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Date: July 16, 2003
Posted by: Environmental Risk Analysis Program <envrisk@cornell.edu>

[This article pertains to an EPA memo—"Interim Statement and 
Guidance on Application of Pesticides to Waters of the United States 
in Compliance with FIFRA"—written by G. Tracy Mehan III,  Assistant 
Administrator for Water (4101 ) and Stephen Johnson, former Assistant 
Administrator for Prevention, Pesticides and Toxic Substances (7101), 
who is currently EPA's acting deputy administrator.  The Statement is 
dated July 11 and was distributed to EPA Regional Administrators on 
July 15, 2003.

The Guidance specifically addresses use of insecticides over water 
for control of mosquito larvae and adults.
Full text is posted to ERAP's WNV webpages at: 
http://environmentalrisk.cornell.edu/WNV/WNVEducDocs/EPAGuidanceJuly03.pdf. 
— LCL]



Source: Inside EPA
Date: July 15, 2003

UPCOMING EPA POLICY ASSERTS BROAD CLEAN WATER ACT EXCLUSION FOR PESTICIDES

EPA is poised to announce that various uses of pesticides in the 
nation's waters does not require a Clean Water Act permit, a policy 
stance that appears to challenge findings by two federal appeals 
courts that such pesticide applications do require water permits.

In a July 11 memo, EPA water chief Tracy Mehan and former pesticides 
chief Stephen Johnson — who is currently EPA's acting deputy 
administrator — tell agency regional administrators that the use of 
pesticides is not subject to permitting requirements under the water 
act's National Pollutant Discharge Elimination System when areas are 
already regulating pesticides under another federal statute. A source 
tracking the issue
says the memo was sent out to regions July 15.

According to the memo, EPA will issue an interim guidance in response 
to a recent decision by the U.S. Court of Appeals for the 2nd Circuit 
that reversed a district court ruling that no permit was needed for a 
town to employ pesticides. In Altman v. Town of Amherst, New York, 
the 2nd Circuit found that, "Until the EPA articulates a clear 
interpretation of current law . . . the question of whether properly 
used pesticides can become pollutants
that violate the [Clean Water Act] will remain open."

The memo addresses two specific sets of circumstances where the 
agency argues that permits are not necessary if requirements under 
the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are 
met.

One circumstance is when pesticides are used to control pests that 
are present over U.S. waters that result in a portion of the 
pesticides being deposited in those waters, "for example, when 
insecticides are aerially applied to a forest canopy where waters of 
the United States may be present below the canopy or when 
insecticides are applied over water for control of adult mosquitoes."

The agency's assertion appears to contradict a 9th Circuit appeals 
court decision in League of Wilderness Defenders v. Forsgren late 
last year, which ruled that aerial pesticide spraying that might 
reach waters requires water act permits. The ruling addressed 
pesticide drift into waters from aerial spraying by the
Forest Service to control moth infestation.

The second circumstance addressed in the memo would exclude from 
water act permits certain applications of pesticides directly to U.S. 
waters. The memo states "examples of such applications include 
applications to control mosquito larvae or aquatic weeds."

In a 2001 ruling in Headwaters, Inc. v. Talent Irrigation District, 
the 9th Circuit held that irrigators must obtain permits to apply 
herbicides to irrigation canals. EPA said after the Talent decision 
that permitting requirements highlighted in the case would be a low 
enforcement priority.

But an environmentalist familiar with the issue is raising legal 
questions about the EPA memo, saying the anticipated agency policy is 
disingenuous, pointing to an amicus brief EPA filed in the Talent 
case, which stated that compliance with FIFRA does not necessarily 
mean compliance with the water act. However, in the
memo EPA states that its Talent brief did not address whether 
pesticide application is regulated by the Clean Water Act or "the 
circumstances under which pesticides are 'pollutants'" under the act.

One EPA official declined to comment, while other agency officials 
did not return calls.

The memo argues that pesticides, applied consistently with the FIFRA 
regulations, do not constitute pollutants under the water act — 
saying pesticides are neither "chemical wastes" nor "biological 
materials."

The memo does add that the interim guidance does not bar state or 
tribal authorities from pursuing more stringent controls over 
pesticide applications.

The memo says EPA plans to request comment on this interim guidance 
through the Federal Register prior to issuing a final agency 
position. However, the agency instructs regions to follow the 
guidelines laid out in the memo until such a final position is 
determined. — Matt Shipman

Date: July 15, 2003
© Inside Washington Publishers

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