EPA Clean Water Act Permit for Aquatic Pesticide Application
November 9th, 2011
On Monday, November 7, the EPA issued notice of a final Clean Water Act National Pollutant Discharge Elimination System (NPDES) General Permit for the application of aquatic pesticides to waters of the United States. This Pesticide General Permit (PGP) does not cover pesticide drift or runoff from land application of pesticides, which is generally considered to be nonpoint source pollution not subject to permits under the Clean Water Act.
EPA issued the PGP in response to a ruling by the U.S. Federal Court of Appeals for the Sixth Circuit in the case National Cotton Council of America v. EPA. In that case, environmental group plaintiffs challenged a 2006 EPA regulation that provided that a Clean Water Act permit was not required for: (1) the application of pesticides directly to water to control pests; and (2) the application of pesticides to control pests that are over, including near, water where a portion of the pesticides will unavoidably be deposited to the water to target the pests. Agricultural industry petitioners intervened in the case.
The Sixth Circuit found that there are at least two situations in which excess pesticide or pesticide residue would meet the CWA definition of “chemical wastes”. The first is when pesticides are applied to land or air, and excess pesticides or pesticide residue is subsequently deposited into the water. The second is when pesticide residue remains in a water body following the direct application of chemical pesticides to the water body.
The court vacated the EPA regulation exempting from the Clean Water Act pesticide applications on or near water that leave residues in waters protected under the Clean Water Act.
As a result of the ruling, EPA has issued the PGP that imposes restrictions and conditions on the following pesticide applications, which are eligible for the PGP:
a. Mosquito and other flying insect pest control – to control public health/nuisance and other flying insect pests that develop or are present during a portion of their life cycle in or above standing or flowing water. Public health/nuisance and other flying insect pests in this use category include mosquitoes and black flies.
b. Weed and algae pest control – to control weeds, algae, and pathogens that are pests in water and at water’s edge, including ditches and/or canals.
c. Animal pest control – to control animal pests in water and at water’s edge. Animal pests in this use category include fish, lampreys, insects, mollusks, and pathogens.
d. Forest canopy pest control – application of a pesticide to a forest canopy to control the population of a pest species (e.g., insect or pathogen) where, to target the pests effectively, a portion of the pesticide unavoidably will be applied over and deposited to water.
Coverage by the PGP will not be required for these activities unless they involve extensive pesticide applications of 6,400 acres or more for mosquito control and application of aquatic pesticides on 80 acres or more of open water or more than 20 linear miles along the water’s edge.
Aquatic pesticides cannot be applied under the PGP for a number of restricted activities, including among others the application of pesticides into waters that have been impaired by residues of the pesticide and pesticide applications that are likely to adversely effect a species listed as endangered or threatened under the federal Endangered Species Act.
The EPA-issued PGP will provide coverage for discharges in the areas where EPA is the NPDES permitting authority, which include six states (Alaska, Idaho, Massachusetts, New Hampshire, New Mexico, and Oklahoma), Washington, D.C., most U.S. territories and Indian country lands, and many federal facilities. The remaining 44 states and the Virgin Islands are authorized to develop and issue the PGP under state law that is at least as protective as the federal PGP. A number of states have already moved ahead with developing state PGP permits. For example, Wisconsin has established a webpage with updates on development of its Pesticide General Permit.
A measure to block this new Pesticide General Permit, the Reducing Regulatory Burdens Act (H.R. 872), was approved by the U.S. House of Representatives in March 2011. The Senate Agriculture Committee approved the measure, which was introduced by the Committee’s Ranking Member Senator Pat Roberts (R-KS) but a “hold” was put on the bill by Senators Barbara Boxer (D-CA) and Benjamin Cardin (D-MD). Negotiations in the Senate for compromise that would have included a two-year moratorium on the PGP appear to have stalled out. In the meantime, Senator Boxer called for a comprehensive study of pesticide impacts on waters.