Texas’ statewide general permit for pesticide use in and around water is up for renewal this year. Public comment ended Monday.
Aug. 2, 2016
Many of our readers go out of their way to buy organic produce, use eco-friendly products and cringe when they hear about government mandated pesticide spraying. That’s why last month we alerted Green Source DFW readers that Texas’ statewide general permit for pesticide use in and around water is up for renewal, effective this Nov. 2, through 2021. Monday was the last day for public comment on it.
To comment on Texas General Permit TXG 870000, you had to understand what it says – no small feat. One way to take a stab at that is to read its 41 pages; question staff of the authoring agency, the Texas Commission on Environmental Quality; and talk to an expert entomologist. That’s what we did. The permit is no one’s preferred summer reading, unless you need to apply pesticide to an acreage or water body that falls under its purview – or you’re concerned about potential risks of pesticides in our water. In case you are either, here’s what we learned.
The research highlighted here gives an outline of some of the rules that bound the public’s million and one needs to control insects, rodents, weeds, aquatic plants, algae or fungi that we see as infringing on human interests. The permit, adopted in 2011, results from 2009 court decisions that the existing law governing pesticide labeling and use, the Federal Insecticide Fungicide and Rodenticide Act, wasn’t adequate to protect waterways from pesticides under the Clean Water Act. EPA, mandated to issue pesticide permits for that purpose, directed the states to each come up with a general permit. This short article points out, along with highlights of the Texas permit, a few apparent holes in the permit on which TCEQ staff had no comment.
Dr. Michael Merchant, Texas AgriLife Extension Service urban entomologist for Dallas, provided background and put in context some concerns over pesticides. He participated in an advisory council during TCEQ’s permit development, worked to interpret the permit to pesticide applicators initially and continues to train them.
“Risks of pesticide use are greater in water than on land, although lots more pesticide is used on land,” says Dr. Merchant. “On land, pesticide is carried into the soil, where it tends not to travel, especially in North Texas’ heavy clay. In water, pesticides can travel downstream and, potentially, into drinking water sources….They (also) get carried down to the sediments at the bottom, where the insects are. The insects get eaten by birds, and the pesticide moves up the food chain,” a process called biological magnification.
Merchant pointed out that some highly persistent pesticides of the 1960s with that unintended effect, the organochlorides reported in Rachel Carson’s book Silent Spring, are no longer in use. DDT was banned in 1972, at EPA’s establishment, followed by others such as Chlordane and Aldrin. Since 1980, some chemicals once common in retail garden products, such as Diazinon and Dursban, are off the consumer market.
“We use a lot more baits, safer formulations, more preventives and more selective insecticides…We want them to last only long enough to do the job, usually only a few days to a few weeks.”
While Merchant sees pesticides as safer in general than in the past, “pesticides in water is a sensitive topic we need to deal with. Aquatic environments are more sensitive than terrestrial...The pyrethroids that replaced Diazinon and Dursban need more study,” he cautioned. “They are low-toxicity for humans, but can have impact on aquatic environments…If they are in sediments where insects live…they are breaking the food chain at the base.”
The Texas General Pesticide Permit applies to “waters of the U. S.” within Texas, which means it governs applications of pesticide that could enter water on just about any acreage in the state. Exceptions are isolated intrastate waters that don’t feed into a river flowing to the Gulf of Mexico and aren’t involved in interstate commerce. Also, certain agriculture uses are permitted under the Texas Department of Agriculture (TDA), rather than TCEQ.
Types of applications range from baits and point sprays to aerial spraying. They may be discharged into or alongside water, on terrain that drains into water, or by aircraft over forest canopies, fields and water bodies.
More residents are likely to encounter the permit indirectly by being nearby, rather than directly, by themselves applying pesticides at this scale. The smallest pesticide application the permit covers is to water bodies of less than one acre that have public or private access. Like your ranch pond choked with alien water hyacinth, for example. Stream banks and land draining into water bodies are also covered.
Indirect contact with uses under the permit would be on acreage and water bodies treated in city, county or state lands, parks or landscapes; county flood zones; county mosquito control districts or state agencies. Some uses of these kinds are large enough to require more restrictive individual permits. The public also may encounter pesticide application under this general permit around their homes or workplaces.
None but users in the top Level I category must apply for an individual permit or submit paperwork to TCEQ. Level II users are on the honor system to follow the general permit rules, required only to maintain various documentation, but not submit it. Level III users have neither to keep records nor report.
Level IA users are defined as those treating at least 6,400 acres, or 10 square miles; 200 acres of water; or 20 linear miles of streambank, and who may use more toxic pesticides designated Restricted Use and State Limited Use. Those large acreages are generally the above-mentioned public uses, says TCEQ staff. Level IA users must apply for individual permits by filing a Notice of Implementation to the TCEQ.
