Appeals Court Extends Clean-Water Controls to Pesticide Spraying
A federal appeals court ruled in early November 2002 that the aerial spraying of pesticides into U.S. waters requires a Clean Water Act permit, potentially extending controversial permit requirements on the use of herbicides and other chemicals in irrigation channels and mosquito-control efforts.
The ruling may complicate efforts by the Bush administration and congressional Republicans to ensure that federal pesticide law, not the Clean Water Act, is the governing statute in cases for which pesticides and herbicides are applied to water. The ruling also may underscore fears raised by mosquito sprayers and other users of aquatic chemicals that the U.S. Environmental Protection Agency's (EPA) plans to limit Clean Water Act permit requirements may not ward off citizen suits contesting the pesticide use.
"It's surprising the extent to which EPA is going to allow people to discharge toxics into water bodies," one source familiar with the ruling said. The ideal situation is to have EPA permit the application of pesticides and herbicides to waters of the United States, the source says. The source says that if EPA does not move forward to permit these activities, citizen groups will likely continue suing the agency to require permits.
Another source familiar with the ruling says it may mean that other aerial-spraying activities, such as "cloud seeding" with silver nitrate to induce rainfall, would require permits. However, the source says emergency applications such as water or chemical spraying for fire control would likely not be covered.
The U.S. Court of Appeals for the 9th Circuit ruled in League of Wildlife Defenders, et al., v. Forsgren, et al., November 4 that the U.S. Forest Service (USFS) was unlawfully spraying insecticide into national forests in Washington and Oregon without the necessary clean-water permits. The ruling is available on InsideEPA.com.
USFS officials conceded they were spraying pesticides directly into rivers and other water bodies. But they argued, based on EPA regulation, that the discharge was a silvicultural nonpoint source and therefore outside the jurisdiction of the Clean Water Act.
However, the court rejected USFS's arguments. "The insecticides ... meet the definition of 'pollutant' under the Clean Water Act, and Forest Service aircraft spray ... directly into rivers, which are waters covered by the Clean Water Act. Further, an airplane fitted with tanks and mechanical spraying apparatus is a 'discrete conveyance,' the court said, noting that all the elements of the definition of point-source pollution are met. The Clean Water Act defines a point source as "any discernable, confined and discrete conveyance, including but not limited to ... floating craft from which pollutants are or may be discharged."
In its arguments, the Department of Justice, acting on behalf of USFS, relied partly on an EPA regulation that defines silvicultural point sources, and specifically omits "nonpoint source silvicultural activities such as ... pest and fire control." But the court ruled that the USFS "cannot contravene the will of Congress through its reading of administrative regulations." Also, the court's ruling says, "EPA may not exempt NPDES permit requirements that clearly meet the statutory definition of a point source by 'defining' it as a nonpoint source."
One environmentalist says the court's decision is "a very important ruling" but adds that matters are somewhat complicated by USFS's admission that they sprayed pesticides directly over, and into, water bodies. The source says a "likely possibility" will be litigation regarding aerial sprayers who do not admit to spraying directly into water bodies. The source says the issue of "drift," which occurs when the wind blows pesticides or other pollutants into waters near an application site, has not been resolved.
Justice officials are reviewing the ruling and have not yet determined whether to appeal the decision to the entire 9th Circuit or the Supreme Court. Environmentalists say the decision likely will spur similar cases in other parts of the nation.
Aerial application of pesticides is already receiving attention in other federal courts, and on Capitol Hill. Federal appeals courts have already ruled that mosquito spraying in wetlands in New York and herbicide use in irrigation districts in Oregon both require Clean Water Act permits.
But EPA deputy water chief Ben Grumbles told a House panel last month that EPA does not believe Clean Water Act permits are needed in some cases for water application of pesticides to fight mosquito-borne illnesses, including the West Nile virus. Instead, EPA will issue rules or guidance to provide local officials with regulatory certainty about what is required before spraying, Grumbles said.
At the same hearing, the House sub-committee suggested such rulings create "significant uncertainty" for public health officials and stormwater system officials. The panel said, "Communities, industries, and others do not know if a [Clean Water Act] permit is required for using mosquito-control measures involving the use of pesticides."
In May 2001, EPA issued a memo to regional administrators declaring that forcing irrigators to obtain permits for the use of herbicides would be a "low enforcement priority," in a move that gave water users temporary relief from federal enforcement but still left them vulnerable to citizen enforcement suits.
