by Todd Neeley, DTN Staff Reporter
OMAHA (DTN) — While the EPA issued its general permit for pesticide applicators Monday, following a lawsuit from environmental groups, agriculture interest groups say the agency raised more questions than it answered about who has to follow the regulation
Effective Nov. 1, EPA requires permits for pesticides applicators in the National Pollution Discharge Elimination System, or NPDES. EPA’s general permit covers operators who apply pesticides that result in discharges into waters of the U.S. from mosquito and other flying insect pest control, weed and algae control, animal pest control and forest canopy pest control.
The agency did not create a blanket permit for other applicators, as the agency has held the rules around NPDES only apply to those listed.
Ag groups aren’t so sure.
The lack of a general permit or permits from approved state-level programs specifically for row-crop farmers, in combination with what is a broad definition in the Clean Water Act of “waters of the U.S.,” are reasons for producers to take notice, said Mark Gaede, director of government affairs for environmental policy at the National Association of Wheat Growers.
“I told our folks that if they’ve got a wet spot on land and EPA wants to exert jurisdiction, that is compounded by not allowing farmers to get general permits,” he said. “It is a matter of time before someone is found in violation of the Clean Water Act. It exposes our folks to horrendous liability.”
Violators of the CWA can face penalties of up to $37,500 each day they are out of compliance.
“Pesticide operators that need permit coverage in states where no general permit is available, must seek individual permit coverage, or risk discharging in violation of the Clean Water Act,” EPA spokesperson Enesta Jones said.
Tyler Wegmeyer, director of congressional relations with the American Farm Bureau Federation, said EPA left open many questions.
“It’s not a cut-and-dry, black-and-white deal,” he said. “Most farmers in row cropping are not spraying over water and there are legal concerns about what are waters of the U.S. As it stands now, Nov. 1, if you are covered by a general permit you need to be in compliance as of today. If you’re applying to ditch banks, directly over water or near water it likely applies to you.
“There’s so much uncertainty. There is a legal risk that is most concerning to us. We know that there are environmental activists that if you’re anywhere near water, they will challenge it in court.”
There is a window for farmers who have legal concerns, he said.
“From an ag perspective, most people are not spraying right now,” Wegmeyer said. “It would be next spring when there is a concern for farmers. We need a legislative fix. This is something we don’t need at this time. We don’t need additional requirements.”
By EPA’s own estimates the permit affects hundreds of thousands of applicators.
CropLife America president and CEO Jay Vroom said in a statement that his organization is concerned about legal liability.
“Despite assurances from EPA that enforcement on the regulation will be deferred until 2012, it does not prevent citizen action lawsuit liability for our customers and for all of America’s farmers and pest control managers tasked with protecting our food supply and our citizens from insect borne diseases and other harmful pathogens,” Vroom said in a statement.
Garry Niemeyer, an Illinois corn farmer and president of the National Corn Growers Association, said he is concerned about the legal ramifications.
“As a result, farmers like me are now exposed to a new set of legal liabilities and regulatory requirements under the Clean Water Act, without a guarantee of any additional environmental benefits,” he said in a statement.
The U.S. Senate Tuesday blocked an attempt by Sen. Pat Roberts, R-Kan., to pass a two-year moratorium on the general permit.
According to a statement from Roberts’ Washington office, the senator called on Senate Majority Leader Sen. Harry Reid, D-Nev., to hotline the moratorium. To hotline a bill means to expedite approval by unanimous consent.
“While I would prefer the Senate approve the House-passed bipartisan H.R. 872 to eliminate the extra paperwork and confusion surrounding pesticide permits, without a clear solution to this double permitting issue a moratorium would have allowed more time to address the situation,” Roberts said in a statement.
“It is a shame this common sense compromise was rejected due to partisan politics. I remain committed to finding a permanent solution to protect American agriculture and public health departments.”
Wegmeyer said Senate Republicans and Democrats agreed to a moratorium last week, but Sen. Barbara Boxer, D-Calif., would not support a permanent fix to the general permit. She wanted to require an extensive study of the issue before supporting a moratorium. The measure failed as a result.
Roberts offered a proposal Monday that included only a moratorium.
Ag groups and federal lawmakers have made the case this year that a general permit is redundant because pesticide applicators already are required to follow label directions.
The U.S. House passed H.R. 872 in June to exempt pesticide applicators from needing permits, and sent the bill to the Senate.
EPA posted the general permit information on its website, http://1.usa.gov/…, on Monday.
It provides coverage for discharges in areas where EPA is the NPDES permitting authority. That includes Alaska, Idaho, Massachusetts, New Hampshire, New Mexico, Oklahoma, Washington, D.C., most U.S. territories, Indian country lands, and many federal facilities. The remaining 44 states are authorized to develop and issue NPDES pesticide permits.
EPA’s Jones said 36 states indicated that they would have their own permitting system ready “on or around” Oct. 31, she said.
Kevin Runkle, regulatory affairs manager with the Illinois Fertilizer and Chemical Association, said the Illinois EPA issued its general permit Tuesday afternoon. He was not sure how many states have yet to do the same.
Operators will be covered automatically under the general permit without submitting a notice of intent for any discharges before Jan. 12, 2012, EPA said on its website.
To continue coverage after Jan. 12, 2012, EPA said operators who fall under the need for general permits must submit notices of intent to make future applications, and those notices must be filed at least 10 days prior to Jan. 12.
DEFINING WATERS OF U.S.
There has been concern that EPA’s definition of waters of the U.S. is too broad.
In April, EPA issued a proposed draft guidance to better define waters of the U.S., as a result of a 2006 ruling by the U.S. Supreme Court. The public comment period on the proposal closed in July. In the case Rapanos v. United States, the court overruled federal attempts to use the Clean Water Act to assert control of wetlands on private property.
Although the ruling articulated two tests for federal jurisdiction of wetlands, the majority opinion reaffirmed that the Clean Water Act covers only navigable waters and property with significant connections to them — or a “significant nexus” as defined by Justice Anthony M. Kennedy in his opinion.
In the opinion, Kennedy defines significant nexus as water that “either alone or in combination with similarly situated lands in the region, affect[s] the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable’ in a fashion that is not ‘speculative’ or insignificant.”
The guidelines would give EPA and the Army Corps of Engineers guidance to look at the issue on a case-by-case basis. Still, ag groups fear those rulings won’t prevent lawsuits attempting to broaden the scope of waters that would fall under CWA.
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Posted with DTN Permission by Haylie Shipp