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Section Six: Having Your Say

Improving Your State or Tribal Plan

If and when EPA issues final rules requiring pesticide management plans for specific leaching pesticides, the rules are unlikely to be extremely rigid or very specific. Regardless of what changes are made to the rule that was proposed in 1996, it is likely that the states and tribes will have considerable leeway in deciding what waters they will seek to protect and how they will accomplish their protection goals. 

That leeway could translate into creative, effective programs.  Or it could mean delay and inaction.  In many cases, it will be public involvement  -- or the lack of it -- that makes the difference between two contrasting programs.

Fostering that involvement -- helping people get involved by getting "up to speed" on the issues -- is, in fact, what this guide is all about. This section offers some general ideas for responding to the major elements in your state or tribal plan.  We encourage you to use this information as the starting point for your own review of your regulatory authority's efforts.  At the end of this document, you'll find two contact lists -- one listing EPA regional office staff working to implement the Pesticides in Ground-Water Strategy and one listing state officials who are working on pesticide management plans. You can use these lists to learn more about what is going on in your backyard.

The Big Issues

Choosing Protection Goals EPA's guidance documents and the proposed rule suggest, on one hand, that pesticide plans will have to be at least as protective as EPA's stated goal of protecting groundwater that is "currently used" or "reasonably expected" to be used as drinking water. They also call for protection of groundwater that is "closely hydrologically connected to surface waters affecting the integrity of associated ecosystems."

The same documents, however, show that the states or tribes will have flexibility in creating their own definitions of terms.  Indications are that EPA may not press the point of protecting surface waters from contaminated groundwater discharges. Thus, it is possible that -- absent strong public pressure -- a state or tribe could exclude some usable or otherwise important waters from the purview of the state plan. For pesticide management plans, there may be a strong temptation to exclude shallow groundwater in agricultural areas from the reach of any of the plan's requirements, and the debate on the plan's coverage could well be the most critical aspect of your area's plan.

Protecting Shallow Groundwater

Some farmers and some in the chemical industry may argue that pesticide residual in the root zone is actually needed for crops and then urge the state or tribe to disregard pesticide detections in shallow groundwater, possibly excluding shallow groundwater below farm fields from the state's definition of protected groundwater. While the EPA region reviewing the plan should reject such a component outright, there are several points you may wish to emphasize before the debate reaches that point. 

First, pesticides that move beyond the root zone become unavailable to the crop and thus represent an economic loss to the farmer as well as a threat to groundwater; a program which succeeds in reducing the amount of pesticide residual leaving the root zone has the potential to reduce pesticide expenditures.

Second, in many instances the groundwater below farm fields feeds into aquifers which are used by private and public wells. As researchers have learned through many pesticide studies, once a pesticide moves beyond the root zone, there is often little if anything that will keep that chemical from moving into groundwater and toward a pumping well or stream -- at the pace and in the concentrations dictated by the local hydrogeology. A program which does not seek to protect shallow groundwater simply misses the point when it comes to prevention.

Putting Things in Context

In working to assure that the plan is as protective as possible, you may find it helpful to refer to other, ongoing efforts to protect water quality.  EPA has told the states and tribes that the pesticide management plans should be consistent and mutually reinforcing with "Comprehensive State Ground Water Protection Plans" (CSGWPP) and other water quality protection efforts, including:

• Nonpoint source programs required by Section 319 of the Clean Water Act;

• Coastal nonpoint source programs required by Section 6217 of the Coastal Zone Reauthorization Amendments of 1990;

• Wellhead protection programs (WHP) for public water supply wells mandated by the federal Safe Drinking Water Act; and

• Source Water Assessment Programs (SWAP) which are also required by the Safe Drinking Water Act.

If the CSGWPP for your state defines potentially usable waters broadly, you have a good basis for insisting on consistency with those broad protection goals in the pesticide management plan. Check your jurisdiction's version and see if the proposed pesticide management plan backs away from goals articulated in the CSGWPP.  In addition, if these other state or tribal efforts are falling short of their goals due to pesticide-related pollution, it will be important to make your pesticide management plan more stringent.  