However, in an effort to protect irrigation districts from citizen suits, EPA issued a new guidance in March 2002 to regional administrators, arguing that the application of herbicides to irrigation canals does not necessarily fall under the Clean Water Act's effluent-discharge permit program because 1977 amendments to the law specifically exempted "irrigation return flow" from the law's jurisdiction. The memo cites a congressional definition of return flow as including "conveyances carrying the surface irrigation return as a result of the controlled application of water by any person to land used primarily for crops."
But this may still leave irrigation districts and other users of aquatic pesticides vulnerable to enforcement cases or environmentalists filing citizen suits because the guidance does not apply to point-source discharges into irrigation canals that are considered "water[s] of the United States." This means that if an irrigation canal is a "water of the United States," then the district would likely still have to seek a permit. In the Oregon case, Headwaters, Inc., v. Talent Irrigation District, for example, the court ruled that the irrigation canal was a water of the United States, so the district's application of herbicides would not be affected by the new guidance.
(Modified by Phil Nixon; source: Matt Shipman, InsideEPA.com)
Pesticide Updates - Fruit/Vegetable
1-MCP (methylcyclopropene)–AgroFresh–EPA established an exemption from residue tolerance requirements on fruits and vegetables when used as a plant-growth regulator to inhibit the effects of ethylene. (FR, vol. 67, 7-26-02)
ACRAMITE (bifenazate)–Uniroyal/Compton–Being developed for use on stone fruits, fruiting vegetables, nut crops, cucurbits, mint, peas, beans, and potatoes. [insecticide]
ACTIGARD (acebenzolar)–Syngenta–Being developed for use on cucurbits and turnips. [fungicide]
ADMIRE (imidacloprid)–Bayer–To cover a specific exemption, EPA reestablished time-limited residue tolerances on turnips (roots and tops) and garden beets. They now expire 6-30-04. (FR, vol. 67, 8-21-02) [insecticide]
APOLLO (clofentezine)–Makhteshim Agan–Being developed for use on grapes and persimmons. [insecticide]
CABRIO (pyraclostrobin)–BASF–Being developed for use on onions, garlic, cucurbits, fruiting vegetables, carrots, radishes, and strawberries to control water molds, fruit rots, downy and powdery mildew, rusts, leaf spots, and blights.
COMMAND (clomazone)–FMC–Being developed for use on mint, cole crops, peas, and lentils. [herbicide]
DITERA (Myrothecium verrucaria)–Valent BioSciences–Added to their label for this nematicide the use on grapes.
ELEVATE (fenhexamid)–Arvesta–Will add to their label the foliar application on bushberries. This product is also being developed for use on fruiting vegetables, citrus, and lettuce and postharvest on stone and pome fruit. [fungicide]
ENDURA (nicobifen)–BASF–A new fungicide being developed to control gray mold, white mold, rots, powdery mildew, and leaf spots on vegetables.
ENVOKE (trifloxysulfuron-sodium)–Syngenta–Being developed to control broadleaf weeds in tomatoes.
ENZONE (sodium tetrathiocarbonate)–Entek Corp–Being evaluated for control of nematodes in strawberries and tomatoes.
ESTEEM (pyriproxyfen)–Valent–Added to their label the use on nut crops. [insecticide]
FRUITONE-N (NAA, sodium salt)–Amvac–Added to this growth regulator's label the chemical thinning of pears.
KANEMITE (acequinocyl)–Arvesta–Being developed for use on pome fruits, citrus, nut crops, and strawberries. [insecticide]
KNACK (pyriproxyfen)–Valent–Added to their label the use on stone fruits. [insecticide]
OMEGA (fluazinam)–Syngenta–Being developed for use on apples. [fungicide]
PLATINUM RIDOMIL GOLD (mefenoxam/thiamethoxam)–Syngenta–An insecticide/fungicide combination being developed for use on potatoes.
PREVICUR (propamicarb)–Bayer–Being developed for use on cucurbits and lettuce. [fungicide]
PROMALIN (benzyladerine/GA)–Valent–A growth regulator that increases fruit size; being developed for apples.
PYLONGA (chlorfenapyr)–BASF–Being developed for use on greenhouse-grown vegetable crops. [insecticide]
RAMMAN (cyazofamid)–BASF/ISK–Being developed for use on potatoes, tomatoes, cucurbits, peppers. [fungicide]
REASON (fenamidone)–Bayer–Being developed for use on potatoes, tomatoes, onions, sunflower, cereals, cucurbits, and lettuce. [fungicide]
RETAIN (AVG)–Valent–A growth regulator that prevents ethylene biosynthesis is being developed as a postharvest treatment for stone fruits.
