Proposed NPDES permit due soon

The federal Environmental Protection Agency is expected to issue a proposed National Pollutant Discharge Elimination System (NPDES) permit process next month for pesticides used in and around water.

It will impact 5.6 million annual pesticide applications by 365,000 applicators using 500 different active ingredients.

The proposed permit “will have profound implications for American farmers,” U.S. Secretary of Agriculture Thomas Vilsack wrote EPA Administrator Lisa Jackson last month as the agency drew up the proposed permits. Failure to comply with the new EPA permitting process will result in a fine of $32,000 per day.

The NPDES permit process is being developed in the wake of a Sixth Circuit Court of Appeals ruling earlier this year that said pesticides are a pollutant and therefore must be regulated under the federal Clean Water Act (CWA). This ruling follows a similar one several years ago in the Ninth Circuit Court of Appeals in San Francisco.

Lee Van Wychen, science policy director for National and Regional Weed Science Societies, said the court ruling removes aquatic pesticides and pesticide applications potentially affecting water from the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

“The pesticide applications to come under the CWA have been covered by FIFRA for 30 years, but no more,” Van Wychen said. He added that with FIFRA, if someone applies a pesticide according to the government-approved label, there is no liability. That is not the case with the new proposed CWA pesticide permit process.

“The liability issue with this new permit process is the No. 1 issue with stakeholders. Even if someone follows the label, they are still subject to liability,” Van Wychen said. “That is not the law under FIFRA.”

Forty-five states must come up with a permit process to meet the new EPA regulations. About half, Wychen said, now have some sort of NPDES permit process, but whether it meets the as yet unknown pesticide/CWA compliant permit process will be part of the arduous task of getting most states to comply with the EPA permit process.

There is no money to help the states comply. Van Wychen called it another layer of unfunded government bureaucracy.

Van Wychen updated members of the Western Society of Weed Science on the NPDES permit process at its annual conference in Hawaii.

Twenty to 25 states have no NPDES permit process. “They are going to have to start from scratch,” he said.

EPA will develop and issue a general pesticide/CWA permit for Massachusetts, New Hampshire, Alaska, Idaho, New Mexico, and the territories, tribal, and federal lands for which it has NPDES permitting authority.

Van Wychen said California, Oregon and Washington have NPDES permits that should comply with the new permit process. However, only recently has runoff from California agriculture come under the CWA. Previously it was exempt, but that was overturned and now nine regional water control boards are developing a CWA compliant permit process. California’s general pesticide application laws protect waterways from pesticide applications. California also has extensive groundwater protection laws administered through the California Department of Pesticide Regulation, which also regulates pesticide applications impact surface water.

The proposed permit language was due out in April, but Van Wychen said this has been delayed by an interagency review. He expects it out in May.

Once the proposed permit becomes public, EPA will accept comments and begin working with all states to implement the permit by the mandated April 2011 date.

“There is some talk about asking the court for more time,” said Van Wychen. The courts have already granted one extension. Van Wychen said he would not be surprised to see the permit draw lawsuits on it language and interpretation.

“I do not think it is a done deal,” he said, noting that November elections could also bring about modifications in the CWA law exempting products from the new permit process.

Most of the major U.S. commodity groups have lobbied to minimize the impact of this CWA pesticide permitting process that no doubt could have far reaching impact on American agriculture.

Vilsack has lined up with those commodity groups. He said in his March letter to EPA Administrator Jackson that the permit requirements “could reach almost any pesticide application, requiring farmers to navigate” a permit process that is “ill-suited to the demands of agricultural production.” The onerous permitting process could “cripple” American farmers in emergency pest management efforts and increase the risk of crop loss.

The appeals court decision “encumbers” American farmers and USDA in their ability to do business “while reaping little or no environmental benefits in exchange,” he said, adding CWA regulations duplicate FIFRA rules and “will not protect the environment.”

This issue evolved from a 1996 pesticide misapplication by an Oregon irrigation district that leaked through a waste gate and into a creek where more than 92,000 juvenile steelhead were killed.

Environmentalists sued and won all the way to the Ninth Court of Appeals in San Francisco. Eventually, agricultural groups, headed by the National Cotton Council, took the mandate that aquatic pesticide applications fall under CWA to the Sixth Court of Appeals, which also sided with the environmentalists.

The U.S. Supreme Court refused to hear the case and thus began the EPA process of developing a permit.

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