What if you had to apply for a permit each time you scheduled an airplane or a ground rig to spray a pesticide near a bayou or into a rice field?
Sound far-fetched? Maybe. But requiring growers to request a permit under the Clean Water Act before they could apply a pesticide over or near water is not out of the realm of possibility, according to crop protection chemical association executives.
“Neither Congress nor EPA ever intended to subject the application of pesticides to the Clean Water Act's National Pollution Discharge Elimination System permit requirements,” said Ed Duskin, Southern Crop Production Association executive vice president.
“Rather, all sources of exposure in the environment — including air and water — from either direct application, runoff or spray drift of pesticides have been effectively regulated by EPA under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).”
But rulings by the Ninth U.S. Circuit Court of Appeals in San Francisco has “muddied the waters” on CWA permits, leading House members to introduce legislation (H.R. 1749), which would spell out that pesticides applied in accordance with FIFRA meet the Clean Water Act policy established by Congress.
Duskin and 41 members of the SCPA and the Southern Seed Association asked 45 members of the House and Senate and their staffs to support H.R. 1749 and an anticipated Senate bill during visits to Capitol Hill on May 12.
Representatives of the two organizations also discussed updating the Endangered Species Act, the recent Supreme Court decision in the Bates case, human testing in pesticide registrations and support for farm programs.
“The SCPA's position is that if a pesticide application is legal under FIFRA it shouldn't require a permit,” Duskin told Mike Quiello, Chase Daughtrey and Jody Redding, staff members for freshman Sen. Johnny Isakson, R-Ga., during a stop at Isakson's office.
“We're asking members of Congress to support the National Pollution Discharge Elimination System rulemaking and expand it to cover agricultural and other pesticide uses.”
Currently, NPDES permits are required for the discharge of wastes from point sources such as municipalities or factories. Pesticides applied according to EPA-approved labels are not wastes nor is the application a point source waste, said Duskin.
“However, the Ninth Circuit Court of Appeals has ruled in two cases — one involving the use of aquatic herbicides to control weeds in waterways and the other aerial application of moth control products in the forest canopy — that the applications came from a point source and required an NPDES permit under the Clean Water Act.”
In February, EPA issued an interpretative statement, clarifying its “long-standing” policy that a CWA permit is not required where application of a particular pesticide to or over water is consistent with the requirements of FIFRA.
“Clarifying this issue is critical because confusion over permitting requirements could keep public health officials from preventing or responding to an infestation of mosquitoes or from controlling an invasive species,” said Benjamin Grumbles, assistant administrator for water at EPA.
“Through this action, the agency is reinforcing the importance for local officials, resource managers, agricultural producers and other pesticide users of applying pesticides in accordance with their label directions.”
Southern Crop Production Association and officials with CropLife America, the umbrella organization for the nation's farm chemical manufacturers, said the interpretative statement may not be enough to forestall the filing of more lawsuits by environmentalists.
“Courts have been misled by activists opposed to pesticide usage and have steered CWA policy away from the intent of the U.S. Congress,” said Duskin. “The Ninth Circuit Court decisions have broad and negative implications, not only for farmers and ranchers, but for public health, mosquito control, forest fire fighters and others.”
CropLife America President Jay Vroom said his organization has been talking to a number of senators about co-sponsoring a Senate version of the House bill.
Vroom also told members of the Southern Crop Production Association and the Southern Seed Association that trying to formulate a response to the Supreme Court decision in the Bates vs. Dow AgroSciences will be difficult.
The ruling, which appears to weaken the concept that FIFRA pre-empts any damage claims under state law based on failure to warn or challenges to the adequacy of a pesticide's labeling, could result in increased numbers of “frivolous” lawsuits, Vroom said.
“Other parts of the pre-emption concept remain, but what they left us with isn't much good without what they took away,” said Vroom.