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Pesticide as Pollutant Ruling Raises Ire

Here's another thing to add to your worries about the future of farming in the Dakotas.

A ruling by the Sixth Circuit Court of Appeals and a law before Congress would probably force you to get a National Pollutant Discharge Elimination System permit to apply pesticides in certain situations.

North Dakota Agriculture Commissioner Doug Goehring fired off a letter to EPA, saying he was "disappointed" by its decision not to seek a rehearing on the issue.

"The Sixth Circuit U.S. Court of Appeals ruled that pesticides can be considered pollutants under the Clean Water Act," Goehring says. "If that ruling stands, pesticide users would need a National Pollutant Discharge Elimination System permit before using pesticides in certain situations, even if they comply with the product labeling and other provisions of the federal pesticide law."

In a letter to Lisa Jackson, EPA administrator, Goehring expresses his concern over EPA's decision not to ask for a rehearing in National Cotton Council v U.S. EPA, which centers on whether or not a user must get a CWA permit to apply pesticides on or near surface water.

"Pesticides are commonly used on or near surface water in North Dakota," he says. "Herbicides are used to manage noxious weeds in riparian areas and to manage habitat for threatened and endangered species, and insecticides are used to control mosquitoes on or near standing water."

Goehring says he is particularly concerned by the possibility that North Dakota farmers would be especially impacted by the ruling, since pesticides are commonly used near prairie potholes that cover much of the state.

"Potholes could be regulated under the CWA if a bill now before Congress passes," he says. "The bill removes the word 'navigable' from the CWA, meaning prairie potholes and other non-navigable waters would be treated the same as navigable waters."

Goehring says it could take months for farmers to obtain NPDES permits.

"Since pesticides are thoroughly evaluated for their potential impacts on human health and the environment during the registration process, pesticides should not impair surface water if they are used according to the labeling," he says. 

Goehring urges the EPA to submit a rehearing petition.

"EPA simply asked the court to stay the mandate of the ruling for two years," Goehring says. "If the court refuses and orders immediate compliance, it would be a big concern for ag producers."

Goehring's office supplied his comments.

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