SCALA (pyrimethanil)–Bayer–Being developed for use on stone and pome fruits, nut crops, strawberries, grapes, potatoes, and tomatoes. [fungicide]
SMART FRESH (l-MCP)–Agro Fresh/Rohm & Haas–Received EPA registration on apples to prevent formation of ethylene after harvest; pursuing registration on other fruits and vegetables.
TRIGARD (cyromazine)–Syngenta–Being developed for use on beans and cole crops. [insecticide]
(Michelle Wiesbrook, unless otherwise noted, adapted from Agricultural Chemical News, September and October 2002.)
ACCENT (nicosulfuron)–DuPont–Being developed for use on cranberries and grass seed to control broadleafweeds.
ACROBAT (dimethomorph)–BASF–Being developed for use on bulb vegetables, lettuce, cole crops, cucurbits, cereals, peppers, and beans. [fungicide]
ACTARA/CENTRlC (thiamethoxam)–Syngenta–Being developed for use on citrus, cole crops, leafy vegetables, sunflower, peanuts, pecans, cereals, hops, artichokes, hops, root crops, mint, cane-berries, stone fruits, and other crops. [insecticide]
ADMIRE/PROVADO (imidacloprid)–Bayer–Being developed for use on stone fruits, blueberries, artichokes, strawberries, beans, carrots, peas, avocados, bananas, caneberries, coffee, tropical fruits, and other crops. [insecticide]
AGRI-MEK (abamectin)–Syngenta–Being developed for use on mint, pasture grasses, herbs, bulb and leafy vegetables, avocados, cole crops, eggplant, papaya, caneberries, nut crops, stone fruit, beans, pineapples, and other crops. [insecticide]
APPLAUD (buprofezin)–Nichimo America–Being developed for use on stone and pome fruits, beans, avocados, and other crops. [insecticide]
ARIUS/QUINTEC (quinoxyfen)–Dow AgroSciences–Being developed for use on peppers, grapes, hops, stone fruit, lettuce, and strawberries. [fungicide]
ASSAIL (acetamiprid)–Bayer–Being developed for use on potatoes, tobacco, and greenhouse tomatoes. [insecticide]
AVAUNT/STEWARD (indoxacarb)–DuPont–Being developed for use on cole crops, grapes, cranberries, sugarbeets, alfalfa, cucurbits, mint, peanuts, potatoes, and soybeans. [insecticide]
AXIOM (flufenpyr-ethyl)–Bayer–Being developed for use on potatoes and wheat. [herbicide]
BALANCE (isoxaflutole)–Bayer–Being developed for use on sweet corn and cereals. [herbicide]
BAYTHROID (cyfluthrin)–Bayer–Being developed for use on cole crops, soybeans, corn, cereals, peas, beans, grapes, lettuce, and other crops. [insecticide]
BIO ACT (Paecilomyces lilacinus)–Gustafson–A bionematicide being evaluated for the control of nematodes in numerous crops.
BIRD SHIELD (methyl anthranilate)–Bird Shield Corp–EPA granted exemption from residue-tolerance requirements on all agricultural commodities for this bird repellent. (FR, vol. 67, 8-7-02)
CALYPSO (thiacloprid)–Bayer–Being developed for use on cotton, pome fruits, blueberries, and stone fruits. [insecticide]
CAPTURE (bifenthrin)–FMC–Being developed for use on citrus, celery, olives, tomatoes, potatoes, bananas, nut crops, cole crops, beans, peas, lentils, grapes, and other crops. [insecticide]
COMPLY (fenoxycarb)–Syngenta–Being developed for use on pome fruits, nut crops, pastures, olives. [insecticide]
CONFIRM (tebufenoxide)–DowAgro-Sciences–Being developed for use on grapes, soybeans, peanuts, sugarbeets, legume vegetables, tropical fruits, grapes, strawberries, other crops. [insecticide]
DANITOL (fenpropathrin)–Valent–Being developed for use on soybeans, peppers, eggplant, and peas. [insecticide]
DIMILIN (diflubenzuron)–Uniroyal/Compton–Being developed for use on grasses, peppers, pistachios, stone fruits, nut crops, cereals, peanuts. [insecticide]
DYLOX (trichlorfon)–Bayer–The company plans to cancel its registration for two uses in residential areas: home perimeter and ant mound treatment. On golf courses, it will be limited to three applications per year, with a 7-day re-treatment interval. On ornamentals, the use of a foliar spray will be prohibited.
