Ag Applicators Beware

The January ruling by the Sixth Circuit Court of Appeals regarding EPA’s National Pollutant Discharge Elimination System (NPDES) has sent the ag world into a fury due to potential adverse impacts on ag sprays. The ruling would change how agricultural pesticides are viewed under the Clean Water Act. It would be fair to say EPA was bombarded by a flood of letters on this ruling from ag groups from all over the country.

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The NPDES permitting program has long been used by EPA under the Clean Water Act (CWA) to regulate point source discharges of water contaminants. Congress exempted agricultural storm water runoff from nonpoint sources from the CWA’s permitting program, and EPA’s 2007 rule similarly exempted pesticide applications that were properly made. The court panel’s decision overturned EPA’s policy, ruling that pesticide applications made to, over, or near water bodies will require NPDES permits.

Bronson Speaks Out

“As Commissioner of the Florida Department of Agriculture and Consumer Services, I am very concerned about the impacts this action could have on U.S. agricultural production and Florida agriculture in particular,” stated Charles Bronson in a letter to EPA administrator Lisa Jackson. “In a state with a subtropical climate like Florida, where pesticide application is a necessity for our farmers to grow many of our crops, the time impacts of requiring an NPDES permit for every application will likely lead to a significant reduction in our agricultural production, particularly given the time it takes to obtain an NPDES permit. To say this decision could have far-reaching impacts on our country’s ability to produce our food supply is not, I believe, overstating its reach.”

No Justice

In April, the Justice Department refused to appeal the federal court’s decision, despite industry calls for such action. CropLife America’s president Jay Vroom says he was disappointed by the refusal to appeal, but was confident of a rehearing.

“I am disappointed at the Administration’s decision to not seek a rehearing — but I am equally confident that the filing of a petition for rehearing, which we at CropLife have supported, is very well constructed and makes a solid case on behalf of agriculture’s interests,” said Vroom. “There is no doubt that if the January ruling stands, it will be a serious and unnecessary impact on crop production and a wide range of other essential pesticide users. We intend to fully press our position to the Sixth Circuit and prevail.”

Even Secretary of Agriculture Tom Vilsack has written the EPA warning of the dire consequences of requiring growers and applicators to obtain NPDES permits. In the letter, he asked the EPA to request a reversal of the Sixth Circuit’s ruling. The EPA rejected the request, but did indicate that it would seek to extend the ag exemption for two years, despite the court’s ruling it is illegal.