should a permit be granted? No

Comments: We appreciate the efforts of the US Fish and Wildlife Service to minimize the effects of the lampricide treatment on non-target species. Despite these efforts, the Endangered Species Committee continues to struggle with the use of lampricide in Vermont rivers. We understand that there are negative effects of lamprey parasitism on sport fish populations. However, we continue to be concerned about long-term effects on populations of T&E species such as mussels, as noted in the white paper provided by the Invertebrate SAG in 2013 (included with these recommendations). Additionally, we know there are negative effects on non-target species that are not listed as threatened or endangered, but are in S1 or S2 categories (critically imperilled or imperilled). Given the concerns about water quality in Vermont, particularly in the Champlain Basin, adding toxic chemicals to state waters feels like an out-dated approach to fisheries management. We urge the US Fish and Wildlife Service and the Vermont Fish and Wildlife Department to continue to look for control options that are more species-specific and continue to monitor the literature for additional information on long-term cumulative effects on non-target species.

The applicant does not provide detailed information on larval sampling results (compared to the information in the Lamoille River permit application). However, the lack of precision in the estimates of larval abundance are a low bar to clear for the purpose of introducing toxic chemicals into Vermont waterways. Further, data on the efficacy of lampricide treatment on wounding rates is equivocal.

Permit Conditions: If a permit is granted, what specific conditions/restrictions do you recommend be included? 1. The post-treatment, non-target mortality survey be conducted at each survey location no later than the next daylight period following the lampricide block passage.

Rationale: To provide a more representative picture of non-target fish mortality resulting from a lampricide treatment, observations should be made as soon after treatment as is practical to minimize predation on dead or dying fish. Additionally a shorter period between treatment and page 2 survey would reduce the risk of sudden increased flows that would impair or prevent observations.

2. The lampricide application point shall be located downstream from the Swanton Dam in the area directly below the hard bottom reach.

Rationale: The proposed location, immediately above the dam, was selected by the applicant because of the increased mixing of the lampricide in the river provided by the water passing over the dam. Sensitive Stonecats reside in the hard bottom, higher current section directly below the Swanton Dam. Moving the lampricide introduction point downstream will spare the riffle section of lampricide exposure without significantly sacrificing area treated for Sea Lamprey.

3. The USFWS increase its sampling intensity to provide more precise estimates of larval lamprey populations in rivers that are scheduled for lampricide treatment.

Rationale: The purposeful additional of toxic chemicals to a waterbody should be done with a more complete understanding of the populations dynamics of the target organism. Given the data on larval abundance in the Lamoille River, sampling intensity is insufficient to provide needed data on lamprey demography.

Concerns and Questions: What concerns or questions do you have about the application or the proposed project that should be noted? 1. See statement above.

Additional information: Is there any other feedback or information that you would like to share about this permit application?

We suggest a treatment that would be conducted during the latter part of the period proposed in the application to minimize impact on young-of- the-year Lake Sturgeon.

Rationale: As lampricide-sensitive Lake Sturgeon mature during their first year of life, they quickly build resistance to lampricides. Consequently the later in the year the treatment, the lower the risk of mortality from a lampricide treatment.

Submitted as a Report on Freshwater Mussel Survival in Vermont.

The Invertebrate Scientific Advisory Group of the Endangered Species Committee, H. Peter Wimmer and Kent McFarland Co-chairs. 7 February 2013 - revised 2/16/13 and 6/4/13

Sent by Pete Wimmer, SAG Inverts, 6/5/13

Effects of the Lampricide TFM (3-trifluroromethyl-4-nitro-phenol) on Long-term Survival of Adult and Pre-adult Vermont Unionid Mussels

Conclusions:

1. Short term monitoring has shown that TFM or TFM in combination with 1% niclosamide does not harm adult or juvenile unionid mussels; harm meaning lethality. 2. Unionid mussels are especially long-lived and long term effects of TFM and TFM/1% niclosamide are not known. 3. Effect of TFM and TFM/1% niclosamide on pre-adult stages is not well known. 4. The current procedures for monitoring impacts of TFM are inadequate to determine long term effects of treatment on adults and short- or long-term effects on juveniles.

Justification:

1. Short term monitoring shows that TFM or TFM/1% niclosamide does not harm unionid mussels. It has been amply demonstrated in laboratory and field studies that concentrations of TFM or TFM/1% niclosamide up to several times the minimum lethal concentration (MLC) to kill 100% of lamprey ammocoetes (young larvae) and transformers (juveniles) do not kill most adult unionid mussel species during the exposure period or after the longest observation period to date, about a year, after lampricide application stops. (Bills, T.D., et. al., 1992; Boogard, M. A., et, al. 2004a and 2004b; NY Dept. Environmental Conservation et. al. 2007 and many others) .