You may find it helpful to keep those involved in these other programs up-to-date on the status of the pesticide management plan and to enlist their support for appropriate actions.  You may also want to follow the progress of these other programs to assure that they recognize the threats to water quality from pesticides.  To find the appropriate contacts for these programs -- including other activists who may be serving on related advisory committees --  call your relevant state or tribal authorities, contact the water division of your EPA region or visit one or more of the following websites that offer information on these programs.

• The EPA Office of Ground Water and Drinking Water's "Status of State Source Water Assessment Programs" at <http://www.epa.gov/OGWDW/swp/status2.html>.  This site provides information on the status of EPA's review of each state SWAP and related EPA grantmaking.  It also gives a name and phone number or e-mail address for each state contact, and notes whether or not there is a functioning advisory committee.  Some entries note upcoming public meetings and include links to additional state information.  
  

• The Office of Ground Water and Drinking Water's "State Source Water Protection Contact List" at <http://www.epa.gov/OGWDW/source/contacts.html> provides contact names, mailing addresses, phone and e-mail information for each state's source water protection and/or wellhead protection programs.  This page, which is periodically updated, also provides links to state source water protection pages.
  

• The EPA Office of Wetlands, Oceans and Watersheds has a web page at <http://www.epa.gov/OWOW/NPS/npsus.html> that tracks the status of state efforts to upgrade their nonpoint source management programs in order to achieve and maintain beneficial uses of water by the year 2013.  This page maps out the status of upgrades by state.  It does not provide a list of contacts, however.
  

• The National Oceanic and Atmospheric Administration's Office of Ocean and Coastal Resource Management has a Coastal Programs Division web page at <http://www.nos.noaa.gov/ocrm/cpd/>.  From this page, you can link to program summaries for each state and, where available, state program homepages.

Assessing Groundwater Vulnerability

Assessing the relative vulnerability of groundwater to contamination is critically important.  If areas that are determined not to be vulnerable are neither protected nor monitored and that assessment is in error, then contamination could occur and go undetected.  You may not be in a position to specifically judge the "correctness" of a groundwater vulnerability assessment, but you can review the approach, offering valuable comments on its thoroughness, suggesting additional sources of information, reminding busy regulators of the likely pitfalls in vulnerability assessment, and generally pressing for a comprehensive and ongoing effort in this important area.

Keep in mind the three elements that affect the likelihood that a pesticide will migrate into and through groundwater: the natural environment, the pesticide itself and the methods of application.

To make a reasonably sound assessment, the plan's implementers will need good data on the unsaturated and saturated zones, including detailed soils data and information on the types and characteristics of underlying geologic formations. The state or tribe should also use information on the types and amounts of pesticides used, not just across the entire jurisdiction but in areas small enough to provide reasonably accurate detail -- generally smaller than the size of a county. The level of detail needed will vary with the diversity of crops and cropping practices in your area.  The plan should also speak to how it will gather information about the types of pesticide application practices followed in the community.

The data should be reliable and -- for some factors, like pumping rates of local wells -- of recent vintage. Again, scale can be critical. It may be reasonable to start with regional scale data -- for example, placing a high priority on areas with sandy soils for education programs and extensive monitoring, but the plan should not use broad scale data to quickly dismiss contamination potential.

If necessary, remind the plan drafters that EPA's own DRASTIC rating system failed to accurately predict the likelihood of pesticide detections in the National Pesticide Survey.  That failure led experts, not to reject DRASTIC per se, but to caution that it may be necessary to collect and use data on a scale that is finer than the size of a county. EPA has reinforced this point to state and tribal regulators, so if your regulatory authorities continue to rely solely on county-level data, you have solid grounds for objection.  At the very least you may want to insist on a more extensive monitoring program, at least until the initial vulnerability assessments are validated by field data.

Even as you insist on thoroughness, be forewarned that there will be limitations on what the regulators can know or say about groundwater vulnerability at the outset.  It is unlikely that any state or tribe will have in hand the full complement of data necessary to make an ideal baseline assessment of vulnerability all across its jurisdiction. This would require not only field level soil and hydrogeologic information but also detailed pesticide use data. In many areas, this information will be missing.  Thus, the EPA Strategy guidance allows for plans to lay out a program for collecting data and improving the information base over time, and you may wish to keep tabs on this aspect of the program throughout implementation.

