Forget the fanciful “24.” Americans should know that the nation’s farmers — their livelihoods and yields in the balance — really do face frequent, ticking time-bomb situations.

Pests are capable of incredibly quick proliferation and fields often need immediate pesticide applications and can’t wait; the spraying needed to be done yesterday.

So what happens if that application can’t be made?

That is a serious concern following a January decision by a three-member panel of the U.S. Sixth Circuit Court of Appeals. Since the ruling, farmer and ag-chemical advocacy groups have been in full voice warning that U.S. agriculture is under threat.

If the court’s decision is implemented, a National Pollution Discharge Elimination System (NPDES) permit must be obtained before a pesticide application is made where there could be a potential discharge of the product into a waterway.

The concerns are no reflection on agencies who would issue the permits. As efficient as state agriculture-related agencies might be, what farmer wants to bet the needed paperwork would be sorted and permission would arrive in time to spare yield?

Add the nation’s aerial applicator industry to those worried about the development.

“If this holds and we have to follow through, it’ll take an enormous effort,” says Mark Hartz, a pilot and co-owner of Grand Prairie Dusters in Almyra, Ark. To make timely applications, “the hoops we’ll be required to jump through will be insurmountable and will effectively render late any applications inside the area needing it. This will hit agriculture and the timber industry hard.”

Take a second and think about what that could mean, Hartz suggests. “Just in Arkansas, we have an incredible number of rivers, sloughs, little streams and bayous that could fall under that regulatory umbrella. This could bring any agricultural operation that depends on crop protection products to a standstill.”

The court, acting on a suit brought by environmental groups, didn’t think out the consequences of such permit requirements, say those opposed to the ruling.

“Basically what occurred is the EPA had a rule that was a part of the Clean Water Act,” says Andrew Moore, executive director of the National Agricultural Aviation Association (NAAA). The “EPA had gone through the regulatory process and (it wouldn’t) require NPDES permits. They said those permits aren’t required for pesticide applications made over, or near, water.”

After the court’s January decision essentially nullified the EPA rule, “we’re now at the stage where, ‘Hey, these permits may be required under the Clean Water Act.’ That means there’s a risk that every single pesticide application, regardless of the method applied — ground, air, chemigation — would need permits.”

Moore agrees that if the court ruling sticks, it would “hamstring” applicators. He then has a quick revision. Actually “‘hamstring’ isn’t a big enough word. It would horrible for agriculture. There’s an (emergency) component to applications. Pest infestations must be curbed quickly. If not done quickly, insect populations can (boom) overnight.”

If applicators have to go through a bureaucratic process in order to get the permits, “not only could it take days but, in some cases, perhaps years. In addition, there will be a new set of fees to obtain them along with penalties if you don’t.”

As a result, agriculture collectively has pushed back against the decision. “There’s a big effort to get the Sixth Circuit Court to rehear the case. This is an issue that, at least in D.C. agricultural circles, is very big and has seen a lot of effort.”

The NAAA filed a brief with the court — an amicus curiae — requesting a rehearing. That was in conjunction with many litigants in the case such as CropLife America, which represents the crop protection product manufacturers, the American Farm Bureau Federation, the American Forest and Paper Association and others.

Currently, the Sixth Circuit Court of Appeals is considering a rehearing. This time around, however, agricultural parties are asking for the full court to hear arguments, not just the three-member panel.

Is Moore expecting a response this summer or next fall?

“That’s a good question. The unfortunate (thing) with our efforts was that we weren’t able to convince EPA to also request a rehearing. They’re staying neutral. That’s where there are some new (Obama) administration implications, although this isn’t a rule the Obama administration is proposing. They’ve just stayed quiet on it. We were disappointed they didn’t weigh in and request a rehearing.”

If the court doesn’t rehear the case, the Obama administration has asked that the decision be stayed for two years. That would allow time for the EPA to develop the regulations and a process in which to issue the permits, says Moore.

Hartz says the ruling is “typical of the common sense that regulators, or the judicial system, seems to lack.”

Wind energy turbines are another issue that’s impacting the nation’s aerial applicators.

“We’re concerned about the placement of wind energy turbines in agriculture-based land,” says Moore. “There’s a growing interest in renewable energy.”

Unfortunately, too often “the planning, the placement of the wind energy towers doesn’t take into consideration crop protection product applications by air.”

In the Midwest and other areas where the towers are going up in large numbers, “it’s having an effect not only on (aerial applicators’) safety but the ability to treat certain land. (The towers) are literally going up right in the middle of farmland.”

Do the farmers putting up the turbines realize this could be a problem beforehand? Or only after?

“Well, there’s a lot of education going on. It’s up to the applicators, really, to make sure their farmers know this.

“Sometimes there’s misinformation from the wind energy folks — ‘oh, it’s no problem. We’ve talked to pilots and they’re not going to have trouble.’ Well, (the result) is some people won’t have their land sprayed until it’s too late.”

e-mail: dbennett@farmpress.com