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August 24, 2001

 

Inapplicability of Water Quality Order No. 2001-12-DWQ to

Shasta Mosquito and Vector Control District Activities

Based Upon the SWRCB Fact Sheet Pertaining to This Issue

John Albright, Biologist, Shasta Mosquito & Vector Control District

 

Unfortunately this analysis is not intended for easy reading.  It will be a point-by-point criticism of the SWRCB’s assertion that this permit applies to application of aquatic larvicide products for public health vector control.  Sections in quotes and italicized are taken directly from the Fact Sheet.  Some boldface and underlining is added for emphasis:

 

  1. Fact Sheet, Background, First Line of Text:  “On March 12, 2001, the Ninth Circuit court of Appeals decided that discharges of pollutants from the use of aquatic pesticides to waters of the United States require coverage under an NPDES permit…” There are no discharges of pollutants to the waters of the United States as a result of Shasta Mosquito and Vector Control District (the District) products or practices; therefore this decision does not apply to the District.
  2. Fact Sheet, Background, Second paragraph, first sentence:  “Coverage under this permit is available to public entities for discharges of pollutants to the waters of the United States (‘water bodies”) associated with the application of aquatic pesticides for resource or pest management.”  There are no discharges of pollutants to the waters of the United States as a result of the District’s pesticides or practices; therefore coverage under this permit is not necessary for the District.
  3. Fact Sheet, Background, Fourth Paragraph, Last Sentence:  “This general permit does cover the uses of properly registered and applied aquatic pesticides that constitute discharges of “pollutants” to waters of the United States.” This statement does not say that all applications of aquatic pesticides constitute discharges of pollutants to the waters of the United States.  It does say that the permit applies only to those that do constitute discharges of pollutants. Application of the District pesticides does not constitute discharges of pollutants to the waters of the United States.  Therefore this permit does not apply to the District.
  4. Fact Sheet, Waters of the United States, Paragraph 1:  This paragraph is a laundry list of water types used for recreation or commerce.  The District has received some interesting and divergent interpretations of how far upstream or remote from navigable waters this may be.  However, it is clear that the concern is the “…degradation or destruction….”of these resources is the concern being addressed by the permit.  Since the products and practices the District uses do not lead to the degradation or destruction of any of these water types this permit does not apply to us.
  5.  Fact Sheet, Emergency Conditions, Paragraph1, Sentence 2:  “On March 12, 2001, the Ninth Circuit Court of Appeals in Headwaters, Inc. v. Talent Irrigation District determined that discharges of aquatic pesticides to waters of the United States require coverage under an NPDES permit.”  This is not true!  The Ninth Circuit Court of Appeals (the court) determined that discharges to waters of the United States of Magnacide H®, a highly toxic and rigorously restricted pesticide require coverage under an NPDES permit.  Saying that the court decision means anything broader than this, absent a clarification from the court or a higher court is beyond the purview of the SWRCB or any other regulatory agency.  There has not even been a ruling from the U.S.E.P.A. that clearly supports the SWRBC interpretation.  Furthermore, the U.S.E.P.A. has instructed regional boards take a low enforcement posture until the matter can be clarified.
  6. Fact Sheet, Related Pesticide Regulations, Paragraph 4, Sentence 3:  “Vector control districts are not directly regulated by DPR.”  This is completely erroneous!  The California Department of Pesticide Regulation (DPR) defers to the Department of Health Services (DHS) only in the matter of the licensing of mosquito and vector control personnel to apply public health pesticides.  The California Department of Pesticide Regulation directly regulates all matters relating to the actual application of pesticides by vector control districts.  Agencies are subject to audits by the county departments of agriculture, the local enforcement arm of the DPR at their headquarters and in the field to ensure compliance with all federal and state pesticide laws including label instructions, environmental warnings and prohibitions on use.  Mosquito and vector control districts are subject to all of the same enforcement actions under FIFRA and DPR regulations as any other pesticide applicators in California.
  7. Fact Sheet, Water Quality Standards, Paragraph 1, Sentence 5:  “This General Permit grants a categorical exception from water quality criteria and objectives for priority pollutants for the application of aquatic pesticides by public entities in the exercise of resource or pest management powers authorized by State statute.”  The District does not want or need such an exception as none of the products the District currently uses or will ever use under our District policies are considered priority pollutants.  The District does not appreciate wording that indicates that the District might need such an exception as it casts aspersions on the products and practices that the District uses, by association, within the permit.
  8. Fact Sheet, Water Quality Standards, Paragraph 1, Sentence 6:  “The SWRCB recognizes that the discharges of pollutants may also cause or contribute to exceedance of water quality standards for parameters or constituents that are not priority pollutants.”  This may be true for some products applied by some people to some water. However, it cannot be construed to apply to any of the products that the District currently uses on any waters within the District or will use in the future under our District policies.