As a practical matter, vulnerability assessment and monitoring should be linked together, with a "first-cut" at vulnerability assessment driving the priorities of the monitoring program and the results of each round of monitoring used to make corrections, if necessary, in the details of the vulnerability assessment. In other words, over time vulnerability assessment and monitoring should become one iterative process, with monitoring data used to refine the vulnerability assessment, and changes in the vulnerability assessment, in turn, generating changes or additions to the monitoring program.

If your plan seems to view these two elements as entirely distinct, you may wish to recommend that they better coordinate the tasks. If, as the plan is implemented, pesticides are found in areas that were predicted to have low vulnerability, insist that regulators revamp or refine the approach to assessing vulnerability. 

You may also wish to take a look back at any commitment for data collection made in your locale's generic plan. Did the plan commit to an arrangement with the state Geological Survey for collecting hydrogeological data? Did it anticipate the completion of soil surveys for all relevant counties? Did the plan recommend farmer surveys to collect pesticide use data? If so, were they completed? Were the farmer response rates high enough? How much planned monitoring was actually conducted?

If your state or tribe made commitments to collect data that it failed to carry out, then you should bring up those gaps in the public comment period for the chemical-specific plan -- both to the state or tribe and to your EPA regional office. If the data was collected, then look at it and see what else, if anything, would be necessary to improve the plan's information base.

The differences between the geologic reality of heterogeneity and the simplifications that may be used in ground water models make it scientifically dangerous and potentially misleading to blindly apply generic ground water models to any specific hydrogeological situation.... ...While more complex models increase the range of situations that can be described, increasing complexity requires more input data, requires a higher level and range of skill of the modelers, and may introduce greater uncertainty in the output if input data are not available or of sufficient quality to specify the parameters of the model. National Research Council 1

Tracking Pesticide Use

Another point of controversy may involve the collection of pesticide use data -- an important component of a vulnerability assessment. Experience has shown that many pesticide users are reluctant to share information, but it has also shown that good data on where, when and how much of a pesticide was used can help tailor -- and often reduce the expense of -- monitoring programs.

The state of California has probably the most extensive pesticide reporting law, and a few other states have moved toward requiring more disclosure in certain vulnerable areas, using special use permits and other means for acquiring data. Particularly if your jurisdiction is reluctant to spend a great deal of money on collecting comprehensive vulnerability data or operating an extensive monitoring program, you may wish to press for improved record-keeping and reporting of pesticide use.

In the absence of reporting requirements or carefully conducted farmer surveys, it may be necessary to rely on sales estimates and combine that with information on local agricultural and pesticide use practices. While national and even state-level data is generally available through the U.S. Department of Agriculture's Economic Research Service and National Agricultural Statistics Service, extrapolation of that data down to the county level or smaller units can be problematic. EPA also notes that where there is a high level of uniformity in the types of crops grown, it may be reasonable to use county-level figures in groundwater vulnerability assessments. In areas where there are a number of different crops and cropping methods, warns EPA, county-level statistics may be misleading.

If your jurisdiction is not willing to require collection of field-level data on volume, timing and type of pesticide application, you can reasonably argue for more intensive monitoring.  A true consideration of that cost might, in turn, overwhelm the arguments against new reporting rules.

Testing the Waters

As Denise Keehner of EPA explained at a meeting of state, tribal and federal regulators,  there are several reasons for monitoring.  

Without monitoring data of known quality, you cannot:

• tell whether there is a problem,

• define the nature, magnitude or scope of the problem,

• determine what might work to solve the problem, or

• evaluate whether your measures did work to solve the problem. ³

Keep all of these objectives in mind as you review the monitoring element of your plan, and -- as discussed above -- try to see how well the monitoring program works together with the vulnerability assessment and response programs.  

Be sure to look beyond the number of well sampling points. Placement can be as critical as numbers.  A good plan will involve monitoring all across the locale, with sampling most intense in areas that are considered highly vulnerable.  Regulators should be considering not only where the well is located on the land surface but also what geologic formation it intersects and draws water from.  Thus, the well depth is critically important.  A plan that allows adequate time for response and helps to build up a solid knowledge of local groundwater flow will include wells that draw from shallow as well as deep aquifers.  

