ISSUE 14  August 27, 2009


Some may have heard about this news regarding the Clean Water Act (CWA) earlier this year. Many of you may not realize the significance of the outcome nor comprehend the effect it will have on most of the agriculture in North Dakota. Read below.

The 6th Circuit Court of Appeals handed down its decision in National Cotton Council vs. EPA (OW). The Court held that if some pesticide enters water of the U.S. as a result of pesticide application, the application is a discharge of a "pollutant". This Nation Pollution Discharge Elimination System (NPDES) ruling falls under the Clean Water Act (CWA).

There are several effects of the decision

1. All terrestrial applications of pesticides will require NPDES permits if ANY pesticide enters any water as a result of the application. The permit will be required even if the applicator complies with product labeling. It could take months for growers to obtain NPDES permits. North Dakota growers could be particularly affected by this ruling since pesticide are commonly used near potholes, sloughs, and the many water ways throughout the state. Potholes could be regulated under the CWA if a bill now before the Congress passes. The bill removes the word "navigable" from the CWA, meaning prairie potholes and other non-navigable waters would be treated the same as navigable waters.

2. All aquatic application of chemical pesticides will require NPDES permits if any excess residue will remain after the pesticide has performed its intended purpose.... mosquito abatement?

3. Under CWS’a citizen action provisions, this creates a tremendous potential liability for farmer and applicators (Activist Lawsuits).

4. EPA has asked for a stay - a period (2 years) that will allow them time to figure out how to handle the new ruling – States too. If the court refuses to stay the mandate of the ruling and orders immediate compliance, it would be a major concern for all ag producers.

5. Industry has asked for a rehearing (13 organizations).

6. EPA estimates that the ruling will affect approximately 365,000 pesticide applicators that perform 5.6 million pesticide applications annually.

7. However, USDA estimates that there are approximately 2 million private and commercial pesticide applicators in the U.S. who perform at least one application a year, implying that the EPA’s estimate may not represent the actual number of entities that could require a permit.

8. Could the rule apply to weekend gardeners? Yes

If you think this is bad just wait until the DRT (Drift Reduction Taskforce) regulations hit which will add drift mitigating wording to pesticide labels (has already happened with pyrethroids with perhaps phenoxy herbicide next on the hit list), will require sprayer inspection and certification and require buffer strips around every field....... to be continued.



The Sixth Circuit Court of Appeals has granted the Environmental Protection Agency's request for a two-year extension of the January ruling that would require the agency to develop a Clean Water Act permitting program for pesticide applications. The extension will allow EPA adequate time to determine how to structure the program that could cover hundreds of thousands of pesticide applications.



There are currently 3 major avenues being pursued to ensure that pesticides applied in accordance with FIFRA are exempt from any CWA regulation:

  • Judiciary Branch - Industry (Crop Life, National Cotton Council, etc..) appeal in full 6th Circuit Court is still pending. Supreme Court?
  • Legislative Branch - Congress could provide exemption of pesticides in compliance with FIFRA from CWA. The Baucus amendment to Senate bill 787 (which broadens the scope of CWA jurisdiction) initially looked good, but did not provide a true exemption. S. 787 passed the Senate Environment and Public Works committee, but I don’t think they have the votes to pass it in the full Senate. On the House side, the Small Business Committee had a hearing on S. 787 on Wednesday, and they heard massive opposition against the bill because enactment of S. 787 would subject federal CWA permitting requirements on ditches, water and sewer pipes, streets, gutters, manmade ponds, storm water basins, and even "puddles of rainwater" according to some of the bill’s critics.
  • Executive Branch - EPA has until April 9, 2011 to implement an NPDES permit system for all pesticides applied in, over, or near water. Discussion about the need for another "Fact Finding" tour.
  • EPA plans to release a draft version of an NPDES general permit for public comment by April 2010. States will be required to do their own permitting, but EPA would not object to "plagiarism" of its general permit. State general permits must be approved by EPA prior to April 9, 2011.

    An NPDES General Permit will allow an applicator to perform certain activities (mosquito control, aquatic weed control, etc.). Applicators would need to file a ‘notice of intent’ (NOI) that would be good for 5 years (still discussing timeframe). The NOI is intended to be a simple 1 to 2 or 3 page form with name, address, application type, discharge area, etc. Applications should be able to be made within 2 days to a week of NOI submission. EPA does not believe that individual NOI’s should be made available to the public, although general permits could be made public.



    EPA has published a draft assessment for their current Registration Review of fomesafen (Reflex, Flexstar, others), which proposes very radical use restrictions on fomesafen containing products.  A proposal suggests a buffer zone of 850 feet for ground applications (and 1,000 feet for aerial) of fomesafen to soybean fields so as to protect certain endangered plants and habitats.  This restriction would be applied to most of the soybean producing counties in the USA. If adopted, this restriction would seriously impact the utility of fomesafen on up to 86% of all soybean acres, as well impacting dry bean and pending uses on North Dakota potato acres in the counties outlined in red on the figure below. 

    The 850 feet buffer zone could impact large areas. As a comparison, the size of buffer zones around field borders from EPA Drift Reduction Taskforce (DRT) regulations have not be determined yet. Some people are suggesting 300 feet buffer zones, some 0.5 mile, some under certain conditions are suggesting 1 mile. One might wonder how much land constitutes 300 feet around a quarter section. Based on a quarter section = 0.5 mile on all sides = 160 acres - a 300 ft buffer would equal 64.5 acres or 40% of the total acres. The manner in which we manage the land may radically change from the way we have done things in the past.

    Several university specialists, commodity group representatives, and government agencies have responded with data and information showing these levels of restrictions are not needed. Considering the amount of regulations being considered from the EPA Drift Management Taskforce, Clean Water Act, National Pollutant Discharge Elimination System Permits, and Endangered Species there could be more to come.

    Rich Zollinger
    NDSU Extension Weed Specialist



    Is glyphosate less effective than 10 years ago? Can you recognize the presence of glyphosate-resistant weeds in a field? If you are unsure, plan to attend one of the field tours that will be held at Plummer (Plummer Co-op Creamery – Cenex Station at 1:00 PM) and Hawley (RDO Equipment at 9:30 AM), Minnesota on September 9 and 10, 2009, respectively. Glyphosate resistance develops over time in a field. Early recognition of the symptomology of surviving plants and patterns within a field will allow more effective management of glyphosate on your farm or the fields you manage. Field tours will be held at Plummer and Hawley to teach you how to recognize resistance symptomology and strategies for managing resistance. Farmers, consultants, and agribusiness employees are welcome to attend.

    There tours are sponsored by the Minnesota Soybean Research and Promotion Council, Minnesota Extension Service, NDSU, Dow AgroSciences, and Valent. There is no charge to participate. For more information contact Carlyle Holen at 218-281-8691.

    Jeff Stachler
    Weed Agronomist  

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