On Oct. 31, EPA issued a final NPDES Pesticide General Permit (PGP) for point source discharges from the application of pesticides to U.S. waters under the Clean Water Act (CWA). The PGP and other information are posted at http://cfpub.epa.gov/npdes/home.cfm?program_id=410.
This action was in response to a 2009 decision by the US Sixth Circuit Court of Appeals (National Cotton Council, et al. v. EPA) in which the court vacated EPA’s 2006 Final Rule on Aquatic Pesticides (see http://cfpub.epa.gov/npdes/home.cfm?program_id=414#decision) that exempted pesticides from CWA permitting. As a result of the court's decision, NPDES permits are generally required for these types of discharges as of Oct. 31, 2011.
The final PGP covers operators that apply pesticides that result in discharges from the following use patterns: (1) mosquito and other flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest control. The permit requires permittees to minimize pesticide discharges through the use of pest management measures and monitor for and report any adverse incidents. Applicators treating areas greater than determined acreage also are required to submit a Notice of Intent (NOI) prior to beginning to discharge and implement integrated pest management-like practices. Record-keeping and reporting requirements will provide information to EPA and the public regarding where, when and how much pesticides are being discharged to U.S. waters. Pesticide application use patterns not covered by EPA’s Pesticide General Permit may need to obtain coverage under an individual permit or alternative general permit if they result in point source discharges to U.S. waters. The CWA allows for citizen lawsuits.
This general permit will provide coverage for discharges in the six states where EPA is the NPDES-permitting authority, which, of the cotton-producing states, include New Mexico and Oklahoma. The remaining 44 states are authorized to develop and issue their own NPDES pesticide permits, which are similar to the EPA permit.
While EPA’s general permit requirements must be met as of Oct. 31, applicators will be covered automatically under the PGP without submitting an NOI for any discharges before Jan. 12, 2012. To continue coverage after Jan. 12, 2012, those applicators who are required to submit NOIs will need to do so at least 10 days (or 30 days for discharges to National Marine Fisheries Service Listed Resources of Concern) prior to Jan. 12. For the first 120 days that the permit is in effect, EPA will focus on providing compliance assistance and education of the permit requirements, rather than on enforcement actions.
Agricultural groups, including the NCC, believe that pesticide applications already are highly regulated under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) and this permitting is a paperwork exercise that will provide no additional environmental protection. These groups exhausted judicial relief and have been lobbying Congress for a legislative fix.
In March of this year, the House passed a bipartisan bill, H.R. 872, which amends both the CWA and FIFRA to prevent such redundant regulatory burdens. Sens. Boxer (D-CA), chair of the Environmental and Public Works Committee, and Cardin (D-MD) put a hold on the bill. Sens. Stabenow (D-MI) and Roberts (R-KS) of the Senate Agriculture, Nutrition & Forestry Committee negotiated for a compromise agreement offering a two-year moratorium on the permits. However, Sen. Boxer insisted on a comprehensive study of pesticide impacts on waters, which has stalled the negotiations.
Under this PGP, approximately 35,000 pesticide applicators will need permits to cover about 500,000 applications per year. EPA estimates the permit will cost states, local entities and pesticide applicators $50 million and require one million hours to implement per year. Under the CWA, unlawful discharges are subject to $37,500 per day in fines.