3.4 Rights-of-Way, Aerial, Aquatic & Turf Notification Rules

3.4 Rights-of-Way, Aerial, Aquatic & Turf Notification Rules

New Hampshire regulates four settings far more tightly than ordinary ground application. Each has its own permit clock and its own notification audience.

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Rights-of-way and woodlands (Pes 505)

Permits

• Pes 505.01: herbicide use on rights-of-way must be conducted under the supervision of a certified applicator, in a manner that minimizes the extent and duration of browning foliage - for example by choosing herbicides or additives designed to control discoloring.
• Pes 505.02: no application of pesticides may be made to rights-of-way - including power transmission and distribution lines, gas pipeline, railroad, and public road rights-of-way - without a special permit on Form ROW/WL.
• Pes 505.03: no pesticide may be applied to woodland areas exceeding 50 acres without a special permit, issued after consultation with the state forester and the director of fish and game.

Filing deadlines (Pes 505.05(b))

Notification (Pes 505.06)

Direct notification must reach residents within 200 feet of a right-of-way:

• by personally delivered written notice physically handed to the occupant, or left in a conspicuous place such as attached to the door if the occupant is absent; or by certified mail, return receipt requested; and
• during the calendar year of spraying, at least 10 days before the application.

The permit applicant also supplies towns with mail-in notification-request coupons equal to the number of landowners abutting the right-of-way, so any landowner can request individual written notice.

Pes 505.06(b) exempts several herbicide applications from these notification requirements, including cut surface (cut stump) treatment applied before the end of the workday on which the vegetation was cut (or the next workday if rain prevented it), poison ivy control, control of listed invasive species, and applications in conjunction with landscape plantings on roadside rights-of-way.

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Aerial application (Pes 506 and RSA 430:34-a)

Aerial work carries both a rule-based permit and a statutory neighbor-notice duty. They are different requirements with different clocks.

The permit (Pes 506.01-506.02)

• No aerial application may be made in the state without a special permit issued by the Division after consultation with the division of forests and lands, the division of plant industry, DES, fish and game, and the DHHS bureau of health risk assessment.
• The application is made on the Division's aerial special permit form and must be received not less than 120 days before the proposed treatment date.
• The applicant submits an original and 5 copies, a map of the area to be treated, and supporting information. Falsification results in denial or revocation.

Rural-area public notice (Pes 506.03)

For non-residential treatment areas, at the same time the permit application goes to the Division, the applicant must:

1. publish notice in a newspaper of general circulation in the affected area;
2. send written notice and a copy of the application to the selectmen, town manager, or principal official of each town in the treatment area;
3. send written notice and a copy to the county cooperative extension office; and
4. send written notice directly to each property owner within 1,320 feet of the treatment area.

Every notice must state that a permit request has been submitted, summarize the proposed treatment, give the applicant's contact information and availability, say where the application can be reviewed, state that "persons have a period of 15 days from the date of the public notice to submit written comments to the division of pesticide control", and give the Division's mailing address. Copies of the notice and an attestation letter go to the Division within 5 days of sending.

The statutory notice (RSA 430:34-a)

Independently of the permit, RSA 430:34-a requires that no person make an aerial application of pesticides without prior written approval from the Division, and adds a neighbor-notice duty:

• When it applies: the proposed treatment area is in a residential area, or residential, commercial, or institutional buildings are located within 200 feet of the proposed treatment area.
• Who gets notice: all persons owning property and other persons using commercial, institutional, or residential buildings within the treatment area or within 200 feet of it.
• How: the notice is submitted in person. For absentee property owners, certified mail, return receipt requested, to the address in the town tax record is sufficient.
• When: at least 14 days but not more than 60 days before the intended spray applications begin.
• Contents (eight items): a description of the treatment area sufficient to inform people in the vicinity; the name of the person contracting for the application, or their representative or the applicator, with address and telephone number for more information; the intended purpose; the pesticides to be used; the date or reasonable range of dates; the telephone number of the NHDAMF Division of Pesticide Control; the telephone number of the New Hampshire Poison Control Center; and the public precautions appearing on the pesticide label.
• Drone exemption: since September 1, 2024, the section does not apply to aerial application by a person holding a valid RSA 430:33 certificate or permit, applying pesticides for agricultural purposes using unmanned aircraft at a height not exceeding 20 feet above ground level.

Under Pes 901.01, all aerial applications must be reported to the Division within 7 days following the day of application.

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Aquatic application (Pes 600)

Chapter Pes 600 governs any pesticide purposefully applied to standing or running water. The controlling idea is simple: a special permit from the Division is required, issued after an application process that can include public hearings, recommendations, and conditions on the treatment (Pes 601-603). Pes 604 provides limited exemptions. Category D certification is the corresponding commercial category, and Pes 502.01(e) is the only route to a below-label rate - it must be proposed in the permit application and approved.

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Commercial turf applications (Pes 508)

This is the notification regime most New Hampshire applicators meet, and the sign specification is precise.

Sign specifications (Pes 508.01(a))

+------------------------------------------------------------------+
|  PES 508 TURF NOTIFICATION SIGN                                  |
+------------------------------------------------------------------+
|  SIZE ........ 8 1/2 x 11 inches                                  |
|  MATERIAL .... weather resistant                                  |
|  COLOR ....... BLACK letters on a YELLOW background               |
|  HEADING ..... the word "NOTICE" in 2 1/2 inch BLOCK LETTERS      |
|  CONTENT ..... pesticide(s) used, by COMMON CHEMICAL NAME         |
|                date of treatment                                  |
|                area treated                                       |
|                a statement that the notice is provided for        |
|                public information and for those who may be        |
|                sensitive to chemicals                             |
|                name, address and telephone number of a contact    |
|  DURATION .... posted a MINIMUM of 48 HOURS after application     |
+------------------------------------------------------------------+

Written notification (Pes 508.01(b))

The written notice must give the contact person and firm name, address, and telephone; the pesticides to be used by common chemical name; the forms of material and methods of application; a schedule of services; a statement granting the opportunity to request and receive advance notification; the exact sentence "you have the right to request and receive advanced notification of the date that each pesticide application will be made"; and, for multifamily dwellings and public and recreational properties, designation of the area treated.

Who must be notified

Pes 508.01(h) closes a gap: where a site notified under the private-property, multifamily, or commercial-property rules also contains recreational or public-use areas - play areas, picnic areas, or turf that provides recreation - the public-property notification rules apply as well.

Pes 508.01(c) makes the scope explicit: these duties apply in addition to, and without superseding or modifying, anything the pesticide label requires, and they cover turf areas "including but not limited to lawns, public and private golf courses" and the G2 turf sites in Pes 302.01(d)(2).

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Worked example

A firm is contracted to apply a broadleaf herbicide to the common lawns of a 40-unit apartment complex that includes a playground.

• Written notification goes to the residents or the client before application and at least annually (Pes 508.01(d)).
• Written notification goes to management at least 72 hours and no more than 2 weeks before the application (Pes 508.01(e)(2)).
• The firm must then do at least one of: post 8.5 x 11 inch, black-on-yellow, weather-resistant signs at common entryways, or give prior written notice to all inhabitants (Pes 508.01(e)(3)).
• Because the property contains a playground, Pes 508.01(h) also triggers the public-property rules: signs around the treatment area and at access points, or bulletin-board notice held for 48 hours.
• Every sign carries "NOTICE" in 2.5-inch block letters, the common chemical name of the product, the treatment date, the area treated, the sensitivity statement, and a contact name, address, and phone, and stays up a minimum of 48 hours.