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Agency Seeks Comments on Biological Opinion of its Proposed General Permit

(Beyond Pesticides, July 14, 2011) In its draft Biological Opinion, the National Marine Fisheries Service (NMFS) finds that the issuance of the proposed Pesticides General Permit by the U.S. Environmental Protection Agency (EPA) is likely to jeopardize the continued existence of endangered and threatened species and cause the destruction or modification of critical habitat of the species without the implementation of a reasonable and prudent alternative (RPA). The agency is seeking public comment on the implementation of the proposed RPA and possible alternatives that would avoid the likelihood of jeopardizing the threatened or endangered species. Comments will be accepted until July 25, 2011.

Essentially, the proposed Pesticides General Permit grants blanket approval to all pesticide applicators operating near waterways by issuing a single permit which would apply to all such potential applications, and largely removes the opportunity for environmental oversight of specific applications. The findings in this Biological Opinion are particularly relevant in light of current efforts by Congress to strip protections from the Clean Water Act (CWA) by prohibiting discharge permits for pesticides in waterways.

Under section 7 of the Endangered Species Act (ESA), federal agencies have an obligation to insure, in consultation with NMFS and the U.S. Fish and Wildlife Service (FWS), that actions authorized, funded, or carried out by such agencies are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat that has been designated for such species.

According to the Biological Opinion: “NMFS reached this conclusion because as the general permit is currently structured, the EPA would not be likely to know where or when most of the discharges it intends to authorize would occur; if these discharges were resulting in exposures to pesticide pollutants in concentrations, durations or frequencies that would cause adverse effects to ESA listed species or designated critical habitat and would not be in a position to take measures to avoid those adverse effects; or whether the permittees were complying with the conditions of the permit designed to protect ESA listed species and designated critical habitat from being exposed.”

In order to insure that the actions authorized by the general permit are not likely to jeopardize endangered or threatened species, NMFS outlines a proposed RPA to limit pesticide applications in waterways. This alternative would restrict pesticides in areas known to be home to threatened and endangered species and increases monitoring and reporting of applications.

EPA developed the Pesticide General Permit for point source discharges from the application of pesticides to U.S. waters in response to a 2009 Sixth Circuit court decision which ruled that, under the Federal Insecticide, Insecticide and Rodenticide Act (FIFRA) and CWA, EPA must require such permits as part of the National Pollutant Discharge Elimination System (NPDES). Prior to this case, EPA had deemed it unnecessary to require permits for pesticide applications near waterways.

The purpose of the NPDES permits is to reduce and eventually eliminate pollutants in the natural environment through requiring polluters to obtain permits. This allows for oversight of the proposed discharge, including evaluation of the potential risks it might present to aquatic and semi-aquatic species. Because the discharges are weighed against standards that don’t protect all species, are implemented with limited monitoring, and don’t consider need, even approved permits often present the potential for damage to ecosystems in affected areas. However, NPDES permits do allow for local citizen input through allowing the public to comment on the proposed pesticide application in the context of the CWA goal of “restoration and maintenance of chemical, physical and biological integrity of Nation’s waters,” and thus provide the opportunity for increased oversight and accountability in a goal-oriented framework.

FIFRA, unlike the CWA, does not fully regulate or monitor water quality and the protection of aquatic ecosystems in the local context. When a pesticide is registered under FIFRA, the dangers of heightened toxicity due to combinations of chemicals and chemical drift are not fully considered. EPA, in implementing FIFRA, uses controversial and, many studies say, inadequate exposure and essentially assumptions in its risk assessment and does not take least-toxic alternatives into account. CWA, in contrast, uses a health-based standard, setting maximum contamination levels to protect waterways and requiring permits when chemicals are directly deposited into rivers, lakes and streams. In deciding the case, the court ruled that pesticides, when entering waterways, constitute pollutants, and as such, are subject to the permitting requirements of the CWA.

EPA has been in the process of developing the permit requirements in accordance with the 2009 court ruling since June 2010. The current proposal has not significantly changed from the 2010 draft version. The Proposed General Permit covers operators who apply pesticides that result in discharges from the following use patterns: (1) mosquito and other flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest control. The permit would not cover 1) non-target spray drift, or 2) discharges of pesticides to waterbodies that are impaired for that pesticide. Agricultural runoff and irrigation return flows are exempt from permitting under CWA and, thus, do not require CWA permits. The permit also does not cover, nor is permit coverage required, for pesticide applications that do not result in a point source discharge to waters of the U.S. such as terrestrial applications for the purpose of controlling pests on agricultural crops, forest floors, or range lands. To learn more about Beyond Pesticides’ concerns regarding the Pesticide General Permit, read our comments to EPA on the 2010 draft.

For decades our nation’s waterways have been polluted with hazardous pesticides and their degradates impacting aquatic populations of animals and plants, and decrease surface and drinking water quality. Results from the U.S. Geological Survey’s (USGS) National Water-Quality Assessment Program studies show that pesticides are widespread in streams and ground water sampled within agricultural and urban areas of the nation. Many of these pesticides accumulate in fish and other organisms, making their way up the food chain, to eventually be consumed by the American public. Recent studies find that government agencies may be underestimating children’s dietary exposure to pesticides and that they are a prime cause of attention deficit hyperactivity disorder, ADHD. Stronger regulatory action is needed to ensure that our waters, food and health are adequately protected from all industrial and agricultural pollution.

Thus, the NPDES permit is vital to protect U.S. waterways from indiscriminate pesticide contamination. The permit did not pose undue burden to farmers, foresters and ranchers as the permits are only required for a narrow range of uses, and does not affect terrestrial agricultural spraying.


EPA is seeking public comment on the “Reasonable and Prudent Alternative” as suggested by NMFA. The agency is particularly interested in the appropriateness of the proposed RPA for protecting jeopardized species and their critical habitat, issues that would be associated with implementing the RPA, and on possible alternatives to the RPA that would also avoid the likelihood of jeopardizing the likely existence of threatened or endangered species or the destruction of adverse modification of critical habitat.

Center for Biological Diversity has an action alert with a form letter that can be sent, or comments may be submitted through regulations.gov, identified by the docket identification (ID) number EPA-HQ-OW-2010-0257, or by email to [email protected]. Comments must be received by July 25, 2011.

In addition, ask your Senators to oppose HR 872 and protect our waterways!

Source: EPA


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