EPA Releases Draft General Permit for Pesticide Applications

EPA recently released a draft general permit that would, for the first time, bring pesticide applicators within the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System (NPDES) permitting program.[1] EPA’s draft general permit stems from a 2009 federal court decision that invalidated EPA’s long-standing exemption, embodied in a 2006 EPA rule, from the NPDES program for pesticide applicators. That decision will require approximately 365,000 pesticide applicators nationwide, such as agriculture, forestland owners, land managers, and other public entities, to obtain NPDES permits by April 2011. Although EPA’s draft permit would cover fewer than 10% of these entities, it provides a baseline for most states to follow in developing their own permitting programs for pesticide applications. EPA is taking comments on the draft general permit until July 19, 2010, is hosting three public meetings, a hearing, and a webinar,[2] and intends to finalize the permit in December 2010.

Statutory and Regulatory Background

The CWA prohibits the discharge of a “pollutant” into waters of the United States from a “point source” without an NPDES permit.[3] The CWA defines a “discharge of a pollutant” to mean the “addition of any pollutant to navigable waters from any point source.”[4] The CWA defines a “pollutant” as including “chemical wastes” and “biological materials,”[5] but does not define either of those terms, and defines a “point source” as “any discernible, confined and discrete conveyance.”[6] EPA has promulgated detailed regulations under the NPDES program, and authorizes most states to implement the program.

EPA has never required NPDES permits for pesticide applications. In 2006, EPA memorialized its historical practice in a final rule regarding the application of pesticides to waters within CWA jurisdiction.[7] EPA’s final rule exempted discharges of pesticides from NPDES permitting requirements when those discharges occurred in compliance with the Federal Insecticide, Fungicide and Rodenticide Act[8] (FIFRA), the federal law governing labeling and use of pesticides. Under FIFRA, EPA approves a pesticide for registration when it determines that, “when used in accordance with widespread and commonly recognized practice,” the pesticide “will not generally cause unreasonable adverse effects on the environment.”[9] EPA issues a “label” for each registered pesticide, indicating the manner in which it may be used. Thus, as long as a pesticide was applied in compliance with the label, no NPDES permit was required under the 2006 rule.

Regarding pesticide applications to, over, or near water, EPA explained that an NPDES permit was not required for applications of pesticides consistent with FIFRA in two circumstances: (1) applications directly to water to control pests, such as applications to control mosquito larvae, aquatic weeds, or other aquatic pests; or (2) applications to control pests present over or near water where a portion of the pesticides would unavoidably be deposited into water, such as through aerial applications to a forest canopy or over or near water to control adult mosquitoes or other pests.

EPA made clear that the 2006 rule was based on the position that pesticides applied according to federal label are not “chemical wastes” if they are “products that EPA has evaluated and registered for the purpose of controlling target organisms, and are designed, purchased, and applied to perform that purpose.”[10] Additionally, EPA took the position that, while residual material remaining following pesticide application may be considered “pollutants,” the pesticide itself is not a pollutant at the time of discharge. Accordingly, EPA encouraged treating the residual as a nonpoint source pollutant, for which no NPDES permit would be required.[11]

The Sixth Circuit’s National Cotton Decision

In January 2009, in a consolidated case involving challenges in eleven circuit courts to EPA’s 2006 rule, National Cotton Council of Am. v. EPA,[12] the Sixth Circuit vacated the rule, holding that the CWA unambiguously includes biological and some chemical pesticides within its definition of “pollutant.” Although the court held that an NPDES permit is not required where a chemical pesticide “is intentionally applied to the water [to perform a particular useful purpose] and leaves no excess portions after performing its intended purpose,” it also held that excess chemical pesticide and pesticide residue may be “pollutants.”[13] The court noted at least two circumstances where excess pesticide or pesticide residue would meet the CWA definition of “chemical wastes,” including: (1) where chemical pesticides are applied to land or air, and excess pesticide is subsequently deposited into jurisdictional waters; and (2) where pesticide residue remains following the direct application of chemical pesticides to jurisdictional waters.

The Sixth Circuit also rejected EPA’s argument that excess and residual pesticides should be exempt from NPDES permitting requirements as nonpoint source pollutants. The court held that the CWA merely requires that the “discharge come from a ‘discernable, confined, and discrete conveyance,’” such as during pesticide applications, and does not require that “the discharged chemical, or other substance, immediately cause harm to be considered as coming from a ‘point source’.…”[14] Thus, the Court found that EPA’s attempt to inject a temporal requirement for the discharge of pollutants into water was unsupported by the CWA. Having invalidated the 2006 rule on these grounds, the Sixth Circuit declined to address the relationship between FIFRA and the CWA.[15]

In June 2009, shortly after issuing the National Cotton decision, the Sixth Circuit granted EPA’s request to stay the decision vacating the EPA rule until April 9, 2011.[16] EPA had argued that the stay was necessary to avoid disruption of the NPDES program. Without the stay, states and EPA would have been required to review individual NPDES permits for the millions of annual pesticide applications to, over, or near jurisdictional waters. By issuing the stay, the Sixth Circuit allowed EPA and the states time to develop and issue appropriate general permits to authorize certain pesticide discharges to jurisdictional waters in accordance with CWA requirements. The Sixth Circuit denied a petition for rehearing en banc in August 2009, and, in February 2010, the Supreme Court denied certiorari petitions filed by industry intervenors.

