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Comments on the “Interim Statement and Guidance pertaining to pesticides regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) applied to the waters of the United States”

Comments by Citizens Campaign for the Environment
Submitted to the Environmental Protection Agency
October 12, 2003

CCE is an 80,000 member not-for-profit, non-partisan advocacy organization working for the protection of public health and the natural environment. CCE is pleased to have this opportunity to comment on this Interim Statement and Guidance by the Environmental Protection Agency (EPA).

CCE has been working for the protection of water resources throughout New York State and the Nation since its inception in 1985. Currently CCE sits on the Citizens Advisory Committee for the Suffolk County Vector Control Environmental Impact Statement and Long Term Plan. In addition, CCE was one of two environmental organizations that worked with the New York State Department of Health “NYS Response Plan for West Nile Virus” in 2000-2002. CCE has been actively involved in the many policy and practice issues related to the use of the pesticides of concern in this guidance document.

The use of pesticides including, but not limited to Malathion, Anvil, and Scourge, and Permetherin and larvacides such as methoprene near or over waterways in New York State has become more common since the outbreak of West Nile Virus In New York in 1999. Throughout New York State, the effects of these pesticides on human health and the environment, including human illness and death of aquatic organisms, have been documented in both the news media and by peer-reviewed scientific studies.

After reviewing the Interim Guidance Document on Pesticide Applications, dated July 11, 2003, CCE finds that the interim policy adopted by EPA is both unscientific and unsupportable. It is based upon the assumption that the use of pesticides, in compliance with FIFRA, does not constitute the discharge of a pollutant and therefore does not warrant the issuance of a discharge permit nor does it violate the requirements of the Clean Water Act. CCE strongly disagrees with this finding and the premise upon which it is predicated.

CCE’s opposition to this policy is presented in the following comments.

1. It is important to remember the purpose of the Clean Water Act. In its opening policy statement, the objective of this 1972 law states that, “the objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” (33 USC chap. 26).
   
   Thus, the first test that EPA must meet is whether the policy under consideration will result in harm to the chemical, physical or biological integrity of the waters of the nation? As to this fundamental question, the answer is clearly “yes,” the pesticides at issue, if sprayed so that they enter the nation’s waters, will place the integrity of these waters at risk. Nothing in the guidance document addresses this essential issue. On this first key issue, CCE believes that EPA is obligated to take all necessary steps to stop activities that will cause direct harm to the health and integrity of the nation’s waters. The Guidance document flies in the face of this clear regulatory responsibility.
   
   It is clear from the labeling directions for some of these pesticides under consideration, that they will cause real damage to aquatic organisms living in the nation’s waters. By denying the mandate to protect the Nation’s waters using the regulatory tools available under the Clean Water Act, the EPA is allowing the basic purpose of the CWA to be violated.
   
2. EPA states that it is unlikely, based on a number of arguments, that the discharge of pesticides would require a permit through the National Pollutant Discharge Elimination System (NPDES). However, relaying on FIFRA standards for pesticide registration is inappropriate since these standards are not directed at water quality protection, nor the protection aquatic organisms. Due to the documented danger associated with the use of pesticides (1), CCE believes that the use of the Clean Water Act is both appropriate and necessary to properly protect public health and the environment.
   
3. Numerous studies have identified that the discharge of pesticides into our waterways poses an environmental risk to aquatic species. Such studies have evaluated pesticides, which are used frequently to control mosquitoes and black flies as well as the synergist component. CCE points to two such studies that address the damage these pesticides can create:
   
   • Effects of Naled, Synergized, and Non-Synergized Resmethrin on the Swimming Performance of Young Trout, New York State Department of Environmental Conservation, November 1985. This study tested the swimming performance of young brook trout following short-term exposures to Dibrom and Scourge, which are commonly used in New York State. Two formulations of Scourge were tested, one without a synergist and one with the synergist piperonyl butoxide (PBO). This study concluded, “ Swimming performance of fish exposed for 6 hours to the PBO synergized resmethrin was impaired at a lower concentration that that of the other pesticides tested. Swimming stamina of brook trout decreased significantly when exposed to synergized resmethrin at 3.2ug/L. …..Fish exposed to the synergized resmethrin had significantly shorter swimming times. “ In addition, changes to the swimming behavior of certain fish species were noted. The swimming stamina and the behavior changes were noted to reduce the survival rate of the impacted fish.
   
