Hawaii is the only state that isn’t complying with new federal regulations that increase oversight of pesticides that are sprayed in and around waterways, according to officials from the Environmental Protection Agency.

The delay is angering local farmers and state agriculture officials who for months haven’t been able to spray pesticides to control invasive species that are threatening native habitats or fight weeds that are choking out irrigation ditches.

All states were required to create a new permit, under the Clean Water Act, by Oct. 31, 2011. But nearly eight months later, Hawaii health officials are still reviewing rules governing the permitting process.

And it could be at least two more months before anything is finalized, according to Gary Gill, deputy director for Environmental Health for the Department of Health.

Gill said the department has been working on the permit since before he was appointed to his post, a year and a half ago. He said it’s not easy to get a new permit in place in Hawaii because the health department is required to go through numerous steps.

The department also waited to see what the federal government’s final rules would look like, and was hoping that Congress would eliminate the requirement altogether.

Pesticide spraying had been regulated under different federal laws and those permits are still required. But spraying is blocked until the new Clean Water Act permit is also in place.

Farmers and state agencies face legal action if they operate without the new state permit. They could be sued by environmental groups and others for not having a permit, according to Elizabeth Sablad, an environmental scientist with the U.S. Environmental Protection Agency, who is the agency’s permit liaison for Hawaii.

For the Hawaii Department of Agriculture, it’s proving to be a hardship.

“It’s definitely affecting us,” said Russell Kokubun, head of the state agency which is responsible for maintaining the state’s irrigation systems.

The ditches provide water to farms throughout the islands including Hanalei on Kauai, Waimanalo and Waiahole on Oahu and Hamakua and Waimea on the Big Island. The growth of weeds and invasive species, and in some cases trees, is blocking the flow of water and making it difficult for state officials to conduct maintenance, said Kokubun.

He didn’t know how many farms may be hurt.

Water from the irrigation ditches also flows down to coastal taro farms, which could also be affected, noted Kokubun.

Sean O’Keefe, director of environmental affairs for Alexander & Baldwin, told state officials earlier this month that weeds were choking out irrigation ditches. The inability to spray pesticides is hurting the company’s farming operations on Maui and Kauai, O’Keefe testified at a health department hearing.

The inability to spray pesticides is also hurting taro loi farmers on Kauai, who have been battling the invasive cattail, according Keren Gunderson, project coordinator for the Kauai Invasive Species Committee. She said the organization has been working with farmers in Waimea’s Makaweli Valley for a decade and had been spraying the area to protect against the plants.

“The farmers keep asking us, ‘when can you come back?'” she said.

Removing the cattails manually is difficult, she said, because the roots form such a thick, intertwined mat.

Gunderson said that Kauai’s main watershed, Alakai Swamp, was also being threatened because the group couldn’t spray for false kava, a fast-growing invasive species that chokes out native plants and can block water flow. False kava is difficult to get rid of without herbicides because it can sprout from any part of the plant.

In 2009, as part of a lawsuit brought by the Cotton Council, a federal judge ruled that that the EPA must regulate the spraying of pesticides in and around waterways under the federal Clean Water Act, landmark environmental legislation passed in 1972.

While pesticides have been regulated under the Safe Drinking Water Act and the Federal Insecticide, Fungicide and Rodenticide Act for years, environmental groups say that the new oversight will provide better tracking of the effects that pesticides have on aquatic species, as well as their cumulative environmental and health effects.

The Clean Water Act permit is also aimed at minimizing pesticide use and requires users to consider alternatives to spraying.

Why It’s Taking So Long

Gill said Hawaii’s process for putting a new permit on the books is complicated. The governor’s office has to sign off on the rules twice, they must be approved by the Small Business Review Board, pass internal department reviews and go out for public comment, he said.

The public comment period was initiated earlier this month. More than 90 people and organizations submitted comments on the rules, according to Darryl Lum who is managing the process for the department’s Clean Water Branch. The division must now respond to each one.

Sablad said that the EPA tried to help speed things up by suggesting to the health department that it remove the permit governing pesticides from its official rule-making process, as is done in other states. But she said EPA was told by state officials that the rules prohibit this.

“We asked them if they could remove the general permit from the rules. But they can’t because of their own rules,” she said.

Gill also said that the state health department decided to wait until the EPA came out with its rules and permit at the end of October before working to finalize its own.

“Hawaii decided not to promulgate their rules until the EPA promulgated theirs,” he said.

The EPA’s rules pertain to a handful of states that don’t administer the federal Clean Water Act. To help other states in coming up with their own permit, the EPA gave states — including Hawaii — drafts of its rules months before the deadline.

While other states went ahead and issued their permits by the deadline, Gill said that Hawaii officials were worried that the EPA might make some modification in the final rules issued at the end of October, and then the health department “would be back to square one.”

Gill also noted that health department officials thought a bill might pass the U.S. Congress this year that would let them off the hook.

Stakeholders such as the Hawaii Farm Bureau have pushed back against the new oversight, arguing that it creates another layer of bureaucracy and undue burden on farmers.

Kokubun, who is also a former farmer and was a leading champion of local agriculture as a state senator, said that he thought regulating pesticides under the Clean Water Act was a good thing, and noted that the state has known for years about the requirements.

“I don’t think this caught anybody by surprise,” said Kokubun. “Obvioulsy, if the EPA is saying we were the only state not to comply, the others were well aware of the situation and took the necessary steps to address it.”


Invasive cattails (on the right) grow unchecked at a taro farm in Makaweli Valley in this picture provided by the Kauai Invasive Species Committee.

Cattails and taro

DISCUSSION: What do you think of the health department not meeting the deadline for regulating pesticides under the Clean Water Act?

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