JOE’S GOT ISSUES Joseph M. Conlon Technical Advisor, AMCA

The Clean Water Act Water Pollution Control Act – 1972 Water Pollution Control Act – 1972 Regulates discharge of pollutants into waters of U.S. Regulates discharge of pollutants into waters of U.S. EPA has authority to regulate EPA has authority to regulate Section 301(a) prohibits pollutant discharge unless permit issued IAW section 402 Section 301(a) prohibits pollutant discharge unless permit issued IAW section 402

Clean Water Act - Definitions Pollution: man-induced alteration of chemical, physical, bio integrity of water Pollution: man-induced alteration of chemical, physical, bio integrity of water Pollutant: chemical waste, biological materials and agricultural waste Pollutant: chemical waste, biological materials and agricultural waste

Clean Water Act - Definitions Point Source: discernible, confined and discrete conveyance such as pipe, ditch rolling stock, etc. from which a pollutant may be discharged Point Source: discernible, confined and discrete conveyance such as pipe, ditch rolling stock, etc. from which a pollutant may be discharged Does not include agricultural stormwater discharges or return flows from irrigation Does not include agricultural stormwater discharges or return flows from irrigation

Clean Water Act – Civil Actions Any citizen - against any person, including government entities alleged to be violating effluent standards Any citizen - against any person, including government entities alleged to be violating effluent standards Against EPA Administrator if alleged failure to perform duties under CWA Against EPA Administrator if alleged failure to perform duties under CWA

Headwaters vs. Talent Irrigation March 12, th Circuit decision for plaintiffs March 12, th Circuit decision for plaintiffs Magnacide H – acrolein Magnacide H – acrolein Residual acrolein considered chemical waste Residual acrolein considered chemical waste EPA - enforcement low priority EPA - enforcement low priority

Headwaters vs.Talent Irrigation FIFRA – nationally uniform labeling system, but no permitting system for individual application FIFRA – nationally uniform labeling system, but no permitting system for individual application EPA approves pesticides with knowledge that pesticides containing pollutants may be discharged from point sources only pursuant to obtaining NPDES permit EPA approves pesticides with knowledge that pesticides containing pollutants may be discharged from point sources only pursuant to obtaining NPDES permit

Altman vs. Town of Amherst Sept 26, 2002 – 2 nd Circuit decision Sept 26, 2002 – 2 nd Circuit decision Application of adulticides (malathion, resmethrin, permethrin) to wetlands w/o NPDES permit Application of adulticides (malathion, resmethrin, permethrin) to wetlands w/o NPDES permit

Is a Pesticide a Chemical Waste? Is it a chemical pesticide? Is it a chemical pesticide? Is it an aquatic pesticide? Is it an aquatic pesticide? Is it applied for public benefit? Is it applied for public benefit? Is it applied IAW FIFRA? Is it applied IAW FIFRA?

Rulemaking Petition Requested change in definition of “pollutant” Requested change in definition of “pollutant” Requested change in definition of “discharge of pollutant” Requested change in definition of “discharge of pollutant” Specifically exempt larvicides/adulticides Specifically exempt larvicides/adulticides

EPA Interim Guidance July 11, 2003 EPA issues guidance memo July 11, 2003 EPA issues guidance memo Pesticides applied IAW label not pollutants Pesticides applied IAW label not pollutants Addresses jurisdictional issues Addresses jurisdictional issues Talent was FIFRA violation Talent was FIFRA violation Comments provided 14 October Comments provided 14 October

Further Litigation LWD vs. Forsgren No Spray Coalition vs. NYC Gem County - St. John’s Organic farm

Pesticide Program Dialogue Committee October 29-30, 2003 October 29-30, 2003 Bill Meredith – AMCA Representative Bill Meredith – AMCA Representative PPDC: 42 stakeholders PPDC: 42 stakeholders ESA Issues ESA Issues Mosquito Product Labeling Issues Mosquito Product Labeling Issues

Citizens Against Toxic Substances v. EPA: salmon and forestry plants in N. California. EPA now working on concurrences on determinations with NMFS and FWS Center for Biological Diversity v. EPA: Red legged frog in CA. Two of four claims denied, further action pending OR Nat. Res. Council v. Bureau of Rec.: salmon and suckers harmed by fungicides and aquatics in Klamath Basin irrigation canals and adjacent crops OR Nat. Res. Council v. EPA & OR DEQ: claims fish species affected by aquatic product - failure to consult Washington Toxics Coalition v. EPA: salmonid species, interim buffers for 40+ ais ag/professional use only - 6 ais urban Cascade Resources Advocacy Group (Ctr. For Biological Diversity) v. EPA: failure to consult PLUS alleging violations of the Migratory Treaty Act Defenders of Wildlife v. EPA: fenthion/mosquitoes – alleges violation of Migratory Bird Act - threatening certain protected migratory and endangered birds 11 Enviros v. USDA: failure to consult in issuing field test permits for biopharming NRDC v. EPA: suit alleging EPA is not doing enough to protect endangered species in Chesapeake Bay and major Midwestern and Southern rivers from atrazine Center for Biological Diversity and Save Our Springs Alliance v. EPA: Atrazine/Diazinon/Carbaryl – alleges failure to note risks to Barton Springs Salamander ESA Lawsuits

PPDC – ESA Issues Need enhanced communication w/USFWS Need enhanced communication w/USFWS Ecological Risk Assessments Ecological Risk Assessments – Screening level for broad taxonomic groups – Risk Quotients (RQ) – If RQ high, then species-specific County Level Bulletins County Level Bulletins – Specific areas – Last resort

Risk Assessments – AMCA Concerns Who conducts risk assessments (RA)? Who conducts risk assessments (RA)? Who funds RA? Who funds RA? Will EPA, USFWS, NMFS be funded to perform roles? Will EPA, USFWS, NMFS be funded to perform roles? Can RA be challenged? Can RA be challenged? How are priorities determined? How are priorities determined? Which pesticides reviewed first? Which pesticides reviewed first?

ESA Rulemaking Proposal Habitat destruction and invasive species worst threats Habitat destruction and invasive species worst threats USFWS & NMFS propose regulations for improved consultation USFWS & NMFS propose regulations for improved consultation – agree that EPA RA’s adequately protect ES – do not require separate reviews by agencies – To be periodically reviewed by agencies – reduces red tape and redundancy National Wilderness Institute supports proposal National Wilderness Institute supports proposal – ESA lawsuits used to limit access to pesticides – not used to protect species

Mosquitocide Labeling Issues Restricted Use designation Restricted Use designation Separate Directions for Mosquito Control Separate Directions for Mosquito Control “Use over water” “Use over water” Hazard Statements Hazard Statements Lead Agency Consult Lead Agency Consult Calibration Requirements on Label Calibration Requirements on Label “Repeat as Needed” “Repeat as Needed”

Environmentalist Issues All adulticides need RU label All adulticides need RU label Spraying doesn’t stop WNV Spraying doesn’t stop WNV No level of exposure is safe No level of exposure is safe Spray only when problem quantified Spray only when problem quantified Source reduction & Pub Ed are the answers Source reduction & Pub Ed are the answers Don’t allow registrants to specify application intervals Don’t allow registrants to specify application intervals

The Future Challenges Challenges – Washington NPDES Permit – Lyndhurst et al. – Gem County, venue