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With the release and immediate activation of EPA’s NPDES permit on Oct. 31, the application of pesticides over, near or into waters of the U.S. just became much more complicated. While EPA has pledged to focus on compliance assistance related to the PGP, rather than enforcement for the first 120 days (through February 2012), the permit itself remains duplicative and extremely burdensome. Speaking on behalf of NAAA, Colorado Aerial Applicator Leonard Felix testified yesterday before the House of Representatives, Small Business Committee, Subcommittee on Agriculture, Energy and Trade on the topic of new regulatory burdens and the potential regulations they place on family farmers. To read a complete copy of his testimony, please visit the NAAA website. To read the EPA’s NPDES permit in its entirety please visit the EPA website.

Felix, who is the owner of Olathe Spray Service, Inc., an aerial application small business in Olathe, Colo., focused on the impacts of EPA’s NPDES pesticide general permit on the aerial application of pesticides and the burdens the permit will impose on his business, clients and other operators. Felix informed the committee that his business is like the 1,600 small businesses in 46 states that make up the aerial application industry in the U.S. and represents a large and diverse group of clients. He stated his business alone services over 500 customers annually, including treating canals and ditches for grasses and noxious weeds for the Uncompahgre Water Users Association, spraying cropland for farmers as well as helping control mosquitoes for pest control districts, cities, townships and counties, and treating private forests for insect control.

Felix stated the short season in Colorado requires him and his crew to pay constant attention to the maintenance of their aircraft and perform frequent calibration of their equipment and conduct continuous safety checks. “We become experts on pesticide label requirements and state laws,” he testified. He stated that along with their normal required recordkeeping, the NPDES permits by EPA and states will now pose an added obligation they must meet. Felix said this will be a huge challenge, as he will need to meet both state and federal permit requirements since he treats private property in Colorado as well as federal and tribal lands.

Felix informed the committee that the enforcement penalties for paperwork and performance violations, along with defending against citizen action suits under the Clean Water Act’s provisions could literally put him out of business. “It is all redundant and unnecessary because FIFRA requires EPA to ensure a pesticide’s safety before it is allowed to be registered for use,” stated Felix. He said aerial applicators appreciate that EPA has spared them part of the planning and reporting burdens when working as for-hire contractors for public and private decision-making clients; however, should they participate in the planning of pest control they become decision makers and in turn are subject to much more laborious planning and reporting responsibilities. Felix stated that should applicators who are also decision makers make paperwork or otherwise unintentional errors they will be subject to penalties of up to $37,500 per day. Felix reiterated to the committee that the permits “just add costs, time consuming burdens and open the door for suits.”

Felix’s testimony highlighted for the committee that while long hours and risks are expected in the aerial application profession, the burdens and risks associated with the NPDES permits are not something the industry needs or wants. His testimony also offered a solution to the significant impacts caused by EPA’s NPDES permits: enactment of legislation (H.R. 872), which would not require NPDES permits be obtained for mosquito, forestry and other pesticide applications made over or near water due to FIFRA’s environmental protections in these areas.

NAAA will continue to work with a coalition of agricultural organizations for a legislative exemption from Clean Water Act NPDES permits. This effort could be tied to passage of other legislation, such as agricultural appropriations or farm bill legislation. Aerial applicators should be aware, however, that they must comply with the EPA or state PGPs in the states where they do business, and may be subject to citizen action suits should they violate either the recordkeeping or performance aspects of the PGP. Visit EPA's website for more information and NAAA’s website to learn more about state PGPs. Contact NAAA for more information at (202) 546-5722. The Association will continue to keep members abreast of any new developments regarding a legislative solution via the eNewsletter and NAAA website.

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