State health officials are setting new rules for the regulation of pesticides after a federal court ruled that the chemicals fall under the Clean Water Act when they enter waterways.

But critics say recently released draft rules aren’t strict enough and that stakeholders, such as the farming lobby, may have had undue influence in crafting them.

A court ruled in favor of the National Cotton Council in 2009, saying that the Environmental Protection Agency’s rule excluding pesticides from regulation under the Clean Water Act was not a reasonable interpretation of federal law. As a result, companies such as Alexander & Baldwin, which sprays pesticides in irrigation ditches to control weeds, and state land officials, who use chemicals to kill invasive species, must now obtain a federal permit. And the state must come up with rules that regulate it.

A meeting called by state officials on Monday to hear public input was largely a battle between farming interests, including Alexander & Baldwin and Monsanto, that pushed to ease the rules, and environmental groups seeking to make them more stringent.

Dean Okimoto, head of the Hawaii Farm Bureau, said that the rules would increase costs for farmers and impede the push for food sustainability.

“It’s starting to feel like it’s an inordinate burden on farmers in this state to take on,” he said during testimony. “It comes to the point that farmers are almost endangered species.”

But local groups including Earthjustice, the Surfrider Foundation, Life of the Land and KAHEA, argue that the state isn’t doing enough to protect local waterways, aquatic resources and human health.

In written testimony to state health officials, the groups warned that dangerous chemicals had already been detected in the state’s drinking water. Those include atrazine, which has been shown to disrupt sex hormones in animal tests, and glysophate, which is associated with increased risk of spontaneous abortion. Environmentalists say that triclopyr, which can cause cancer, has also been detected.

They are pushing for stricter rules that require polluters to use the least toxic chemical possible. They also want state officials to better monitor the effects of chemicals and publicly disclose what pesticides are going into waterways and where.

The farming lobby has argued that these chemicals are already regulated under the Federal Insecticide, Fungicide, and Rodenticide Act, which is administered by the state Department of Agriculture. The act regulates the distribution, sale and use of pesticides.

The Working Group

Environmentalists are suspicious of the way the rules were drafted.

Some local stakeholders, including a representative from Alexander & Baldwin, Janet Ashman, who has represented the Hawaii Farm Bureau and The Nature Conservancy, attended meetings to discuss the rules. But most conservation organizations were excluded.

Gary Gill, deputy director for environmental health for the Department of Health, told Civil Beat that there was no official list of those who were in the working group, and wasn’t sure if companies such as Monsanto or Syngenta also participated. And there are no meeting minutes, he said.

Earthjustice also requested this information a couple of weeks ago, according to Caroline Ishida, an attorney with the organization, but was also told the records didn’t exist.

“We would like to see notes from any working group meetings and how the conversation with the woking group informed the rules,” she said.

Gill said the health department didn’t form the group, rather stakeholders got together and formed it themselves.

While he couldn’t say who it included, which he estimated met four to five times, he said that the group didn’t influence the final rules.

“I think transparency is absolutely essential and I think it’s a keystone to our democracy,” he said.

Gill said people with a stake in the issue routinely send emails and letters, call or request specific meetings as rules are being devised.

“In this case a group of stakeholders kind of formed by themselves with the intent of facilitating the adoption of these rules,” he said. “In no way did this circumvent the public process and in no way does it give any special favor to the stakeholders.”

Pesticide Sprayers Left in the Lurch

Meanwhile, those that do spray pesticides in or near waterways are pushing hard for the state to finish up the rules, even though they don’t like them. The federal law went into effect last year, but the state still hasn’t finalized its regulations, meaning those that spray chemicals can’t obtain the required Clean Water Act permit.

At least some of them have halted spraying pesticides that control the growth of invasive species and weeds that choke irrigation systems for fear of being sued.

Sean O’Keefe, director of environmental affairs for Alexander & Baldwin, said that the lag time in releasing the state rules was impacting the company’s operations on Maui and Kauai, as well as other farms they supply water to.

“We are not able to conduct normal maintenance activities on irrigation ditches and irrigation reservoirs to keep them flowing and keep them free of weeds,” he said during testimony. “This is leading to choking of the system, a reduced capacity of the system and inefficient water delivery because the water is going to feed weeds not crops.”

But while farming interests hope state officials will hurry up and finalize the rules, they also want to make sure that the state immediately repeals them if Congress eliminates the EPA requirement.

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