While it may be helpful and less expensive to use some drinking water wells for monitoring, a good monitoring program would not rely on those exclusively.  Information on well construction and age will be helpful to those reviewing test results, and in many instances, such information is either unavailable or unreliable for private or small community drinking water wells.  In addition, it would be wise to have some monitoring of water above the formations that are used as drinking water supply.  Again, this shallow monitoring effort could provide an important early warning of trouble.

Other important monitoring issues involve just what the testers decide to look for -- what "analytes" will be chosen for laboratory analysis -- and what levels can be detected by the chosen test methods.  Unfortunately, there is no single test that detects all pesticides, and several tests may have to be run on each water sample. 

Given the high frequency with which pesticide metabolites have been found in groundwater and surface water, every monitoring program should involve testing for metabolites as well as pesticides.  The detection levels of the test methods should generally be as low as possible, but it may be reasonable to initially use test methods that are somewhat cruder and less precise for purposes of screening.  Positive detections from sampling screens would then necessitate a more rigorous analysis. 

Establishing the "Yellow Light" Rules

As noted earlier, the EPA Strategy incorporates water quality standards -- but not in the traditional manner of the Clean Water Act, in which numerical limits create a single bright red line between legal and illegal pollution.  Under the Strategy, regulators, pesticide users and water consumers will rely heavily on warnings or "yellow lights" which indicate that action should be taken to address mounting contamination before the standards are exceeded. In this approach, exceedance of  water quality standards indicates where the program has failed -- not where it should begin.  

EPA's Strategy establishes the federal Safe Drinking Water Act's Maximum Contaminant Levels (MCLs) or long-term health advisories as the "reference levels" or bright-line standards to govern groundwater serving as a drinking water source. The corresponding levels to prevent adverse ecological effects are any relevant water quality standards established under the Clean Water Act.  The yellow lights or "trigger levels" ⁴ should be lower than these standards, but EPA has not and will not specify what the "action levels" or triggers should be, other than to say that they should be "consistent with the level of ground water protection chosen by the State." 

Setting the "Triggers"

Selection of specific trigger levels is obviously very important.  If the state or tribe chooses levels that are very high and the area's groundwater turns out to be highly vulnerable, there may be little opportunity to intervene before contamination reaches problem levels.  In making your own recommendations for trigger levels, you may encounter both technical and political problems, but don't be dissuaded from taking part in this critical part of the debate. 

The practical consideration of laboratory capability, for example, will come into play in setting the trigger level. Recall that the reference level will often correspond to the MCL set under the Safe Drinking Water Act. In setting those standards, the EPA Office of Drinking Water does not use an ideally protective health level; often EPA sets the MCL at a concentration that can be readily replicated by laboratories across the country. If that is the case with a given pesticide, it may be difficult for laboratories to detect a small fraction of the MCL.  Be aware of this consideration but don't hesitate to press for low trigger levels.

You don't have to become an expert in laboratory procedures to enter into this debate.  Make your own proposal based on a trigger level you think is a reasonable fraction of the MCL.  Then ask for information on the most up-to-date laboratory testing capacity. It may be possible to use lower detection levels as triggers, if your plan recognizes that some test results will need to be double-checked and verified.  

You are also likely to encounter the argument that there is no need to worry about pesticide residues below the reference level. Among the arguments to revisit in this instance are the level of uncertainty involved in our understanding of health effects, the fact that many health-based standards -- like those for lead -- have grown increasingly stringent the more we learn about a chemical, the fact that many exposures involve complex chemical mixtures, the difficulty in predicting just what concentration will reach a well or discharge point and the nature of the standards -- which are not based solely on health considerations. ⁵   Note also that drinking water standards have been set for a relatively small number of pesticides currently registered for use and that those standards consider only the effects of the individual chemicals -- not the effects of other pesticides or pesticide degradates that may be present in a water source. ⁶

Again, the point of pesticide management planning is to take action to prevent pollution -- not to respond to significant contamination after the fact.  If the state or tribe sets trigger levels too high to allow for meaningful preventive actions after early detections, especially in the face of public comment to the contrary,  the EPA region should be pressed to disapprove the plan.