Waller, et. al. (1998) showed that exposure of several mussel species to several concentrations of 14C-TFM over a period of 48 hours resulted in a concentration of 14C-TFM in some tissues up to 60X the concentration in the water without significant mortality at the end of the exposure. Valve closure did not significantly affect 14C-TFM accumulation.

Studies have generally considered narcotization and survival of mussels after exposure but Waller et al. (2003) showed growth of Elliptio complanata over a 10 month period did not vary ​ ​ with exposure to TFM or TFM/1% niclosamide. This growth was not compared to growth of unexposed animals.

The fact that TFM or TFM/1% niclosamide don't kill mussels at concentrations which kill 100% of lamprey larvae, at least in controlled lab situations, is encouraging for lamprey control efforts using TFM and for the orthodox view of mussel safety during such treatments.

2. Unionid mussels are especially long-lived and long-term effects of TFM and TFM/1% niclosamide are not known.

Unionid mussels are especially long-lived species, some possibly reaching two centuries. A local example is the eastern pearlshell, Margaritifera margaritifera, which is not found in TFM ​ ​ ​ ​ ​ ​ treated areas in Vermont. Bauer (1992) indicates life span in unionid mussels is related to ​ ​ metabolic rate (temperature and food dependent), adult specimen size and location in the stream. Longer lived species tend to be larger as adults and are located in colder water. The range of life span for adult unionids is from approximately 6 years up to a century or more. Thus a lack of statistically significant adult mortality after TFM treatment over a period of several years could be highly deceptive.

Strayer (2008) cites several studies which show that human and natural impacts, on mussel populations, not immediately resulting in mortality, may take years, decades or even centuries to be expressed as changes in adult numbers. A particularly interesting example is that of mussel populations immediately below dams built from the early 1900s through mid-century with hypolimnetic water release. The mussel populations in the affected regions of the streams are just now beginning to show population depression after as much as a century in some cases Heinrich, J.R. and J.B. Layzer, (1999); Layzer, J. B.et.al. (1993). Exact cause or causes of the die-offs were not determined. Also see Tilman et al. (1994) and Cope et.al. (1995).

3. Effect of TFM and TFM/1% niclosamide on pre-adult stages is not well known.

Even though TFM does not kill a number of species of mussels immediately, it may be having a repressive effect on reproduction or the survival of a pre-adult life stage such as juveniles or glochidia.

TFM is adsorbed by very fine sediments where it can be sequestered for an extended period, the duration being dependent upon variable water chemistry, quantity of fine particulate organic matter and the microbial environment, Hubert (2011, study in progress), Kemp (1973) and Dawson,V.K. et.al. (1985) and others. The Hubert study is attempting to, at least in part, determine the residence time of TFM in sediments. The Dawson study is mainly aimed at determining how much TFM can be transferred from the water to the sediments to aid in planning lampricide treatments. Juvenile mussels tend to reside in the fine sediments between stones in streams for a number of reasons, chief among these are protection from larger predators and the presence of fine particulate organic matter along with algae, bacteria and protozoa upon which they feed, so may be exposed to TFM concentrations well below the point where it is detectable in the stream water. The work underway by Hubert (2011) might throw some light on these issues.

4. The current system of monitoring effects of TFM are inadequate to determine long term effect of treatment on adults and short- or long-term effects on juveniles

A number of Vermont streams are on a 4-year cycle of TFM treatment for lamprey control. This regular exposure of the stream to TFM replenishes any TFM still sequestered in the fine sediments, the zone where juvenile mussels reside. Possibly this extended exposure to TFM is killing or damaging juveniles, and if so, this repression of a successful reproductive cycle won't become evident for many years if only adult populations are monitored. There are other potentially toxic chemicals in the water which may be more responsible for the lack of reproductive success of the mussels (Cope; et. al., 2008). TFM may be a major agent contributing to the decline of many, if not all, unionid species in TFM treated portions of streams.

5. If the role of TFM can be isolated from the role of these other agents it will require very carefully designed field controls and lab work. Given available evidence for the role of TFM in unionid decline, there are some studies which should be performed.

This issue needs to be examined by means of careful, long-term, field studies encompassing several TFM treatment cycles in which juvenile population density is monitored between treated and untreated portions of streams. Similar untreated streams should be studied as controls when the untreated portion of the treated streams are dissimilar from the treated portions. When possible, juveniles should be lab reared to a size where positive species determination can be made. Any trend in juvenile population and species composition is indicative of the future population of the stream.