More lenient permitting applies to the tiers below IA (IB, II and III.) Those users can include very large expanses, going up from less than one acre of water with public or private access to acreages under 10 square miles, waters less than 200 acres and miles of streambank less than 20 linear miles. Level III users are ones within those spatial limits who use only General Use Pesticides, products labeled for general consumer use.
TCEQ’s charge is to protect public health and natural resources. Texas Department of Agriculture is the lead state agency for regulating pesticides, including investigation of complaints of alleged pesticide misuse. Whether oversight of the many pesticide applicators in the state is adequate is an open question.
“With 60,000 applicators [all categories] out there, there aren’t enough TDA investigators…to police everyone,” says Merchant. “When there’s a spill, or a guy rolls his truck, or someone gets ill and complains, that’s when state agencies are most likely to take action…”
His impression after 20 years of working with applicators is, “people are pretty conscientious…TDA began requiring annual continuing education in the early 1980s…I think it’s helped.”
TDA currently licenses more than 49,000 agricultural pesticide applicators.
“There are 40,000 private pesticide applicators, most of whom are farmers,” says Merchant. “[Plus] 5,300 noncommercial applicators ([including] government agencies, schools, parks departments, city outdoor applicators) and about 4,000 commercial applicators ([such as] tree care company employees, lawn care companies.)”
The number of TCEQ personnel assigned to compliance and enforcement of the state laws on water quality were not available from TCEQ’s Austin headquarters.
Areas of the permit raise questions, especially in view of the land and water expanses and numbers of users involved:
“Spray before okay” “Provisional authorization” of NOI permits allows the discharge of pesticides in advance of authorization for the broadest Level I uses, for up to 48 hours before the request is reviewed. TCEQ staff would not comment on the issue of possible discharge of pesticides for uses that are denied once they’re reviewed. Green Source DFW did not learn whether this has occurred. Twenty-two NOI permits have been requested to date.
The general permit does not explicitly require water testing or any other tests at any stage of pesticide application. Only visual observation is required of the applicator, to determine the need for treatment, appropriateness of weather conditions and treatment outcomes. Afterward, even if “toxic or adverse effects” are visible, no water testing, samples or surveys are required.
Spill and leak reporting to TCEQ seems leaky. In the event of an “adverse incident” or a “spill or leak,” the operator is required to alert TCEQ via the agency hotline or a regional office. “Within 24 hours” – or “as soon as possible,” with “the rationale why the permittee was unable to provide the notification within 24 hours.” Even 24 hours is enough time for many pesticides to have dispersed. No requirement for testing after spills is stated in the permit.
Texas Department of Agriculture is the primary agency to which incidents, spill and leaks are reported.
Level I and II operators, users of more toxic Restricted Use and State Limited Use pesticides, are required to have a pesticide discharge management plan that includes incident response actions, contact information for hazardous chemical responders and pesticide and spill response hotlines.
Level I operators must develop an Integrated Pest Management Plan, which prioritizes controls by least toxic first. Pesticide application records, reports of adverse incidents and of spills or leaks, and notifications to TCEQ (but with time limits ranging from 24 hours to 30 days) are also required.
However, submitting to TCEQ the above records and reports is not required of most users. Only Level I operators are required to do so. Level II operators are required simply to complete self-certification forms and keep reporting on hand and plans posted. There’s no reporting or record-keeping for Level III users.
Asked to confirm the lack of required provisions in the permit beyond visual inspection to evaluate discharge spills, leaks and incidents, TCEQ staff stated only, “pesticide applications [must be] conducted in accordance with state environmental law and the pesticide FIFRA label.”
It’s undetermined whether adequate protection for waterways and water supplies comes from TCEQ’s honor system accountability governing the large majority of pesticide users. Is the agency’s Office of Compliance and Enforcement adequately staffed and pro-active?
One clear source of alerts to possible pesticide incidents, spills or leaks in water is the public.
To Report a Possible Spill/Incident
Texas Department of Agriculture investigates complaints from any persons who believe they may have suffered adverse effects from a pesticide application or that a violation of the Texas Pesticide Law or related regulations may have occurred.
Contact the nearest TDA regional office or the TDA Austin office at 1-800-TELL-TDA, or report online HERE.
TCEQ Spill Reporting (24 Hour) - 800-832-8224
To Report a Fish Kill
Follow Texas General Pesticide Permit
Here are links to the official text of General Permit No. TXG 870000. It’s official title is “General Permit to Authorize Point Source Discharge of Biological Pesticides and Chemical Pesticides that Leave a Residue in Water” No. TXG 870000.
Contact information for public comment here.