USEPA Proposal Would Require a Clean Water Act Permit for Certain Pesticide Applications
This post was written by David Wagner.
For the application of pesticides, the U.S. Environmental Protection Agency (USEPA) is taking a new position – it now aims to bring pesticide applicators under the Clean Water Act’s (CWA) permitting program. Earlier this month, USEPA released a draft CWA National Pollutant Discharge Elimination System (NPDES) pesticide general permit for point source discharges from the application of pesticides to waters of the United States. Under the Bush Administration, USEPA had issued a rule stating that these Clean Water Act permits were not required for applications of pesticides to U.S. waters. An appeals court decision vacated the rule in April 2009 and triggered the development of this proposal.
USEPA estimates that the court’s decision will require approximately 365,000 pesticide applicators nationwide, including farmers, land managers and other entities, to obtain NPDES permits by April 2011. The draft pesticide general permit covers applicators of biological pesticides and chemical pesticides that leave a residue in four categories of pesticide uses:
- Mosquito and other flying insect pest control
- Aquatic weed and algae control
- Aquatic nuisance animal control
- Forest canopy pest control
Sixth Circuit Decision in National Cotton
In 2006, EPA had issued a final rule which gave legal effect to its long-standing policy of not requiring permits under the NPDES program for many applications of pesticides to, over, or near waters of the United States. Under the rule, pesticide applications made in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act did not require NPDES permits even if the pesticide entered waters of the United States. Following a challenge of the legal validity of the rule, the United States Court of Appeals for the Sixth Circuit vacated the rule as contrary to the plain meaning of the Clean Water Act. As a result of the vacatur, “dischargers of pesticide pollutants are subject to the NPDES permitting program” under the Clean Water Act. See National Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009).
The Impact on State Permitting
When finalized, USEPA’s pesticide general permit will only directly apply to pesticide activities where USEPA is the permitting authority, an estimated 10% of activities. However, it will provide a baseline for most states to follow in developing their own permitting programs for pesticide applications. In addition to the development of USEPA’s pesticide general permit, potentially regulated entities should also follow corresponding state permit rules.
Next Steps
USEPA is seeking comment for 45 days (through July 19, 2010) on the draft pesticide general permit and plans to issue the final pesticide general permit in December 2010. During the public comment period EPA will hold three public meetings (Albuquerque, Boise, and Boston), a public hearing (Washington, D.C.), and a webcast to provide an overview of the proposed requirements and the basis for those requirements, and to answer questions.
