Western States Water Council 2005 Report

• Year: 2001
• Title: Western States Water Council Annual Report 2001
• Author: Western States Water Council
• Description: Annual report 2001
• Publications - Doc Type: Other

not be in violation of the Clean Water Act when applying aquatic herbicides, pesticides and other
registered products during the upcoming irrigation season."
On May 31th, Sylvia Lowrance, Acting Assistant EPA Administrator for Enforcement and
Compliance, sent regional administrators a memo on the Ninth Circuit Court's March 12 decision
that said EPA's position was that "civil water enforcement priorities should not change and
enforcement against any direct application of pesticides to waters of the United States in accordance
with a Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) label, will be a low enforcement
priority until EPA develops a concerted national approach on how to best regulate those activities. "40
The memo continued, "The issue of how CWA requirements are met for the direct application of
aquatic herbicides and other pesticides to water has important national implications for EPA, States,
and the regulated community. For example, aquatic herbicides have long been considered to be
essential tools for keeping irrigation canals free from aquatic vegetation which can impede flow by
clogging irrigation channels and irrigation structures. EPA has not previously issued any national
guidance of general applicability that would say that an NPDES permit would apply for these
activities, nor have we established national policy specifying how the CWA might apply to the use
of aquatic pesticides.... EPA is initiating a process to determine how best to implement the CWA
and FIFRA.... However, it is unlikely to complete that action during the ongoing season for applying
aquatic herbicides to irrigation canals.... In addition, the application season for public health
pesticides used to control disease vectors, such as insecticides for mosquitos bearing infectious
diseases, has begun. These important activities require an interim Agency response...."
The memo stated that through December 2001 civil administrative or judicial enforcement will
remain a "low priority provided that both of the following conditions are met: (1) the registered
pesticide product is applied directly to waters of the United States in a manner consistent with its
labeling; and (2) there are no egregious circumstances, such as those resulting in serious actual harm
or which may present imminent and substantial endangerment to public healthh or the environment."
State Water Quality Standards
American Wildlands v. Browner
On August 9th, the 10th Circuit Court of Appeals upheld a district court's ruling that state laws
have control over nonpoint source pollution and that such are not controlled by the federal Clean
Water Act (CWA). The district court ruled that EPA did not violate the CWA when it approved
Montana's 1995 changes to its water quality laws. The three judge court unanimously agreed, "We
hold that the EPA's approval of Montana's water quality standards was not done arbitrarily or
capriciously.... Furthermore, the EPA's interpretation of the Clean Water Act implicit in its decision
to approve the standards is permissible."
Montana's changed its laws regarding "non- degradation" and the amount of pollution that a
waterway can hold without harm to wildlife or recreational opportunities.. The acts created dozens
of exemptions to state laws that regulate pollution from various industrial operations such as mining
40 Western States Water, Issue #1412, June 8, 2001.
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