Issue 7, June 4, 2010

NPDES General Permit Comment Period

The U.S. Environmental Protection Agency (EPA) has announced the public availability of a draft National Pollutant Discharge Elimination System (NPDES) permit for point source discharges from the application of pesticides to waters of the United States. This Pesticides General Permit (PGP) was developed in response to a decision by the Sixth Circuit Court of Appeals in which the court vacated EPA's 2006 rule that said NPDES permits were not required for applications of pesticides to U.S. waters. EPA estimates that the Sixth Circuit's ruling will affect approximately 365,000 pesticide applicators nationwide who perform 5.6 million pesticide applications annually.

The draft permit covers the following pesticide uses: (1) mosquito and other flying insect pest control; (2) aquatic weed and algae control; (3) aquatic nuisance animal control; and (4) forest canopy pest control. It does not cover terrestrial applications to control pests on agricultural crops or forest floors. EPA is soliciting public comment on whether additional use patterns should be covered by this general permit. EPA will accept written comments on the draft permit for 45 days after its publication in the Federal Register.

Three public meetings, a public hearing and a webcast will be held to present the proposed requirements of the permit, the basis for those requirements and to answer questions. The public hearings will be held in Albuquerque, NM, Boise, ID, Boston, MA, and Washington, D.C. The webcast will be broadcast on June 17, 2010, from 1:00 p.m. to 3:00 p.m. Eastern Standard Time (EST).

NPDES permits are issued by the agency within each state that is responsible for enforcing the Clean Water Act. In Illinois, this is the Illinois Environmental Protection Agency (IEPA). The intent of this PGP is that it will be used as a template by IEPA and similar agencies in other states for their permits, but state agencies can develop their own permits.

The PGP is also intended to cover pesticide applications near waters. EPA is interpreting this to refer to the unavoidable discharge to waters of the U.S. in order to target pests in close proximity to water, for example, treating weeds along the bank of a ditch though which water is flowing. Stormwater runoff that may contain pesticides is not required to obtain NPDES permit coverage unless it was already required to do so exclusive of the National Cotton Council, et al. v. EPA court case. Existing NPDES stormwater permits for runoff from construction, industrial activities, and municipal separate storm sewers already consider pesticides as part of the permit development process.

In 1987, Congress amended the Clean Water Act to exempt agricultural stormwater and irrigation return flow from NPDES permitting requirements. The Court's ruling does not affect these exemptions. EPA is seeking comment on whether additional pesticide application activities may involve unavoidable point-source discharges to waters of the United States. EPA is requesting comment on whether this general permit should provide coverage for any such activities. If, after considering comments, EPA expands coverage of this permit, the effluent limitations for the additional use patterns would likely be similar to what is being proposed in this draft permit.

An overview of this issue and court case was published in the July/August 2009 issue of the Illinois Pesticide Review Newsletter. More information on the NPDES General Pesticide Permit is also available. ---Phil Nixon, added to and modified from the Agriculture and Natural Resources News Forum and EPA websites

Phil Nixon

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