  9. Fact Sheet, Water Quality Standards, Paragraph 1, Sentence 7:  “This General Permit does not require immediate compliance with such water quality standards, but requires that the dischargers implement additional BMPs to eliminate or reduce the pollutants that are causing or contributing to the exceedance.”  By way of explanation, BMP stands for Best Management Practice. The District does not need to seek permission to exceed any water quality standards of any type, because current District practices and products do not lead to any such exceedance.  The District does not currently cause or contribute to any sort of exceedance of water quality standards through the District’s products or practices.  BMPs and integrated pest control (IPM) strategies have always been an integral part of the District program and the District will continue to seek to employ methods that minimize dependence on pesticides, as a matter of environmental responsibility and economic practicality, with or without this permit.  The subsequent two paragraphs in the fact sheet are also predicated on the District’s need to cause or contribute to exceedance of water quality standards.  Again, this is not something applies to the District, as the District does not cause or contribute to exceedance of water quality standards with the District’s products or practices.
  10. Fact Sheet, Effluent Limitations, Paragraph 2, Sentence 1:  “It is not feasible at this time for the SWRBC to establish numeric effluent limitations for pollutants in discharges associated with aquatic pesticide applications.”  Excuuuse me!!  Then what standards are mosquito and vector control districts supposed to comply with.  The District cannot possibly comply with standards that do not exist.  In the light of the fact that non-compliance carries penalties up to $25,000 per day for violation of the permit a mosquito district would be ill-advised to sign on to an NPDES permit whose effluent standards “are narrative” as is stated later in that same paragraph.
  11. Fact Sheet, Effluent Limitations, Paragraph 2, Sentence 1:  “The BMPs required herein constitute BAT and BCT, and they will be implemented to minimize the areal extent and duration of impacts caused by the discharge of pollutants and to allow for full restoration of water quality and protection of beneficial uses of the receiving waters following the completion of resource or pest management projects.”  There are no discharges of pollutants associated with the products the District uses.  Furthermore, beneficial uses of treated waters are not adversely impacted and no restoration of water quality is necessary following the District’s treatments.
  12. Fact Sheet, Best Management Practices (BMPs), Paragraph 1, Sentence 1:  “The development of BMPs provides the flexibility necessary to establish controls to minimize the areal extent and duration of impacts caused by the discharge of pollutants and to allow for full restoration of water quality and protection of beneficial uses of the receiving waters following completion of resource or pest management projects.”  Again, there are no discharges of pollutants associated with the products the District uses.  Furthermore, beneficial uses of treated waters are not adversely impacted and no restoration of water quality is necessary following the District’s treatments.
  13.   Fact Sheet, Best Management Practices (BMPs), Paragraph 2, Sentence 1:  “Many of the label directions constitute BMPs to protect water quality and beneficial uses.”  It should be added that the permit does nothing to improve on such BMPs or suggest new ones.  In fact, since the products and practices used by the District do not lead to exceedance of water quality standards the District is already under more stringent environmental and water protection standards than those provided by this permit.
  14. Fact Sheet, Best Management Practices (BMPs), Paragraph 4, Steps to be followed:  Steps one and two are basically redundant restatements of normal evaluations that are the routine in assessing the best approach to treating a given source.  The District does not need this permit to reiterate how the District already does its job.  The only subtle change to procedures already in place is found in steps two through five which relate to water quality impacts.  The District is often dealing with larval sources that may or may not already be polluted, may be in the process of being actively polluted, or may be subsequently polluted by activities unrelated to District activities.  Furthermore, the SWRCB has already stated that they can’t tell applicators what to look for in the water regarding public health pesticide products or how much is acceptable (See #10).  Even though their standards are narrative, it would seem that they want monitoring by the District to be numerically based.  I seriously doubt that “Looks good to me!” would be acceptable by SWRBC as a post-treatment water quality analysis of any of the District’s pest control projects.
  15. Fact Sheet, Monitoring Requirements:  The big problem with this whole section is that they have not told us what we are supposed to be looking for.  It allows representative regional programs to be instituted, but gives no guidelines on what would be considered representative.  Who would be responsible for taking monitoring samples?  Who could possibly run those samples and how would they know if the results were within SWRCB guidelines?  If a source has no wildlife, recreational, or other resource value at the time of treatment, how does anyone determine whether those values have been adversely affected?  Is treatment of canal seepage in a pasture equivalent to treatment of an irrigated pasture?  Is treatment of isolations in a tributary of a navigable waterway the same as treatment in the waterway itself?  Is a restored wetland equivalent to a natural vernal pool?  Are saltwater and fresh water swamps equivalent?  Are creek isolations and river isolations the same?  Do you sample the waters of the United States or all of the treatment sites that may drain into that waterway?  How many samples are representative?  How large of a group spread over how big an area can sign up for a regional plan?  How realistic must the connection between a larval source and waters of the United States be before testing is necessary?  Are dead mosquitoes considered pollution?  Is river seepage that is not contiguous with the river itself a water of the United States?  Do discharges from sewer plants or mill holding ponds that have been treated for mosquito larvae require testing beyond what the plants or mills already do before making their releases?  If so, are the plants or the Districts responsible for such testing, and what exactly would we/they be looking for?