Draft Pesticide Rule Could Cause Concern for Farmers

Last week the U.S. Environmental Protection Agency (EPA) proposed its long-awaited draft pesticide ruling stemming from an April 2009 court decision that found that pesticide discharges to U.S. waters were pollutants and therefore required a permit.

The EPA appeared to try and avoid requiring the majority of farmers from having to apply for a permit to apply pesticides. Specifically the EPA says that the additional 35,000 pesticide applications that would be impacted by the rule "does not cover terrestrial applications to control pests on agricultural crops or forest floors."

The agency's draft permit covers the use of pesticides for mosquito and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal control and forest canopy pest control.

Tyler Wegmeyer, director of Congressional relations at the American Farm Bureau Federation, says that although EPA did not intend to include the majority of farmers, a "considerable amount of farmers might be forced to get a permit for fear of getting sued by environmental groups."

Environmentalists could essentially be down the river or body of water trying to pin farmers to whatever pesticide ends up in the water. "The EPA has told us that if farmers have any fear of having any pesticide getting into water, to get a general permit to protect themselves," Wegmeyer says.

A general permit would be a less burdensome requirement for farmers, he adds, but environmental groups will push for individual permits each time a farmer wants to apply pesticides.

A statement from CropLife America noted that with any general permit, "the devil is in the details; specifically relating to triggering requirements and the overall scope of this new proposed permitting program."

Agricultural groups had exhausted all legal options to clarify the rule. Since the courts mandated a rule be put into place by April 2011, AFBF is concerned about the short timeline. AFBF has challenged EPA to go back to the court and ask for additional time.

"It is reassuring that EPA has been able to maintain its time table in developing the NPDES permit, however it does not provide a lot of time for the states to review and implement," CropLife America says.

Once published in the June 7 Federal Register, the public has 45 days to comment. Wegmeyer says a rule of this magnitude usually justifies for a longer comment period. EPA then needs to get the final permit out to the states by December. This gives states only four months to implement the rule to meet the court's deadline.

The federal EPA rule also only applies to five states, and then requires the remaining states to come up with their own permit.

"That's the big question mark," Wegmeyer says. "Some states could photocopy what EPA proposed. But some states could be more stringent and could affect farmers differently."

EPA will hold three public meetings, a public hearing and a webcast on the draft general permit to present the proposed requirements of the permit, the basis for those requirements and to answer questions. EPA will accept written comments on the draft permit for 45 days after publication in the Federal Register.

More information on the draft permit: www.epa.gov/npdes.