History of Aquatic Pesticide Permitting
NOTE: The information presented here is not an interpretation by an attorney. This is Ecology's interpretation of events and the implications of the court cases listed below. Information is listed from newest to oldest.
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EPA Issues Pesticide General Permit (2011, October)
Following the ruling in National Cotton Council (below), EPA developed and issued a nationwide general permit to cover most aquatic pesticide use patterns.
More information: EPA's Pesticide General Permit
National Cotton Council Et. A. v. EPA (2009, January)
In November 2006, EPA issued a final rule under the CWA that determined that pesticides applied in accordance with the FIFRA label are exempt from NPDES permitting requirements. Petitioners filed for review of EPA’s final rule in 11 of the 12 federal circuit courts that are able to hear regulatory arguments. The federal courts combined the petitions into one case within the Sixth Circuit Court.
In its opinion, the Sixth Circuit made several findings. First, it agreed with the Ninth Circuit (Fairhurst v. Hagener) that if a chemical pesticide is intentionally applied to water for a beneficial purpose, and leaves no waste or residue after performing its intended purpose; the discharge would not require a NPDES permit.
Second, the Court found excess pesticides and residues that make their way into waters during and after any pesticide application constitute wastes under the CWA and must have NPDES permit coverage before the discharge occurs.
Finally, the Sixth Circuit determined that because EPA’s final rule exempted discharges that the plain reading of the CWA includes as requiring a NPDES permit, the rule cannot stand.
After a later motion, the Sixth Circuit granted EPA a stay on the effective date of this ruling for 24 months to allow the agency time to develop an NPDES permit for aquatic pesticide discharges. EPA issued its general permit on October 31, 2011, for the discharge of pesticides to manage aquatic plants and algae, aquatic animals, mosquitoes and flying insects, and forest canopy pests. In Washington, EPA’s general permit covers aquatic pesticide activities conducted on federal facilities, on federal lands when federal entities conduct or authorize the treatment, and on tribal facilities and lands. The state regulates aquatic pesticide application to all other lands/waters.
Northwest Aquatic Ecosystems v. Ecology (2007, June)
In February 2006, the Pollution Control Hearings Board (PCHB) issued a final order in Case #05-101, Northwest Aquatic Ecosystems v. Ecology, Washington Toxics Coalition. This case focused on a number of issues, one of which was whether an NPDES permit is required for the use of federally registered pesticides since the Ninth Circuit Court ruled in Fairhurst v. Hagener.
The PCHB ruled on summary judgment that the Fairhurst decision does not provide a blanket exemption for the application of aquatic pesticides. Pesticides must meet identified conditions before Ecology can consider it outside the category of a pollutant under the CWA. The pesticide must:
Northwest Aquatic Ecosystems failed to provide any evidence specifically addressing how the use of the aquatic herbicides diquat and endothall on the proposed sites would meet the four conditions identified in Fairhurst. In the absence of such evidence, Fairhurst provided no basis for the PCHB to conclude that an NPDES permit is not required for the proposed pesticide applications.
Ecology Response to EPA Final Rule (2006, December)
In December 2006, Ecology met with interest groups representing each of the permit areas, as well as with agricultural and environmental groups. Ecology asked the groups for comments on which direction the state’s permitting program should go. Ecology’s comment period ran from December 20, 2006 to January 12, 2007. Ecology received many comments from permittees and interested parties. The majority of the commenters requested that the state continue its current permitting program, pending the outcome of the EPA rule appeal. Ecology decided that Washington will continue to use NPDES permits to control the use of aquatic pesticides in and around Washington state waters until there is a ruling on the appeal.
More on Ecology's decision may be found in: Focus On: State's Response to EPA Rule on Aquatic Pesticide Permitting
EPA Final Rule: Application of Pesticides to Waters of the U.S. in Accordance with FIFRA (2006, November)
In November 2006, EPA issued a final rule under the CWA entitled Application of Pesticides to Waters of the United States in Accordance with FIFRA. This rule replaced a draft interpretive statement EPA issued in 2003 concerning the use of pesticides in or around waters of the United States. The rule stated that any pesticide meant for use in or near water, applied in accordance with the FIFRA label, is not a pollutant under the CWA. Therefore, such applications are not subject to NPDES permitting.
