EPA has issued a final rule intended to clarify when a Clean Water Act (CWA) permit, known as a National Pollutant Discharge Elimination System (NPDES) permit, is required for pesticide applications.
In response to recent appeals court decisions that raised questions of a pesticide applicator’s legal obligation to hold a NPDES permit (in addition to an applicator’s license), the agency’s action sought to further delineate between the regulatory jurisdiction of the CWA in relation to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
Under the CWA regulation, NPDES permits are not required when pesticides are applied in accordance with the FIFRA. NPDES permits, according to the EPA regulation, are not required when, “pesticides are applied to control pests that are present over or near water in order to target the pests effectively.”
However, the rule did not specifically exempt agricultural production applications made in accordance with FIFRA.
The NCC and other commodity groups, including the Delta Council, the Southern Crop Production Assoc., and CropLife America are filing legal challenges against the rule on the basis that the EPA document only outlines aquatic uses (direct applications to bodies of water) and forest canopy applications, and does not explicitly state that all agricultural production applications do not need a CWA permit.
Jay Vroom, president/CEO of CropLife America, a crop protection trade association that has filed suit against the rule in the District of Columbia circuit, said, “Broadening the rule would provide needed assurance to farmers and ranchers who follow the FIFRA in applying pesticides that they will not need a NPDES permit.”
Currently, agricultural allies have filed challenges in several U.S. circuit courts while environmental groups have filed in the 9th U.S. Circuit in favor of more expansive NPDES permit requirements for all pesticide use.