Clean Water Act Permitting of Discharges from Pesticide Applications

Abstract

On November 27, 2006 the U.S. Environmental Protection Agency (EPA) issued a final rule clarifying two specific circumstances in 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 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 to target the pests. On January 7, 2009, the U.S. 6th Circuit Court of Appeals held in National Cotton Council et al. v. EPA that the final rule was not a reasonable interpretation of the CWA and vacated the rule. The 6th Circuit held that CWA permits are required for all biological pesticide applications and chemical pesticide applications that leave a residue in water, when such applications are made in or over, including near, waters of the U.S. On June 8, 2009, the U.S. 6th Circuit Court of Appeals granted EPA a 2-year stay of the mandate in National Cotton Council et al. v. EPA. Before the ruling takes effect on April 9, 2011, EPA plans to issue a final general National Pollutant Discharge Elimination System (NPDES) permit for covered pesticide applications, to assist authorized states to develop their NPDES permits and to provide outreach and education to the regulated community. EPA estimates that the ruling affects approximately 365,000 pesticide applicators that perform 5.6 million pesticide applications annually. EPA’s latest thinking on a number of issues is presented here, including who needs permit coverage for what kinds of pesticide applications, permit limits and conditions, and monitoring and reporting requirements.