After EPA issued the rule, Ecology met with stakeholders to seek input on how it should regulate the use of aquatic pesticides. Ecology also provided the public with a three-week comment period. Stakeholders affiliated with each of the seven affected permits (Mosquito, Noxious Weeds, Aquatic Plant and Algae, Irrigation, Oyster Growers, Fish Management, and Invasive Moth) commented. The consensus of these stakeholders was that Ecology should continue to issue joint NPDES/state waste permits to regulate aquatic pesticide applications.
To apply a pesticide to the water, state law requires the applicator to obtain a short-term modification of the water quality standards from Ecology. Ecology issued site-specific short-term modifications using an administrative order until 2001, when this process was challenged. Currently, the only legal vehicle for implementing a short-term modification is a permit. State law defines only two types of permits for surface water discharges: NPDES (federal) and State Waste Discharge (state). Because of stakeholder consensus and the need for a permit to implement short-term modifications, Ecology decided that Washington would continue to use NPDES permits as the legal vehicle to regulate the use of aquatic pesticides in and around Washington state waters. Ecology believes that these permits provide the best protection of water quality, human health, and the environment.
Fairhusrt v. Hagener (2005, September)
The Montana Department of Fish, Wildlife, and Parks (Department) began a ten-year program to re-introduce threatened native westslope cutthroat trout into Cherry Creek. This project used antimycin to remove non-native rainbow and Yellowstone cutthroat trout from Cherry Creek over several years, after which it would reintroduce native trout.
The Department was sued under the citizen suit provision of the CWA for failing to obtain a NPDES permit before applying antimycin to surface waters. During summary judgment, the district court decided in favor of the Department. On appeal, the Ninth Circuit court affirmed the district court’s opinion. The Ninth Circuit opined that:
A chemical pesticide applied intentionally, in accordance with a FIFRA label, and with no residue or unintended effect is not “waste, and thus not a “pollutant” for the purposes of the Clean Water Act. Because the Department’s application of antimycin to Cherry Creek was intentional, FIFRA compliant, and without residue or unintended effect, the discharged chemical was not a “pollutant” and the Department was not required to obtain a NPDES permit.
Neither the Court nor the EPA offered any guidance regarding which pesticide applications would result in no residue or unintended effect.
League of Wildlife Defenders Et. Al. v. Forsgren (2002, November)
In the 1970’s, the Douglas Fir Tussock Moth defoliated approximately 700,000 acres of Douglas Fir in Idaho, Oregon and Washington. In response to this outbreak, the United State Forest Service (USFS) developed a system to predict tussock moth outbreaks and control them via aerial spraying of insecticides.
The League of Wildlife Defenders filed suit against the USFS for failing to obtain a NPDES permit under the CWA for the application of insecticides directly above surface waters. The USFS argued that any discharge of insecticides was nonpoint pollution, and that the discharges fell under federal exemptions (40 CFR 122.3) for silviculture activities.
The Ninth Circuit Court reversed a district court’s opinion upon appeal. It held that aerial spraying (from an aircraft fitted with tanks) directly to, and over, surface water is a point source of pollution, and requires an NPDES permit.
Headwaters, Inc. v. Talent Irrigation District (2001, September)
In May 1996, as part of routine vegetation management, the Talent Irrigation District (TID) in southern Oregon applied the pesticide acrolein to a system of irrigation canals. Acrolein-treated water discharged into a fish-bearing creek causing a fish kill. Subsequently, Headwaters, Inc. and Oregon Natural Resources Council filed a Clean Water Act citizen suit against the TID for applying a pesticide into a system of irrigation canals without an NPDES permit.
The Ninth Circuit Court in Headwaters, Inc. v. Talent Irrigation District found that the applicator should have obtained coverage under an NPDES permit prior to application of aquatic pesticides to an irrigation canal. The decision addressed residues and other products of aquatic pesticides.
Reversing a district court’s opinion, the Ninth Circuit Court held that application of the pesticide in compliance with the FIFRA labeling requirements did not exempt TID from having to obtain an NPDES permit and that the irrigation ditches were "waters of the United States" under the CWA (March 12, 2001).
Based on the TID court decision, Ecology, with advice from the Washington State Office of the Attorney General, determined that all pesticide applications to state surface waters required coverage under NPDES permits. Ecology issued its first NPDES general permits for pesticide applications to Washington’s surface waters in 2002. Prior to 2001, Ecology regulated the application of aquatic pesticides to most surface waters by issuing administrative orders (called Short-Term Modifications of Water Quality Standards) to Washington-state licensed pesticide applicators.
