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Date: July 21, 2003
Posted by: Environmental Risk Analysis Program <envrisk@cornell.edu>

[NOTE: Previous postings on this topic were distributed on WNV-L Wed 
July 16, 2003]

Date: Thursday, July 17, 2003
Source:  Inside Washington Publishers.  Byline: Matt Shipman

EPA PESTICIDE EXEMPTION FROM WATER PERMITS MAY NOT LIMIT NEW SUITS

EPA's new policy exempting pesticide users from Clean Water Act (CWA) 
permitting requirements will not provide protection from third-party 
citizen suits, environmentalists say, because the policy appears to 
contradict two federal appeals court decisions requiring clean water 
permits for pesticide applications.

In a July 11 memo, EPA water chief Tracy Mehan and former pesticides 
chief Stephen Johnson — who is currently EPA's acting deputy 
administrator — told regional officials that the use of pesticides 
is not subject to permitting requirements under the CWA's National 
Pollutant Discharge Elimination System (NPDES)
program if the pesticide use complies with Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA) requirements. A source 
tracking the issue says the memo was sent out to regions July 15.

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

But environmentalists say the EPA memo will not protect pesticide 
users against third-party suits under the CWA, adding that anyone 
engaged in such discharges will need a NPDES permit to ensure that 
they are in compliance with the act. "EPA can not change, through a 
guidance document, that discharges of pollutants
to waters require permits," one environmentalist says, adding, "The 
American public has no difficulty seeing that pesticides in water are 
pollutants."

Another environmentalist agrees that the EPA memo will not provide 
protection for pesticide users, saying, "If [pesticide users] are in 
compliance with EPA policy, but in violation of environmental 
statutes, then the EPA policy provides no protection."

However, an EPA spokesman says the new policy will likely limit 
third-party suits. "This memo clarifies that certain pesticides are 
not pollutants. Therefore [pesticide users] do not need [CWA] 
permits" since the water law only requires permits for discharges of 
pollutants.

"Courts will likely look to EPA's interpretation" of the definition 
of a pollutant, he added.

One agriculture industry source says the policy may provide some 
protection for pesticide users, claiming "courts will not take kindly 
to suits filed against [pesticide users] who are complying with
EPA policy."

According to the EPA memo, the interim guidance responds 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 remanded the case for further consideration, saying, "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 FIFRA requirements 
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. This occurs, "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 U.S. Court of Appeals 
for the 9th Circuit 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 
U.S. 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 says "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.

In the memo, EPA argues that its new interim policy does not conflict 
with the Talent decision because, "While the court's analysis in 
Talent did not turn on whether the pesticide application at issue was 
consistent with the requirements of FIFRA, the factual situation 
described in the court's opinion constitutes a violation of the 
applicable FIFRA label." Because the pesticide application at issue 
in Talent was not in compliance with FIFRA, EPA says it was subject 
to Clean Water Act permitting requirements.

But one environmentalist disagrees, saying the court's Talent ruling 
did not hinge on compliance with FIFRA. The source is also raising 
other legal questions about the EPA memo, saying the 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 says 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.

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.

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