NPDES Permits for Pesticide Applications
Nonpoint Source Regulatory Exemption. Since the 1970s, EPA regulations have interpreted the Clean Water Act to define most forest management activities as “nonpoint” sources that do not require Federal permits. Water quality has been protected during forest management through the use of best management practices (BMPs). Recent studies have shown that throughout the country these BMPs are both effective and followed even in states where they are not mandatory.
The Litigation. The US Court of Appeals for the Sixth Circuit, National Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009), held that pesticide/herbicide applications from a point source into waters of the United States are subject to the NPDES permit requirements of the Clean Water Act (CWA), even if they are applied in accordance with an EPA-approved label. The Sixth Circuit held that (1) residue left by a chemical pesticide is a “chemical waste” within the definition of “pollutant” in the CWA; (2) all biological pesticides are “biological material” within the CWA “pollutant” definition; and (3) pesticide application that causes one of these products to enter waters of the U.S. is a “discharge” of a pollutant under the CWA. The Sixth Circuit has given EPA until April 2011 to develop and issue permits to authorize pesticide application.
FIFRA. EPA registers pesticides and herbicides by approving application criteria in labels the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Because pesticides undergo lengthy testing under FIFRA, including tests to ensure water quality and aquatic species preservation, and because they are useful products, EPA had considered NPDES permits to be unnecessary and duplicative.
The Draft General Permit. In response to the Sixth Circuit decision, EPA has developed a draft General Permit that covers four “pesticide use patterns:” mosquito and flying insect spraying over or into waters; aquatic weed and algae control; aquatic animal nuisance control; and forest canopy pest control. NAFO was one of 700 entities that filed comments on the draft General Permit on July 19. The EPA General Permit will only apply directly in six states: MA, NH, OK, NM, ID, and AK. The other 44 states must develop their own permitting program by April 2011, which will be guided by the EPA General Permit.
The draft EPA permit covers all applications in each category, but sets thresholds between large and small operators. For forest canopy applications, the threshold is 640 acres per year. All operators must apply the lowest effective amount, maintain equipment to avoid spills, maintain calibration, and report adverse incidents. All operators are also subject to the visual monitoring requirement. Operators over the 640-acre per year threshold must file a Notice of Intent to use the permit, maintain management and discharge plans, and meet record-keeping and reporting requirements. The general permit does not apply to areas containing water classified as “Outstanding Natural Resource Waters,” which occur in many forested areas. Applications affecting these waters must obtain an individual permit.
EPA acknowledged that “other use patterns” of pesticide application may require an NPDES permit and could be included in the final general permit. However, nothing in the court’s decision or in the draft general permit changed in any way the EPA regulation defining sivilcultural “pest control” as a nonpoint source. Nonpoint sources do not require NPDES permits.
Landowners are very concerned that the general permit will be interpreted to eliminate the definition of silviculture as a nonpoint source and will result in a NPDES permit requirement.