Final Note:

Such an intensive study requires resources beyond those available to the Vermont Department of Fish and Wildlife. The US Fish and Wildlife Service is an obvious candidate to conduct such studies. Findings are vital to the lamprey control program and to the development of a more comprehensive plan for the recovery and protection of Vermont mussels (see O’Brian, et. al. 2002).

Addendum:

A group at the USGS Upper Midwest Science Center has been looking into many of the issues presented here. Depending on their approach, they may provide answers to our questions. They have not yet published and we anxiously await this.

Submitted as a Report on Freshwater Mussel Survival in Vermont.

The Invertebrate Scientific Advisory Group of the Endangered Species Committee, H. Peter Wimmer and Kent McFarland Co-chair.

7 February 2013 revised 2/16/13 and 6/4/13

References:

Bauer, G. 1992. Variation in life span and size of the freshwater pearl mussel. Journal of Animal Ecology. 61: 425 -436.

Bills, T.D., J.J Rach; L. L. Marking and G.E. Howe. 1992. Effects of the Lampricide 3-triflouromethyl-4-nitrophenol on the Pink Heelsplitter. U.S. Fish and Wildlife Service, Resource Publication 183. Washington, D.C. I-iii, 1-7.

Boogard, M.A. ,Bills, T.D. and D.L. Waller. 2004 (Final Draft for Peer Review) Acute Toxicity of TFM and TFM/1% niclosamide mixture on the giant floater (Pygonodon [Anodonta] grandis) ​ ​ mussel and the sea lamprey (Petromyzon marinus) larvae. US Geological Survey, La Cross, WI ​ ​ for the Lake Champlain Fish and Wildlife Cooperative, Essex Junction, VT. 17pp.

Boogard,M.A., C.S. Kolar and D.L.Waller. 2004. Acute Toxicity of 3-trifluoromethyl-4-nitrophenol (TFM) and a TFM/1% niclosamide mixture on the giant floater (Pyganodon grandis), fragile papershell (Loptodea fragilis) and the pink heelsplitter (Potamilus ​ ​ ​ ​ ​ alatus) unionid mussels and the sea lamprey (Petromyzon marinus) larvae.US Geological Survey ​ ​ ​ for the Lake Champlain Fish and Wildlife Cooperative and Vermont Department ofFish and Wildlife, Essex Junction VT, 17pp.

Cope, W, R. Bringolf, D. Buchwalter, T. Newton, C. Ingersoll, N. Wang, T. Augspurger, F. Dwyer, M. Barnhart, R.Neves and E. Hammer. 2008. Differential exposure, duration, and sensitivity of unionoidean bivalve life stages to environmental contaminants. Journal of the North American Benthological Society. V 27, no. 2 pp. 451-462.

Cope, W. and Waller, D. 1995. Evaluation of freshwater mussel relocation as a conservation and management strategy. Regulated Rivers: Research and Management. Vol. 11 no. 2, pp. 147-155.

Dawson, V. K., D.A. Johnson and J. L. Allen. 1985. Loss of Lampricides by adsorption on bottom sediments. Can. J. of Fisheries and Aquatic Sciences. V 43(8); 1616-1620. Published on the web April 2011.

Heinrich,J.R. and J.B. Layzer. 1999. Reproduction by individuals of a non-reproducing population of Megalonaias nervosa (Mollucidae, Unionidae) following translocation. American ​ ​ Midland Naturalist. 141:140-148.

Hubert, T. 2011. Determination of TFM Residues in sediment and water following a lampricide treatment. Study in progress. USGS, Upper Midwest Environmental Sciences Center. 2pg.

Kemp, Lloyd l. 1973. Microbial degradation of the lampray larvicide, 3-triflouromethyl-4-nitrophenol in sediment-water systems. Great Lakes Fishery Commission, Technical Report No. 18.

New York State Department of Environmental Conservation and the Vermont Department of Fish and Wildlife. 2007. Summary of TFM toxicity tests of the cylindrical papershell (Anodontoiudes ferussacianus). 3pp. ​ ​ ​ ​

O'Brian, C, M. Ferguson, S.Fiske, M. Lyttle, and E. Marsden. (in preparation) Recovery plan for twelve Vermont freshwater mussel species. Vermont Fish and Wildlife Department.

Strayer,D.L. 2008. Freshwater Mussel Ecology, A Multifactorial Approach to Distribution and Abundance. University of California Press, Berkeley. I-vii, 1-204.

Tilman,D; R.M. May; C.L. Lehman and M.A. Nowak. 1994. Habitat destruction and the extinction debt. Nature 371: 65-66.

Waller, D.L., J.J. Rach and J.A. Luoma. 1998. Acute toxicity and accumulation of the piscicide 3-triflouromethyl-4-nitrophenol (TFM) in freshwater mussels (Bivalvia: Unionidae). Ecotoxicology 7, 113-121.

