05/20/05 Flexibility in the Act

05/20/05 Flexibility in the Act

When Congress enacted the federal Clean Water Act and Federal Insecticide, Fungicide, and Rodenticide Act in 1972, both measures gave agricultural owners a break. Producers who followed Environmental Protection Agency requirement to follow label instructions when applying chemicals did not have to apply for a National Pollution Discharge Elimination Systems permit. And everyone appeared fine with that agreement. That is until a court case four years ago. OTTER: In 2001, Headwaters Inc. versus the Talent Irrigation District &the court ruled that the irrigation district that was applying pesticides or herbicides into an irrigation canal, even though according to the label, was in violation of the Clean Water Act because they did not have this N.P.D.E.S. permit. And according to U.S. Representative Butch Otter of Idaho, a case the following year led to a court greatly narrowing the scope of the long standing E.P.A. rule that exempted pests and fire control and other forest activities. So by the time the courts were finished with their rulings, it resulted in ag producers wondering what to do & follow the E.P.A. guidelines or follow the court ruling and apply for a N.P.D.E.S. permit? That confusion led Otter to introduce a measure in the House this year designed to clarify the situation. The name of the measure is the "The Pest Management and Fire Suppression Flexibility Act". OTTER: Basically what I've done is taken the Environmental Protection Agency's response this last February when it is issued a proposed rule that reiterated that a National Pollution Discharge Eliminations System permit is not required so long as in applying pesticide and herbicide, you do it consistent with the instructions on the label, either in water or near water. What I'm doing is codifying & I'm putting into the code & the E.P.A. rule, and so then the courts can't touch it. Otter's measure has already gained support from key farm groups such as the American Farm Bureau Federation. They believe if Otter's bill becomes law, it will go a long way in protecting ag producers from what A.F.B.F. calls a problem of frivolous lawsuits, and clarifying that specific forestry activities such as pest and fire control are exempt from federal Clean Water Act permit requirements. And Otter adds another benefit that could result from his bill would be the greater flow of water down irrigation canals and ditches during these dry times. That's because irrigators and irrigation districts could eliminate weeds inhibiting water flow in canals with federally approved chemicals, without fearing the threat of citizen lawsuits.
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