April 7, 2009
Honorable Lisa Jackson, Administrator
Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Dear Administrator Jackson:
The National Association of State Departments of Agriculture (NASDA) is writing to express our concern about a recent federal appeals court ruling which vacates the Environmental Protection Agency’s (EPA) 2007 regulations exempting certain pesticide applications from Clean Water Act (CWA) permitting requirements.
NASDA represents the commissioners, secretaries, directors of the state departments of agriculture in the fifty states and four territories. Our members are partners and co-regulators with EPA as the lead state agencies responsible for administering, implementing and enforcing the laws regulating the production, labeling, distribution, sale, use and disposal of pesticides.
NASDA and the state departments of agriculture strongly urge you to file a request to the 6th Circuit Court for a rehearing and, if that request is denied, appeal the case to the United States Supreme Court.
The Court’s ruling basically decided that any pesticide application near, over, or in water could constitute “pollutant discharges” under the Clean Water Act. The Court noted there are situations where excess pesticide or residue would meet the definition of “chemical waste” under the Clean Water Act: (1) where chemical pesticides are applied to land or air, and excess pesticides are deposited into waters of the United States, and (2) where pesticide residue remains following direct application of pesticides to the jurisdictional waters. The state departments of agriculture firmly believe that both statements by the Court are in direct conflict with the agriculture exemptions in the Clean Water Act.
NASDA members are extremely concerned about the potential and serious impacts the court’s ruling could have on agricultural production across the country. By extending the Court’s decision to terrestrial applications, the Court has placed farmers in legal jeopardy under the Clean Water Act’s citizen-action provisions. Unless EPA appeals the decision, farmers will go into the next growing season under the threat of lawsuits. Furthermore, NASDA has significant concerns that EPA currently has no permitting system in place to deal with this situation. We question whether the agency has the resources and funding to handle the potentially large volume of permits that would be required. If the court’s ruling is not overturned, it would impose a series of unnecessary, redundant, costly and burdensome requirements on agricultural producers. In addition, court’s decision can be construed to apply to non-agricultural/non-pesticide applications and emissions, including spraying for mosquito control, vegetation management, and chemical deicing of roads and highways.
Again, due to the potentially significant ramifications of this court decision to U.S. agriculture, NASDA strongly urges you to file a petition for rehearing.
Sincerely yours,
Ron Sparks
NASDA President
Commissioner, Alabama Department of Agriculture & Industries