Draft Pesticide Permit Prompts More Questions than Answers

June 4, 2010 Bookmark and Share

A proposal for a new general permit for pesticide applications released by the Environmental Protection Agency (EPA) this week has left more questions than answers about what exactly will be required of producers who utilize pesticides.

The concept of a general permit emerged following a ruling by the Sixth Circuit Court in 2009 in the case of National Cotton Council of America v. EPA. That case concluded pesticide discharge is a point source of pollution subject to additional regulation and permitting under the Clean Water Act, meaning producers would need additional permitting for every crop protection application.

The logistics of carrying out the order – which could affect up to 5.6 million pesticide applications annually – are harrowing for EPA, state agencies and producers alike, and the general permit concept is intended to make the process easier for all involved.

In a frequently asked questions document about this week’s proposal, EPA said explicitly, “This permit does not cover terrestrial (land based) applications for the purpose of controlling pests on agricultural crops or forest floors.” However, that is quickly followed by a caveat – that “use patterns” not covered by the draft proposal would require additional permitting if the application in question could result in point-source discharge to waters of the U.S.

Key questions now at issue include how a farmer is to know on the spot if his application could fall into the definition of a point-source discharge; what counts as a “water of the United States”; and how to obtain whatever additional permitting might be needed. The penalties for noncompliance – intentional or not – could reach up to $37,500 a day, steep enough to put a producer out of business quickly.

The new NPDES permitting will be required as of April 10, 2011, when the Court’s decision takes effect. EPA has said it intends to issue a final general permit by December 2010.

Public comments on the proposal will be accepted through July 19, and EPA has scheduled four public meetings during the comment period, including sessions in Boise, Idaho, and Washington. D.C. EPA will also hold a Webcast on June 17 at 1 p.m. Eastern time to answer questions related to the proposal.

NAWG staff spent much of Thursday reviewing the proposal and talking with coalition partners, and the NAWG Environment and Renewable Resources Committee will be engaged in formulating comments and strategy for moving forward on this issue.

For much more information on the proposed permit including full draft text and the public meeting schedule, please visit http://cfpub.epa.gov/npdes/home.cfm?program_id=410.