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May 27, 2010

EPA Regions Will Propose Draft NPDES General Permit

Bergeson & Campbell, P.C.

According to a prepublication copy of a forthcoming Federal Register notice, all U.S. Environmental Protection Agency (EPA) regions will propose a draft National Pollutant Discharge Elimination System (NPDES) general permit for point source discharges from the application of certain pesticides to U.S. waters. Once final, the permit will be available to operators in those areas where EPA is the NPDES permitting authority. According to the notice, this action is in response to the Sixth Circuit Court’s ruling that vacated an EPA regulation that excluded discharges from the application of pesticides to or over, including near, U.S. waters from the need to obtain an NPDES permit if the application was done in accordance with other laws. EPA requested and was granted a two-year stay of the court’s mandate to provide time to draft and implement the permit. The stay of the mandate expires on April 9, 2011; where after, NPDES permits will be required for all point source discharges to U.S. waters of biological pesticides, and chemical pesticides that leave a residue. EPA is soliciting public comment on all aspects of the draft NPDES permit, as well as a list of specific issues. EPA will post the permit and accompanying fact sheet on its website. EPA has scheduled three public meetings: June 14, 2010 (Albuquerque, New Mexico); June 16, 2010 (Boise, Idaho); and June 21, 2010 (Boston, Massachusetts). EPA will hold a public hearing in Washington, D.C., on June 23, 2010. The focus of each meeting and the hearing is to present the draft general permit and the basis for the draft permit requirements, and to answer questions concerning the draft permit. At these meetings, any person may provide written or oral statements and data pertaining to the draft permit. Written comments will be due 30 days after the notice is published in the Federal Register.

On November 27, 2006, EPA issued a final rule clarifying two specific circumstances in which an NPDES permit is not required to apply pesticides to or over, including near water provided that the application is consistent with relevant Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requirements: (1) the application of pesticides directly to water to control pests; and (2) the application of pesticides to control pests that are present over, including near, water where a portion of the pesticides will unavoidably be deposited to the water to target the pests. On January 19, 2007, EPA received petitions for review of the rule from both environmental and industry groups, and petitions were filed in eleven circuit courts. The Sixth Circuit Court of Appeals heard National Cotton Council, et al., v. EPA, and, on January 9, 2009, the court vacated EPA’s 2006 final rule under a plain language reading of the Clean Water Act (CWA). According to the court, the CWA unambiguously includes “biological pesticides,” and “chemical pesticides” that leave a residue within its definition of “pollutant.” Specifically, the application of chemical pesticides that leaves no residue is not a pollutant. The court also found that the application of pesticides is from a point source. EPA notes that, while the court held that chemical pesticides that leave no residue do not require an NPDES permit, EPA assumes for purpose of this permit that all chemical pesticides have a residue, and, therefore would need a permit, unless it can be shown that there is no residual. Unlike chemical pesticides (where the residual is the pollutant), the court further found that biological pesticides are pollutants regardless of whether the application results in residuals and such discharges need an NPDES permit. Industry petitioners in the case petitioned the Supreme Court for review of the decision, but on February 22, 2010, the Supreme Court denied the petitions for review.

In response to the Court’s decision, EPA is proposing the draft general permit for four specific pesticide use patterns. EPA notes that the specified use patterns may not represent every pesticide application activity for which a discharge requires NPDES permit coverage. The four use patterns included in the draft permit are generally consistent with what was addressed in the 2006 final rule. EPA states: “Neither the Court’s ruling nor EPA’s issuance of this general permit affects the existing CWA exemptions for irrigation return flow and agricultural stormwater runoff, which are excluded from the definition of a point source under Section 502(14) of the CWA and do not require NPDES permit coverage.”

The draft general permit will regulate discharges to U.S. waters from the application of biological pesticides, and chemical pesticides that leave a residue for the following pesticide use patterns:

  • Mosquito and Other Flying Insect Pest Control — To control public health/nuisance and other flying insect pests that develop or are present during a portion of their life cycle in or above standing or flowing water. Public health/nuisance pests in this use category include but are not limited to mosquitoes and black flies;
  • Aquatic Weed and Algae Control — To control weeds and algae in water and at water’s edge;
  • Aquatic Nuisance Animal Control — To control invasive or other nuisance species in water and at water’s edge. Aquatic nuisance animals in this use category include, but are not limited to fish, lampreys, and mollusks; and
  • Forest Canopy Pest Control — Aerial application of a pesticide over a forest canopy to control the population of a pest species (e.g., insect or pathogen) where, to target the pest effectively, a portion of the pesticide unavoidably will be applied over and deposited to water.

In addition to comments on all aspects of the draft general permit and fact sheet, EPA is soliciting comments on the following aspects of the permit:

  • Number of Entities Covered under This Permit;
  • Activities Covered;
  • Limitations on Coverage;
  • Sharing of Responsibilities;
  • Notices of Intent;
  • Technology-Based Effluent Limitations;
  • Water Quality-Based Effluent Limitations;
  • Monitoring; and
  • Annual Reports.