Source:  Rebeckah Adcock, CropLife America, 4/1/11

As promised in EPA's declaration to the Sixth Circuit Court of Appeals, the pre-publication version of the draft final pesticide general permit for discharges of pesticide applications to U.S. waters is now posted on EPA's website at www.epa.gov/npdes/pesticides.  In addition, the site includes a Question and Answer document with responses to some of the commonly asked questions and a decision-making tool designed to help potential permittees figure out if they may need permit coverage and if so, generally what their requirements will be.

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.

EPA was required to develop this general permit as a result of the 6th Circuit Court's 2009 decision, which found that discharges from pesticides into U.S. waters were pollutants, and, therefore, will require a permit under the Clean Water Act (CWA). EPA has requested, and the court has granted, an extension of the date when permits are required for these types of discharges be from April 9, 2011 to October 31, 2011.

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 permit would not cover 1) non-target spray drift, or 2) discharges of pesticides to waterbodies that are impaired for that pesticide. Agricultural runoff and irrigation return flows are exempt from permitting under the Clean Water Act and, thus, do not require CWA permits. This permit also does not cover, nor is permit coverage required, for pesticide applications that do not result in a point source discharge to waters of the U.S. such as terrestrial applications for the purpose of controlling pests on agricultural crops, forest floors, or range lands.

This draft final permit is not considered a "final agency action". While legislation passed the House of Representatives on March 31, 2011 that would remove the need for this permit, EPA is still 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.

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.