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Background Information on EPA's Pesticide General PermitChronologyNovember 27, 2006 - EPA Publishes Final Rule on Aquatic Pesticides January 19, 2007 - Industry and Environmental Groups Challenge the 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 June 2, 2010 – EPA Proposes Pesticide General Permit March 3, 2010 – EPA Requests Extension March 28, 2010 – Court Grants Extension until October 31, 2011 April 1, 2011 – EPA Posts Draft Final PGP June 24, 2011 – EPA Seeks Public Comment on NMFS’ Draft Reasonable and Prudent Alternative EPA Publishes Final Rule on Aquatic PesticidesOn November 27, 2006 EPA issued a final rule clarifying two specific circumstances in which a Clean Water Act (CWA) permit is not required to apply pesticides to or around water. They are: 1) the application of pesticides directly to water to control pests; and 2) the application of pesticides 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 action put into effect a rule that confirms EPA's past operating approach that 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. The rule became effective on January 26, 2007. Clarifying when the CWA applies to pesticide use is critical because confusion over when a permit is required could hinder public health officials' efforts to prevent or respond to an infestation of mosquitoes that may carry the West Nile virus, or to control an invasive species that may damage valuable natural resources. EPA solicited public comment on both an Interim Interpretive Statement and proposed rule in Federal Register Notices published on August 13, 2003, and February 1, 2005, respectively. After considering these comments, EPA maintains its position that the two circumstances addressed in the final rule for which NPDES permits are not required are reasonable and consistent with the language and legislative intent of the CWA.
Industry and Environmental Groups Challenge the RuleOn 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 RuleOn 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. The court's decision, which applies nationally, is effective seven days after the deadline for rehearing expires or seven days after a denial of any petition for rehearing. Parties had until April 9, 2009 to seek rehearing. EPA estimates that the ruling affects approximately 365,000 pesticide applicators that perform 5.6 million pesticide applications annually. EPA Requests Stay; Industry Requests RehearingOn April 9, 2009, the Department of Justice (DOJ) chose not to seek rehearing in National Cotton Council v. EPA. DOJ instead 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 permits, and to provide outreach and education to the regulated community. Court Grants EPA 2-Year StayOn June 8, 2009, the U.S. Sixth Circuit Court of Appeals granted EPA a two-year stay of the mandate in National Cotton Council et al v. EPA in response to their request on April 9, 2009. EPA plans, before the ruling takes effect (April 9, 2011), to issue a final general NPDES permit for covered pesticide applications, to assist authorized states to develop their NPDES permits, and to provide outreach and education to the regulated community. EPA will work closely with state water permitting programs, the regulated community and environmental organizations in developing a general permit that is protective of the environment and public health. NPDES permits will be required for pesticides applied directly to water to control pests and/or applied to control pests that are present in or over, including near waters. Irrigation return flows and agricultural runoff will not require NPDES permits as they are specifically exempted from the CWA. EPA will update this site regularly to keep the public apprised of the status of this issue. Court Denies Industry and Lawmakers' 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, et al.Pesticide General PermitOn June 2, 2010, EPA 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 permit is also known as the Pesticides General Permit (PGP). The PGP was developed in response to a decision by the Sixth Circuit Court of Appeals (National Cotton Council, et al. v. EPA). The court vacated EPA's 2006 rule that said NPDES permits were not required for applications of pesticides to U.S. waters. As a result of the Court's decision, discharges to waters of the U.S. from the application of pesticides will require NPDES permits when the court's mandate takes effect, on April 9, 2011. Any use patterns not covered by this proposed draft permit would need to obtain coverage under an individual permit or alternative general permit if they involve pesticide application that result in point source discharges to waters of the United States. This general permit will provide coverage for discharges where EPA is the NPDES permitting authority. For discharges in NPDES authorized states, state NPDES authorities will be issuing their permit. EPA estimates that the Sixth Circuit's ruling will affect approximately 365,000 pesticide applicators nationwide that perform 5.6 million pesticide applications annually. EPA's PGP regulates discharges to waters of the U.S. from the application of (1) biological pesticides, and (2) chemical pesticides that leave a residue. The following pesticide use patterns are covered under the PGP: mosquito and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal control, and forest canopy pest control. The PGP does not authorize coverage for (1) discharges of pesticides or their degradates to waters already impaired by these specific pesticides or degradates or (2) discharges to outstanding national resource waters (also known as Tier 3 waters). These discharges will require coverage under individual NPDES permits. Also outside the scope of this permit are terrestrial applications to control pests on agricultural crops or forest floors. EPA accepted public comments on its draft pesticides general permit for 45 days (through July 19, 2010). EPA received approximately 750 sets of comments, copies of which can be viewed or downloaded at: www.regulations.gov The following documents include the Pesticide General Permit, the Pesticide General Permit Fact Sheet, Federal Register Notice and other information:
