Tuesday, July 20, 2010

The Times They Are a-Changin'

“Come gather 'round people
Wherever you roam
And admit that the waters
Around you have grown”

The above is part of the first verse of a famous Bob Dylan song. I thought this 60s anthem to be apropos in the latest governmental push for new pesticide regulation. A clear and present movement is afoot to regulate and legislate the use of pesticides under fear that we will foul our waters by misusing pesticides.

In response to a series of court rulings, EPA has proposed a general permit under the Clean Water Act (CWA) governing the application of pesticides to, over, or near waters of the United States.

By court order, the Pesticide General Permit (PGP) must arrive in final form no later than April 9, 2011. At that point, only those regions of the country for which EPA administers permitting under the National Pollutant Discharge Elimination System (NPDES) would be subject to the permit.

However, the many state agencies with authority to implement the NPDES program will be following with their own general permits, which may add additional requirements to the baseline EPA provisions.

Application of pesticides to U.S. waters has spurred legal debates about the intersection of the CWA and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Under FIFRA, applications of federally registered pesticides must be performed according to directions on the product’s label. If an operator applies the pesticide as instructed on the label, there is no violation of FIFRA.

However, environmentalists have argued that pesticides are also pollutants. Under the CWA, no pollutant may be added to a protected water body unless it is authorized in an NPDES permit.

The PGP was proposed in light of the most recent court decision, which occurred in January 2009 when the 6th Circuit Court of Appeals vacated a 2006 EPA rule that allowed entities in compliance with FIFRA to avoid NPDES permitting.

Also following court actions, California, Nevada, Oregon, and Washington issued state permits covering the application of certain pesticides to water. EPA’s rule is intended in part to remove the interstate imbalance created by the state regulations.

Among its provisions, EPA’s proposed PGP would require that, per application, operators use the lowest amount of pesticide product needed to control target pests; control discharges as necessary to meet water quality standards; and visually monitor for adverse impacts (water testing is not required).

Also, the PGP specifies that operators who exceed an annual treatment area threshold must prepare a pesticide discharge management plan before the first pesticide application covered in the permit and implement integrated pest management practices (IMP) for four categories of operations covered: mosquito and other flying insect pest control; aquatic weed and algae control; aquatic nuisance animal control; and forest canopy pest control.

The proposed PGP does not authorize coverage for pesticide discharges to outstanding national resource waters or to waters already impaired by the pesticide that would be applied. These discharges must be authorized by individual NPDES permits.

EPA’s proposed NPDES general permit for discharges of pesticides to U.S. waters was published in the June 4, 2010, Federal Register.

I also have additional concerns about H.R. 5088, the America’s Commitment to Clean Water Act, introduced by Representative James Oberstar of Minnesota. This bill would remove the term “navigable” from the definition of waters that fall under the EPA’s jurisdiction. I am, as well as others, concerned about the increased burden that could be placed on superintendents if this legislation passes. This bill is an unprecedented expansion of the reach of the law. Never before has Congress attempted to grant federal jurisdiction to essentially all wet areas including golf courses farmland, ditches, pipes, gutters, and storm drains.

Another part of the Dylan song calls for our leadership to take notice, and as a group might I suggest you contact your representatives in Washington and make our case - soon;

Come senators, congressman
Please heed the call
Don't stand in the doorway
Don't block up the hall
For he who gets hurt
Will be he who has stalled

Because The Times They Are a-Changin'.

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