Harmonizing Clean Water Act Requirements for Pesticides in Water, EPA Calls for Public Comments

EPA is calling for public comments, due by October 14, 2003, on an interpretation of the Clean Water Act (CWA) that would allow pesticides to be exempt from CWA permitting requirements. Beyond Pesticides urges you to take action to help maintain high quality water standards and protect human health and aquatic ecosystems from further damage by toxic chemicals.

According to the Interim Statement, the EPA believes that as long as the application of a pesticide to water follows the label requirements of the pesticide (regulated under FIFRA, Federal Insecticide, Fungicide, and Rodenticide Act), then the pesticide does not constitute a discharge of a pollutant and therefore, does not require a permit under CWA's National Pollutant Discharge Elimination System (NPDES).

EPA's interim statement cites two specific situations where a permit with NPDES would NOT be necessary: (1) The application of pesticides directly to waters of the U.S. to control pests (such as mosquito larvae or aquatic weeds) and (2) The application of pesticides to control pests that are present over water of the U.S. that result in a portion of the pesticide being deposited to water bodies (such as the spraying of insecticides over a forest canopy where water may be present below the canopy).

Should the EPA determine that the application of pesticides to water do not require permit under CWA, then the eco-systems of our lakes, rivers, streams, and wetlands are at risk of being saturated by toxic pesticides without prudent regulation.

FIFRA is a regulatory and licensing law that oversees the registration of pesticides and their application. It does not however regulate and oversee water quality and the protection of aquatic ecosystems, which is the distinct business of the CWA. Indeed, there is controversy over whether many of the precautionary statements on labels registered by FIFRA adequately protect public health and the environment from the application of toxic chemicals due to a lack of toxicity and impact studies (report on statement by Robert Wayland, Director of EPA's Office of Wetlands, Oceans and Watersheds). When FIFRA registers a pesticide it also does not adequately take into account the impacts on health and environment of the inert ingredients in pesticides, heightened toxicity due to combinations of chemicals (synergy), multiple applications, or the phenomenon of toxic chemical drift, which commonly occurs in aerial spraying situations regardless of proper FIFRA regulated application. Lastly, and perhaps most importantly, both FIFRA and CWA serve distinct and important purposes. This EPA action would allow the weaker FIFRA standards to trump the more stringent CWA standards. CWA uses a kind of health-based standard known as maximum contamination levels to protect waterways, while FIFRA uses a highly subjective risk/benefit analysis to determine if the potential harm done by a pesticide is worth the benefit.

It is extremely important for EPA to hear from people who are concerned about this issue. Write the EPA today (click on Docket No. OW-2003-0063), and make your voice heard! Tell the EPA that you want your rivers, lakes, streams and wetlands protected by FIFRA as well as the Clean Water Act. Tell them that allowing pesticides in our waterways without a permit from CWA is essentially handing over water quality issues to FIFRA and stripping our waterways of adequate protection from toxic chemicals. Exercise your right to insist on dual jurisdictional protection of waterways between FIFRA and the CWA. Or give the EPA an example of a personal experience you have had or know of concerning the spraying or application of pesticides in your local waterway.

Read the EPA Comments by Beyond Pesticides, or other EPA Comments on this issue for ideas. In EPA comments by the Chemical Connection, a network of Texan citizens sensitive to chemicals, Susan Pitman tells the EPA about an experience in Texas when several individuals and animals suffered intense illnesses after Lake McQueeny was sprayed by herbicides to kill aquatic vegetation in 1996. But because no violation of the pesticide label requirements could be determined (under FIFRA), the Texas Department of Agriculture could take no action to address the complaints of citizens impacted by the spraying. Had a permit been required prior to spraying the herbicide, the result most likely would have been different.

Beyond Pesticides first reported on this issue in a Daily News story, shortly after the EPA interim guidance memorandum came out in July 2003. The memorandum was issued, in part, in response to two cited court cases. In Headwaters, Inc. v. Talent Irrigation District, the U.S. Court of Appeals for the Ninth Circuit ruled in 2001 that an applicator of herbicides was required to obtain an NPDES permit. According to the EPA's interim statement, this ruling "caused public health authorities, natural resource managers and others who rely on pesticides great concern and confusion" about permit obligations for pesticide applications to U.S. waters. In Altman v. Town of Amherst the plaintiffs, town residents of Amherst, NY, argued that the Town of Amherst violated CWA by applying pesticides for mosquito control in a federal wetland without a permit. The plaintiffs further argued that these pesticides were pollutants discharged from a point source directly into federal waters, thus violating federal law. After the Court ruled in favor of the defendants, the plaintiffs then appealed to the U.S. Court of Appeals for the 2nd Circuit which stated in a 2002 decision that the EPA needs to articulate a clear interpretation of whether NPDES permits are required for applications of pesticides that comply with FIFRA.

The EPA will receive public comments on this issue under Docket No. OW-2003-0063 until October 14, 2003.

The number of studies on the impacts of pesticides on aquatic ecosystems and their surrounding area has waned since the phasing out of organocloride products, such as DDT and DDE in the late 1970s and early 1980s. However, because there is not a proliferation of studies does not mean that harm is not occurring. Widespread mosquito spraying for West Nile virus has already sparked some new investigations into the damaging effects of herbicides and pesticides to human health, aquatic ecosystems, animals and other non-targeted species. For example, see Lobster Die-Off Linked to West Nile Virus Pesticides, What's Killing the Lobsters, and Massachusetts Agrees to Study the Effects of Methoprene on Lobsters.