EPA’s Draft Pesticide General Permit

EPA’s draft pesticide general permit covers dischargers of biological pesticides and chemical pesticides that leave a residue in four categories of pesticide uses. Although the National Cotton decision held that NPDES permits are not required for chemical pesticide applications that leave no residue, EPA is placing the burden on the discharger to show that an application does not leave a residue.[17] EPA’s draft permit would also include in the definition of “operators” that would be required to comply with the permit: (1) the entity with control over the financing for or the decision to perform pesticide applications; and (2) the entity with actual control over the application of pesticides.

The four use categories that the permit would apply to are: (1) control of mosquitoes and other flying insect pest that are present in or above standing or flowing water; (2) aquatic weed and algae control in water and at water’s edge; (3) control of aquatic nuisance animals, such as fish, lampreys, and mollusks; and (4) aerial pesticide applications to forest canopies where a portion of the pesticide is unavoidably applied over and deposited to water.[18] However, the draft permit does not authorize coverage for discharges of pesticides or their degradates to waters that are already impaired by the pesticides or degradates, nor to outstanding national resource waters (so-called “Tier 3 waters”). The covered categories are generally consistent with those addressed in the National Cotton decision, and do not represent every pesticide application activity that will require NPDES permit coverage. EPA is soliciting public comment on whether to expand the general permit to include other use patterns, such as terrestrial applications to control pests on agricultural crops or forest floors.[19]

The draft permit includes a scaled approach for both obtaining coverage under the permit and for compliance. Generally, entities that seek coverage under a general permit must submit a “notice of intent” to EPA that includes information regarding the proposed discharge.[20] However, to streamline and focus the permitting process on larger dischargers, EPA is only requiring dischargers to submit a notice of intent, including a description of the target area and pesticide use patterns, when they exceed an annual treatment area threshold for the use category.[21] Any discharger that is below that threshold and falls within the four use categories would be automatically covered by the permit, and exempt from some permitting requirements.

The permit would impose effluent limitations, monitoring requirements, and corrective action procedures on all dischargers, in addition to the development and upkeep of planning documents, recordkeeping, and annual reports for dischargers that exceed the annual treatment area threshold. The technology-based effluent limitations require permittees to minimize the amount of pesticide used, and to perform regular maintenance to control unintended discharges. Permittees that exceed the annual treatment threshold would also be required to implement “integrated pest management” practices that identify and assess the pest problem, evaluate effective pest management, and follow appropriate procedures for pesticide use. Additionally, any applications that are inconsistent with water-quality related FIFRA labeling requirements would constitute a presumptive CWA violation. Although meeting the technology-based effluent limitations is presumed to meet water quality effluent limitations, the permit would also impose conditions to prohibit discharges that cause or contribute to a violation of applicable numeric or narrative water quality standards. Entities would also be required to visually monitor for adverse impacts during or after application.[22]

Entities that exceed the annual treatment area threshold would also be required to prepare “pesticide discharge monitoring plans” for pest management areas that document how the permittee will implement the effluent limitations in the permit. These plans must describe the pesticide discharge management team, pest management area, control measures, and schedules and procedures for complying with effluent limitations in the permit and other actions necessary to minimize discharges.

Implications, Impact on States

EPA’s general permit, which will be in force by April 2011, will only directly apply to pesticide activities where EPA is the permitting authority, i.e., six states, including Alaska and Idaho, tribal territories, most U.S. territories and some federal facilities. However, concurrent with developing the draft general permit, EPA has collaborated with states that have authority to implement the NPDES program. The pesticide general permits that those states develop, although tailored to state needs, cannot be less stringent than core aspects of EPA’s draft general permit. Several states have already implemented general permits for pesticide applications. For example, as a result of Ninth Circuit decisions issued in 2001 and 2002,[23] Washington, Oregon, California and Nevada have implemented permits for the application of certain types of pesticides, such as products to control aquatic weeds and algae and products to control mosquito larvae. All pesticide applicators that were impacted by the 2009 National Cotton decision will be required to obtain coverage under a permit by April 2011. In circumstances where no general permit applies to the pesticide activities, those entities will be required to go through the arduous and time-consuming process of obtaining individual permits.

For more information regarding this decision, please contact Meline MacCurdy or any member of Marten Law’s Water Quality practice group.