Pesticide Applications and the Clean Water Act: Is a Permit Required?

Roger Flashinski, Pesticide Applicator Training Program

Several recent news releases on this issue, and the resulting flurry of emails, are asking whether pesticide applicators will need a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA)? From final rules, through court appeals, and a reinterpretation of the findings are now saying: Yes, but not yet. Here's the scoop.

Since the enactment of the Clean Water Act (CWA) in 1972, EPA has not required a NPDES permit when applying pesticides registered under FIFRA directly to, over, or near waters of the United States when legally applied to control pests at those sites. On November 27, 2006, EPA issued a final rule clarifying two specific circumstances in which a CWA permit is not required: 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. The rule became effective on January 26, 2007.

On January 7, 2009 the Sixth Circuit Court of Appeals determined that EPA's final rule was not a reasonable interpretation of the CWA and, therefore, vacated the rule. Reversing EPA’s November 2006 Aquatics Pesticides rule, the Sixth Circuit Court held that CWA permits are required for all biological pesticide applications and all chemical pesticide applications that leave a residue in water when such applications are made to, over, or near waters of the U.S. Parties had until April 9, 2009 to seek rehearing.

On April 9, 2009, the Department of Justice (DOJ) chose not to seek rehearing on an opinion issued by the Sixth Circuit Court of Appeals. DOJ instead filed a motion for stay (delay) of the Court's mandate until April 9, 2011 to provide EPA time to develop, propose, and issue a final NPDES permitting process. Time is also needed to provide outreach and education to pesticide applicators which includes local government entities that spray to and over waters to control mosquitoes, farmers who apply pesticides to eradicate aquatic pests, foresters who aerially spray over waters to prevent outbreaks of timber pests, and the U.S. Coast Guard which sprays to kill insects that interfere with the maintenance of navigation devices.

Because neither the EPA nor the state departments of agriculture currently have the resources to process and issue individual permits for the thousands of applicators affected by this Court’s decision, EPA proposes to issue general NPDES permits which will address a large number of similarly situated dischargers in lieu of issuing individual permits to each discharger. Without such permitting authority, significant disruptions to the regulated community will likely occur.

EPA has, therefore, requested the Court to use its power and delay this action until April 9, 2011 to allow EPA and authorized permitting authorities sufficient time to develop and issue Clean Water Act permits for pesticide applications.

In related activity, CropLife America (and numerous other agricultural organizations) did petition the Court for rehearing. They argued that the Court’s decision ignored the definition in the Clean Water Act of “point source”, and they requested that the full Sixth Circuit Court of Appeals review a three-judge panel’s January decision vacating EPA’s final rule for pesticides. Thus, the Court must decide whether to rehear the case, issue the stay per EPA’s request, or let their decision stand as is. The only further option for appeal is to the Supreme Court. So, stay tuned.