Waller, D.L., T.D. Bills, M.A. Boogard, M.A. Johnson and T.C.J Doolittle. 2003. Effects of lampricide exposure on survival, growth and behavior of the unionid mussels Elliptio ​ complanata and Pyganodon cataracta. Conference paper: Journal of Great Lakes Research. Vol. ​ ​ ​ 29, Supplement 1, 542-551.

Agency of Natural Resources 1 National Life Dr, Davis 2, Montpelier, VT 05620-3702 • 802-828-1294 Draft Threatened & Endangered Species Takings Permit Statutory Authority: 10 VSA § 5408

1. Permittee 2. Permit Period Bradley Young Effective Date: xx/xx/2020 USFWS, Lake Champlain Office Expiration Date: xx/xx/2024 11 Lincoln Street, Essex Jct., VT 05452, Authorization #: EH-2020-16 802-662-5304, [email protected] Amendment # 0

3. Principal Officer: Andrew Milliken 4. Subpermitee(s): The trained staff of the United States Fish and Wildlife Service (USFWS) and Vermont Fish and Wildlife Department (VFWD) under the direction of the Permittee. 5. Authorized Species: Giant floater (Pyganodon grandis), Pink heelsplitter (Potamilus alatus), Fragile papershell (Leptodea fragilis), Pocketbook (Lampsilis ovata), Cylindrical papershell (Anodontoides ferussacianus), Fluted- shell (Lasmigona costata), Black sandshell (Ligumia rectaa), Eastern Sand Darter (Ammocrypta pellucida), Stonecat (Noturus flavus), American brook lamprey (Lethenteron appendix), Lake sturgeon (Acipenser fulvescens) 6. Authorized Activity: the incidental take of species listed in Section 5 during lampricide treatment in the Missisquoi River. 7. Location of Authorized Activity: Mississisquoi River in the Town of Swanton, downstream of the Swanton Dam 8. Findings A. The Permittee applied for a Threatened & Endangered Species Takings Permit under 10 V.S.A. § 5408 to authorize the incidental take of the species listed in section 5 for the purpose of treating the Lower Missisquoi River with lampricide. The Missisquoi was previously treated in 2012. B. The Permittee is a government entity with expertise in the capture and handling of species listed in section 5. C. Said activity has been determined to be non-de minimis in nature and will have the following benefits: enhance the propagation and restoration of native lake trout, landlocked Atlantic salmon, and other Lake Champlain fish species including walleye, northern pike, and endangered lake sturgeon. D. The sea lamprey is a fish that parasitizes other fish, scarring or killing its host. A substantial body of information collected by the Permittee and others indicates that the sea lamprey is depressing coldwater and some warm water fisheries in Lake Champlain. The negative impacts of sea lamprey parasitism have been documented in the Great Lakes where sea lamprey control programs have been in effect for more than 50 years. E. The proposed lampricide treatment is part a long-term sea lamprey control program for Lake Champlain initiated by the Permittee, along with the Lake Champlain Fish and Wildlife Management Cooperative, the New York State Department of Environmental Conservation, and the U.S. Fish and Wildlife in 2002. This program was developed in response to an eight-year experimental sea lamprey control program conducted on Lake Champlain between 1990 and 1997. The experimental program illustrated the efficacy of the lampricide TFM in effectively reducing numbers of sea lamprey to levels resulting in significant improvement in salmonid survival and fishing quality in Lake Champlain. A primary goal of the long-term sea lamprey control program is to prevent the economic harm from sea lamprey parasitism as well as to enhance the propagation of salmonid and other fisheries in Lake Champlain. F. Programmatic targets of 15 lamprey wounds per 100 Atlantic Salmon (Salmo salar) and 25 lamprey wounds per 100 lake trout (Salvelinus namaycush) were set in 1990 in the FSEIS. Targets are based on experience and historic data that indicate these species can withstand and persists at those level of lamprey wounds. G. November 2019 lamprey wounding data identified wounding rates of 20 per 100 Atlantic Salmon and 57 per 100 lake trout. Both rates are above the set programmatic goals and are reasons to continue to control known T&E Species Takings Permit DRAFT Missisquoi Lampricide ● Young ● USFWS ● EH-2020-16 p. 2 of 7

