U.S.EPA requests extension on NPDES general pesticide permit; California moves ahead.

In our April, June, and September 2010 newsletters, we discussed the evolution of a permit exception for pesticide application. In 2005, U.S.EPA excepted pesticide applicators from the requirement to obtain a Clean Water Act (CWA) permit, as long as the application complied with the pesticide label. That exception was expected to be removed next month because of a 2009 federal court decision. A pesticide general permit was to be finalized by April 9, 2011. However, on March 3, 2011, U.S.EPA requested a six-month extension to October 31, 2011, to allow for Endangered Species Act consultation and to streamline the electronic system for requesting coverage under the permit. . . .

Pesticide application is governed by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), but spraying over certain areas implicates the CWA. Under the CWA, discharges of “pollutants” from a “point source” (pipes, hoses, drains, or other identifiable conduits) into lakes and streams (and certain other waters) are prohibited without a National Pollutant Discharge Elimination System (NPDES) permit. In Nat’l Cotton Council of Am. v. U.S.EPA, 553 F.3d 927 (6th Cir. 2009), the court held U.S.EPA’s exception for pesticides inconsistent with the CWA, and that spraying pesticides over lakes and streams required an NPDES permit.

The forthcoming NPDES general pesticide permit will only cover pesticide applicators in U.S. territories, Washington D.C, and six states. U.S.EPA has delegated its permit issuing authority to the remaining states, but those permits must still meet federal requirements and can be more stringent. For example, on March 1, 2011, the California Water Board approved its own version of a general discharge permit for pesticide spraying, thus acting well in advance of U.S.EPA’s October 31, 2011 proposed deadline.