EPA facing lawsuits over pesticide rules

EUGENE, Ore. — The Environmental Protection Agency is facing an onslaught of lawsuits from both the pesticide industry and environmental activists, over a new rule on pesticide use in or near water.

Lawsuits have been filed in 11 of the nation's 13 circuit courts, including the 9th Circuit, which serves Oregon.

Environmentalists say the agency has knowingly violated a court decision in an Oregon case that would have meant fewer pesticides flowing into Oregon rivers.

Pesticide manufacturers counter that the new rule doesn't do enough to protect them from unnecessary and costly government regulation.

This dispute first surfaced in Oregon in 2001 when activists filed suit against an irrigation district because of dead fish in a nearby creek that had been poisoned by an herbicide put in the water to control weeds in the irrigation ditches.

Charlie Tebbutt of the Western Environmental Law Center, a nonprofit law firm, represented the environmentalists before the 9th U.S. Circuit Court of Appeals in that case, arguing that pesticides applied directly to water should be subject to Clean Water Act regulations.

Previously, commercial pesticide users — farmers, forest landowners and golf-course managers, for example — have needed only a license and a commitment to follow the instructions on the product label, regardless of whether the pesticide is applied on land, by aerial spraying or directly into water.

The Clean Water Act, though, has much stricter controls. The act requires that anyone discharging pollutants into the nation's waterways must have a permit to do so. And a permit costs $10,000 just to apply — and up to $20,000 over its five-year life.

The permit also takes a while to get, as long as six months; includes a public-comment period; and requires post-discharge monitoring to confirm that water-quality standards are being met.

The 9th Circuit Court found that even though the irrigation district followed the label directions of the pesticide, it was discharging a pollutant into a waterway and therefore needed a special permit.

The decision immediately upset the pesticide realm, from manufacturers to users.

Obtaining the Clean Water permits would be an expensive bureaucratic burden on organizations that already comply with Environmental Protection Agency (EPA) pesticide regulations, said Chris West, spokesman for the American Forest Resource Council.

After the 2001 court ruling, Oregon and Washington state began making the permits available to irrigation districts and other government agencies working to control gypsy moths and mosquitoes.

But not everyone complied with the decision. More lawsuits were filed, and the EPA began crafting a rule that would more clearly spell out their requirements for pesticide use. Published in the Federal Register in November and due to take effect this month, it ignores the 9th Circuit Court decision.

Instead, it says that as long as pesticides are used according to manufacturer instructions they may be applied directly to water, over water or near water by aerial spraying.

In Oregon, the state won't require the permits now, and officials have acknowledged that the state hadn't pushed people to get them after the court ruling.

But Aimee Code, of the Eugene-based Northwest Coalition for Alternatives to Pesticides, said Oregon's waters already contain pesticide cocktails and that additional regulation through the Clean Water Act would have helped limit them.

Understanding the degree to which the chemicals are in Oregon's water is difficult, researchers say, because testing for them is expensive, and their presence surges and declines with the weather.

Researchers don't have a good understanding of the effects of all the chemicals on aquatic life, said Chauncey Anderson, a hydrologist with the U.S. Geological Survey.

While testing isn't done consistently across all the waterways in the state, Anderson said he sees a smaller impact from forest landowners spraying herbicides and greater effects in urban areas where homeowners spray to control weeds and insects.