DATE:          August 14, 2001

TO:              Shasta Mosquito and Vector Control District Board of Trustees

FROM:        John Albright, Biologist, Shasta Mosquito and Vector Control District

                    William C. Hazeleur, Manager, Shasta Mosquito and Vector Control District

SUBJECT:  Analysis of Water Quality Order No. 2001-12-DWQ From the California State Water Resources Control Board of July 19, 2001 and Its Potential Effects on the District’s Mosquito Control Program

 

On July 19, 2001, the California State Water Resources Control Board (SWRCB) approved Water Quality Order No. 2001-12-DWQ, a permit for users of aquatic pesticides, including the public health pesticides used by mosquito and vector control districts. The permit was based on a State Water Resources Control Board interpretation of a 9^th Circuit Court of Appeals (the Court) decision in Headwaters, Inc. versus Talent Irrigation District in Oregon. In the Talent Irrigation District (Talent) case, a particular herbicide put into a canal apparently killed fish in a nearby creek. The suit, which was brought by Headwater’s Inc., alleged that Talent should have been operating under a National Pollutant Discharge Elimination System (NPDES) permit under the federal Clean Water Act because their activities could release pollutants into the “waters of the United States”.  The court decided in favor of Headwater’s Inc. that Talent should, in fact, have such a permit.  In response to this decision the SWRCB put together a statewide NPDES permit for public agencies that apply any pesticides to “the waters of the United States”.  There is wording in background information provided by the SWRCB regarding the permit and within the permit itself that indicates that mosquito and vector control districts are among the agencies that should obtain this new NPDES permit because we apply public health pesticides to standing water sources which are breeding mosquito larvae. 

 

All parties who have been monitoring events surrounding this issue seem to be in agreement that the full scope and intent of the Court’s decision is unclear.  There is much discussion among mosquito and vector control districts within California as to whether or not compliance with the federal clean water act requires the District to apply for one of these new NPDES permits.  Shasta Mosquito and Vector Control District feels strongly that the Clean Water Act does not require the District to obtain this permit to continue performing the vital function of protecting public health through a comprehensive program of mosquito control.  We feel that some gross misunderstandings of the issues in the case against Talent have led to a faulty interpretation of the decision of the Court by the SWRCB, who feel that such a permit applies to Shasta Mosquito and Vector Control District. 

 

In the confusion surrounding this issue, several different words have been incorrectly used interchangeably at times to argue that the NPDES permit process should apply to mosquito control through the application of larval control products to water.  “Pesticide” and “pollutant” are not interchangeable terms, though they are not necessarily mutually exclusive either.  Pesticides are any chemicals that are used to control a pest whether that pest is an insect, weed, fungus or whatever.  Merely being a called a pesticide gives no information whatsoever about the origin, relative toxicity or environmental impact of any chemical. A pesticide may be concocted purely in a lab, mined from the earth, or derived from natural biological products found in plants, animals, fungi or bacteria.  Pesticides undergo a rigorous testing protocol to meet requirements of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) before the federal Environmental Protection Agency (EPA) approves them for legal use in the United States (Attachment 1).  This testing includes an analysis of the environmental fate of these products including their active ingredients, inert ingredients and byproducts.  Once a pesticide has been approved for use in the United States it must be labeled according to uniform guidelines established in FIFRA for pesticide labeling and – once more – approved by the EPA.  There is a common misconception that a pesticide label is some sort of recipe or “serving suggestion” for the product, which may be tweaked and altered to suit the needs of the person applying the pesticide.  These labels carry the force of law, and failure to follow the explicit instructions contained therein is a violation of FIFRA.  Because the EPA is responsible for enforcing both FIFRA and the Clean Water Act there has also been a misconception that these two laws are equivalent, interchangeable, compatible, and mutually fulfilling.  It is possible that an applicator may comply with FIFRA by scrupulously following a pesticide label and still be in violation of the Clean Water Act and vice versa.

 

This does not mean, however, that there is no information on the pesticide label that is relevant to the Clean Water Act.  Pesticide labels, by law, also carry important information about the toxicity, non-target effects and environmental risks of each pesticide.  From this information one can draw very educated and scientifically valid conclusions about whether a pesticide is also a pollutant.  It is very important to realize that the action brought against the Talent Irrigation District was for “…the discharge of a pollutant from a point source into waters of the United States” without an NPDES permit, which violates the federal Clean Water Act.  A “pollutant” is not merely anything added to water.  A pollutant, by definition, must pollute.  In examining the definition of the word “pollute” we find it associated with such words as impure, defile, unclean, dirty, corrupt, hazardous and toxic. The product in question in the case against Talent was Magnacide H®, a herbicide, which is applied to irrigation canals to kill aquatic vegetation.  Because of its toxicity to fish the Magnacide H® label states that the product should only be applied to non-fish-bearing canals.  Words like “lethal”, “toxic”, “acutely toxic”, and “kills” appear regularly in the 9^th Circuit Court decision against Talent regarding Magnacide H®.  In reaching its decision in the Talent case the Court cited Magnacide H® label precautions:

 

The label states that the herbicide is toxic to fish and wildlife, should be kept out of lakes streams or ponds, and should not be applied to drainage areas where runoff or flooding will contaminate other bodies of water.

