Project Update - Pesticide Application to Waterways

On November 27, 2006, the EPA issued the Final Rule on Application of Pesticides to Waters of the United States in Compliance with FIFRA. This rulemaking is intended to clarify the circumstances when pesticides may be directly applied to or sprayed over water bodies without first obtaining a Clean Water Act (CWA) permit. After considering two rounds of public comments, the EPA concluded that the federal Clean Water Act does not require discharge permits for these activities in the following situations:

• When pesticides are applied directly to water to control pests, including mosquito larvae, aquatic weeds and other pests in the water.
• When pesticides are applied to control pests that are present over or near water and some of the pesticide will unavoidably end up in the water in order to target the pests effectively.

In essence, the rulemaking allows states and local governments to continue the practice of unregulated aerial pesticide spraying and application for the purposes of pest control - in particular, mosquitoes - provided that the pesticides are properly registered in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). While these exceptions may seem reasonable in light of public health concerns over West Nile virus and other vector diseases, this rulemaking, if allowed to stand, sets dangerous legal precedents that are less protective of the environment and human health.
In 2003 and again in 2005, Rock the Earth responded to EPA's proposed rules on this issue.

We contended, based on numerous court decisions and clear legal and scientific arguments, that the proposed rules were patently illegal under the provisions of the Clean Water Act and unprotective of the environment and human health for numerous reasons, including:

• EPA does not have the legal authority to waive the Congressionally-mandated, statutory permit requirements of the Clean Water Act.
• Pesticides meet the scientific and legal definition of pollutants under the Clean Water Act and are therefore subject to the statutory permit requirements of CWA - compliance with FIFRA registration does not supersede these requirements.
• Compliance with FIFRA is insufficient to be protective of human and ecological health - there are numerous known deficiencies in the FIFRA risk assessment process and, unlike the CWA, FIFRA regulations do not consider local application and water quality conditions.

The final rulemaking fails to address these three critical issues, among others, and opens the door for numerous challenges and exceptions to Clean Water Act permitting requirements, which could ultimately have devastating consequences to water quality, human, and ecological health. In addition, the state of Washington and several others have already instituted CWA permitting programs for aerial pesticide spraying and application. The fact that other states have implemented permit programs for this type of activity demonstrates that the EPA exceptions are not necessary to undertake pest control measures while being protective and considerate of local conditions.

Once again, this project demonstrates why Rock the Earth needs your ongoing support. Critical issues like these often take years of monitoring and repeated actions to resolve. There is some indication that the new congress will challenge EPA's authority on this rulemaking, but Rock the Earth is not counting on congressional intervention and we are actively preparing to mount a legal challenge to the new rule if necessary.

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