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Living in NoVa, you get to hear war stories from lobbyist and other people that the rest of America never learns about. Congress and agencies issue rules and guidance documents and other directives, but the story behind them is the true battleground.

Here's a story about one little word in a little noticed EPA guidance document:

The application of a pesticide to or over, including near, waters of the United States consistent with all relevant requirements under FIFRA does not consistute the discharge of a pollutant that requires a NPDES permit under the clean water act . . . [when the] application of pesticides to control pests that are present over waters of the United States, including near such waters, that results in a portion of the pesticides being deposited to the waters of the United States . . . .

Via hersay, here's how this sausage got made:

The Background

I'm not an environmental lawyer, but my understanding of the basic legal framework is as follows:  if you are going to deposit pollutants into a waterway, you need to register for an NPDES permit. This is a Clean Water Act requirement that "controls water pollution by regulating point sources that discharge pollutants into waters of the United States."

On the other hand, FIFRA (the Federal Insecticide, Fungicide, and Rodenticide Act)  creates the federal rules governing pesticide distribution, sale, and use. This act has a registration process of pesticides that requires safety and environmental testing.

What should have happened

The EPA guidance document quoted above could have been reasonable (may not correct, but at least reasonble) if it did the following: exempt water pest pesticides from the NPDES permit system. One might argue that because mosquito larvae pesticides and such products aimed at water use are vigorously tested for their impact on water under the FIFRA registration process because of their intended use, there is no need to further regulate these products under the Clean Water Act. In fact, this is the very rationale behind this guidance document.

Gotta make the sausage

However, that's not what this document does. The pesticide lobbying industry successfully got the word "near" into the language. Career EPA official resisted this lobbying as long as they could, but the lobbying resulted into directives and pressure from appointed officials in the administration. As a result, the word "near" arguably exempts ALL pesticides from the NPDES requirements - even pesticides that weren't tested adequately for water impact under FIFRA.

According to my environmental law friends, this flies in the face of the Clean Water Act - chemical pollutants not intended for water use (and, thus, not vigorously tested for impace on water quality and ecosystems) would be exempt under the EPA's new interpretation. Is this the final word? Perhaps after years of litigation, the courts could find this guidance as not consistent with the Clean Water Act, but in the meantime, thousands of farmers near waterways will unknowingly use the chemicals in a way that could harm those waterways. If the courts ultimately find the EPA guidance to be wrong, those farmers could be subject to tort lawsuits of their own from people harmed by their pesticide use. Of course, IF that happens, by then the pesticide companies have made their millions - and the lobbyists will have been given their reward as well.

All because of one word, and the right wing lobbying machine.

Just another day in Washington, D.C.

Originally posted to VirginiaDem on Sat Jan 29, 2005 at 08:36 AM PST.

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