sea lamprey populations. The Missisquoi river system is one of 21 Lake Champlain tributaries in Vermont, New York and Quebec that are a source of sea lamprey production. Pretreatment surveys conducted in 2019 revealed higher concentrations of sea lamprey below the Swanton Dam. Of the 19 larvae collected in 2019, 15 were found within the first mile below the dam. 251 m2 of habitat was sampled, representing 0.02% of habitat. Treatment Strategy and Methodology H. Treatment planning and execution will be like that of previous treatments. Two lampricide products, TFM-HP and TFM Bar, are proposed for use and will be applied in accordance with established Standard Operating Procedures (Application p. 21). I. The primary TFM application point (AP) is less than 100 meters upstream of Swanton Dam (river mile 7.8). Applicators will attempt to spread the applied lampricide evenly from bank to bank in order to achieve the target TFM concentration quickly and thoroughly in the River. Applying upstream of the dam will facilitate mixing due to the uniform water depth and velocity at the head of the dam and the turbulence created on the drop. J. Application rate: TFM will be applied for 12 to 14 consecutive hours to achieve a target in-stream treatment concentration of no greater than 1.2 x Minimum Lethal Concentration (MLC). K. MLC will be determined by the results of an on-site toxicity test in conjunction with pH/alkalinity prediction charts. Diurnal stream pH and alkalinity analysis in the days prior to treatment will be used to calculate target TFM concentration. Concentration will be adjusted during treatment to compensate for shifts in pH or alkalinity that differ from pre-treatment conditions to maintain the MLC. L. TFM Bars and/or adjustable rate pumps may be used as supplemental applications (SAP) on up to 4 small tributaries (SAP 1-4 on Application Figure 4, Table 1) near their confluences with the Missisquoi River, concurrent with passage of the mainstem lampricide block at those points, to block lamprey escapement into untreated water from these streams. Flows on the day of treatment will determine the need for these supplemental applications. M. Liquid TFM may be used as supplemental (secondary) applications on up to 2 selected backwater areas (SAP 5 and SAP 6 on Application Figure 4, Table 1) of larval habitat where the primary TFM block cannot penetrate effectively. TFM will be applied to these areas to achieve a target concentration of no more than 1.0 x MLC. Flows on the day of treatment will determine the need for these supplemental applications Post Treatment Water Quality Monitoring N. Lampricide concentration will be measured and monitored at low levels in the lake following treatment. Monitoring will occur and advisories will remain in place until 24 hours after measured levels fall below the Vermont Department of Health’s advisory threshold of 100 ppb. The low-level lake monitoring strategy and methodology are detailed in the Water Use Advisory Zone Monitoring Plan for Lampricide Treatments of the Poultney/Hubbardton River, Lewis Creek, LaPlatte River, Winooski River, Lamoille River, Stone Bridge Brook, and the Missisquoi River” (Smith 2019a). Target/Non Target Species Mortality Monitoring O. Post-treatment mortality assessment crews will systematically survey pre-defined sections of each treated stream reach within 36 hours of the lampricide block passage. All visible river-bottom in each section will be inspected. Observations of non-target organism mortalities, except lamprey, will be recorded. P. The 5 mortality survey sections are identified in Figure 5 (Application p. 26) and comprise 23% of the treated reaches. Q. All dead fish (excluding lampreys), amphibians, mussels, and other large invertebrates encountered will be identified band enumerated, if possible. Organisms not identified in the field will be collected, if possible, and retained for identification.

