OMAHA (DTN) -- EPA officials say farmers shouldn't have to worry about potential legal liability or citations for violating the Clean Water Act if they follow label directions on their pesticides, after the agency issued a general permit for pesticide applicators earlier in November.

Agriculture groups raised concerns about potential legal liability farmers could face as a result of a National Pollution Discharge Elimination System, or NPDES, general permit for pesticide applicators.

Officials with EPA Region 7 based in Kansas City told DTN, however, that row-crop farmers are already covered if they follow label directions on pesticides.

Josh Svaty, former Kansas agriculture secretary and now senior adviser to Region 7 Administrator Karl Brooks, said farmers will not need permits for pesticide applications that do not result in point-source discharges to waters of the U.S. Permits are not required for pesticide applications for the purpose of controlling pests on agricultural crops, forest floors or range lands. Region 7 covers Iowa, Kansas, Missouri, Nebraska and nine tribal nations.

"The pesticide general permit is a Clean Water Act permit for applicators directly applying to water with a pesticide used on that water," Svaty said. Activities by row-crop farmers do not need a general pesticide permit. Row-crop activities are governed by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which is spelled out on pesticide labels.

Farmer concerns about potential lawsuits are legitimate, he said, but the general permit "doesn't increase the potential for lawsuits." In fact, Svaty said EPA developed the general permit to provide an option for pesticide operators to comply with the Clean Water Act. Permittees who meet all permit requirements, he said, could be shielded from liability from lawsuits.

Though farmers may have concerns about whether they need permits to apply pesticides to irrigation ditches, Svaty said, most producers would fall within the surface-area threshold for FIFRA. Any spraying on irrigation ditches with fewer than 20 linear miles, or about 80 acres, would be covered by FIFRA.

Kris Lancaster, public affairs specialist for EPA Region 7, said row-crop farmers in states that have NPDES general permit programs will not see any change in their practices. These farmers likely would not need permits as long as they do not discharge to waters of the U.S., he said.

Label instructions typically advise applicators to turn off spray jets and to avoid spray drift when over water. Lancaster said rice farmers in Missouri who apply pesticides to their fields immersed in water would be covered under the EPA pesticide general permit. Rice farmers in other geographic areas would need to check with their state agencies to obtain a permit, he said.

While the EPA issued its general permit for pesticide applicators following a lawsuit from environmental groups, agriculture interest groups say the agency raised more questions than it answered about who has to follow the regulation.

Effective Nov. 1, EPA now requires permits for pesticide applicators. EPA's general permit covers operators who apply pesticides that result in discharges into waters of the U.S. from mosquito and other flying insect pest control, weed and algae control, animal pest control and forest canopy pest control.

Ag groups have expressed concern that EPA did not create a blanket permit for other applicators including row-crop farmers, as the agency has held the rules around NPDES only apply to those listed. In addition, there has been concern that farmers could fall victim to a broad definition in the CWA of "waters of the U.S." Violators of the CWA can face penalties of up to $37,500 each day they are out of compliance.

The EPA program could affect about 365,000 pesticide applicators nationwide, including some 5.6 million annual pesticide applications, according to EPA estimates.

Members of Congress have attempted to pass legislation to stop the general permit program, instead relying on applicators to follow label directions.

The general permit provides coverage for discharges in areas where EPA is the NPDES-permitting authority. That includes Alaska, Idaho, Massachusetts, New Hampshire, New Mexico, Oklahoma, Washington, D.C., most U.S. territories, Indian country lands, and many federal facilities. The remaining 44 states are authorized to develop and issue NPDES pesticide permits.

EPA said 36 states indicated they would have their own permitting system ready "on or around" Oct. 31, but several other states have yet to complete those programs.

Farmers with questions are encouraged to contact their state environmental office for assistance. For more information on the NPDES requirements for discharges from pesticide applications, EPA's final general permit, the fact sheet, and an interactive tool to help potential permittees determine their permitting requirements are available at: www.epa.gov/npdes/pesticides.

Todd Neeley can be reached at todd.neeley@telventdtn.com

(SKCZ)

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