Another point you may wish to bring up is the need for setting trigger levels for pesticide metabolites as well as the pesticides themselves.  For pesticides with numerous degradation products, triggers could be set for individual metabolites and for the whole group of related chemicals.

Drawing Up a Plan for Response

It is likely that each plan's approach will rely at least initially on pesticide user education programs and voluntary measures to reduce pesticide loadings. These can be useful steps toward water quality protection, but they may fall short of solving the problem in all areas or for all pesticides.  The important questions are when and where such measures will be used, how their effectiveness in reducing groundwater contamination will be monitored and assessed and when, where and how those approaches will be supplemented, if selected trigger levels are detected.

Unfortunately, it will be extremely difficult for anyone to precisely predict which response measures -- be they reduced application rates, restrictions on application timing, controls on application methods, well setbacks or other "best management practices"  -- will lower pesticide residues sufficiently and in time to make a difference at critical points of water withdrawal or discharge.  Thus, it is important for a plan to continually assess the effectiveness of responses and provide for altering the program, as necessary, over time.

Keeping Information Flowing

While the details of the chemical-specific rules are still up in the air, it is clear that EPA will require the states to incorporate a process for receiving and responding to public input during plan development. Some but not all states or tribes created their generic plans in an open public process as well.  This requirement for public input strengthens your influence:  If the state or tribe does not open up the process or chooses to dismiss public input without strong rationale, the plan should not pass muster with EPA.  Keep copies of your comments and any requests for hearings, and share them with the EPA regional office, if necessary.

Since the ultimate success of your jurisdiction's efforts will depend, in part, on the extent to which the plan becomes an ongoing and evolving state program, you will probably want to have your say up front and down the road as well. It makes sense to insist on access to information and ongoing opportunities for involvement. Ask for the schedule of hearings and opportunities to comment, and ask to be informed of any changes or updates to the schedule. Help yourself and others by pressing for public disclosure of information on baseline data, detections, response actions and the like in a form that is understandable and widely available. The Internet can make things easier for regulators and some activists, but remember that it will not necessarily work for everyone. The public library and mailing lists are old but solid mainstays for information-sharing. 

Activists with the Agricultural Resources Center in North Carolina -- though they didn't win all they wanted when it came to improving their state's generic plan -- won an important victory in this regard. At their insistence, pesticide detections are now a matter of public record, and access to this "docket" of information allows interested parties to keep tabs on contamination trends and possible problems.

Advisory boards and committees have also been used in several states, and you can work to ensure that affected water users, water utility managers, farmworkers, environmentalists and others have a seat at the table for important deliberations.  If you are concerned with participating in a deliberative group as a lone voice for aggressive protection, you may want to ask that the group operate under rules that call for consensus actions rather than vote counts. There is strong precedent at the federal and state levels for this approach to multi-stakeholder deliberations. 

You may also find it helpful to bring the issues of pesticides in groundwater before any existing state or tribal water protection bodies.  

Funding the Program

As many state regulators will attest, state environmental budgets are seldom flush, and any plan will have to be developed with resource constraints in mind. Be sure to look at how your jurisdiction's plan matches its expected resources. If the plan does not specify the personnel hours and/or dollars required for data collection and implementation, ask probing questions. If resources are scarce it may make more sense to have a more protective but simpler plan that can actually be carried out.

Another option to recommend is for the state to recoup needed funds from pesticide makers and users. Special levies on pesticides -- like that imposed in California, registration fees for pesticide makers, permitting or licensing fees could be earmarked for use in the groundwater protection program. Another option for many states is simply to repeal current sales tax exemptions for pesticides. (Friends of the Earth's Fair Agricultural Chemical Taxes (F.A.C.T.) report provides estimates of the amount of revenue lost to pesticide exemptions in each state.  That report is available at <http://www.foe.org/fact/index.html>.) 

Gathering Support

If the water managers in your area are not involved in the pesticide planning process, meet with them to encourage their input. They may have solid information that will compel the regulatory authorities to protect shallow groundwater -- not only water used today but also what may be needed to serve local population growth.

Don't hesitate to speak to a water utility manager whose plant is physically distant from areas where pesticides are used. The plant may use wells in several areas, and the "cones of depression" for these wells can be very large, depending upon the local hydrogeology and the pumping rate. Check your water bill, your phone book and your municipal listings to find the water utilities in your area.

