April 20, 2009

While the Environmental Protection Agency parses the language of a recent court ruling on pesticide applications, farm groups are hoping the court reconsiders a decision they say would prompt a sea of change in agriculture production.

The decision, by the US Court of Appeals 6th Circuit, nullifies an EPA ruling that allowed the chemical applications to fall only under federal pesticide regulations. Instead, the pesticides will now be classified as pollutants under the Clean Water Act.

The EPA last week decided not to seek a re-hearing in the case, despite the urging of US Secretary of Agriculture Tom Vilsack and farming groups. Those groups have filed their own request for a re-hearing.

The wording of the ruling, opponents say, went further than just nullifying the EPA rule. It will make farmers vulnerable to lawsuits and could lead to applications for each pesticide application, they say.

"It is a watershed event, and it is going to change the way that food and fibre is produced around the world," said Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation.

Parrish said the chances of the court re-hearing the case would have been "much, much better" had the EPA requested it.

An EPA official acknowledged the ruling was a "pretty dramatic change" but said the impact might not be as great as some producers fear.

"We're still in the process of trying to figure out the full extent of the impact, and are parsing the court's decision," said Mike Shapiro, the EPA's acting assistant administrator for water programmes.

He said the EPA's rough estimate is that 365,000 pesticide applicators could be affected.

That number, along with an estimate that there are 5.6 million pesticide applications annually, are being used as a "red herring" by farm groups, said Charlie Tebbutt, attorney with the Western Environmental Law Centre and lead attorney for environmental groups in the case. The ruling will apply to just a "small fraction" of those applications, he said.

The ruling is geared toward non-farm pesticide applicators, such as mosquito control districts, that apply pesticides directly into water, he said.

Farm groups say the ruling has broadened the definition of "point-source" pollutants. Many, if not most, farmers produce crops on lands that contain some wetlands or adjoin areas that arguably have a connection to navigable waters, and they could be subject to the permitting requirements, Parrish said.

Shapiro said even with the ruling, farmers would retain two key exemptions: for stormwater runoff and water from irrigated fields. Both would still be exempt from the permitting requirements, even if they still contained pesticide residues by the time they reached a waterway.

Farm groups say they will be dependent on how the EPA sets up the permitting program.

"We are still trying to determine if there are legal vulnerabilities," said Rob Snyder, director of public policy for the National Corn Growers Association. "Just because an agency official says [there is a stormwater exemption] doesn't mean we're totally in the clear.

Snyder said that while the issue over stormwater is considered up in the air, he is more concerned about "drift," or pesticide that travels through the air and ends up somewhere it is not intended.

"Even if a minute droplet ends up in stream bed through air to a water body, we think that under this ruling it creates a huge legal liability for the grower, if they don't have a [Clean Water Act] permit," Snyder said.

One possible response to the ruling, Snyder said, is to have every producer apply for permits, to ensure they are not vulnerable to lawsuits, and he questioned whether the EPA would be able to handle the avalanche of applications. Opponents say that simply by filing a "notice of intent" to sue, environmentalists could force farmers to halt pesticide applications.

The EPA has requested a two-year stay to give it time to digest the court ruling and create a permitting programme.

Shapiro said the agency could try to enact a "general permit" programme that would "minimize the circumstances" in which a producer would have to file for separate permits for separate pesticide applications. Another goal, Shapiro said, would be to allow for emergency applications.

Tebutt said it is only those farmers who are near water are going to have to be "a lot more careful."

"If a farmer needs to move back 50 feet, 100 feet, 300 feet from a waterway because they're directly discharging into a waterway, then that's what they do," Tebutt said. "The clean water act is intended to prevent pesticides and toxic chemicals from getting into our nation's water."