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R. Dead lamprey larvae will not be counted during the post treatment mortality survey, but the first 30 encountered in each transect will be retained and identified. S. Assessment of treatment effects on lamprey populations will occur by means of a larval survey completed within one year following the treatment. Larval surveys following treatments provide more direct and statistically sound means of comparison with the pre-treatment population surveys. T. Results of non-target mortality surveys will be submitted to VFDW by May 1 of the year following the treatment. Post treatment larval survey results will be submitted by December 31 of the year following the year of treatment. Takings U. Mussels – Within the treatment area, there are seven known mussel species. The toxicity of TFM to mussels concludes the mussels listed in Section 5 should incur little to no mortality during the treatment. TFM toxicity tests conducted on the mussels indicate that the TFM no observed effect concentration (NOEC) for these species ranges from 1.5 to >2.0 x MLC (Table 1, Application p. 5). Fish V. Lake Sturgeon – Early life stages of lake sturgeon are the most sensitive to TFM of the listed non-lamprey fishes. Boogaard et. Al (2003) conducted a series of tests on early life stages of lake sturgeon from sac fry through age 1+.The study found tolerance to TFM increased with size. Average NOEC’s of three young-of- year size classes averaging 107, 157, 217 mm total length were equivalent to 1.0 x MLC, 1.0 x MLC, 1.2 x MLC, respectively; average NOEC for an age 1+ group averaging 261mm total length was equivalent to 1.5 x MLC (Table 2, Application p. 6). W. Eastern Sand Darter – Eastern sand darters are relatively tolerant of TFM exposure at treatment concentrations, with a NOEC of 1.4 x MLC in a laboratory toxicity test (Neuderfer 2000). X. Stone Cats – USFWS Lake Champlain Fish and Wildlife Resource Office conducted a series of 3 bioassays for stonecats with the lampricide TFM during the summer and fall of 2011 (Calloway 2012), which resulted in a mean lowest observed effect concentration (LOEC) of 1.4 X MLC. Based on USFWS’ bioassay data and previous treatment experience, a 1.2 X MLC treatment concentration target should result in minimal stonecat mortality. Y. American Brook Lamprey (ABL)- ABL are known to be slightly more resistant to TFM than sea lamprey (King and Gabel 1985), but substantial losses of ABL larvae are unavoidable during TFM treatments. With a proposed treatment target concentration of up to 1.2 X MLC, American brook lamprey mortalities are expected in portions of the treated river where present. The lower Missisquoi River downstream of Swanton Dam would not be classified as preferred habitat for ABL, but areas of the main stem between the Swanton and Highgate Falls dams and adjacent tributaries to that reach are more consistent with ABL habitat. In total, 4 individuals have been documented in the mainstem Missisquoi below the Swanton dam – 2 collected during post treatment mortality surveys, and 2 collected during larval assessment surveys. Summer 2020 surveys of the Missisquoi (upstream of the Swanton Dam) found 55 ABL in their preferred habitat near the mouths of Kelly and Hungerford brooks. Z. Toxicity of the Lampricide TFM to Vermont Threatened and Endangered Species present in the Missisquoi River is summarized in Figure 1 of the Application (p.8). Avoidance, Minimization and Mitigation AA. The treatment concentration was lowered to 1.2 x MLC to minimize potential impacts to stonecats based on toxicity testing by USFWS. Other rivers in Vermont are typically treated at 1.3 x MLC to minimize potential impacts to more tolerant Threated and Endangered Species. Where no sensitive threatened and endangered species are present, treatments are conducted at concentrations of 1.5 x MLC to ensure effective treatment outcomes. BB. At a treatment concentration of 1.2 x MLC, there is a risk that environmental conditions may lead to areas of

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the river where TFM concentrations are below those lethal to sea lamprey; however, this risk is offset by the added protections to the listed species which are sensitive to TFM. CC. Mussels - Mussel populations for all species except the cylindrical papershell have been documented to occur upstream and downstream of the Swanton Dam. By treating only downstream of the Swanton Dam, upstream mussel populations will not be exposed to TFM. Fish DD. Eastern sand darter – No additional mitigation is proposed as eastern sand darters a relatively tolerant of TFM exposure at the proposed treatment concentrations. EE. Lake Sturgeon – Treatment will occur between late September and late November to allow young-of-year sturgeon to increase in size prior to lampricide exposure. FF. Stonecats – During the 2012 treatment, a station was set up downstream of the Swanton Dam for the recovery of distressed stone cats where they were held in freshwater until the chemical bank cleared the first monitoring station. A recovery station for stone cats is requested again for this treatment. GG. American Brook Lamprey – Treatment is not proposed for areas of preferred habitat along the Missisquoi Basin such as areas of the main stem between the Swanton and Highgate Falls dam and adjacent tributaries. Advice of the Endangered Species Committee

HH. On June 29, 2020, the Secretary received the advice of the Endangered Species Committee. That advice has been considered and outlined below:

a. The ESC remains concerned about long-term effects on populations of T&E species such as mussels and on non-target species that are not listed as threatened or endangered, but in S1 or S2 categories. The ESC urges USFWS to look for other control options that are more species-specific and continue to review literature for long-term cumulative effects on non-target species.

b. The post-treatment non-target mortality survey be conducted at each survey location no later than the next daylight period following the lampricide block passage;

c. The lampricide application point shall be located downstream from the Swanton Dam in the area directly below the hard bottom reach to avoid lampricide exposure to Stonecats residing in that area;

d. The USFWS should increase its sampling intensity to provide more precise populations in rivers that are scheduled for lampricide treatment. The Missisquoi application lacks detailed information on 2019 pre-treatment larval sampling results.

e. Treatment should occur during the latter part of the proposed period to minimize impact on young-of- the-year Lake Sturgeon. II. On July 09, 2020, the USFWS provided responses to the Endangered Species Committee advice as outlined below: a. Post-treatment surveys are conducted the morning following the lampricide application. The application point is surveyed less than 14 hours after the addition of the chemical concludes. The block progression is monitored and as it moves downstream, sites are sampled once the block has passed within daylight hours. The only exception is when high water conditions make surveys unsafe for staff. b. USFWS finds pre-treatment sampling is sufficient and uses a Standardized Quantitative Assessment Sampling (QAS) protocol developed by the Great Lakes Fishery Commission. QAS estimates have wide confidence intervals. The Missisquoi larval estimate made up 14% of the

