On June 2, 2010, EPA announced the public availability of a draft National Pollutant Discharge Elimination System permit for point source discharges from the application of pesticides to waters of the U.S. This permit is also known as the Pesticides General Permit.

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.

The online documents listed here include the Pesticide General Permit, the Pesticide General Permit Fact Sheet, Federal Register Notice and other information.

Public comments on EPA's draft pesticides general permit will be accepted for 45 days (through July 19, 2010).

EPA intends to issue a final general permit by December 2010. Once finalized, the PGP will be implemented in six states and the territories, Indian Country lands and federal facilities where EPA is the NPDES permitting authority (PDF) (4 pp, 45K). In the other 44 states, the state NPDES authorities will issue the permits. EPA has been working closely with these states to concurrently develop their permits.

During the comment period, EPA will hold three public meetings, a public hearing, and a webcast on the PGP. At the meetings, any person may provide written or oral statements and data pertaining to the draft permit. The date, time, and location of these events are online.

NAWG says draft pesticide permit prompts more questions than answers

The proposal for a new general permit for pesticide applications released by the EPA has left more questions than answers about what exactly will be required of producers who utilize pesticides, says the National Association of Wheat Growers.

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 last 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.