The Emporia Gazette

May 28, 2012

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A recent court ruling will have a disruptive effect on production agriculture. This ruling could also have an effect on existing policy in regards to what constitutes point source and non-point source pollution as defined by the Clean Water Act (CWA).

Here’s what happened. On Jan. 7, the Sixth Circuit Court of Appeals (Kentucky, Michigan, Ohio and Tennessee) issued a ruling in a case involving pesticide application and the Clean Water Act. The Environmental Protection Agency (EPA) had earlier concluded that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act are exempt from the Clean Water Act's permitting requirements.

The court held the rule was in conflict with provisions of the CWA. Specifically, the court found that under the plain language of the statue all biological pesticides are “biological material” and therefore pollutants. It also ruled that excess or residual chemical is discharged “from a point source” (the application equipment, sprayers, etc.) even though it becomes “excess” or “residue” at some time after being released from the application equipment.

This issue is not limited to agriculture. It will also impact other applications including vegetation management along highway rights of way, electric transmission corridors, mosquito control and chemical de-icing by state, county and municipal employees.

“As it stands, this decision is a clear threat to agricultural production,” says Terry Holdren, Kansas Farm Bureau’s governmental relations national director.

EPA estimates this ruling could affect approximately 365,000 pesticide applicators who perform 5.6 million applications annually.

What remains for farmers is a slippery slope toward more regulation. In the days before the April 9 petition deadline, EPA elected not to pursue an effort for rehearing in front of the entire Sixth Circuit. Instead the agency requested a two-year stay to allow the development of new rules and a permitting process for pesticide applications. American Farm Bureau Federation has filed a petition with the court seeking that review.

Because of the potential impacts it is disheartening the EPA did not seek a rehearing on this matter.

“Farmers should not need a permit under another law when they already are following an existing law,” Holdren says.

This lack of initiative will complicate farmers’ ability to farm and raise their expenses without improving the environment.

So, what is the next step for producers?

The Sixth Circuit will rule soon on the AFBF petition for rehearing. Hopefully wisdom will prevail and 30 years of interpretation and practice by EPA will receive greater consideration when the full court considers the extent of the Clean Water Act. Otherwise an appeal to the U.S. Supreme Court may be the only avenue left for production agriculture.

While this case makes its way through the courts, EPA may begin the process of developing the necessary permits. The looming question may be whether the agency allows the use of a general permit which would have minimal impact on pesticide applications or whether a permit will be required for each and every application of a pesticide. The latter will have obvious and enormous impacts on applicators.

This struggle is just beginning and will require carefully thought out consideration in determining a solution that is reasonably workable for American agriculture.

F John Schlageck is a leading commentator on agriculture and rural Kansas. Born and raised on a diversified farm in northwestern Kansas, his writing reflects a lifetime of experience, knowledge and passion.