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Current Status and Overview of The National Pollution Discharge System (NPDES) Permit Issue
Current Status Substantial attention has been generated locally and statewide about the issue of whether mosquito districts need to have a NPDES permit to apply products to water for the control of mosquito larvae. In a policy adopted September 18, 2001 the Shasta Mosquito and Vector Control District's Board of Trustees affirmed that the methods and materials Shasta Mosquito and Vector Control District (District) uses do not have the potential of polluting waters of the United States and therefore the District will not sign up for a NPDES permit. The Board of Trustees reaffirmed this policy at its regular meeting on April 23, 2002. The policy was submitted with substantial documentation to support the position that the NPDES permitting process was never intended to apply to the District's activities. This document attempts to explain the NPDES issue in a general way as it relates to the activities of the District. Links within and following this document connect to information that is far more detailed and specific that supports the District's policy on this issue.
Overview The District must meet the requirements of a wide variety of regulatory agencies when performing its important role of protecting public health through effective mosquito control. Since our public health pesticides are applied to natural environments, public waterways, croplands, and residential settings, the utmost care must be taken to assure that our products and practices do not pose unreasonable risks to either the public or the environment. Public health pesticides have been registered for use under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which requires extensive testing and monitoring to assure that pesticides can only be used legally in ways that are safe and beneficial. The parameters for use of these products are contained on the pesticide label, and failure to follow these label instructions is a violation of federal law. To assure that our field personnel are qualified to read, understand and follow pesticide labels and other pesticide laws, our personnel are licensed by the California Department of Health Services. Only such licensees can legally obtain and apply the products that we use. Compliance with pesticide laws is enforced through Shasta County Department of Agriculture, Weights and Measures under authority delegated by the California Environmental Protection Agency's Department of Pesticide Regulation. The District must submit monthly summary reports of all pesticides used by the District to these agencies. To see the Department of Pesticide Regulation Pesticide Use Reporting's record of pesticide use click here. In addition to this regulatory oversight, the District works cooperatively with the California Department of Fish and Game and other parties that may have an interest in the effects that our activities may have on wetlands and other sensitive environments. As a matter of practice and policy the District follows and integrated pest management program following guidelines established through a century of research following recommendations of the Centers for Disease Control and Prevention (CDC) and the U.S. Environmental Protection Agency (EPA). The judicious use of chemical control of mosquitoes by the District is merely an adjunct to a much larger program including public education, physical control of mosquito sources and biological control using mosquitofish (Gambusia affinis). On July 19, 2001, the California State Water Resources Control Board (SWRCB) approved Water Quality Order No. 2001-12-DWQ, which set out guidelines for a NPDES permit for users of aquatic pesticides, including the public health pesticides used by mosquito and vector control districts. The SWRCB maintains that a decision by the Ninth Circuit Court of Appeals (the Court) in the case of Headwaters, Inc. versus Talent Irrigation District (Talent decision) means that all public agencies that apply any pesticides to any water that may be construed as a water of the United States need a NPDES permit in order to comply with federal Clean Water Act (CWA). It is clear from a letter dated April 8, 2002 from Craig M. Wilson, Chief Council for the California Environmental Protection Agency that the current position of the SWRCB is that an NPDES permit is required for mosquito and vector control districts to apply aquatic mosquito larvicides. The District takes exception to the assertion that the Talent decision applies to anything broader than certain applications of herbicides to waters of the United States in such a way that they or their byproducts have the potential of doing environmental or other harm. The decision is silent on all issues except the use of Magnacide H as an aquatic herbicide in a situation where pollution of waters of the United States was a possibility. Unlike Magnacide H, the products that the District uses for control of mosquito larvae are target-specific products designed for use in aquatic environments without the need for special handling, impounding or monitoring to ensure their safety when used in the environment. As explained by documents prepared by the District's Biologist in the first two links below under "resources", there are serious flaws in the rationale used by the SWRCB to assert mosquito larval control should fall under an NPDES permit. In addition to enforcing provisions of FIFRA, the EPA oversees enforcement of the Federal Clean Water Act (CWA), which is the origin of the NPDES permitting process. As such they should be the ultimate authority on the scope of these two pieces of legislation and how they should be enforced. In a memo dated May 31, 2001 and a follow-up memo dated March 29, 2002 the EPA has made it clear that it ahs not yet determined what the Talent decision means and so it will maintain a low enforcement posture on the issue. This was extended through March 31, 2003 by the latest of the two memos. This was specifically done to "ensure that vital pesticide application activities such as disease vector and invasive species control are not disrupted." These memos (unfortunately a web-friendly version of the first memo is unavailable at this time -- but it is superceded by the second memo anyway), along with EPA's Interpretive Statement and Regional Guidance on the Clean Water Act's Exemption for Return Flows from Irrigated Agriculture indicate that EPA is inclined to take a much narrower interpretation of the Talent decision that the SWRCB has. Despite these indications from the EPA, the SWRCB has continued to assert that the Talent decision should be applied broadly to all pesticide applications to waters of the United States in a recent administrative memo on that subject. The primary responsibility of the District is to protect public health and comfort through effective mosquito control. The District cannot divert funding and man-hours from this function without either some measurable benefit to our constituents, protection of some environmental parameter, or a compelling legal reason to do so.
Important New Developments as of July 1, 2002
Resources: Staff Report on General Permit No. CAG990003 (NPDEES Permit) Staff Report on Water Quality Order No. 2001-12-DWQ Fact Sheet Water Quality Order No. 2001-12-DWG Mosquito & Vector Control Association of California (MVCAC) Centers for Disease Control and Prevention (CDC) CDC Perspective on Public Health Pesticides U.S. Environmental Protection Agency (EPA) Federal Insecticide Fungicide and Rodenticide Act (FIFRA) National Pollution Discharge Elimination System (NPDES) Shasta County Department of Agriculture, Weights and Measures California Department of Pesticide Regulation Department of Pesticide Regulation California State Water Resources Control Board (SWRCB) Ninth Circuit Court of Appeals Decision in Headwaters, Inc. versus Talent Irrigation District |