 

There can be little doubt from looking at the evidence that Magnacide H® could be a pollutant if it escaped into the waters of the United States, which was a distinct possibility in the context of its normal use by the Talent Irrigation District.  Talent’s method of use of this potential pollutant required an NPDES permit due to the realistic threat such use presented to the waters of the United States.  They were not accused of, nor found guilty of, applying a pesticide to water without a NPDES permit, because the Clean Water Act does not regulate pesticides.  Talent lost their case because Magnacide H® is a pollutant, not because Magnacide H® is a pesticide.

 

Some districts may sign on to this permit “just to be on the safe side” and stay out of trouble with the SWRCB and the federal EPA until The EPA position on this issue is clarified.  Signing on to this permit at this time could have serious adverse consequences for several reasons.  In the first place it sends a message that we, the experts on the products that we use, consider them to be pollutants.  If we look at the EPA-approved label requirements under FIFRA, we can read the labels of the products, which we apply to water, and see that the use of these products according to the label and by any of the methods that we employ cannot present a risk of pollution to the waters of the United States even if these products were applied directly to the waters of the United States.  Saying that Magnacide H® and our public health pesticides should be equally subject to provisions of the clean water act because they are all aquatic pesticides is equivalent to giving mother’s milk and Bacardi 151 rum the same legal standing because they are both drinks.

 

From a purely pragmatic standpoint, perhaps the most important reason to not sign on to this new NPDES permit is that we do not have the expertise, technology, manpower, time or funding to meet the monitoring, sampling, testing and reporting requirements of the permit.  The SWRCB has not explained to us how we are supposed to monitor the levels of our biological pesticides, which cannot be distinguished from background organic materials, or our synthetic insect growth regulators, which are applied at rates that are 500 times lower than the most sensitive test that can detect them.  These are extremely important concerns in light of significant financial burdens that this order places on permitees.  In the first place these water sampling and monitoring protocols will be very expensive whether or not they can provide information that is useful or acceptable to the SWRCB.  Second and most importantly, failure to comply with the permit conditions can lead to fines of up to $25,000 per day for each section violated.  Given the extreme difficulty presented by trying to comply with this permit it would be extremely ill advised to expose the District to the risk of incurring such staggering penalties with no perceptible benefit to public health or the environment.

 

Shasta Mosquito and Vector Control District has spent 83 years developing an integrated program to provide safe and effective public health protection through mosquito control, without harming the environment.  A bureaucratic protocol that further limits our judicious use of the products we apply for the control of mosquito larvae could have adverse effects on the environment, public trust, public comfort and health, and our cooperative, friendly working relationship with other agencies which deal with environmental, wildlife and public health concerns.  The inability to control mosquitoes in larval sources will lead to an increase in the number of adult mosquitoes flying, biting and potentially spreading disease to humans and animals.  The District’s application of products for larval control in small confined areas would be replaced by an increase in broad application of pesticides for adult mosquito control over vast areas of land with important residential and recreational values. In areas where endangered species and other environmental concerns currently make application of mosquito larval control products the only option available, we would be forced to allow mosquitoes to proliferate without any control efforts.  This would put us in the unfortunate position of needing to oppose efforts to protect aquatic endangered species, as well as public or private efforts to establish or restore wetlands, as the mosquitoes generated by such environmentally beneficial activities present a threat to the health and comfort of people within the District.  Routine and friendly larval control services by the District would have to be replaced by a program that includes the issuance of abatement proceedings against residents and agencies which maintain standing water sources that breed mosquitoes. 

 

Finally, by our reading of a memorandum on “Application of Pesticides to the Waters of the United States” from Sylvia K. Lowrance, Acting Assistant Administrator of The United States Environmental Protection Agency to Regional Administrators Regions I-X of the United States Environmental Agency (Attachment 2), SWRCB overstepped its authority by developing an NPDES permit for this purpose in the first place.  This memorandum states, “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 CWA might apply to the use of aquatic pesticides.”  It goes on to say that “…enforcement against any direct application of pesticides to waters of the United States in accordance with a Federal Insecticide Fungicide and Rodenticide Act (“FIFRA”) will remain a low enforcement priority until EPA develops a concerted national approach on how to best regulate those activities.”  The memorandum further states that “…this prioritization will remain in effect through December 2001.  We will review the Agency’s and States’ responses at that time and determine whether to continue this prioritization.”  The memo states that “civil administrative or judicial enforcement” shall remain a low priority as long as the label is followed and no “imminent and substantial endangerment to public health or the environment” occurs as a result of our activities. In other words EPA basically said, “leave them alone and let them do their jobs for now because we aren’t sure how this will all play out.”  SWRCB decided that the Federal EPA directive wasn’t good enough and put together Water Quality Order No. 2001-12-DWQ.  To their benefit, they no doubt thought they were “helping” us by giving us a procedure for complying with the Clean Water Act based upon the SWRBC’s interpretation of the outcome of case against Talent in spite of the EPA assertion that there is currently no national policy addressing this issue.  Since EPA will be looking at “States’ responses” it is very important that we do not give the false impression that we are in agreement with the SWRBC’s “solution” to this situation.