Environment News Service December 15, 2006 EPA Sued for Allowing Pesticide Spraying Over Water Six environmental groups have filed a lawsuit against the U.S. Environmental Protection Agency for a decision that the spraying of pesticides into the nation's waters should no longer be regulated by the Clean Water Act. The groups filed suit December 12 in the U.S. Court of Appeals for the Ninth Circuit to overturn the new rule, which re-defines the word "pollutant" to exclude pesticides. Of particular concern to the environmental groups are aerial spraying and other direct applications of pesticides to creeks, rivers and wetlands. Pesticide contamination of waterways from such sources would be allowed without agency oversight under the new rule. "Congress was quite clear in directing EPA to regulate pesticide pollution," said Deb Self, executive director of Baykeeper, one of the petitioning groups. "Rather than enforcing laws as Congress wrote them, once again the Bush administration has simply interpreted the law to suit its purposes." In late November, the EPA issued a final rule that a Clean Water Act NPDES permit is not required before pesticides are applied when pesticides are applied directly to water to control pests, including mosquito larvae, aquatic weeds and other pests in the water. The agency also decided that no permit is required when "pesticides are applied to control pests that are present over or near water where a portion of the pesticide will unavoidably be deposited to the water in order to target the pests effectively, for example, when insecticides are aerially applied to a forest canopy where waters of the United States may be present below the canopy or when pesticides are applied over, including near, water for control of adult mosquitos or other pests." The petitioning groups say that EPA's rule "completely contradicts prior agency positions and represents a departure from their duties under the Clean Water Act." Pesticides are known to cause cancer, birth defects, reproductive damage, liver and kidney damage and central nervous system disorders. "For EPA to say that pesticides are not pollutants is like saying poison is good for you," said Charlie Tebbutt of the Western Environmental Law center, a public interest environmental law firm. "EPA is ignoring the requirements of the Clean Water Act and cannot go unchallenged, said Tebbutt, who is lead counsel for the petitioners. "This clean water rule strengthens and streamlines efforts of public health officials and communities to control pests and invasive species while maintaining important environmental safeguards," said EPA Assistant Administrator for Water Benjamin Grumbles said when he announced the rule in November. In an interpretive memo accompanying the rule, Grumbles says the EPA "continues to adhere to a long-standing interpretation of its regulations that silvicultural activities such as pest and fire control are nonpoint source activities that do not require NPDES permits." Point sources discharging pollutants ordinarily must obtain NPDES permits, while non-point sources do not have to obtain them. Joining Baykeeper in its challenge are Californians for Alternatives to Toxics, California Sportfishing Protection Alliance, National Center for Conservation Science and Policy, Oregon Wild, and Saint John's Organic Farm. The groups, which represent a farm in Idaho and a cross section of environmental groups from California and Oregon, are asking the court to find that EPA's rule violates the Clean Water Act.
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