Potato Commission rings in on EPA, mosquito issues

Motion to dismiss pending, litigation schedule proceeding

A case regarding the protection of producers using pesticides is calling environmental protection policies into question.

The Washington State Potato Commission has intervened in a case arising out of Idaho in which the Environmental Protection Agency told a mosquito control board that a Clean Water Act permit was not needed and it would not issue one.

"It involves a mosquito control district in Idaho, which was applying some chemicals to control mosquitoes," explained WSPC executive director Pat Boss. "There was a lawsuit filed that said that they must get a special Clean Water Act permit before applying pesticides."

Charlie Tebbutt, with the Western Environmental Law Center in Eugene, Ore., who represents St. John's Organic and Peter Dell said that there are two cases, one filed by Gem County and the Gem County Mosquito Abatement District (MAD) against his clients in the District of Columbia.

"From our position, they filed a suit that doesn't have a basis in law," Tebbutt said. "Both my clients and the federal government filed a motion to dismiss that case. Shortly after that case was filed, my clients filed a lawsuit against MAD and Gem County in a federal district court in Idaho, basically saying that Gem County's adulticide [aerial spraying to kill adult mosquitoes] violates the Clean Water Act. That's because they spray right over waterways, without a permit required under the Clean Water Act."

Boss explained that the EPA told the mosquito control district that it didn't need a permit, but if the people involved ended up having to go to court, the EPA was not going to defend them.

"What good is the policy if the EPA is not going to back it up, is basically our position," he said. "On the surface it sounds great, but the EPA is saying they're not going to back it up. From a farmer's point of view, if (he) got in a situation where he was applying chemicals and then was sued for not having a Clean Water Act permit, then the farmer is on his own defending himself."

"EPA has interpreted the Clean Water Act and FIFRA [Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the federal law on pesticides] to mean that application of pesticides directly to or over waters of the United States consistent with the FIFRA label may not require an NPDES permit," said Mark Ryan, assistant regional counsel and EPA. He said that the plaintiffs are arguing that EPA's interpretation of those acts are wrong.

Tebbutt said that the EPA has a guidance memo that written in July 2003 that says under certain circumstances, a permit is not needed.

"But the problem with that is, it's an interim memo," he said. "It's not a final regulation or policy of the government. And secondly, that guidance that EPA wrote is inconsistent with prior positions that EPA has taken on this issue. The EPA interim guidance is also inconsistent with Ninth Circuit law. It basically says that you have to give effect to both the Clean Water Act and FIFRA."

Boss said that the WSPC and several other agricultural groups jumped in to file a brief that says they don't agree with the court's ruling on the Gem County case and are trying to get the case overturned. The brief essentially says that the groups do not believe it's good public policy to require a mosquito control district or to require a farmer to obtain a special permit before applying pesticides, he said.

"The case, if it's ruled on, obviously would have some dramatic issues up here in Moses Lake," Boss said. "We're trying to control mosquitoes around here, and if a mosquito control district or a farmer in the area needed to control insects or mosquitoes, they would have to go through three or four months of public hearings. By the time they do that, I think it would be too late to control the problem. If you have West Nile Virus or another pest in the area that's of a major threat, it's not good public policy to have that type of set-up."

WSPC and the other agricultural groups are arguing that the EPA should be made to defend its position, so that a producer alone is not forced to defend the agency's policy or pay fines and legal fees if the EPA is wrong.

Agricultural producers in the Northwest could find themselves the subject of citizen lawsuits under the Clean Water Act if any pesticide they apply makes its way into a waterway, like an irrigation ditch, even if the application was in compliance with FIFRA, Boss said.

"We need to have a better mousetrap," he said in a press release. "We believe the EPA is already vigorously evaluating chemicals and their affects on water under FIFRA. It should be applied, not the Clean Water Act."

Tebbutt said that the motions to dismiss by the federal government and his clients are awaiting a decision in the D.C. district court. He said that they are proceeding with their litigation schedule in the Idaho case.