Are Aquatic Herbicide Permitting Changes on the Horizon?

[Editor's note: During the summer of 2001, few, if any, herbicide applications to manage aquatic plants, took place in Washington state. As a result of that state's interpretation of a federal circuit court ruling, aquatic plant management operations using aquatic herbicides, as well as mosquito and burrowing shrimp control activities, now require a National Pollutant Discharge Elimination System (NPDES) permit. NPDES permits were originally created by the U.S. Clean Water Act. Though the circuit court ruling may be interpreted and implemented in different ways by the nine states of the circuit, nonetheless, aquatic pesticides, even when registered and labeled under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), now are considered in one circuit district to be a form of pollution requiring additional permitting under the Clean Water Act. The ruling also effectively federalizes what used to be a state permitting power in the 9th Circuit.


As of now, no entity in the nine states has appealed the Talent decision to the U.S. Supreme Court. The ruling suggests implications for all herbicide-based management operations on public waters and lands of the U.S. Here, Ms. Hamel presents a brief review of the decision and her department's implementation of its findings. VR]

The Impact of the Talent Irrigation District Court Decision on Aquatic Pesticide Regulation in Washington State

by Kathy S. Hamel, Washington State Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600, E-mail: kham461@ecy.wa.gov

Background
Many irrigation districts in the western United States for many years have routinely applied acrolein (Magnacide H) to their ditches and canals to control the growth of submersed aquatic vegetation. Removing vegetation is essential to maintain water delivery to crops and to prevent flood damage to the canals. Acrolein is highly toxic to fish, wildlife, and humans and must be carefully applied. The districts use acrolein, instead of the less toxic aquatic herbicides used for aquatic plant control in lakes and rivers, because acrolein treated water can be used for crop irrigation much sooner than other aquatic herbicides.

In May 1996, the Talent Irrigation District in southwestern Oregon applied acrolein to the Talent Canal. The next day dead fish were discovered in Bear Creek around and downstream from a leaking canal waste gate. Over 92,000 juvenile steelhead were killed. Release of treated waters into a fish-bearing stream clearly violated the Magnacide H label and the District was heavily fined by Oregon agencies for the fish kill. Environmental groups (Headwaters, Inc. et al.) also sued Talent for violating the Clean Water Act (CWA) by treating its canals without a National Pollutant Discharge Elimination System (NPDES) permit.

After a lower federal district court concluded that it was not necessary to obtain an NPDES permit for treatment with acrolein, Headwaters, Inc. et al. appealed the case to the 9th Circuit Court of Appeals. The 9th Circuit Court has jurisdiction over Alaska, Washington, Oregon, Idaho, Montana, Nevada, Arizona, California, Hawaii, and Guam. These nine states and Guam are bound by any decisions made by the 9th Circuit Court. On March 12, 2001, this court reversed the lower court's ruling and found that "the registration and labeling of Magnacide H under the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA) does not preclude the need for a permit under the CWA." The Talent decision was not appealed to the Supreme Court.
[See http://www.owrc.org/litigation/tidopinion.htm]

Washington's Response to the Talent Irrigation District Decision

The state of Washington's Assistant Attorney General to the Department of Ecology (Ecology) interpreted the Talent court decision to mean that the application of any aquatic pesticide to Washington waterbodies requires coverage under an NPDES permit. This interpretation was partially in response to the threat of lawsuits from environmental groups if an NPDES permit program was not put in place. Pesticides are applied to waters of the state for the control of mosquitoes, burrowing shrimp, some fish species, noxious submersed weeds (Eurasian watermilfoil, hydrilla), noxious emergent weeds (purple loosestrife, spartina), nuisance native aquatic plants, and algae.

Washington, Oregon, California, Montana, Nevada, and Hawaii have been delegated authority from the Environmental Protection Agency (EPA) to develop and administer NPDES permit programs. Idaho, Alaska, and Arizona obtain their NPDES permit coverage from EPA. Ecology administers Washington's NPDES programs for industrial waste discharges, sewage treatment, municipal and industrial stormwater, and dairy waste. However, aquatic pesticide application does not fit neatly into state and federal laws that regulate point source pollutant discharge to water. To date EPA has provided little guidance or direction to the affected states on how to interpret the court decision or how to develop an aquatic pesticide NPDES permitting program.

The March court decision did not allow Washington enough time to develop an aquatic pesticide NPDES program for the 2001-treatment season. Although Ecology's existing aquatic pesticide permitting program was not an NPDES program, Ecology continued to issue orders (permits) under this program for 2001. Applicants were informed that these permits were not NPDES permits and that they could be subject to third party lawsuits as a result of the Talent court decision. Willapa Bay oyster growers (who treat oyster beds for burrowing shrimp) were threatened with a third party lawsuit because they didn't have NPDES permit coverage. They subsequently chose not to treat in 2001, permanently losing some oyster beds by this action. All state-funded and most locally funded herbicide applications to control noxious aquatic weeds did not take place. Many irrigation districts asked for coverage under Ecology's existing program, something they had not done before.

