Defying court, EPA to allow use of herbicides without permits

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http://www.detnews.com/2002/politics/0203/30/politics-453024.htm

Defying court, EPA to allow use of herbicides without permits

By Heilprin / Associated Press

WASHINGTON -- The Environmental Protection Agency said Friday it will

allow farmers to use herbicides in irrigation canals without permits despite

a federal appeals court ruling that permits are necessary.

EPA said applying aquatic herbicides to maintain an irrigation system, if

done according to the product's EPA-approved labeling, should be considered

exempt from a requirement for a permit under the federal Clean Water Act.

The agency expects its policy, based on language by Congress in the 1977

Clean Water Act amendments, to be challenged further in court.

" The court didn't have the opportunity to consider the exemption, " said

Joe Martyak, a spokesman for the EPA. " At some point in time this will be

resolved in the court system as folks look at the scope of the exemption. "

In March 2001, the 9th U.S. Circuit Court of Appeals in San Francisco

ruled that the Talent Irrigation District in southern Oregon must get a

Clean Water Act permit if it is to use acrolein -- a highly toxic compound

harmful to fish and wildlife -- to control weeds in its irrigation canals.

Two environmental groups had sued the district after it accidentally

spilled acrolein into a local creek in 1996 and killed thousands of juvenile

steelhead trout. The federal appeals court overturned a lower court ruling

that the district did not need a permit to discharge the chemical.

The EPA said it issued its new policy to clarify its regulatory and

enforcement authority under the Federal Insecticide, Fungicide and

Rodenticide Act.

The agency said its intent was " to resolve a degree of confusion " from

the lawsuit and to prevent the misuse of herbicides in agricultural

irrigation systems.

To justify the new policy, EPA cited language by Congress that said the

EPA administrator " shall not require a (Clean Water Act) permit ... for

discharges composed entirely of return flows from irrigated agriculture. "

Court documents showed that water spilled at least once through an

accidentally opened gate into Bear Creek at Ashland, Ore.

However, Jay Feldman, executive director of the National Coalition

Against the Misuse of Pesticides, said any such chemicals applied to water

should be evaluated through permits issued under the Clean Water Act.

" The permitting process offers another level of protection that is

warranted given the broad failure of those who use pesticides to follow

labels, " he said.

On the Net:

EPA Pesticides: http://www.epa.gov/pesticides