WHEREAS, the Clean Water Act (CWA) controls water pollution by regulating point sources that discharge pollutants in and around waters of the United States through the National Pollutant Discharge Elimination System (NPDES) permit program; and
WHEREAS, the federal Environmental Protection Agency (EPA) has never required NPDES permits for the application of pesticides for agricultural crop protection, mosquito control, invasive aquatic weed control, forest canopy insect control, or other registered uses of pesticides when properly applied following FIFRA-approved label directions; and
WHEREAS, a January 2009 U.S. Court of Appeals for the Sixth Circuit decision, in the matter of National Cotton Council of America et al. v. United States Environmental Protection Agency, vacated an EPA Final Rule which exempted pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) from the federal Clean Water Act’s permitting requirements; and
WHEREAS, the Court granted EPA a two-year stay of its decision, during which time EPA is developing general permits for eight aquatic pesticide uses in the four states without CWA authority, and states which have assumed CWA authority may use these examples as models in adopting general permits for their states; and
WHEREAS, this change will require NJPDES permits for pesticide applications made to or near the “Waters of the State,” meaning the ocean and its estuaries, all springs, streams and bodies of surface or ground water and wetlands, whether natural or artificial, within the boundaries of the State of New Jersey or subject to its jurisdiction, and this would place additional burdens on applicators, impact crops in fields, pastures and forestlands adjacent to farm ponds or bogs, ditches, streams or rivers, and interfere with the timely application of pesticides.
NOW, THEREFORE, BE IT RESOLVED, that we, the delegates to the 95th State Agricultural Convention, assembled in East Brunswick, New Jersey, on February 9, 2010, do hereby urge the New Jersey Congressional Delegation to:
- Support the effort to appeal the decision to the United States Supreme Court.
- Lead an effort to amend the Clean Water Act to make it clear that pesticides applied in accordance with their labels are not considered pollutants under the Act.
- Encourage the EPA to allow for a general permit that is not burdensome to applicators and that can be issued to allow the pesticide applications in a timely fashion.
BE IT FURTHER RESOLVED, that we urge the New Jersey Congressional delegation to take the lead in Washington to exempt agricultural operations and efforts to control or eradicate invasive species and mosquitoes from NPDES permitting requirements for applications of pesticides applied in accordance with their label.
BE IT FURTHER RESOLVED, that barring such an exemption, we urge the New Jersey Congressional delegation to lead an effort in Congress to clarify that pesticides applied in accordance with FIFRA are not subject to NJPDES permitting requirements under the CWA.
BE IT FURTHER RESOLVED, that, failing such action, we urge the New Jersey Congressional Delegation to take the lead in ensuring that the resources required to process these new permits are covered by federal funds and do not strain the already scarce resources of state regulatory agencies or of New Jersey’s hard-working farmers.
BE IT FURTHER RESOLVED, that we urge the NJDEP to involve the agricultural community and the NJDA in any formulation of a NJPDES permit for New Jersey prior to such a permit entering the formal rulemaking process.
The Clean Water Act (CWA) controls water pollution by regulating point sources that discharge pollutants in and around waters of the United States through the National Pollutant Discharge Elimination System (NPDES) permit program. EPA has never required NPDES permits for the application of pesticides for mosquito control or agricultural pests, invasive aquatic weed control, forest canopy insect control, or other registered uses of pesticides when properly applied following FIFRA-approved label directions. The NPDES permit program is generally administered at the state level, and is carried out in New Jersey by the Department of Environmental Protection under the NJPDES permit process.
The U.S. Court of Appeals, Sixth Circuit, ruled that excess pesticides or any pesticide residues which reach waters of the United States are point-source pollution and require a NPEDS permit. The Court granted the EPA a two-year stay of the court’s decision, during which time EPA is developing general permits for eight aquatic pesticide uses in the four states without CWA authority. States which have assumed jurisdiction under the CWA may adopt these examples or models as permits in their states, or they may adopt permits which are more restrictive than the models.
The Clean Water Act provides for third-party involvement in the NJPDES permit program, through the submission of public comments and participation at public hearings, relative to the process or granting of a permit. The Clean Water Act also allows for third-party lawsuits, meaning that citizens groups and other non-governmental organizations can file suit in court for alleged water-quality violations.
The timing and proper application of legally registered pesticide products is critical to successful crop protection and crop production. Lawsuits by citizens (often brought frivolously or for harassment purposes) would disrupt farming operations and further exacerbate crop loss or damage. In addition to economic crop loss, growers would also likely bear litigation costs.
In addition, the competitiveness of New Jersey’s and the nation’s agricultural exports are at stake, because markets may be lost due to importing countries’ phytosanitary requirements for freedom from plant pests and diseases. Approximately 25 percent to 30 percent of New Jersey’s fresh blueberry crop is exported to Canada. As a condition of entry, Canada requires mandatory insecticide treatment during the growing season in order to prevent contamination of fresh fruit by blueberry fruit fly, in lieu of fumigations with methyl bromide, which is soon to be banned under the Montreal protocol.
The decision will also have broad implications in the battle by public agencies against invasive species threatening our state’s forests and wetlands. The Sixth Circuit Court’s decision draws a distinction between conventional or organic pesticides. The decision specifically concludes that biological pesticides, such as Bacillus thuringiensis (B.t.k) or the gypsy moth nucleopolyhedrosis virus (“Gypchek”), which are used in the Department of Agriculture’s cooperative gypsy moth aerial suppression program, are “biological materials” and would require a NJPDES permit under the Clean Water Act.
Conservative estimates from EPA predict that over 365,000 applicators applying at least 5.6 million pesticide applications would fall under the new permitting requirements. Moreover, this would require state water agencies and state pesticide agencies to both regulate the same application.