Ag groups push EPA to fight courts on pesticide application ruling

[Corrected April 1, 2009, 11:45 a.m.]

SALEM, Ohio — Farmers who apply pesticides on fields near waterways may soon need permits to do so.

That’s according to a recent ruling by the Cincinnati-based Sixth Circuit Court of Appeals, which says pesticides are pollutants and will require farmers to secure a Clean Water Act permit before they can apply common chemicals they’ve used for years.

The decision was made in early January, when the court agreed with environmental and farm industry groups who challenged the Environmental Protection Agency’s policies.

Some agricultural groups, from the Weed Science Society of America all the way to the top of the USDA, are pushing the Environmental Protection Agency to seek a rehearing on the matter.

Use the science

For more than 60 years, the EPA has enforced its Federal Insecticide, Fungicide and Rodenticide Act, which requires pesticides to be scientifically tested for potential risks to both humans and the environment before they can go on the market.

Those regulations also outline how a chemical can be applied. No pesticide can be sold, distributed or used unless it’s registered under FIFRA.

However, the appeals court took an environmental stance in its ruling and said the EPA doesn’t have the authority to control chemical use. Instead, the court said Clean Water Act regulations should take precedence over how things have been done for years.

Protections

The Clean Water Act, passed by Congress during the Nixon administration, prohibits the discharge of pollutants into navigable waters from any point source without a permit.

Congress, however, specifically excluded “agricultural stormwater discharges and return flows from irrigated agriculture” from the definition of pollutant when it amended the Clean Water Act in 1987.

Farm discharges have been treated by the EPA and viewed by the courts as non-point source pollution, too, according to the National Association of Wheat Growers.

The court also said on-farm pesticide and herbicide application is point-source pollution, which will force farmers to get additional NPDES permits to use the chemicals — even if they’re used in compliance with the label directions.

Since 2006, the EPA has not required National Pollutant Discharge Elimination System, or NPDES, permits on chemicals used as labeled.

If the current ruling stands, farmers who do not receive NPDES permits before applying crop protection chemicals can be fined up to $27,500 per day per violation, according to the National Association of Wheat Growers.

Small victory

The court’s decision was viewed as a victory for clean water, fish and wildlife. Organizations bringing the case included National Center for Conservation Science and Policy, Saint John’s Organic Farm, Californians for Alternatives to Toxics, Waterkeeper Alliance, Toxics Action Center and Soundkeeper.

“This decision is another in a long line of rebukes to the Bush administration policies that overstepped their statutory authority and to the chemical manufacturers who peddle their poisons without concern to the effect on human health and the environment,” said Charlie Tebbutt, an attorney who represented the environmental groups, in a prepared statement.

“We look forward to working with the new EPA to protect the environment rather than the chemical industry.”

Some ag industry groups also celebrated one part of the court’s ruling, including giants like BASF Corporation, Bayer CropScience, The National Cotton Council of America and Syngenta Crop Protection, Inc.

Those ag chemical industry reps said that the way EPA applied current rules is “arbitrary and capricious” because it treats pesticides applied in violation of the FIFRA as pollutants, while it treats the very same pesticides used in compliance with the FIFRA as non-pollutants.

“We maintain that pesticides should not be classified as pollutants under the Clean Water Act, as they serve an intended beneficial purpose and are well regulated already by EPA’s Office of Pesticides,” said Jay Vroom, CropLife America president and CEO.

CropLife America is an industry association of crop protection product manufacturers and developers.

“Though we’re disappointed by other parts of the court’s conclusion, we are pleased that the panel acknowledged that EPA was correct in its determination that not all pesticides should be considered pollutants.”

Already regulated

The Weed Science Society, a research and education group, says the court’s ruling overrides already strong government regulations, based on science, that regulate pesticide use.

“We fully support government regulation of pesticide use,” said Lee Van Wychen, science policy director for society.

“But the new permitting system mandated by the Sixth District Court of Appeals overrides FIFRA without offering any additional protection. It places an unnecessary, unfunded burden on states, growers, homeowners and applicators and will discourage the timely and effective management of invasive plants and weeds.”

At the top

USDA Secretary Tom Vilsack isn’t ignoring the ruling, either. In early March, he wrote EPA Administrator Lisa Jackson to share concerns on how the ruling will affect farmers’ abilities to respond to crop threats.

In his letter, Vilsack explained how the decision would have “profound implications for American farmers” and noted that the permitting system in place is “ill-suited to the demands of agricultural production.”

“Failure to obtain a timely permit for pesticide application could cripple American farmers’ emergency pest management efforts and hamper their ability to respond quickly to new pest infestations or threats of infestations, thus increasing the risk of crop losses,” he wrote.

“The Sixth Circuit’s decision encumbers the American farmers’ and [USDA’s] ability to do business, while reaping little or no environmental benefit in exchange.”

The EPA has until April 9 to file for a rehearing on the matter.