DUAL MAGNUM (s-metolachlor)–Syngenta–Being developed for use on root vegetables, stem and head brassica crops, tomatoes, grass seed, sunflower, spinach, rhubarb, Swiss chard, and asparagus. [herbicide]
ECOPART (pyraflufen-ethyl)–Arysta Life Science America–Being developed for use on cereals, potatoes, and soybeans. [herbicide]
ENFIELD (trifloxysulfuron)–Syngenta–Being developed for use in citrus, stone fruits, tomatoes, cotton, and sugarcane. [herbicide]
FACET (quinclorac)–BASF–Being developed for use on barley, canola, pastures and cranberries. [herbicide]
FAMOXATE (famoxadone)–DuPont–Being developed for use on potatoes, tomatoes, bulb vegetables, grapes, cucurbits, and hops. [fungicide]
FLINT (trifloxystrobin)–Bayer–Being developed for use on vegetable crops and barley. [fungicide]
FLONICAMID–FMC & ISK–Being developed for use on cotton, cucurbits, fruiting and leafy vegetables, okra, pome and stone fruits, potatoes. [insecticide]
FOLICUR (tebuconazole)–Bayer–Being developed for use on cucurbits, turnips, hops, nut crops, cereals, pistachios, sugarbeets, sunflower, cotton, beans, coffee, onion, and other crops. [fungicide]
FUJIMITE (fenpyroximite)–Nichimo America–Being developed for use on cotton, pome fruits, grapes, citrus, hops, nut crops, and mint. [insecticide]
FULFILL (pymetrozine)–Syngenta–Added to their label the use on cotton, hops, pecans, cole crops, and leafy vegetables. [insecticide]
FURY (zeta-cypermethrin)–FMC–Being developed for use on root and tuber crops, cucurbits, peanuts, barley, and turnips. [insecticide]
GOAL (oxyfluorfen)–DowAgroSciences–Added to their label the use by chemi-gation and the use on garbanzo beans, garlic, and noncrop sites. [herbicide]
GRAVEL (zoxamide)–DowAgroSciences–Being developed for use on mustard greens, spinach, turnips, collards, kale, and sunflower. [fungicide]
HEADLINE/CABRIO (pyraclostrobin)–BASF–Being developed for use on corn, pome fruits, hops, caneberries, grapes, potatoes, cucurbits, fruiting vegetables, cole crops, lettuce, cereals, citrus, stone fruits, and other crops. [fungicide]
HONOR/BAS-510 (nicobifen)–BASF–Being developed for use on canola, peanuts, pome fruits, cucurbits, cole crops, sunflower, peas, beans, potatoes, fruiting vegetables, lettuce, nut crops, grapes, onions, stone fruits, strawberries, and other crops. [fungicide]
IMPULSE (spiroxamine)–Bayer–Being developed for use on grapes and hops. [fungicide]
INDAR (fenbuconazole)–DowAgro-Sciences–Being developed for use on grapefruit, blueberries, cranberries, and peppers. [fungicide]
INTREPID/RUNNER (methoxyfenoxide)–Dow AgroSciences–Being developed for use on artichokes, cole crops, corn, fruiting and leafy vegetables, tropical and stone fruits, nut crops, legume vegetables, cucurbits, mint, soybeans, okra, and other crops. [insecticide]
KARATE (lambda-cyhalothrin)–Syngenta–Being developed for use on nut crops, potatoes, sweet potatoes, legume vegetables, alfalfa, canola, flax, cereals, sugarcane, stone fruits, pome fruits, and nut crops. [insecticide]
KNACK/ESTEEM (pyriproxyfen)–Valent–Being developed for use on stone fruits, cucurbits, cole crops, legume vegetables, tropical fruits, grapes, strawberries, and other crops. [insecticide]
MAVRIKAQUA FLOW (tuafluvalinate)–Wellmark Int'I–Added to their label the control of fire ants, mosquitoes, and glassy-winged sharpshooter.
