Part I of the report posted at www.fukubonsai.com/M-L2b1a.html provided extensive background information describing the anchialine pond crisis citing the need to again utilize rotenone to remove alien predators from Hawaii's unique anchialine ponds.

            Rotenone had been very effectively used in the past but became prohibited as a result of the 2001 Headwaters v. Talent case. The 9th Circuit Court of Appeals ruled that an National Pollution Discharge Elimination System (NPDES) permit was required for any use of a pesticide in waterways. The Hawaii Department of Health is authorized to issue NPDES permits in Hawaii under the Federal Clean Water Act (CWA).

             Prior to the ruling, the NPDES permit was not required as pesticide usage was regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and administered by the Hawaii Department of Agriculture Pesticide Branch who conduct classes and issues pesticide applicator certifications. The additional requirement of NPDES permits that were impossible to obtain in Hawaii prevented removal of alien predators from the anchialine ponds.

             In January 2005, the Environmental Protection Agency issued an Interpretive Statement and Guidance Memorandum that is at odds with the federal court rulings and proposes agency rulemaking that will clarify the overlapping of the Clean Water Act and FIFRA.

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             Part II of the report posted October 8, 2005 at www.fukubonsai.com/M-L2b1b.html reported that congressional legislation has also been introduced that clearly state that a NPDES permit is not required when a pesticide is applied consistent with its label. United States Senator Jim Inhofe (R-Okla.), Chairman of the Environment & Public Works Committee has introduced bipartisan legislation titled: "Pest Management & Fire Suppression Flexibility Act."

              On September 29, 2005, Congressman Butch Otter (R-Idaho) and Dennis Cardoza (D-Calif.) introduced "Pest Management & Fire Suppression Flexibility Act" (H.R. 1759) at a hearing before the Subcommittee on Water Resources and the Environment of the House Transportation and Infrastructure committee. All involved in conservation activities to restore the anchialine ponds are urged to contact the Hawaii congressional delegation to request support for this legislation. Upon passage, the NPDES permit will no longer be required.

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           On November 27, 2006 a report from Micro-Lobster Team member and Hawaii Department of Education architect David Chung of Honolulu relayed news that on November 20, 2007, Environmental Protection Agency (EPA) issued a final rule on pesticides applied to water:  Administrative Stephen Johnson signed a final rule that describes two circumstances under which a Clean Water Act (CWA) permit is not required to apply pesticides to or around water. They are: 1) the application of pesticides directly to the water to control pests; and 2) the application of pesticides to control pests that are present over or near water, where a portion of the pesticides will unavoidably be deposited to the water in order to target the pests.

           The action puts into effect a rule that confirms EPA's past operating approach that pesticides legally registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for application to or near aquatic environments and legally applied to control pests at those sites, are not subject to National Pollutant Discharge Elimination System (NPDES) permits requirements.

           Upon receiving the notice and reviewing the regulatory report,  an email requesting confirmation was sent to Robert A. Boesch, Pesticide Manager, Department of Agriculture, who promptly sent the following:

          "Your assessment is correct.  No NPDES permit would be required as long as the product is used in accordance with label directions.  Pesticide applicator certification is required. Bob Boesch "

          Potential applicators are urged to obtain certification. For more information, contact Robert A. Boesch, Pesticide Manager, Department of Agriculture at phone (808) 973-9404 or email: robert.a.boesch@hawaii.gov

         After several years of frustrations, there is now a tool to use to remove alien predator fish and to restore the anchialine ponds. Please spread the word.  LET THE RESTORATION OF THE PONDS BEGIN!!!