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Circuit Court of Appeals ruling seems designed to increase burden on farmersCircuit Court of Appeals ruling seems designed to increase burden on farmers

Forrest Laws 1

May 21, 2009

3 Min Read

You just received some disturbing news. Plant bugs or soybean aphids or some other pest have been discovered in above-threshold numbers in a cotton, soybean or corn field bordering a lake or stream that meanders through your farm.

The news starts an agonizing mental process that could mean you spend $25,000 to $30,000 depending on which pesticide you use and how many acres must be treated. That’s a decision no farmer takes lightly.

But what if you had to consider another step: Filing a request for a National Pollution Discharge Elimination System or NPDES permit from the state Bureau of Plant Industry, Department of Agriculture or other regulatory agency because the pesticide could drift into the lake or stream?

That could become a reality because of a ruling by a three-judge panel of the U.S. Sixth Circuit Court of Appeals in a lawsuit brought by several environmental groups against EPA.

In the past, EPA officials have said pesticide applications were exempt from the permitting requirements of the Clean Water Act if they followed the pesticide label. But environmental activists weren’t satisfied and decided to “muddy” the waters.

In its ruling in January, the three-judge panel said EPA could no longer follow that policy but, instead, must require farmers to obtain NPDES permits for applications made to, over or near bodies of water.

The judges did agree with EPA that not all pesticides should be considered pollutants, but they declined to follow previous court rulings which said miniscule amounts of pesticide in water did not violate the law if applied for purposes approved by EPA.

“If the panel’s findings stand, scores of beneficial pest control activities necessary to maintaining the health and welfare of Americans could be subjected to lawsuits,” said Jay Vroom, president and CEO of CropLife America, which represents technology providers.

CLA, farm groups, Agriculture Secretary Tom Vilsack and Sens. Tom Harkin and Saxby Chambliss, the chairman and ranking member of the Senate Agriculture Committee, criticized the decision and asked EPA to challenge it. (Instead, EPA asked that implementation of the ruling be delayed two years.)

The American Farm Bureau Federation and CropLife America requested the full Sixth Circuit Court of Appeals review the three-judge ruling and expressed disappointment that EPA has not done so.

“Farmers should not need a permit under another law when they are already following an existing law,” said AFBF President Bob Stallman. “The decision will complicate farmers’ ability to farm and raise their expenses without improving the environment.”

The ruling raises other issues. In their letter to EPA Administrator Lisa Jackson, Harkin and Chambliss note the decision could “impose an overwhelming burden on the agency and state agencies administering the NPDES permit program and would be difficult to administer.” It could also allow states to modify pesticide rules and hinder Section 18 emergency use labels.

“A state-by-state regulatory mechanism in which each state can modify permit requirements would present serious logistical problems,” they say. “First, it would require manufacturers to deal with at least 49 separate jurisdictions, on thousands of products with numerous active ingredients. Individual producers might well have to deal with two or more sets of regulations.”

That, of course, may be what the environmental activists intend. These days, the goal of those groups seems to be to make a point, no matter what the cost to farmers, input suppliers, consumers or the U.S. economy.

e-mail: [email protected]

About the Author(s)

Forrest Laws 1

Director of Content, Farm Press

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