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From December 19, 2006                                                                                                        

EPA Sued for Allowing Pesticide Spraying Over Water
(Beyond Pesticides, December 19, 2006)
According to the Environment News Service (ENS), six environmental groups have filed a lawsuit against the U.S. Environmental Protection Agency (EPA) for a decision that weakens the Clean Water Act (CWA) by deregulating the spraying of pesticides into the nation's waters. The groups filed suit December 12, 2006, in the U.S. Court of Appeals for the Ninth Circuit to overturn the new rule, which re-defines the word "pollutant" to exclude pesticides.

Of particular concern to the environmental groups are aerial spraying and other direct applications of pesticides to creeks, rivers and wetlands. Pesticide contamination of waterways from such sources would be allowed without agency oversight under the new rule. “Congress was quite clear in directing EPA to regulate pesticide pollution," Deb Self, executive director of Baykeeper, one of the petitioning groups told ENS. "Rather than enforcing laws as Congress wrote them, once again the Bush administration has simply interpreted the law to suit its purposes."

EPA’s November 21, 2006, ruling allows exemption from CWA under two specific situations where a permit with the National Pollution Discharge Elimination System (NPDES) would not be necessary: (1) The application of pesticides directly to waters of the U.S. to control pests (such as mosquito larvae or aquatic weeds); and (2) The application of pesticides to control pests that are present over or near water where a portion of the pesticide can be deposited in lakes, rivers and streams.

The statute EPA is relying on to protect water, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), is a regulatory and licensing law that oversees the registration of pesticides and their application. It does not however regulate and oversee water quality and the protection of aquatic ecosystems in the local context, which is the distinct business of CWA. Indeed, there is controversy over whether many of the precautionary statements on labels registered by FIFRA adequately protect public health and the environment from the application of toxic chemicals due to a lack of toxicity and impact studies. When FIFRA registers a pesticide it does not take into account heightened toxicity due to combinations of chemicals (mixtures and synergy), or the phenomenon of toxic chemical drift, which commonly occurs in aerial spraying.

According to Beyond Pesticides, this EPA action allows the weaker and more generalized standards under FIFRA to trump the more stringent CWA standards. CWA uses a kind of health-based standard known as maximum contamination levels to protect waterways and requires permits when chemicals are directly deposited into rivers, lakes and streams, while FIFRA uses a highly subjective risk assessment with no attention to the safest alternative. To see Beyond Pesticides’ press release on EPA’s decision, click here.

"For EPA to say that pesticides are not pollutants is like saying poison is good for you," said Charlie Tebbutt of the Western Environmental Law center, a public interest environmental law firm. "EPA is ignoring the requirements of the Clean Water Act and cannot go unchallenged,” said Mr. Tebbutt, who is lead counsel for the petitioners.

Joining Baykeeper in its challenge are Californians for Alternatives to Toxics, California Sportfishing Protection Alliance, National Center for Conservation Science and Policy, Oregon Wild, and Saint John's Organic Farm. The groups, which represent a farm in Idaho and a cross section of environmental groups from California and Oregon, are asking the court to find that EPA's rule violates CWA.