May 15, 2017

Sarah Rees
Director, Office of Regulatory Policy and Management
Environmental Protection Agency
1200 Pennsylvania Ave. NW.
Washington, DC 20460

Dear Ms. Rees:
The Colorado Department of Agriculture (CDA) submits the following comments regarding the
Environmental Protection Agency’s (EPA) request for comment on regulations that may be
appropriate for repeal, replacement, or modification (Docket ID No. EPA-HQ-OA-2017-0190).
CDA’s mission is to strengthen and advance Colorado agriculture; promote a safe, high quality,
and sustainable food supply; and protect consumers, the environment, and natural resources. It is
with this mission in mind that we provide the following comments regarding EPA regulations.
A healthy environment, including clean air and clean water, is essential to the agriculture
industry, and producers incorporate environmental stewardship into all aspects of their
operations to ensure continued viability. CDA supports science-based regulations that provide
necessary protections while also allowing for the regulated community to remain economically
viable. EPA’s regulatory framework should be crafted in a manner that provides regulatory
certainty for affected entities while also recognizing and considering the diversity of
environmental conditions across the United States.
Regulatory requirements promulgated under the authority of the Clean Water Act1 (CWA) rely
on a jurisdictional determination of waters of the United States. Pursuant to Presidential
Executive Order 133782, EPA announced its intention to review and rescind or revise the 2015
Clean Water Rule at 40 CFR 110, 112, 116, 117, 122, 230, 232, 300, 302, 401, and 33 CFR 328.3
CDA request the following comments be considered in that review.
The 2008 guidance regarding CWA jurisdiction issued by EPA and the Army, Corps of
Engineers created a significant amount of regulatory uncertainty and questions regarding the
legal scope of CWA jurisdiction. The 2015 Clean Water Rule only added to these concerns.
Each of these proposals were developed largely in-house by the agencies with no meaningful
1

33 USC 1251 et seq.
82 FR 12497
3
82 FR 12532
2

305 Interlocken Parkway, Broomfield, CO 80021

P 303.869.9000 F 303.466.2867
www.colorado.gov/ag

 EPA Regulations
Page 2
May 15, 2017
input from state and local governments or regulated industries. This is one mistake that must be
corrected in developing a replacement rule that defines CWA jurisdiction. Extensive and
meaningful coordination with state and local governments that incorporates the fundamental
federalism principles outlined in Presidential Executive Order 131324 must be undertaken. If
states, local governments, and affected industries are effectively engaged in rule development,
the resulting regulation will be more likely to withstand legal challenge.
Regulatory uncertainty of the 2015 Rule stems from the ambiguous and subjective nature in
which the rule attempted to define jurisdictional waters. Procedures for determining whether a
water has a significant nexus or qualifies as a tributary, adjacent water, neighboring water, or
other water were almost entirely subjective and could be interpreted to expand the scope of
CWA jurisdiction without limit. The fact that the term “dry land” occurs 113 times in the
Federal Register publication of the 2015 Rule illustrates the level of uncertainty associated with
the rule. It is paramount that EPA develop a rule that utilizes quantifiable metrics or other
objective criteria to establish jurisdiction. These types of criterion would promote predictability
and reduce uncertainty as described in the general principles of regulation found in Presidential
Executive Order 13563.5
On January 7, 2009, the Sixth Circuit Court of Appeals held that the EPAs final rule that
National Pollution Discharge Elimination System (NPDES) permits were not required for
pesticide applications was not a reasonable interpretation of CWA and vacated the rule. As a
result of this decision, 40 CFR Part 122 requires NPDES permits for pesticides applied directly
to water to control pests and/or applied to control pests that are present in, over, or near
jurisdictional waters.
In Colorado, the Colorado Department of Public Health and Environment (CDPHE) is the
authority that administers this program. To meet the NPDES requirements of the CWA, CDPHE
issues a Pesticides General Permit (PGP) (essentially the same thing as a NPDES permit). The
NPDES/PGP pesticides permitting program was put in place to add requirements for applicators
to consider potential hazards to prevent adverse impacts to jurisdictional waters. The new
NPDES permit for use of pesticides on, near, or above water requires the responsible party to
implement multiple considerations prior to the application of a pesticide including: IPM
methods, least toxic products to control the pest problem, equipment maintenance schedules,
reporting requirements for use over certain established thresholds, pre and post site surveys, and
an internal team to assess when applications need to be made.
During the registration process, pesticides are put through a rigorous risk assessment to ensure
that their approved use and allowed application methods do not negatively impact water when
applications are made on, above, or near water. Therefore, the NPDES/PGP requirement is
redundant of an existing regulatory system that already takes into account all factors regarding
the application of these products to prevent adverse impacts to water.

4
5

64 FR 43255
76 FR 3821

 EPA Regulations
Page 3
May 15, 2017
Many of the NPDES permit requirements were captured in existing business processes,
procedures, or requirements of state pesticide laws. Now the permit requirement can create a
situation where the decision maker (person responsible for the pesticide application) could be
found in non-compliance of two separate agency rule requirements. The cost of implementation
and compliance with these requirements has a significant impact to states and applicators. Many
applicators face on-going annual costs associated with meeting the requirements of the NPDES
permit with no added protective benefits to the environment.
As a result of the implementation of NPDES permits for pesticide use, no additional protections
were achieved that were not already met by following the use directions of pesticide products.
CDA suggests that EPA could fix this by amending the CWA to exempt the use of pesticides that
are registered in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act6 from
NPDES permitting requirements.
The 100 foot application exclusion zone for certain outdoor pesticide applications found under
the Worker Protection Standards at 40 CFR §170.405(a)(i) is another example of a duplicative
regulation that creates unnecessary burden. CDA advances that this application exclusion zone
should end at the edge of the treated area. Exclusion zones are appropriate within the treated
area to protect workers from exposure; however, adjacent areas are protected from exposure by
other regulations.
Labeling requirements for pesticides found in 40 CFR Part 156 require that directions for use on
pesticide labels be adequate to protect the public from personal injury. These directions for use
include provisions to ensure that pesticides do not drift outside the treated area and render any
regulations that extend the application exclusion zone beyond the treated area redundant and
unnecessary.
Thank you for the opportunity to provide comments concerning EPA regulations. Given the
relatively short time period to provide comments regarding EPA’s vast regulatory framework,
our comments are limited. As EPA continues this process, CDA requests that all repeals,
replacements, or modifications be done in a manner that fully engages states and provides for
greater regulatory certainty. Contact Mr. Les Owen at 303-869-9032 or les.owen@state.co.us
for questions about these comments.

Sincerely,

Don Brown
Commissioner

6

7 USC 136-136(y)