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August 27, 2001

 

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

Shasta Mosquito and Vector Control District Activities

Based Upon The Contents of General Permit No. CAG990003

John Albright, Biologist, Shasta Mosquito & Vector Control District

 

It is important to keep in mind that if Shasta Mosquito and Vector Control District signs on to this permit, the District will be signing on to the whole permit.  This would mean that the District acknowledges that the rationale for the permit is accurate and true.  It also means that the District accepts the descriptions, characterizations, and impacts that the permit uses when describing aquatic pesticide applications as accurate descriptions of our programs, practices and products, and their impacts on public health and the environment. 

 

This analysis is intended to show the inapplicability of Water Quality Order No. 2001-12-DWQ to MVC Activities based upon the content of the actual permit itself.  It will be a point-by-point criticism of each assertion by SWRCB within the permit that this permit applies to application of aquatic larvicide products for public health vector control. It will show that the permit does not reasonably describe activities, impacts or needs of public health pest control agencies, as written.  Items within the permit that are not directly related to its applicability to public health pest control in aquatic sources, such as permit conditions and (true) explanatory statements of fact, are left out.  Sections in quotes and italicized are taken directly from General Permit N. CAG990003 (the permit).  Some boldface and underlining is added for emphasis:

 

  1. Page 1, Section 1, Sentence 1:  “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 waters of the United States associated with the application of the District’s public health pesticides.  Therefore this permit does not apply to the District.  This issue should end right here.
  2. Page 1, Section 2, Last Sentence: “On September 22, 1989, the USEPA, Region 9, approved the SWRBC’s request and granted authorization for the State to issue general NPDES permits.”  Clearly the SWRCB has the authority to issue NPDES permits.  NPDES stands for National Pollutant Discharge Elimination System and these permits are intended to eliminate unnecessary and avoidable discharges of pollutants to the waters of the United States.  Since the District’s products are not pollutants, this permit is unnecessary to allow us to continue our current larviciding regimen.
  3. Page 1, Section 3, Sentence 3: “This General Permit is intended to authorize short-term and seasonal discharges of pollutants to waters of the United States (water bodies) resulting from the application of aquatic pesticides…” No pollutants have yet been named that are a result of the application of our aquatic pesticides.  We do not foresee any seasonal discharges of pollutants occurring in the course of our normal function of public health pest control.  Therefore, we do not need or desire authorization to make such discharges.
  4. Page 1, Section 4, Sentence 1: “This General Permit is intended to authorize short-term and seasonal discharges of pollutants to waters of the United States (water bodies) associated with the application of aquatic pesticides…” Until the District is told what pollutants are associated with the application of the District’s public health aquatic pesticides, the District does not believe that this statement applies to District activities.
  5. Page 2, Section 5, Sentences 2 and 3 “The impact of these chemicals may not be limited to the target organisms–other plants and aquatic life in the treatment area may be impacted.  Due to water movement at the treatment locations, the residual pesticides can be carried to adjacent areas while concentrations in the water are still high enough to cause adverse effects, not only to aquatic organisms but also to other beneficial uses such as irrigation, municipal water supplies and recreation (such as swimming).”  None of this is true in relationship to the District’s aquatic public health pesticides.  District products and practices do not impact non-target organisms at the site of application, and are even less likely to do so if they are carried downstream and thus further diluted.  Our products do not adversely affect water used for irrigation or swimming, and they are not applied in proximity to municipal water supplies (per label directions).
  6. Page 2, Section 5, Sentence 5:  “A purpose of this Order is to minimize the areal extent and duration of adverse impacts to beneficial uses of water bodies treated with aquatic pesticides.”  There are no measurable adverse effects to beneficial uses of water bodies that would be mitigated in any way by signing on to this permit.  In fact District activities improve the listed beneficial uses of water bodies by reducing the pest and disease risk associated with those water bodies.  Any diversion of our funds or activities from our control of mosquito larvae in the water could, in fact, adversely affect these “beneficial uses of water bodies”.
  7. Page 2, Section 6:  We have no objections to this section.  However, we feel that it helps to demonstrate how well-regulated District activities are, and how unnecessary this permit is.
  8. Page 3, Section 8, Last Five Sentences: “Pesticides may become waste after the application has occurred.  Adjuvants are regulated as pesticides in California.  Other wastes generated by the use of pesticides are not regulated by DPR.  These wastes include pesticides and breakdown products.  These wastes pose a threat to the beneficial uses of State’s waters if not properly managed and therefore are subject to regulation under this General Permit.”  Let’s start at the middle and work out.  It is erroneous to say that wastes generated by the use of pesticides are not regulated by DPR.  Under testing required for the FIFRA registration of these products, the environmental fates of these products are tested to see if the registered use of these products poses a threat of harm to the environment or to humans who contact treated areas following pesticide applications.  If such risks are found, there are mitigating procedures included in the label directions, which must be followed to minimize or eliminate such risks.  DPR absolutely has the right to enforce provisions of the label related to impoundment of the treated area or other label restrictions designed mitigate or eliminate risks associated with pesticide waste products.  Absence of label restrictions or required mitigation measures following treatment clearly indicates that the United States Environmental Protection Agency has found that the products that we use clearly do not “… pose a threat to the beneficial uses of State’s waters if not properly managed….” and therefore are not “… subject to regulation under this General Permit.”
  9. Page 3, Section 9, Last Sentence: “This Order regulates the discharge of pollutants, which includes the residues of pesticides that are left in the waters of the United States following application.”  This is nothing more than a clarification of the type of pollutants that are to be regulated by this Order.  This could be read to include residues from all pesticide applications to water.  However, based on the earlier rationales for the need for the permit it could just as easily exclude our products and practices.  Although, the SWRCB may well have intended for this statement to read that the order regulates all the residues of all the pesticides that are left in the waters of the United States following application, this is not explicitly stated.  Absent such a clarification in the wording and based upon the earlier statements of the SWRBC that wastes of the pesticides that they are intending to be regulated by this Order “…pose a threat to the beneficial uses of State’s waters if not properly managed….” it may reasonably be argued that the Order applies to some pesticides, but not all pesticides, and certainly not the District’s pesticides.

 

Subsequent portions of this permit deal with conditions that must be met by agencies that sign on to the permit.  A convincing argument can be made, based upon the SWRCB’s own explanation of the rationale and scope of the permit, that General Permit No. CAG990003 does not apply to us.  Whether or not the District can meet the requirements necessary for compliance with the permit is a moot point if the permit does not pertain to District activities in the first place.  The District chooses therefore to end this analysis here and not delve into the vague, redundant, unnecessary, and/or impossible requirements that would be placed upon the District if it were thought that the Permit applied to District activities.