Not So Appealing

Are you, Mr. Ag Retailer, a polluter of the environment? Although you may not think so, at least one federal court has a different opinion. This could mean more permits to conduct business-as-usual in a few years.

In January, a three-judge panel of the 6th Circuit Court of Appeals vacated an EPA rule allowing crop protection products to be applied to U.S. waters without a Clean Water Act (CWA) permit. The judges ruled the agency’s view that applications of chemical and biological products over or near water runs contrary to the CWA and that residues and crop protection products constitute pollutants under federal law and must be regulated “to minimize any impact on our health or the environment.”

This decision overturned a Novem­ber 2007 EPA ruling which stated that crop protection products applied in accordance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) were exempt from CWA requirements. Now, applicators and growers could need to obtain a National Pollutant Discharge Elimination System (NPDES) permit before applying crop protection products near water sources.

Industry trade groups are unhappy with the decision, arguing that this could lead to additional, “needless” regulations on the use of crop protection products. “Farmers should not need a permit under another law when they already are following an existing law,” said American Farm Bureau Federation President Bob Stallman.

Jay Vroom, president/CEO of CropLife America, echoed this view. “Pesticides are well regulated by the FIFRA and EPA’s Office of Pesticide Programs. Over three decades and through two CWA amendments, EPA has never issued an NPDES permit for pesticide application.” He added that the permits referenced by the decision could take months or years to develop while leaving growers and applicators vulnerable to possible litigation.

Both trade groups, along with several industry interests, have petitioned the full 6th Circuit Court of Appeals to review this ruling.

What does this mean for ag retailers? For 2009, says CropLife America’s General Counsel Doug Nelson, nothing. “Until it’s decided whether a rehearing is granted, the decision is stayed,” says Nelson. “Even if the rehearing request is rejected, the government has filed a motion asking the court to delay enforcement of the ruling for two years to provide time to develop a permitting protocol.” In the interim, he encourages retailers to write to their Congressional and local representatives, asking them to support the rehearing effort.

The prospect of more permits/regulations entering the picture cannot be appealing to our already heavily regulated industry. Besides, equipment advances, such as boom section control, have made it easier for today’s custom applicators to do their jobs without harming the nation’s waterways. This is a message ag retailers need to get across to everyone, loud and clear.

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