For the first time in the history of the Clean Water Act (CWA), the Environmental Protection Agency (EPA) will require CWA permits for certain applications of pesticides.
In 2009, the 6th Circuit Court of Appeals overturned an EPA rule clarifying that National Pollutant Discharge Elimination System (NPDES) permits were not required for pesticides applied into, over or near waters of the U.S. in accordance with relevant requirements under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). EPA elected not to seek Supreme Court review of that decision and has developed an NPDES permitting system for such pesticide applications. EPA has estimated that this one decision will nearly double the number of entities regulated under NPDES permits. Permitted pesticide users will include state agencies, city and county municipalities, parks and recreation managers, utility rights-of-way managers, railroads, roads and highway vegetation managers, mosquito control districts, water districts and managers of canals and other water conveyances, commercial pesticide applicators, forest managers, scientists, and many, many others. EPA has not specifically included farmers, but also has refused to take a position that farmers are excluded from these permit requirements.
EPA finalized its NPDES general permit for certain pesticide uses on Oct. 31, 2011. States that administer the NPDES program within their jurisdictions are expected to issue their own general permits similar to the EPA model. EPA and the states have begun implementing the permit program as of Nov. 1, 2011. NPDES permitting will add performance, recordkeeping and reporting requirements to an estimated 5.6 million pesticide applications per year, and preempt the science-based ecological review of pesticides and label requirements for uses regulated under FIFRA. Just as important, pesticide users who are eligible for coverage under an NPDES general permit, or who cannot obtain coverage quickly enough, will be at risk of citizen or EPA enforcement action for pesticide application without a permit. Never in the 64 years of FIFRA or 40 years of the CWA has the federal government required a permit to apply pesticides to, over or near waters of the U.S. for control of such pests as mosquitoes, forest canopy insects, algae, or invasive aquatic weeds and animals, like zebra mussel. Congress chose not to include pesticides in 1972 when it enacted the CWA NPDES program and, despite major rewrites since, never looked beyond FIFRA for the regulation of pesticides.
Farm Bureau believes implementation of FIFRA should be based on credible scientific information in order to benefit farmers, the environment and the public, and should be the sole federal regulatory authority over pesticides. Farm Bureau opposes any regulation that would require a permit prior to application of a chemical for crop protection
Legislation passed the House during the 112th Congress by a convincing vote of 292-130. The bill, H.R. 872, would have amended FIFRA and the CWA to clarify that additional duplicative CWA permits are not needed when a pesticide is applied in accordance with the FIFRA-approved label. This legislation was also included in the House Agriculture Committee’s version of the Farm Bill. Furthermore, the legislation passed the Senate Agriculture Committee by voice vote, but was not allowed to come up for a vote in the full Senate. In February 2013, legislation was introduced in the new Senate address this concern. Specifically, S. 175 would amend FIFRA and clarify that pesticides applied to or near water, in accordance with the FIFRA label, would not be considered a pollutant and would therefore not require an NPDES permit as required under the CWA.
Farm Bureau urges Members of Congress to clarify that a federal NPDES Permit is not required for the traditional, land application of pesticides in agricultural uses.
Updated: January 2014