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surveyed basin population; however, USFWS stresses the importance of the surveys is not to develop precise population estimates, but rather to locate sources of larval lamprey production that are contributing to the lakewide parasitic population with the goal of controlling lamprey populations to achieve the management objectives. Based on USFWS’ prior experience in surveys and treatments, a more precise sampling regime would be an added resource expense that would not affect decisions on which rivers should be treated. c. The application point was selected to promote mixing of lampricide. The site maximizes mixing and serves to provide greater protection to nontarget species by eliminating “hotspots” caused by insufficient mixing, and ensure lamprey larvae that reside in their highest densities near the dam are exposed to a steady and lethal concentration of lampricide. Several factors below the dam including width of the River, slow flow downstream of the hard-bottom stretch at the base of the dam, and channel morphology, prevent even mixing of lampricide. Application of lampricide below the dam would potentially render the treatment ineffective. d. The USFWS proposes to treat the Missisquoi between late September and late November to allow young-of-year sturgeon increased growth potential prior to Lampricide exposure. Growth rates of sturgeon slow later in the year as temperatures decline and the USWFS does not find an additional 2-4 weeks provides meaningful, additional protections. The distinction in juvenile sturgeon protection based on size is made between treating in the fall rather than in the summer.

9. Statutory Determination A. 10 V.S.A. § 5408(b) provides that “after obtaining the advice of the Endangered Species Committee, the Secretary may permit, under such terms and conditions as necessary to carry out the purposes of this chapter, the incidental taking of a threatened or endangered species or the destruction of or adverse impact on critical habitat if: (1) the taking is necessary to conduct an otherwise lawful activity; (2) the taking is attendant or secondary to, and not the purpose of, the lawful activity; (3) the impact of the permitted incidental take is minimized; and, (4) the incidental taking will not impair the conservation or recovery of any endangered species or threatened species." B. The Permittee requests an Endangered & Threatened Species Takings Permit for incidental take. C. The state of Vermont recognizes the value which plants, fish and wildlife in their natural environment have for public enjoyment, ecological balance, and scientific study. See 1981, No. 188 (Adj. Sess.), § 1(a). D. The state of Vermont recognizes the need for protection and preservation of these plants, fish, and wildlife in their natural environment. Id. E. The General Assembly of Vermont intends that the species of wildlife and wild plants normally occurring within this state which may be found to be threatened or endangered within the state should be accorded protection as necessary to maintain and enhance their numbers. Id. at § 1(b). F. The General Assembly of Vermont intends that the state should assist in the protection of species of wildlife and wild plants which are determined to be threatened or endangered elsewhere pursuant to the federal Endangered Species Act. Id. G. 10 V.S.A. § 5408(i)(2) allows the Secretary to require mitigation strategies and mitigation funds, in addition to the permit fees, to mitigate the impacts of a taking or the destruction of or adverse impact on critical habitat. Mitigation may include compensation, including payment into the Threatened and Endangered Species Fund, provided that any payment is commensurate with the taking or adverse impact proposed. H. The Secretary has the authority to impose mitigation to offset the takings, in accordance with 10 V.S.A. § 5408 (i)(2). Here, the Permittee is proposing a treatment concentration of 1.2 x the Maximum Lethal Concentration (MLC) for sea lamprey, treatment between late September and November, and a recovery station for distressed stone cats. The aforementioned actions reduce potential impacts to the listed species.

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I. Pursuant to 10 V.S.A. § 5408(b), the ANR Secretary hereby determines, based upon the findings detailed above and after receiving advice from the Endangered Species Committee, that the proposed activity is consistent the purposes of the 10 V.S.A. ch. 123. An Endangered and Threatened Species Takings Permit is authorized, as conditioned below.

10. General Conditions & Authorizations A. This permit is issued in accordance with 10 V.S.A. ch. 123. All activities authorized herein must be carried out in accord with and for the purposes described in the application submitted. Continued validity or renewal of this permit is subject to complete and timely compliance with all applicable conditions, including the filing of all required information and reports. B. This permit is expressly conditioned upon compliance with all applicable federal and state laws, regulations and permits. C. This permit does not confer upon the Permittee the authority to conduct research without the acquiring necessary landowner permission including, but not limited to, state lands. D. By acceptance of this permit, the Permittee and its heirs, successors and assigns agree to provide the Agency of Natural Resources with unrestricted access, at reasonable times to the animal or plant specimens and/or animal or plant parts collected and possessed under this permit, collection and monitoring records, and access to the premises as necessary to ensure compliance with this permit. E. The Agency maintains continuing jurisdiction over this activity, and may, at any time, order the Permittee to undertake remedial measures if necessary, to ensure the protection and conservation of listed species. F. This permit is not valid for endangered and threatened species that are not listed in section 5. G. The permit is valid for use by the named Permittee and subpermittees(s) only and may be revoked by the Secretary at any time for cause, or violations of any terms or conditions of this permit or state law. H. The Permittee and subpermittees shall carry copies of this permit whenever performing authorized activities and shall make the permit available upon request. I. Pursuant 10 V.S.A. § 5410, the locations of listed species shall be kept confidential and the sharing of such information is a violation of this permit and the law.