Regulations Addressing Noxious Weed Control (1995)
In some instances the Short-Term Mods Ecology issued conflicted with other regulatory mandates to control and eradicate noxious weeds (e.g. Spartina, Purple Loosestrife). At the time, many different agencies, tribes, local governments and groups were attempting to deal with invasions of Spartina and Purple Loosestrife without a cohesive approach. Ecology’s Short-Term Mod process added further complication as developing these documents were handled separately by multiple different staff in different Ecology regions. These factors lead to a very slow response to the threat posed by these two noxious weeds. In 1995, the Legislature clarified that Ecology does not have discretion, it must issue permits (also referring to the Short-Term Mods) to allow aquatic pesticide use for noxious weed control and it must not overly burden noxious weed control efforts. A discussion in the session law from 1995 provides some insight into the thinking of the Legislature. Access the discussion, starting on page 921 1995 Session Law
Revised Code of Washington (RCW) 90.48.445(1) specifically directs that: “The director [of Ecology] shall issue or approve water quality permits for use by federal, state, or local governmental agencies and licensed applicators for the purpose of using, for aquatic noxious weed control, herbicides and surfactants registered under state or federal pesticide control laws, and for the purpose of experimental use of herbicides on aquatic sites, as defined in 40 C.F.R. Sec. 172.3. Continued.” Additionally RCW 90.48.445(3) states: “The director of ecology may not utilize this permit authority to otherwise condition or burden weed control efforts.” RCW 90.48.445
Noxious weeds have a specific regulatory definition in State law - “Noxious weed means a plant that when established is highly destructive, competitive, or difficult to control by cultural or chemical practices.” Plants are determined to be noxious weeds through a process controlled by the Washington State Noxious Weed Control Board (WSNWCB). Once a plant is listed as a noxious weed, if a permit is requested to use aquatic pesticides to control the plant, Ecology is required by RCW 90.48.445 to issue such a permit. RCW 17.10.010 WAC 16-750-022
Pre-NPDES Permitting of Aquatic Pesticides (1980s-90s)
Ecology has a long history of regulating aquatic pesticide use. For at least 20 years prior to when National Pollutant Discharge Elimination System (NPDES) permits became required for aquatic pesticide use, Ecology regulated aquatic pesticide use. This is for two reasons:
The tool Ecology used during the 80’s and 90’s to add additional restrictions beyond the FIFRA product label and to authorize short-term water quality modifications was the administrative order. These orders were called Short-Term Water Quality Modifications (Short-Term Mod) and issued on an annual basis under Ecology’s state water quality authorities in Chapter 90.48 Revised Code of Washington (RCW). RCW 90.48
A short-term modification of water quality standards is necessary to allow the addition of something to the water that will cause an exceedance of the water quality standards. Washington Administrative Code (WAC) 173-201A-240(1) requires that: “Toxic substances shall not be introduced above natural background levels in waters of the state which have the potential either singularly or cumulatively to adversely affect characteristic water uses, cause acute or chronic toxicity to the most sensitive biota dependent upon those waters, or adversely affect public health, as determined by the department.” WAC 173-201A-240
Pesticides are toxic substances that are designed and formulated to kill a target pest. In order to be effective they are added to waters at levels that exceed the natural background levels (which is zero). To allow addition of an aquatic pesticide to the water, a short-term water quality modification is necessary. WAC 173-201A-410 allows the short-term modification of WAC 173-201A-240: “The criteria and special conditions established in WAC 173-201A-200 through 173-201A-260, 173-201A-320, 173-201A-602 and 173-201A-612 may be modified for a specific water body on a short-term basis (e.g., actual periods of nonattainment would generally be limited to hours or days rather than weeks or months) when necessary to accommodate essential activities, respond to emergencies, or to otherwise protect the public interest, even though such activities may result in a temporary reduction of water quality conditions.” WAC 173-201A-410
The Short-Term Mods Ecology issued were conditioned with additional requirements and restrictions beyond the FIFRA product label. Restrictions included: when and where pesticides could be applied, monitoring, and even what pesticide products could be used. All things not required by the FIFRA product label. Without this, the public would be generally unaware of when an aquatic pesticide application takes place and the impacts of aquatic pesticide would be less well known. All the conditions added to the Short-Term Mods were intended to protect the environment and human health.
