(Beyond Pesticides, June 7, 2012) As Hawaii officials finalize new rules for the regulation of pesticide discharge into waterways due to the federal court ruling requiring permits for pesticide discharges, critics say the state’s draft rules are not strict enough and that stakeholders, such as the farming lobby, may have had undue influence in crafting the new permitting requirements.
Now that federal rules have been finalized to require National Pollutant Discharge and Elimination System (NPDES) permits under the Clean Water Act for pesticide discharges near waterways, as a result of a 2009 federal court order instructing EPA to require permits for pesticide discharges (see Daily News coverage), many states are rolling out their own rules to regulate these discharges. In Hawaii, a meeting called by state officials on Monday to hear public input was largely a battle between pro-pesticide interests, including Alexander & Baldwin, which sprays pesticides in irrigation ditches to control weeds, and state land officials, who use chemicals to kill invasive species, as well as Monsanto, that pushed to ease the rules, and environmental groups seeking to make them more stringent.
Dean Okimoto, head of the Hawaii Farm Bureau, said that the rules would increase costs for farmers and impede the push for food sustainability. “It’s starting to feel like it’s an inordinate burden on farmers in this state to take on,” he said during testimony. “It comes to the point that farmers are almost endangered species.”
But local groups including Earthjustice, the Surfrider Foundation, Life of the Land and KAHEA, argue that the state is not doing enough to protect local waterways, aquatic resources and human health. In written testimony to state health officials, the groups warned that dangerous chemicals had already been detected in the state’s drinking water. Those include atrazine, which has been shown to disrupt sex hormones in animal tests, and glyphosate, which is associated with increased risk of spontaneous abortion. Environmentalists say that triclopyr, which can cause cancer, has also been detected. They are pushing for stricter rules that require polluters to use the least-toxic chemical possible. They also want state officials to better monitor the effects of chemicals and publicly disclose what pesticides are going into waterways and where.
Some local stakeholders, including a representative from Alexander & Baldwin, attended stakeholder meetings to discuss the rules. But most environmental organizations were excluded. Earthjustice requested meeting information a couple of weeks ago, according to Caroline Ishida, an attorney with the organization, but was also told the records did not exist. An official for the Hawaii Department of Health stated that the Department did not convene the group, rather stakeholders got together and formed it themselves. While it remains a mystery who participated in the stakeholder meeting, which he estimated met four to five times, the official insists the group did not influence the state’s final rules. “In this case, a group of stakeholders kind of formed by themselves with the intent of facilitating the adoption of these rules,” the official said. “In no way did this circumvent the public process and in no way does it give any special favor to the stakeholders.”
The chemical-intensive farming lobby in Hawaii, and around the country, argues that pesticides are already regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which is administered by the state Department of Agriculture. The act regulates the distribution, sale and use of pesticides. However, the January 2009 Sixth Circuit Court of Appeals ruling in National Cotton Council v. U.S. Environmental Protection Agency made it clear that pesticide residuals and biological pesticides constitute pollutants under federal law and therefore must be regulated under the Clean Water Act in order to minimize the impact to human health and the environment. The Clean Water Act uses a health-based standard (maximum contamination levels) to protect waterways and requires permits when chemicals are directly deposited into rivers, lakes and streams, while FIFRA uses a highly limited risk assessment with no attention to the safest alternative. Meanwhile, those that do spray pesticides in or near waterways in Hawaii are pushing hard for the state to finish up the rules, even though they do not like them. The federal law went into effect last year, but the state has not finalized its regulations, meaning those that spray cannot yet obtain the required NPDES permit.
Attempts to protect U.S. waterways from chemical contamination, including contamination from pesticides, are continually being attacked by industry groups and Congress. For example, H.R. 872, “Reducing Regulatory Burdens Act of 2011,” which passed the U.S. House of Representatives and the Senate Agriculture Committee, seeks to revoke EPA’s authority to require permits for pesticide discharges into waterways —an attempt to reverse the 2009 federal court order. Thus far, there have been a staggering 125 pieces of legislation to reduce environmental protection, including 50 bills targeting EPA, 16 to dismantle the Clean Water Act, and 31 against actions that can prevent pollution.
Here are some important things to note about the new NPDES permit for pesticide discharges:
How does the NPDES permit work?
To be covered under the NPDES general permit, a pesticide applicator must submit a Notice of Intent (NOI) 10 days prior to pesticide application. If applying near water habitat recognized by the National Marine Fisheries Service (NMFS) as a Resource of Concern under the Endangered Species Act, the applicator must submit the NOI 30 days prior to application. EPA has created an electronic NOI to facilitate easy NOI submission. If the state is the permitting authority, an NOI from the local state agency must be submitted to local officials. Once submitted and approved, the permit is valid for pesticide applications until the expiration date. NOIs only need to be submitted once for pesticide applications, unless there are changes to discharges.
The NOI requires the applicant to submit contact information, a description of treatment area, skan identification of pest and pest management practices, and product information. As part of the permit, the applicant must also inspect and monitor pest populations, possible environmental adverse effects, and keep records of pesticide application.
Would the NPDES Permit Prevent Officials from Controlling Public Health Pests like Mosquitoes?
NO. In many states the entity responsible for mosquito control is the local state department of health, department of environmental management, or mosquito control board. This agency would then be required to submit an NOI to either the state or the EPA prior to applying pesticides for mosquito control and other mosquito related activities. The permit would therefore not inhibit local authorities from carrying out mosquito control.
How Will the NPDES Permit Impact Farmers?
Generally, farmers are NOT impacted by the new NPDES permit. This is because farmers applying pesticides to agricultural cropland, greenhouses or gardens DO NOT need to apply for a NPDES permit. Similarly, irrigation flows and pesticide run off from fields ARE NOT subject to permitting requirements.
Farmers who need to apply pesticides to more than 6,400 acres/yr for forest canopy control or to more than 80 acres of water/yr for weed or algae control would need to submit an NOI.
Does the NPDES permit Pose Undue Economic Burden?
There is NO FEE to submit NOIs to EPA, if EPA is the permitting authority. However, if the state is the permitting authority there may be an application fee required for submission of the NOI. This fee varies by state, but can range from $183 to $770. Violations of NPDES permit requirements will also be subject to fines. A state directory is available on EPA’s website.
Source: Honolulu Civil Beat
All unattributed positions and opinions in this piece of those of Beyond Pesticides.