Increased permit requirements for pesticide applicators appear to be a certainty following the U.S. Supreme Court late February refusal to hear appeals of a lower court decision tied to the Clean Water Act. Less certain is how the EPA will set up and enforce the new permits.

For more, see Broad interpretation of NCC v. EPA creates hardships.

Keith Menchey, who covers science and environmental issues for the National Cotton Council, spoke with Delta Farm Press shortly after the Supreme Court’s refusal. As named party in NCC v. EPA, the council — one of many agricultural organizations pushing against the new permits — has been very involved in the legal process.

Among Menchey’s comments:

Is this the end of the line litigation-wise?

“It is. We’ve exhausted our judicial options on this. Right now, there are two paths to take. One is to work with EPA. I think the EPA staff is doing the best they can but I think putting these new permits in place will be difficult. The second path is a legislative fix. (Oklahoma) Sen. Inhofe opened the door to that when he made a public statement encouraging the Obama administration to work with Congress for such a fix. That’s the first time we’d heard anything like that from a member. In the current political climate it would be very difficult to amend the Clean Water Act (CWA).”

What could this mean for farmers? How tough will these new requirements be?

“EPA is trying their best, I believe, to make a burdensome process less so. What they’re considering now is some kind of general permit for this sort of application. Farmers and applicators of a certain size would have to apply for ‘notice of intent.’ Then, within 10 days, he’d be cleared to proceed with application.

“The problem with the CWA and the general permits is they still involve public comment and hearings. They require monitoring after application to see if there are any environmental impacts. It requires extensive recordkeeping and also allows for citizen litigation — one of our trepidations.

“It gets a bit complex. But EPA’s initial thoughts are that the person that would apply (for permits) would be the actual decision-makers. So if you’re talking about a mosquito-control district, the body that makes decisions about pesticide applications would need the permit — not the applicator directly.”

Why did NCC have to sue EPA when you were actually pleased with their initial ruling?

“It wasn’t just the NCC that sued — a number of different groups and companies actually counter-sued. We knew the environmentalists would sue against the rule. They went out and filed in a number of (court) districts.

“The strategy was to counter-sue in other districts, hoping to pull it into a district that was more favorable to our views. The basis for our lawsuit was that the EPA’s 2006 rule was too narrow. The organizations on our side of the argument were saying as long as applicators follow label directions — which normally include language like ‘don’t apply to water’ — they should be exempt from the CWA because they already shouldn’t be applying the product to water.”

And NCC’s name was just drawn out of a hat?

“Yes. The way it works is if you have similar petitions in different circuits, they pool them and then pull out a name. The NCC had the luck of the draw. Unfortunately, the Sixth Circuit wasn’t as reasonable as we thought they’d be.”

Strategy from here?

“We’ve been in discussions with EPA and will continue that. And now that a congressman has said he thinks a legislative fix may be in order, we’ll see where that goes.

“Some environmentalists are already saying that the upholding of the Sixth Circuit’s decision will allow them to go into other areas with similar kinds of suits. They’re talking about post-construction storm water, Chesapeake Bay initiative issues, and fertilizers.

“That’s where our fear lies with this case. It isn’t necessarily with mosquito control but the logic that the Sixth Circuit used for its decision could easily be taken and applied to other areas of agriculture.”

For more on the NCC, visit Cotton.org.

e-mail: dbennett@farmpress.com