For most NPDES permits, people are trying to dispose of unwanted wastes into a waterbody. In the case of aquatic pesticides, people are deliberately introducing a toxic compound into a waterbody to improve beneficial uses. Ecology is currently developing seven general NPDES permits for aquatic pesticide application to Washington waters in 2002 and beyond. Permit holders will include: irrigation districts; mosquito districts; Departments of Fish and Wildlife; Agriculture; and Transportation; oyster growers; and aquatic herbicide applicators. Advisory committees have been formed to provide oversight to each general permit and informational meetings have been held. Each advisory committee is expected to meet twice to provide input into the draft permit before it is made available for public review. Because of public and internal review processes, Ecology doesn't anticipate having final permits in place until late spring or early summer of 2002.

While most aquatic pesticide applicators are accustomed to being regulated by Ecology, there will be some changes under the new program. Because of state law, fees will be charged to cover the administration of the NPDES permits. Although the amounts are as yet unknown, in some cases, permit fees could be substantial. Some type of limited monitoring of the receiving waters, most likely for pesticide concentrations, will also be required. Requirements already in place under the superceded permit program, such as public notification and Endangered Species Act protections, will be incorporated into the NPDES permits where appropriate. The NPDES permits will be at least as, or more, protective of the aquatic environment than the superseded aquatic pesticide permitting program.

There has been great interest in Washington's aquatic pesticide NPDES program from affected parties and environmental groups. Washington interpreted the Talent decision to mean that all aquatic pesticide applications must be regulated under an NPDES program. Other western states may have made different interpretations, although California has developed a general NPDES permit for aquatic pesticide use. Several environmental groups indicated to Ecology that had Washington continued to allow aquatic pesticide applications under the existing program we would have been challenged in court with the Talent Irrigation District decision forming the basis for that legal challenge. Moving forward with the development of an NPDES program for aquatic pesticides is a necessary action for Washington.

Editor's note: The industry response to the Ninth Circuit Court's Ruling has included the formation and funding of the Aquatic Pesticide Coalition (APC) by a group of agricultural producers, irrigation district managers, aquatic pesticide manufacturers, mosquito control interests and companies in the lake management industry. The APC hopes to help develop a solution to the problem. They have hired attorneys experienced with the Clean Water Act and have presented a Position and Background paper to the EPA. An industry newsletter, AquaTechnex e-news, makes the following observations: "Western irrigated agriculture depends on approximately 16,000 miles of irrigation canals and 37,000 miles of laterals. In 1997, irrigated Western cropland produced $22 billion in sales (as compared to national crop sales in 1997 of approximately $100 billion). . . .This ruling has paralyzed necessary aquatic plant management operations in the western United States. . . . . U.S. EPA has had long-standing policy and guidance in place that specifies under what circumstances an NPDES permit is needed to discharge pesticides into the waters of the U.S. from an industrial facility. NPDES permits have not been required for the application of aquatic pesticides to water in accordance with product labels under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Further, EPA has never instituted an enforcement action against any such person for failing to have an NPDES permit under these circumstances. . . . The imposition of NPDES permits on the use of aquatic herbicides . . . could have the perverse effect of impairing water quality through the negative consequences of aquatic invasive plant infestations." To contact the Aquatic Pesticide Coalition, write to 1156 15th Street NW, Suite 400, Washington, DC 20005. KB

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Federal Regulations Reviewed:


The Clean Water Act (CWA), as originated in the Federal Water Pollution Control Act Amendments of 1972, generally prohibits the discharge of pollutants into "navigable waters" or "waters of the United States." The CWA's objective "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." It requires a National Pollutant Discharge Elimination System (NPDES) permit before any pollutant can be discharged into navigable waters from a point source. Point sources are defined as discrete conveyances such as discharge pipes or man-made ditches. Permits typically are obtained for discharges of industrial wastewater, sewage treatment plant effluent, etc.


The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is a comprehensive federal statute which regulates pesticide use, sales, registration and labeling, and grants enforcement authority to the Environmental Protection Agency (EPA). FIFRA's objective is to protect human health and the environment from harm from pesticides.


FIFRA establishes a national uniform labeling system to regulate pesticide use, but does not establish a system for granting permits for individual herbicide applications. The CWA establishes national effluent standards to regulate the discharge of all pollutants into the waters of the United States, but also establishes a permit program that allows, under certain circumstances, individual discharges. FIFRA's labels are the same nationwide, and so the statute does not and cannot consider local environmental conditions. By contrast, the NPDES program under the CWA does just that.


From the U.S. Court of Appeals, Ninth Circuit, Opinions

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