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Senate Negotiations Break Down, Clean Water Act Pesticide Permits Take Effect

(Beyond Pesticides, November 1, 2011) With negotiations to delay the court-ordered Clean Water Act (CWA) permits for pesticide applications breaking down in the U.S. Senate, the Environmental Protection Agency’s (EPA) Pesticides General Permit (PGP) will take effect today. The PGP, a National Pollutant Discharge Elimination System (NPDES) General Permit, covers most pesticide applications to water, including mosquito and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal control, and forest canopy pest control. Legislation to eliminate the permit requirement, the so-called Reducing Regulatory Burdens Act (HR 872), passed the U.S. House in April 2011. Similar legislation was introduced by Senator Pat Roberts (R-KS) in the Senate and passed through the Senate Agriculture Committee under the leadership of Senator Debbie Stabenow (D-MI), but a hold was put on the bill by Senators Barbara Boxer (D-CA) and Ben Cardin (D-MD). According to Environment and Energy (E&E) Daily, the four Senators’ staff have been working on a compromise, but negotiations have reportedly broken down.

E&E Daily reports that last week, the two sides appeared to be close to a deal. In exchange for a two-year moratorium on the new permit requirement, a national survey would be conducted on pesticide contamination to help determine if such a permit is necessary. But last Friday, Senator Roberts pulled the plug on that agreement. In a statement, Senator Roberts said, “Attempts to use a moratorium to leverage a controversial and overly broad study that threatens agriculture production will only increase confusion facing our farmers, ranchers and state and local health agencies.” While the PGP will take effect today, Senator Roberts and others are expected to continue a legislative effort to repeal CWA protections from pesticides.

EPA first proposed draft language for the PGP in June 2010. Its decision to issue a permit stems from a 2009 court decision in the case of the National Cotton Council et al. v. EPA in which the 6th Circuit Court of Appeals ruled that pesticide discharges into water are pollutants and require CWA permits. This ruling overturned the Bush administration policy that exempted pesticides from regulation under the CWA, and instead applied the less protective standards of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA). CWA uses a kind of health-based standard known as maximum contamination levels to protect waterways and requires permits when chemicals are directly deposited into rivers, lakes and streams, while FIFRA uses a highly generalized risk assessment that does not consider safer alternatives.

EPA will issue permits in territories, Indian Country Lands, six states, and the District of Columbia where the agency is the NPDES permitting authority. EPA is working closely with the other 44 states as they develop their own permit regulations. The PGP does not authorize coverage for discharges of pesticides or their degradates to waters already impaired by these specific pesticides or degradates or discharges to outstanding national resource waters. These discharges will require coverage under the individual NPDES permits, rather than a general permit. Also outside the scope of this permit are terrestrial applications to control pests on agricultural crops or forest floors. Irrigation return flows and agricultural stormwater runoff do not require NPDES permits, even when they contain pesticides or pesticide residues, as the CWA specifically exempts these categories of discharges from requiring NPDES permit coverage.

Under the PGP, pesticide applicators will be required to reduce pesticide discharges by using the lowest effective amount of pesticide, and prevent leaks and spills, in addition to reporting any adverse incidents. Pesticide applicators that exceed annual treatment area threshold would also be required to apply integrated pest management (IPM) practices, as defined by the agency. EPA’s brand of IPM is “a program of prevention, monitoring, and control, that when done correctly can greatly reduce or eliminate the amount of pesticides used.” Before the application of a pesticide, the applicator would be required to identify the specific pests, and causes of infestation. The pesticide applicator must evaluate following management options: (1) no action, (2) preventive measures, (3) mechanical control, (4) cultural methods, and (5) biological control agents; before selecting a pesticide. EPA estimates the regulations will affect 365,000 pesticide applicators that use an estimated 5.6 million pounds of pesticides annually.

Because the fight for clean water is ongoing, Beyond Pesticides will keep you updated of future Congressional and Agency actions. Sign-up for action alerts to stay in the loop.

All unattributed positions and opinions in this piece are those of Beyond Pesticides


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