EPA Requests Extension on Clean Water Act Permit Requirement for Pesticide DischargesOn 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. During the period while the court is considering the extension request, permits for pesticide applications will not be required under the Clean Water Act. 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. 6th Circuit Court Grants Extension on Clean Water Act Permit Requirement for Pesticide DischargesOn 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 Posts Pre-publication Version of Draft Final Pesticide General Permit (PGP)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. The provisions of this permit are designed to increase water quality protections and reduce discharges of pesticides to aquatic ecosystems, thus helping to protect human health and our nation’s water quality. This draft final permit is not considered a “final agency action,” and the Agency is not soliciting public comment on this draft final permit. EPA is providing a preview of the draft final permit to assist states in developing their own permits and for the regulated community to become familiar with the permit’s requirements before it becomes effective. This reflects EPA’s commitment to transparency and responding to the needs of stakeholders. The Agency’s draft version of the final permit posted today covers operators who apply pesticides that result in discharges from the following use patterns: (1) mosquito and other flying insect pest control; (2) weed and algae control; (3) animal pest control; and (4) forest canopy pest control. This version of the draft final permit requires permittees to minimize pesticide discharges, maintain and calibrate equipment, and monitor for and report any adverse incidents. Some permittees will also be required to implement pest management measures based on integrated pest management principles. Record-keeping and reporting requirements will provide valuable information regarding where, when, and how much pesticides are being applied to waters of the U.S. EPA is developing an electronic system to make it easy for permittees to request permit coverage. No permit would be required for discharges from agricultural runoff or irrigation return flows, both of which are exempt from permitting under the Clean Water Act. This permit also would not cover 1) non-target spray drift, or 2) discharges of pesticides to waterbodies that are impaired for that pesticide. This pre-publication version of the draft final pesticide general permit has concluded interagency review by the Office of Management and Budget. EPA is currently engaged in consultation with federal resource agencies under the Endangered Species Act (ESA), and this version of the draft final permit does not contain any additional or revised conditions that may result from ongoing ESA consultation. Terms resulting from ESA consultation may be added to this posted version of the permit when the final permit is issued. Since states are not generally required to perform ESA consultation to issue their permits, this preview of the draft final permit is intended to provide states with a complete picture of EPA’s “pre-ESA consultation” permit requirements that may be used to develop state permits.
In addition, EPA has built an interactive tool to assist operators in determining:
Complete the questionnaire and learn the answers to these questions from the Pesticide Permit Decision Tool. EPA Seeks Public Comments by July 25, 2011 on the Draft Reasonable and Prudent Alternative in NMFS’ Draft Biological Opinion on the Proposed Pesticides General PermitJune 24, 2011 EPA is seeking public comment on a Reasonable and Prudent Alternative (RPA) in the draft Biological Opinion by the National Marine Fisheries Service (NMFS) that concludes issuance of the Pesticide General Permit (PGP) is likely to jeopardize the continued existence of endangered and threatened species and result in the destruction or adverse modification of critical habitat that has been designated for such species, absent the implementation of the RPA. The comment period is for 30 days and ends on July 25, 2011. Under section 7 of the Endangered Species Act (ESA), federal agencies have an obligation to insure, in consultation with NMFS and the U.S. Fish and Wildlife Service (FWS), that actions authorized, funded, or carried out by such agencies are not likely to 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. To evaluate how the PGP would likely affect listed resources, EPA prepared a Biological Evaluation (BE), a copy of which is available in the PGP docket, which concluded that in some instances the PGP “may affect” listed resources. Based on this BE, EPA initiated formal consultation with the Services. As part of this consultation, on June 17, 2011, NMFS submitted to EPA a draft Biological Opinion containing its determination that the PGP is likely to jeopardize the continued existence of 33 species and to result in the destruction or adverse modification of critical habitat that has been designated for 29 such species absent implementation of the RPA. As required by the ESA, NMFS has included in its draft Biological Opinion a suggested “Reasonable and Prudent Alternative” (RPA) that NMFS believes would avoid the likelihood of jeopardizing the continued existence of these species or resulting in the destruction of adverse modification of critical habitat. Under the ESA, biological opinions are not subject to notice and comment. However, pursuant to NMFS and FWS implementing regulations, the consulting Service works with the federal agency to develop reasonable and prudent alternatives. In order to get information to assist in this process, EPA is seeking comment on NMFS’ suggested RPA , and is particularly interested in the appropriateness of the proposed RPA for protecting jeopardized species and their critical habitat, issues that would be associated with implementing the RPA, and on possible alternatives to the RPA that would also avoid the likelihood of jeopardizing the likely existence of threatened or endangered species or the destruction of adverse modification of critical habitat. EPA provides the entire Opinion to assist in reviewing the RPA. EPA encourages input from the regulated community, stakeholders, State/local governments, Tribes, and other parties interested in the pesticide general permit. EPA wishes to be clear that this solicitation of comment is not pursuant to notice and comment rulemaking. NMFS has agreed to consider comments collected by EPA and to modify its suggested RPA if and as appropriate, but NMFS will not respond to comments as would be done in a rulemaking proceeding.
Click here to view the draft Biological Opinion
Submit comments, identified by the docket identification (ID) number EPA-HQ-OW-2010-0257, by one of the following methods:
Federal eRulemaking Portal: www.regulations.gov.
E-mail: ow-docket@epa.gov Mail: Water Docket, U.S. Environmental Protection Agency, Mail Code: 2822T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460, Attention: Docket ID No. EPA–HQ–OW–2010–0257. Delivery: EPA Docket Center, EPA West Room 3334, 1301 Constitution Avenue, NW., Washington, DC 20004, Attention: Docket ID No. EPA–HQ–OW–2010–0257. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Docket: Publicly available docket materials are available either electronically in www.regulations.gov
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