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Environmental laws turn exasperating

Two very important issues that impact agriculture and are guaranteed to attract a lot of media coverage this year involve hot-button controversies centered on federal environmental laws: the Endangered Species Act and the Clean Water Act.

Addressing the Endangered Species Act, five months after EPA promised to adopt restrictions of applications for three organophosphate pesticides near the habitats of endangered salmon and steelhead species in California and three neighboring states, pesticide and grower groups are complaining that they have received very little word from the EPA about details regarding implementing the new restrictions.

As reported in this space last year, in the first of many forthcoming biological opinions concerning 37 pesticides, the National Marine Fisheries Service (NMFS) found the registration of chlorpyrifos, diazinon and malathion threaten endangered salmon and steelhead and directed EPA to implement a number of restrictions on use of the three pesticides in California, Idaho, Oregon and Washington.

In September, EPA announced it was moving ahead with implementing the restrictions. This despite the fact that manufacturers of the three products have filed suit against the NMFS opinion — claiming it was not grounded in sound science. A decision from the court is expected later this year. In mid-January, the three companies intensified their efforts by filing a petition with the U.S. EPA asking the agency to adopt transparent procedures allowing public notice and comment on decisions regarding the Endangered Species Act. The petition asks EPA to notify the public and solicit stakeholders’ input instead of seeking to amend pesticide labels unilaterally.

Meanwhile, the EPA elected not to require the 20-foot vegetative buffers sought by NMFS in its latest round of recommendations. The service was seeking 500-foot buffers for ground applications and 1,000-foot buffers for aerial applications. EPA plans to call for variable buffers depending on the adjacent body of water, with a minimum of 100 feet.

Industry and grower groups charge that EPA isn’t communicating with farmers about the restrictions — a change in attitude that began last January. Whether this is a result of a new presidential administration taking over is anybody’s guess. New, enforceable labels could be available as early as this spring’s growing season.

Additionally, growers and others are concerned the restrictions will effectively ban the three pesticides in some areas and believe the restrictions need modification.

It appears the buffers will be applied “essentially to every ditch, drain, canal and irrigation furrow that could potentially drain from the agricultural field into salmon habitat,” and because these small waterways are omnipresent, and Western specialty crop fields are relatively small, EPA’s implementation plan “looks like a virtual prohibition of use in large agricultural areas of California, Washington, Oregon and Idaho,” says Renee Pinel, CEO and president of the Western Plant Health Association (WPHA).

With 34 more pesticides to be re-evaluated in the upcoming biological opinions pursuant to a court settlement, “the actions now being taken are setting precedents for all these decisions on restrictions of these additional pesticides yet to come,” Pinel says. The evaluation is taking place “without consultation with agriculture or any assessment of its economic impact.”

Pinel notes that EPA has given little rationale “for planning to impose these inflexible restrictions on a hasty, litigation-driven schedule that does not allow growers to adapt.”

EPA’s implementation plan also includes a Web-based bulletin system with which growers will be able to determine whether and where they can apply the pesticides based on their location, prevailing weather conditions and other variables. But Pinel says neither the calculator nor the instructions for using it have been made available for their evaluation, so WPHA does not know if it will meet producers’ needs.

For the time being, agricultural stakeholders find themselves trapped in a waiting game and facing serious consequences. For example, a 100-foot buffer would leave the bulk of Yolo County’s 44,000 acres of rice – located on waterways – untreatable if rice growers are unable to apply the three pesticides.

Understandably, you can see why California farmers are seeking some straight answers.

Turning to the Clean Water Act, several agriculture groups have asked the U.S. Supreme Court to reverse a lower court ruling that’s expected to greatly expand federal supervision over pesticides. These industry groups argue that the 6th U.S. Circuit Court of Appeals overstepped its authority when it ruled that pesticide applications near or over water should be subjected to Clean Water Act permits. Rightly so, they are worried that last year’s ruling will stack an additional layer of government regulations onto the applications of pesticides and spark even more environmental lawsuits with intensions to widen the scope of the ruling.

For example, the court’s decision could be understood to apply to pesticide applications near drainage ditches or fields near wetlands, something the Clean Water Act never intended to entail, the groups claim. If left intact, the productive and financial harm would be devastating to American farmers.

The case stems from a 2006 U.S. Environmental Protection Agency rule that did not include permits for pesticide applications under the Clean Water Act. According to the EPA’s definition, the application of pesticides is not “a point source” of pollution, such as a wastewater discharge pipe, and therefore is exempt from Clean Water Act regulations. Using the EPA’s logic, pesticides are not pollutants upon leaving the spray nozzle. Once the chemicals have done their work, their residues are then considered pollutants.

That EPA reasoning was challenged in several appellate courts and consolidated in the 6th U.S. Court of Appeals, which early last year rejected the EPA’s exemption of pesticides from the Clean Water Act. The EPA did not appeal the decision, and the court issued a two-year stay postponing the implementation until 2011 in order to give the agency time to come up with the necessary regulations.

Among many concerns, the ruling carries two troubling threats to agriculture: it sets a precedent that affects the entire U.S., not just a particular region; second, the decision could be interpreted as applying to a long list of other useful substances that leave residues, such as fertilizers, de-icing chemicals and even fire retardants.

The agricultural coalition argues in its petition that the lower court misunderstood the congressional intent behind the Clean Water Act and did not properly defer to the EPA’s interpretation of the law, as required by Supreme Court precedent. The groups also want the high court to reject the appellate court’s interpretation of “pollutant from a point source.”

It’s going to be interesting to watch how this plays out in the months ahead, taking into consideration, of course, whether the Supreme Court will include this important case among the 100 or so cases it rules on each year.

TAGS: Legislative
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