Supreme Court Denies Request For NPDES Permit Review

March 23, 2010 at 4:17 pm

The U.S. Supreme Court denied the request to review an appeals court ruling that a permit would be required for pesticides applied into, over or near waters of the United States. The request for review was sought by CropLife America, the American Farm Bureau Federation and other groups in response to a U.S. Court of Appeals for the 6th District ruling that a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA) is required for any pesticides applied to water bodies or if pesticides could possibly enter the water body after application.

The district court ruling overturned a 2006 EPA rule that pesticides applied in accordance with FIFRA (Federal Insecticides, Fungicide and Rodenticide Act) did not require a NPDES permit. EPA chose to not appeal the ruling and instead asked for time to develop a permit program. The permits will be for pesticides applied to waterways and the process will be implemented by April, 2011.

Historically, agricultural pest management activities have been treated as non-point sources and have not required NPDES permits. Farm organizations are concerned the proposed permits could eventually be applied to farmers, custom applicators and agricultural dealers.

The Pesticide & Toxic Chemical News’ article in their March 8 edition reported an address to the Chemical Producers and Distributors Association in March by Bill Jordan, senior policy advisor in EPA’s Office Pesticide Programs. The article reported that Jordan says nobody knows if agriculture users need a permit.

The article says, “According to Jordan, while the 6th Circuit’s ruling can be read to cover agricultural uses of pesticides, the court did not specifically address such uses. As a result ‘we at EPA have decided to let the issue sit for a while,’ Jordan told the industry stakeholders at the meeting.”

The Pesticide and Toxic Chemical News article reports that Jordan says EPA will not include agricultural applications in the draft general permit process unless the agriculture community wants EPA to expand the permit. The draft general permit will cover aquatic weeds and algae, mosquito control, wide area pest control programs and control of aquatic nuisance animals.

The article goes on to say, “Part of the agricultural sector’s calculation will probably focus on the legal vulnerability to NGO [non-governmental organizations] lawsuits if agricultural pesticide uses are not covered by the permit…Nevertheless, if agriculture stakeholders say they want the protection in terms of legal liability afforded by coverage under the permit, EPA will examine whether the permit can be expanded.”

(Sources: Pesticide & Toxic Chemical News, Vol. 38, No 16 and Vol. 38, No. 15)

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