Will pesticide applications require a Clean Water permit?


On January 7th the Federal Court of Appeals for the Sixth Circuit issued a decision  in a long-running battle over whether the application of pesticides in, near or over water requires a Clean Water Act point source permit. In a case which consolidated multiple challenges to a Bush Administration regulation exempting pesticide applications from clean water permit requirements, the Court held (in the words of the winners) "that pesticide residuals and biological pesticides constitute pollutants under federal law and therefore must be regulated under the Clean Water Act in order to minimize the impact to human health and the environment.”

The decision, which elicited little press coverage, is being watched closely by agricultural interests. An appeal to the full Sixth Circuit or to the US Supreme Court may be coming.  Background on this case and on the battle over pesticide applications can be found on the website of the Western Environmental Law Center.  WELC lawyer Charlie Tebbitt was the lead lawyer for plaintiffs in the appeal case.

The Agriculture Industry has long sought to avoid regulation under the Clean Water Act’s NPDES permit process as well as other pesticide regulation. When agriculture is regulated, the industry prefers that the regulations are enforced by an agricultural agency rather than by an environmental agency.  But in recent years agricultural operations in general and pesticide applications in particular have come under closer scrutiny – usually as the result of environmentalist lawsuits. The impact of pesticides on ESA-listed salmon is another area in which litigation has resulted in agricultural regulation. In the salmon case the Supreme Court let stand a Ninth Circuit decision upholding no spray buffers along salmon streams.

The Sixth Circuit decision may also have an impact on pesticide applications by timber companies. In California, Sierra Pacific Industries (SPI) – the state's largest landowner and largest timber company – was recently fingered by the group Forest Ethics because the company sprays herbicides, including some banned in Europe, in areas above domestic and municipal water supplies.

According to state data, SPI sprayed more than 335,000 pounds of herbicide on land it owns in Northern California between 1995 and 2006.  Adjacent landowners have long expressed concern over SPI’s herbicide use but to date little beyond stream monitoring has been required of the company. However, if timber companies must obtain a clean water permit each time they spray toxic chemicals, they may choose to engage in less spraying.

The same argument can be applied to agriculture:  If the decision that clean water permits are required for pesticide spraying stands, will agricultural interests choose to use pesticides less often?

Stay tuned.

clean water permit
Bruce McElmurray
Bruce McElmurray
Mar 05, 2009 11:27 AM
I understand that I can be included on an e-mail list to follow this subject. I would like to be added. The community I live in has been for the past 4+ years been spraying 2,4,D Amine 4 at the rate of about 150 Gal. per summer and some of it is along pristine creeks, surface lakes and such. They contend that this compound is not harmful to water life which is not what I have read about it. Please keep me in the loop as nothing I have done to date will even get them to post where they are spraying.. Thank you, Bruce
EPA's Pesticide Program Dialogue Committee having public meeting in April, 2009
Regulation Rita
Regulation Rita
Mar 13, 2009 05:45 PM
EPA's Pesticide Program Dialogue Committee having public meeting in April, 2009.

74 FR 10911-10912 (Vol. 74, No. 48)

Summary: Pursuant to the Federal Advisory Committee Act, EPA gives notice of a public meeting of the Pesticide Program Dialogue Committee (PPDC) on April 22-23, 2009. A draft agenda is under development that will include reports from and discussions about current issues from the following PPDC work groups: Work Group on 21st Century Toxicology/New Integrated Testing Strategies; Work Group on Web-Distributed Labeling; and Work Group on Comparative Safety Statements for Pesticide Product Labeling. The agenda will also include a discussion about current water quality issues (including an update on spray drift); a discussion about an overall strategy regarding incident data, including pyrethroid incidents and pet incidents; and updates on the Endocrine Disruptors Screening Program, Pollinator Protection, and the Endangered Species Act consultation process. Several PPDC work group meetings have also been scheduled in March and April 2009, and are open to the public. Information about all of these meetings can be found on EPA's website at: http://www.epa.gov/pesticides/ppdc.

I discovered this information at http://www.CyberRegs.com