MAXIM (fludioxonil)–Syngenta–Being developed for postharvest use on sweet potatoes, asparagus, stone and pome fruits, kiwi fruit, pomegranites, and citrus. Also to be used by drip-irrigation on cucurbits. [fungicide]
MESA (milbemectin)–Gowan–Being developed for use on pome fruits, citrus, avocados, hops, strawberries, cotton, stone fruits. and other crops.
NEMATHORIN (fosthiazate)–Syngenta–Being developed to control nematodes in potatoes, tomatoes, and peanuts.
OUTLOOK (dimethenamid-p)–BASF–Being developed for use on horseradish, sweet potatoes, sugarbeets, potatoes, grass seed, onions, turnips, beets, squash, and radishes. [herbicide]
PROCLAIM (emamectin-benzoate)–Syngenta–Being developed for use on cucurbits, fruiting vegetables, cole crops, and cotton. [insecticide]
PYRAMITE (pyridaben)–BASF–Being developed for use on stone fruits, strawberries, papaya, hops. [insecticide]
PYTECH (gamma-cyhalothrin)–Dow-AgroSciences–Being developed for use on cotton, soybeans, alfalfa, corn, and vegetables. [insecticide]
QUINTEC (quinoxyfen)–DowAgro-Sciences–Being developed to control powdery mildew on grapes and hops.
RALLY/NOVA (myclobutanil)–Dow-AgroSciences–Being developed for use on hops, peppers, sugarbeets, artichokes, eggplant, lettuce, and papaya. [fungicide]
RAPTOR (imazamox)–BASF–Being developed for use on grass seed, clover, sun-flower, clover, chicory, rice. [herbicide]
REGENT (fipronil)–Bayer–Being developed as a foliar treatment for use on cotton, potatoes, onions, sweet potatoes, and corn. [insecticide]
REBIN/INSPIRE (butafenacid)–Syngenta–Being developed as a cotton defoliant and to control weeds in grapes, pome fruit, and tree nuts. [herbicide]
RIMON (novaluron)–Makhteshim-Agan–Being developed for use on cotton and pome fruit. [insecticide]
SECURE (etoxazole)–Valent–Being developed for use on cotton, strawberries, pome fruit, nut crops, hops, and grapes. [insecticide]
SELECT (clethodim)–Valent–Being developed for use on beets, herbs, endive, sesame, lettuce, caneberries, asparagus, mint, spinach, legume vegetables, hops, and leafy brassica vegetables. [herbicide]
SONATA (Bacillus primilus strain 2808)–Agra Quest–A biofungicide being developed to control botrytis, mildews, and rust on cole crops; bulb, fruiting, and leafy vegetables; cereals; cucurbits; grapes; hops; peanuts; pome and stone fruits; strawberries; other crops.
SOVAN/CYGNUS (kresoxim-methyl)–BASF–Being developed for use on cucurbits, cereals, sugarbeets, and potatoes. [fungicide]
STARANE F (fluroxypyr)–DowAgro- Sciences/UAP–Being developed for use on onions, sorghum, pome fruit, and grass seed. [herbicide]
STARKE (dinotofuran)–Valent–Being developed for use on grapes, cotton, potatoes, and leafy vegetables. [insecticide]
STINGER (clopyralid)–DowAgro-Sciences–Being developed for use on strawberries, cranberries, brassica crops, spinach, pome fruit, turnips, Swiss chard, canola, beets, stone fruits, blueberries, hops, and flax. [herbicide]
SURROUND (kaolin)–Engelhart Corp–Added to their label the use on tropical fruits, leafy and brassica vegetables, cereal grains, and ornamentals. [insecticide]
TILT/ORBIT (propiconazole)–Syngenta–Being developed for use on soybeans, beans, carrots, onions, tree nuts, blueberries, caneberries, sorghum, and mint. [fungicide]
VALOR (flumoxazin)–Valent–Being developed for use on cotton, sugarcane, grapes, stone fruits, dry beans, strawberries, potatoes, onions, mint. [herbicide]
VISOR (thiazopyr)–DuPont–Being developed for use on lemons, grapes, stone fruit, pome fruit, nut crops, altalfa, cranberries, and olives. [herbicide]
VORTEX (ipconazole)–Uniroyal/Compton–Being developed for use on root, tuber, and leafy vegetables; cole crops; cucurbits; cereals; peanuts; cotton; canola; and other crops. [fungicide]
(Michelle Wiesbrook, unless otherwise noted, adapted from Agricultural Chemical News, September and October 2002.)