Involving Local Well Users

Others who may be allies are families relying on private wells. This group could easily include farmers in the area who, though they rely on pesticides for their livelihood, also rely on local, shallow groundwater for drinking water and for livestock and other agricultural uses. Your local or state health department may have some information about areas served primarily by private wells, but in many cases they will not have a complete inventory of wells.

One option used by activists recruiting allies for groundwater protection efforts is to make what is called a "windshield survey." If you know the areas of your community that are not served by public water lines, drive through those areas with a passenger carrying a local street map and marking homes and businesses on the map. Each mark represents a potential well owner.

If your time is limited or you don't have sufficient help to make a big project out of this effort, you can simply hand a copy of the survey map over to the responsible agency and request that they fully consider the water sources serving each home or business. If time and resources allow, you can go a step further yourself, going door to door or otherwise contacting the well users, alerting them to their potential interest in the pesticide plan and, if you wish, gathering additional information about the depth and construction of private wells.

1. National Research Council, Ground Water Models, 1990.

2. California Department of Pesticide Regulation, "Pesticide Use Reporting:  An Overview of California's Unique Full Reporting System," 1995 at <http://www.cdpr.ca.gov/docs/dprdocs/userptng/purhtm.htm>.  For more on pesticide use reporting, see also the Northwest Coalition for Alternatives to Pesticides' (NCAP) information on the Oregon Pesticide Education Network (OPEN) and that coalition's goals for pesticide use reporting reform in Oregon at <http://www.pesticide.org/PUR.html>, and information of New York's pesticide reporting law in the Department of Environmental Conservation's Annual Report on New York State 1997 Pesticide Sales and Applications, 1998 available at <http://www.dec.state.ny.us/website/dshm/prl/>.  Also see the recommendations for changes to New York's reporting law made by Environmental Advocates and New York Public Interest Research Group in Plagued by Pesticides: An Analysis of New York State's 1997 Pesticide Use and Sales Data, 1998 at <http://www.envadvocates.org/public_html/Pest/recommendations.html>.

3.  US EPA, Office of Prevention, Pesticides and Toxic Substances, Proceedings of the August 1996 National Workshop:  Pesticides and Ground Water State/Tribal Management Plans, EPA 735-R-002, 1997.

4. Though EPA has shied away from specifying particular numbers or responses, a number of states have raised concerns with this aspect of the plans.  As a response to these concerns, EPA may change the terminology in the final rule but the overall approach is likely to remain the same.

5.  Under the Safe Drinking Water Act, EPA chooses a Maximum Contaminant Level Goal (MCLG), which should prevent any adverse health effects.  The MCLG, however, is not the enforceable standard.  That standard, the MCL, is based on the MCLG but incorporates a consideration of costs and benefits.  The expense of water treatment for water utilities is a significant factor in some of the MCLs.  In addition, EPA has based some MCLs on a consideration of laboratory capacity.  In some instances the MCL allows for a higher level of pollution, because reliable tests for lower concentrations would not be readily available in laboratories all across the country. 

6. For additional discussion on this point, see the section entitled "Limitations of Existing Drinking-Water Criteria for Assessing Overall Health Risks" on p. 51 of Barbash, Jack E., et al, "Distribution of Major Herbicides in Ground Water of the United States," Water-Resources Investigations Report 98-4245, 1999 at <http://water.wr.usgs.gov/pnsp/rep/wrir984245/>.

7. Written comments to the author from Eric Umstead of the Agricultural Resources Center, 1999.

8. Granular Activated Carbon is a treatment technology that removes certain chemicals from tap water. Pesticides in water that enters the GAC adhere to the carbon, which becomes in essence, a filter for removing pollutants. As the carbon becomes "full" of the pesticide, it must be "regenerated" or cleaned. The interval between regeneration varies depending upon the level of contamination and the degree of removal desired. Operation and maintenance costs will vary depending upon the regeneration rate.

9. American Water Works Association, comments on June 1996 proposed regulation for Pesticides and Groundwater State Management Plans available at <http://www.awwa.org/govtaff/pestsmp.htm>.

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