   • Comparison of the Toxicity of a Synergized and Non-Synergized Insecticide to Young Trout, New York State Department of Environmental Conservation, September 1994. This study compares the toxicity to two formulations of resmethrin using one, which contains the synergist PBO, and the other is a non-synergized formulation. The study concluded, “Resmethrin was highly toxic to brook and brown trout in either formulation. Only small, statistically insignificant differences between the two formulations were observed…”
   
   The results of these standard toxicity tests are similar to those of other investigations. We would not want to see regulations weakened so that these chemicals could be sprayed more widely. The spraying of headwaters of numerous streams throughout New York would negatively impact ponds, rivers, lakes and estuaries.
   
4. Wetlands, estuaries and waterways are extremely biologically productive and act as the base of the food chain. Protecting these areas from chemical contamination is vital to the success of ecosystems nationwide. Waterways are, and should continue to be given an extra layer of protection from pesticides because of this acknowledged importance. Throughout the nation, our sensitive waterways are declining in water quality and habitat and ecosystem prevalence. One example, Long Island Sound, has seen record lobster die-off events and hypoxic events with growing severity each year. In other estuaries, such as the Long Island South Shore Estuary, valuable populations of shellfish have declined severely, putting local economies and ecosystems at risk. Protection from all pollutants, including pesticides, is one way to assist these ecosystems and all waterways to return to a healthy state and flourish once again.
   
5. The Clean Water Act was enacted by Congress to protect the waters of the United States from contamination. The Clean Water Act defines the term "pollutant" to include "chemical waste, biological materials, and industrial, municipal, and agricultural waste discharged into water." Clean Water Act § 502(6). In the recent 9th Circuit Court of Appeals case, Headwaters Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001), the court held that an applicator of herbicides was required to obtain a NPDES permit under the Clean Water Act. In this case, the court stated that the residual pesticide left in water after the original application qualifies as a chemical waste product and therefore meets the definition of a "pollutant" under the Clean Water Act. This holding would apply to any aquatic pesticide application where some residual product is left in the water after its application, which scientific studies confirm. Furthermore, the addition of chemical pesticides to waterways, even in trace amounts, does not enhance the quality of the water, it in fact degrades the quality of the water, therefore it must be considered a pollutant in a scientific sense.
   
   In addition, under NPDES dischargers of pollutants must meet water quality standards for their effluent discharges. If a NPDES permittee has a discharge which is in violation of the permit and of water quality standards, then members of the public and regulating agencies have legal recourse under the Federal Clean Water Act to bring the permitee into compliance with the law and to seek compensation for damages that may have occurred as a result of the permit violation. Removing this important oversight and enforcement tool will be detrimental to the public and to regulatory authorities charged with the protection of water quality. The use of NPDES permits will not add a regulatory burden for permittees who discharge pesticides in compliance with their permits, and should not be seen as a liability. Any entity using chemical pesticides is protected by the use of the NPDES permit, and their use of pesticides in compliance with their permit will be a legal means for them to protect their operation. Only those who intend to violate the permit conditions will feel a burden under this regulation.
   
6. The discharge of pesticides over waterways is a risk to public health and the environment. The FIFRA regulations require labels to direct applicators as to the intended proper use of the products they apply. There is no direction in such literature to help applicators protect non-target organisms from the effects of the chemicals, or prevent contamination of waterways. There are many factors pointing to the destructive nature of chemical and biological pesticides, including scientific research concluding that pesticides are detrimental to human health, the EPA policy on statements of safety on pesticide product packaging or marketing materials, the regulated testing for pesticide residues in public water supply systems, and the intent of Congress in 1972 to protect and preserve the waters of the United States by passing the Clean Water Act. This being the case, the EPA must not ignore the qualities of pesticides which should allow them to be considered “pollutants”. It would be irresponsible and a disservice to the public, and the natural resources on which the public relies, to allow the application of pesticides to waterways without the NPDES permit.
   
7. Currently, the NPDES is the regulatory tool that protects public health and the environment by requiring the use of the permitting system for the application of pesticides directly to the waters of the United States, or over waters of the United States where a portion of the pesticides are being deposited to the waters. Maintaining this level of protection and use of precaution is the only way to properly protect human health and the natural resources throughout the nation.

CCE requests that the EPA retract the Interim Statement and Guidance, halt efforts to issue final guidance limiting the jurisdiction of the Clean Water Act on this matter, and require all discharges of pesticides to the waters of the United States to be permitted through NPDES.

Thank you in advance for you serious consideration of these comments.

Sincerely,

Jessica Ottney
Program Coordinator

(1) Note: All pesticides are associated with some risk of harm to human health and the environment. Every pesticide on the market must be registered with the EPA. This registration does not guarantee the safety of the product even when used as directed. In fact, the EPA has officially stated that no pesticide can be considered safe and federal law prohibits manufacturers from making claims that EPA registration of their products means they are safe.