Background Information on NPDES Permitting of Discharges from Pesticide Applications
August 13, 2003 – EPA Publishes Interim Statement and Guidance and Requests Comments
February 1, 2005 – EPA Publishes Interpretive Statement and Proposed Rulemaking
November 27, 2006 - EPA Publishes Final Rule on Aquatic Pesticides
January 19, 2007 - Industry and Environmental Groups Challenge the November 2006 Rule
January 7, 2009 - Court Issues Decision, Vacates November 2006 Rule
April 9, 2009 - EPA Requests Stay; Industry Requests Rehearing
June 8, 2009 - Court Grants EPA 2-Year Stay
February 22, 2010 - Court Denies Industry Request for Rehearing
March 3, 2010 – EPA Requests Extension on Stay
March 28, 2010 – Court Grants Extension until October 31, 2011
June 2, 2010 – EPA Proposes Pesticide General Permit
April 1, 2011 – EPA Posts Draft Final Pesticide General Permit on Website
EPA Publishes Interim Statement and Guidance and Requests Comments
EPA issued an Interim Statement and Guidance on July 11, 2003 to resolve issues pertaining to pesticides regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that are applied to waters of the United States. On August 13, 2003, EPA published this Interim Statement and Guidance and solicited public comments before determining a final Agency position.
EPA Publishes Interpretive Statement and Proposed Rulemaking
Based on EPA’s consideration of public comments on the Interim Statement and Guidance, EPA published in the Federal Register on February 1, 2005 an interpretive statement and also proposed revisions to the NPDES regulations to incorporate the substance of the interpretive statement.
EPA Publishes Final Rule on Aquatic Pesticides
On November 27, 2006, EPA issued a final rule clarifying two specific circumstances in which a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit is not required for discharges from the application of pesticides to or around water: 1) pesticides are applied to control pests in the water; and 2) pesticides are applied to control pests that are present over or near water, where a portion of the pesticides will unavoidably be deposited to the water to target the pests. The rule became effective on January 26, 2007.
The rule is consistent with EPA's past operating approach in which pesticides legally registered under FIFRA for application to or near aquatic environments, and legally applied to control pests at those sites, are not subject to NPDES permit requirements.
Industry and Environmental Groups Challenge the November 2006 Rule
On January 19, 2007, EPA received petitions for review of the Aquatic Pesticides rule from both environmental and industry groups. The case, National Cotton Council, et al, v. EPA, was assigned to the Sixth Circuit Court of Appeals.
Court Issues Decision, Vacates November 2006 Rule
On January 7, 2009 the U.S. Sixth Circuit Court of Appeals held in National Cotton Council, et al, v. EPA, that the final rule was not a reasonable interpretation of the CWA and vacated the rule. Reversing EPA's November 2006 Aquatics Pesticides rule, the Sixth Circuit held that CWA permits are required for all biological pesticide applications and chemical pesticide applications that leave a residue in water when such applications are made in or over, including near, waters of the U.S. Irrigation return flows and agricultural runoff continue to not require NPDES permits as they are specifically exempted from such under the CWA. Parties had until April 9, 2009 to seek rehearing.
EPA Requests Stay; Industry Requests Rehearing
On April 9, 2009, the Department of Justice (DOJ), opting not to seek rehearing in National Cotton Council, et al, v. EPA, filed a motion to stay issuance of the Court's mandate for two years to provide EPA time to develop, propose and issue a final NPDES general permit for pesticide applications, for States to develop similar permits for these types of discharges, and to provide outreach and education to the regulated community. EPA worked closely with state water permitting programs, the regulated community and environmental organizations to develop a general permit that is protective of the environment and public health.
Court Grants EPA 2-Year Stay
On June 8, 2009, the U.S. Sixth Circuit Court of Appeals granted EPA a two-year stay of the mandate (until April 9, 2011) in National Cotton Council et al v. EPA.
