Court Overturns EPA Aquatic Pesticide Exemption

In 2001, the US Ninth Circuit Court of Appeals rules in the Talent Irrigation District case that the use of aquatic herbicides or larvacides to combat invasive aquatic weeds and disease vectors like West Nile required a National Pollution Discharge Elimination System (NPDES) permit. While the lower court determined there was no merit to this case, the Appeals Court overturned them and this became a requirement in the Western States that are part of this Circuit.

This ruling caused severe hardship within the lake management community. NPDES permits are designed to regulate the discharge of pollution from treatment plants or industrial sites. They are not designed to regulate the use of EPA registered materials designed and allowed for the control of aquatic pests. Invasive aquatic weed programs targeting Eurasian Milfoil and Water Hyacinth were halted while these permits were developed causing huge economic loss as these plants filled back into previously cleared sites. The lack of a permit resulted directly in drowning deaths in these states as beaches could not be cleared and victims could not be located in the dense growth. Disease vectors skyrocketed as Water Hyacinth plants could not be controlled and that provides ideal cover and breading habitat.

EPA responded by developing a Final Rule exempting these products from regulation under the Clean Water Act as long as applications were made following the laws and regulations contained in FIFRA, the EPA regulations that protect the environment from harmful impacts of pesticides.

This past week, the US Sixth Circuit Court vacated this rule. It is not yet known how this will impact necessary operations. In Washington and California, there are NPDES permits avaiable for use. Many other states may have to develop these permits and that might impact necessary treatments this coming summer.

More information is available on this subject at these links. The first is This link includes discussion and you can download a copy of the actual decision. http://taberlaw.wordpress.com/2009/01/08/sixth-circuit-overturns-epa-rule-exempting-pesticides-from-npdes-permitting/

The second link is from Croplife America and this provides some perspective as well. www.croplifeamerica.org

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