Federal Insecticide, Rodenticide and Fungicide Act (1979)
The following excerpt is from EPA’s 2010 NPDES Pesticides General Permit Fact Sheet and explains FIFRA:
EPA regulates the sale, distribution, and use of pesticides in the U.S. under the statutory framework of the Federal Insecticide, Fungicide, and Rodenticide Act of 1979, to ensure that when used in conformance with the label, pesticides will not pose unreasonable risks to human health and the environment. All new pesticides must undergo a registration procedure under FIFRA during which EPA assesses a variety of potential human health and environmental effects associated with use of the product. Under FIFRA, EPA is required to consider the effects of pesticides on the environment by determining, among other things, whether a pesticide will perform its intended function without unreasonable adverse effects on the environment, and whether when used in accordance with widespread and commonly recognized practice [the pesticide] will not generally cause unreasonable adverse effects on the environment. 7 U.S.C. 136a(c)(5).
In performing this analysis, EPA examines the ingredients of a pesticide, the intended type of application site and directions for use, and supporting scientific studies for human health and environmental effects and exposures. The applicant for registration of the pesticide must provide specific data from tests done according to EPA guidelines.
When EPA approves a pesticide for a particular use, the Agency imposes restrictions through labeling requirements governing such use. The restrictions are intended to ensure that the pesticide serves an intended purpose and avoids unreasonable adverse effects. It is illegal under Section 12(a)(2)(G) of FIFRA to use a registered pesticide in a manner inconsistent with it’s labeling. States have primary authority under FIFRA to enforce “use” violations, but both the States and EPA have ample authority to prosecute pesticide misuse when it occurs.
After a pesticide has been registered, changes in science, public policy, and pesticide use practices will occur over time. FIFRA, as amended by the Food Quality Protection Act of 1996, mandates a registration review program, under which [EPA] periodically reevaluates pesticides to make sure that as the ability to assess risk evolves and as policies and practices change, all registered pesticides continue to meet the statutory standard of no unreasonable adverse effects to human health or the environment. [EPA] is implementing the registration review program pursuant to Section 3(g) of FIFRA and will review each registered pesticide every 15 years to determine whether it continues to meet the FIFRA standard for registration. More information on the FIFRA program.
FIFRA, as administered by the EPA and the Washington State Department of Agriculture (WSDA), requires that all persons that apply pesticides classified as restricted use be certified according to the provisions of the act, or that they work under the direct supervision of a certified applicator. Commercial and public applicators must demonstrate a practical knowledge of the principles and practices of pest control and safe use of pesticides, which they accomplish by means of a “core” examination. In addition, applicators using or supervising the use of any restricted use pesticides purposefully applied to standing or running water (excluding applicators engaged in public health related activities) must pass an additional exam to demonstrate competency as described in the code of federal regulations as follows:
Aquatic applicators shall demonstrate practical knowledge of the secondary effects which can be caused by improper application rates, incorrect formulations, and faulty application of restricted pesticides used in this category. They shall demonstrate practical knowledge of various water use situations and the potential of downstream effects. Further, they must have practical knowledge concerning potential pesticide effects on plants, fish, birds, beneficial insects, and other organisms which may be present in aquatic environments. Applicants in this category must demonstrate practical knowledge of the principals of limited area application (40 CFR 171.4).
Any person wishing to apply pesticides to waters of the state must obtain an aquatic pesticide applicator license from WSDA or operate under the supervision of an aquatic licensed pesticide applicator. Information on Washington licensing requirements and testing.
Federal Clean Water Act (1972)
The Federal Clean Water Act (FCWA, 1972), and later modifications (1977, 1981, and 1987), established water quality goals for the navigable (surface) waters of the United States. One of the mechanisms for achieving the goals of the Clean Water Act is the National Pollutant Discharge Elimination System of permits (NPDES permits), which is administered by the Environmental Protection Agency (EPA). The EPA has delegated responsibility to administer the NPDES permit program to the State of Washington based on Chapter 90.48 RCW that defines Ecology's authority and obligations in administering the discharge permit program. Ecology does not have authority to issue NPDES permits to federal facilities or to “Indian Country” as defined in 18 USC Sec. 1151.
Ecology and EPA have agreed that in certain instances, Ecology permits for aquatic pesticide use will be issued for discharges on federal land (but not Indian Country). If the discharger is not a federal entity and a federal entity did not make the decision that will cause the aquatic pesticides to be discharged, the appropriate Ecology permit will be used to cover the discharge on federal lands.
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