Court Denies Industry Request for RehearingOn February 22, 2010 the Supreme Court declined industry's request to review the Sixth Circuit's decision in National Cotton Council, et al. v. EPA.
EPA Requests Extension on Stay
On March 3, 2011, the U.S. Environmental Protection Agency (EPA) requested an extension to allow more time for pesticide operators to obtain permits for pesticide discharges into U.S. waters. EPA is requesting that the deadline be extended from April 9, 2011 to October 31, 2011.
The extension request is important to allow sufficient time for EPA to engage in Endangered Species Act consultation and complete the development of an electronic database to streamline requests for coverage under the Agency’s general permit. It also allows time for authorized states to finish developing their state permits and for permitting authorities to provide additional outreach to stakeholders on pesticide permit requirements.
Court Grants Extension until October 31, 2011
On March 28, 2011, the U.S. Court of Appeals for the Sixth Circuit granted EPA's request for an extension to allow more time for pesticide operators to obtain permits for pesticide discharges into U.S. waters. The court's decision extends the deadline for when permits will be required from April 9, 2011 to October 31, 2011.EPA Proposes Pesticide General Permit
On June 2, 2010, EPA announced the public availability of a draft NPDES permit for point source discharges from the application of pesticides to waters of the United States. This permit is also known as the Pesticide General Permit (PGP). The PGP provides coverage for discharges where EPA is the NPDES permitting authority. States authorized to administer the NPDES permitting program for pesticide discharges issue their own NPDES permits.
With a few exceptions, EPA's PGP is available for discharges to waters of the U.S. from the application of biological pesticides, and chemical pesticides that leave a residue for the following four pesticide use patterns: (1) mosquito and other flying insect pests, (2) aquatic weed and algae, (3) aquatic nuisance animal pests, and (4) forest canopy pests.
EPA accepted public comments on its PGP for 45 days (through July 19, 2010). In addition, the Agency held three public meetings and a public hearing during the public comment period to present the draft PGP and the basis for its requirements, and to answer questions concerning the PGP and how to submit comments. The Agency received approximately 750 sets of comments, copies of which can be viewed or downloaded at: www.regulations.gov under the PGP Docket number: EPA-HQ-OW-2010-0257.
On April 1, 2011, EPA posted a pre-publication version of its draft final pesticide general permit for discharges of pesticide applications to U.S. waters. This draft final permit is not considered a “final agency action,” and the Agency did not solicit public comment on this draft. This draft provided an updated draft of the final permit to assist states in developing their own permits and for the regulated community to become familiar with the permit’s requirements before the court’s decision took effect. This reflects EPA’s commitment to transparency and responding to the needs of stakeholders. The pre-publication version of the draft final pesticide general permit addressed comments from interagency review by the Office of Management and Budget. This version of the draft final permit does not contain any additional or revised conditions that may result from ongoing Endangered Species Act consultation. Since states are not generally required to perform ESA consultation to issue their permits, this preview of the draft final permit provides states with a complete picture of EPA’s “pre-ESA consultation” permit requirements that may be used to develop state permits.EPA Sought Public Comments on NMFS Draft Reasonable and Prudent Alternative
Consistent with section 7 of the Endangered Species Act (ESA), EPA prepared a Biological Evaluation (BE) to assess whether issuance of the PGP may jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat that has been designated for such species. EPA submitted its BE to both the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) on July 30, 2010. NMFS determined that the PGP, as drafted, was likely to jeopardize the continued existence of a number of species and to result in the destruction or adverse modification of critical habitat absent implementation of a Reasonable and Prudent Alternative (RPA) which NMFS detailed in its draft Biological Opinion (BiOp). On June 24, 2011, EPA sought public comment on the RPA in the draft BiOp to better assess the appropriateness of the proposed RPA (30 day comment period ended on July 25, 2011).
The draft PGP BE and draft Biological Opinion are included as part of the PGP docket at www.regulations.gov (EPA-HQ-OW-2010-0257).