On September 1, 2012, the Tennessee Department of Environment and Conservation (“TDEC”) implemented a federally-mandated requirement that farmers, developers, and land managers must obtain a permit for applications of pesticides, including insecticides and herbicides that leave a residue, into waters of the United States. Put on your boxing gloves; there’s gonna be a fight.
This requirement will ultimately have a widespread effect on a number of industrial, agricultural, and silvicultural operations throughout the state and the country. Historically, however, the federal Environmental Protection Agency did not regulate the application of pesticides through the Clean Water Act (“CWA”). Rather, such chemicals, which are already regulated under the Federal Insecticide, Fungicide, and Rodenticide Act, were exempt from regulation under the CWA.
Beginning in 2001, environmental groups have filed a number of suits pushing EPA toward more stringent regulation of pesticide application. In 2009, the litigation came to a head when the 6th Circuit determined that residual pesticides are considered pollutants under the CWA, and as a result mandated that EPA regulate their introduction into waters that were considered jurisdictional under a long line of previously litigated CWA cases. Accordingly, EPA has delegated to Tennessee and other states the authority to implement a permit requirement for operators that apply pesticides that result in discharges from the following use patterns: (1) mosquito and other flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest control.
According to EPA and TDEC, however, the permit does not cover, nor is permit coverage required for, pesticide applications that do not result in point source discharges to waters of the U.S., such as terrestrial applications for the purpose of controlling pests on agricultural crops, forest floors, or range lands. Also, agricultural runoff and irrigation return flows continue to be exempt from permitting, as provided under the CWA.
Therein lies the grey area. Much of Tennessee’s farmland and the Mississippi Delta is covered by wetlands, intermittent streams, and areas that transport water during rain events. All of these areas are generally considered to be within the jurisdiction of the CWA. Thus, a farmer applying insecticides to a low-lying soybean or cotton field that is considered to be a wetland is subject to the permit requirements. Furthermore, a farmer who applies a herbicide to an irrigation canal must now obtain a permit. Practically, this may require farmers to first delineate which areas of their land are considered within the jurisdiction of the CWA and apply for a permit for these areas. Additionally, the permit requirement may limit the amount of pesticides that a farmer may apply due to other complex provisions of the CWA.
Certainly, this area is ripe for environmental enforcement actions from both TDEC and EPA. Unfortunately, it will likely drag unsuspecting farmers and developers into court to litigate the grey areas of implementation. As Mark Twain said, “Whiskey’s for drinking. Water is for fighting over.”