11. Specific Conditions & Authorizations A. The Permittee shall follow all conditions listed in the 2020-XX Aquatic Nuisance Control Permit issued by the Agency’s Department of Environmental Conservation B. USFWS shall preserve specimens of the listed species according to protocols developed with DFW scientists during a 2012 meeting with the Endangered Species Committee and provide specimens to the following DFW contacts: - Stonecats – Bernie Pientka - Sturgeon – Margaret Murphy - Channel Darters and American Brook Lamprey – Bernie Pientka - Mussels – Mark Ferguson - Turtles – Steve Parren (highly unlikely for turtles to be affected C. Six months prior to a second treatment under this permit, the Permittee shall submit a statement of intent letter to the Agency of Natural Resources. The letter shall identify any and all known research and findings, since the submission of their most recent application for a permit, regarding the effects of TFM on the species covered in this permit. D. The USFWS shall set up a station for recovery of distressed stone cats where they will be held in freshwater

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until the chemical bank has cleared the first monitoring station. The USFWS will have one person walk the accessible shoreline on either side of the river for 250 meters downstream of the Swanton Dam (along the prime stonecat habitat) at least once every 3 hours during the chemical application. The USFWS will not place its staff or operators in a situation where their safety is compromised, or where they will unnecessarily be exposed to pesticide. Any distressed stone cats will be netted and placed in freshwater to recover. After the treatment, the stonecats will be returned to the riffle section. E. The USFWS will collect 30 lampreys per sampled transect (the first 30 randomly encountered, without regard for identification of species) for the purpose of determining longitudinal species composition in the river. Identification will be done at the lab at which time American brook lampreys will be preserved. F. All communication and report of results required by the Aquatic Nuisance Control Permit shall be sent to: Permits Administrator Vermont Fish and Wildlife Department Commissioner’s Office 1 National Life Drive, Davis 2 Montpelier, VT 05620-3702 [email protected]

G. Any mortality/morbidity related to the activities authorized under this permit that was/were not specifically requested, anticipated, and/or authorized shall be reported in writing to VFWD Permits Specialist within 72 hours of each occurrence. Reports shall include species identification, date, and reason for death, along with a plan for reducing the likelihood of future occurrences. All morbid specimens shall be stored frozen until transferred to a VFWD biologist. H. An annual report, due by May 1 of the year following the treatment, shall be submitted to the Permit Specialist (electronic format preferred). At a minimum, the report shall summarize project methods (including explanations for any changes/adjustments to methods proposed in the permit application), activities and species handled, tagged or with transmitters installed, any mortality/morbidity, animal status, other species encounters, tags/transmitters removed, species’ behavior, dates of all activities, location of activities (description and coordinates) and locations of important sites for management and conservation. Post treatment larval survey results will be submitted by December 31 of the year following the year of treatment I. The Permittee shall accommodate requests by Agency of Natural Resources staff for additional information from collection activities (e.g., copies of original field sheets, computerized data in usable format). Reports of results of any subsequent analyses and copies of subsequent publications resulting from the collections made under this permit shall be forwarded to the Vermont Fish & Wildlife Department within 30 days of publication.

Issued by: ______Date: ______Julie Moore, Secretary Agency of Natural Resources Right to Appeal to Environmental Court Pursuant to 10 V.S.A. Chapter 220, any appeal of this decision must be filed with the clerk of the Environmental Division of the Superior Court within 30 days of the date of the decision. The Notice of Appeal must specify the parties taking the appeal and the statutory provision under which each party claims party status; must designate the act or decision appealed from; must name the Environmental Court; and must be signed by the appellant or their attorney. In addition, the appeal must give the address or location and description of the property, project or facility with which the appeal is concerned and the name of the applicant or any permit involved in the appeal. The appellant must also serve a copy of the Notice of Appeal in accordance with Rule 5(b)(4)(B) of the Vermont Rules for Environmental Court Proceedings. For further information, see the Vermont Rules for Environmental Court Proceedings, available online at www.vermontjudiciary.org. The address for the Environmental Court is 2418 Airport Road, Suite 1, Barre, VT 05641 (Tel. # 802-828-1660).