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August 12, 2010

Legislation Would Amend FIFRA to Clarify CWA Permit Requirements

Bergeson & Campbell, P.C.

On August 5, 2010, Senators Blanche Lincoln (D-AR), Chair of the Committee on Agriculture, Nutrition, and Forestry, and Ranking Member Saxby Chambliss (R-GA) introduced legislation that would amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to clarify that Clean Water Act (CWA) permits are not required for pesticide application in accordance with FIFRA (S. 3735). The Senate legislation is prompted by the U.S. Environmental Protection Agency’s (EPA) June 4, 2010, notice proposing a draft National Pollutant Discharge Elimination System (NPDES) pesticide general permit for point source discharges from the application of certain pesticides. Lincoln stated: “Our legislation is very simple: as long as a producer is complying with FIFRA, then no Clean Water Act permit will be required. During the more than 35 years since the enactment of the Clean Water Act, the EPA has never required a permit for the application of FIFRA-registered crop protection products. Our bill would extend this common-sense approach and avoid duplicative, unnecessary burdens on our farmers, foresters, and ranchers.” More information regarding the Senate legislation is available online. Representative Frank Lucas (R-OK), Ranking Member of the House Agriculture Committee, has introduced companion legislation in the House.

EPA issued its June 4, 2010, Federal Register notice 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. The draft general permit would 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.