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TID loses appeal over canal pesticides By PAUL FATTIG In what is being called a precedent-setting decision, the U.S. 9th Circuit Court of Appeals in San Francisco has ruled that private parties must first obtain federal permits before discharging pollutants into public waterways. Monday�s decision reverses an earlier U.S. District Court ruling in a lawsuit brought by Ashland-based Headwaters and the Oregon Natural Resources Council against the Talent Irrigation District. A spokesman for the TID said district officials were disappointed in the decision and that it would have a negative impact on pest control activities nationwide. The environmental groups had sued the TID following a May 8, 1996 incident in which thousands of fish died in Bear Creek after the pesticide Acrolein flowed out of the district�s irrigation system into the stream. The chemical is used to control weeds in the ditches. The plaintiffs had argued that, under the 1977 Clean Water Act, the district was required to obtain a federal Environmental Protection Agency permit. The lower court had ruled in 1998 that EPA regulations governing labels for pesticide products had been adequate. The appeals court disagreed, concluding that the label regulations addressed different concerns than the act. The former emphasizes a cost-benefit analysis while the act is more concerned about protecting water quality, the court said. The act�s permit requirements do not allow an exception for pesticide products, the appeals court concluded. The decision means that irrigation districts will now be held to the standards of the Clean Water Act, said Charlie Tebbutt, an attorney with the Eugene-based Western Environmental Law Center which represented the plaintiffs. "When you apply pesticides to water, you need a permit," Tebbutt said. "It sends a very strong message. They unequivocally said you must have a permit before discharging these pollutants into water." The appeals court also returned the case to the lower court to determine appropriate penalties and other action, he added. As a result of the court decision, the EPA and its counterpart in Oregon � the Department of Environmental Quality � must also adhere to that aspect of the act, he said. "They have been afraid to regulate irrigation districts who have strong political lobbies," he added. "Now those districts must comply with the law." The district felt it was already complying with the law, said TID board member Ron Meyer, a local pear grower. "This will have tremendous impact on agriculture," Meyer said. "It will be a big impact on all entities who use pest control in water nationwide. We were quite disappointed in the decision." The problem is that the district doesn�t have a good alternative to the chemical it has used, he said. Alternatives include drying up the canals for a week in July to kill the buildup of moss or using mechanical devices known as "moss rakes" to remove the plant life, he said. Machinery is more expensive than chemicals and drying up the canals means promised water won�t be delivered, he said. An effort to use grass carp to remove the plant material hasn�t been effective, he said. "There is no easy answer," he said. "And doing nothing would plug up the canals by July." If the TID did pursue the permits as the court decreed, it would cost about $50,000 per each of its four canals, he said. An environmental impact study would be needed with each permit, he said. "There is also really no infrastructure to get a permit now," he said. An appeal of the appellate court decision will likely be made to the U.S. Supreme Court, he said, although adding that action would have to be done by others since the TID doesn�t have the funds for a court battle. The environmental groups have no interest in stopping farming, stressed Chris Bratt, a member of the Headwaters board. "This is not an effort to get rid of agriculture in the community," he said. "This was to make sure any poisons being put in the water were being monitored." Reach reporter Paul Fattig at 776-4496 or e-mail him at [email protected] Mail Tribune Home | Ottaway Newspapers, Inc. | Dow Jones & Co., Inc. | Privacy | Contact Us Copyright � 2001 Mail Tribune, Inc.