EPA presentation on draft permit for pesticide discharges met with spirited comments from water users, other stakeholders.

In a June 16, 2010, meeting in Boise, representatives from the US EPA presented information clarifying a draft NPDES General Permit for pesticide discharges that has been submitted for public comment.

While the meeting was presented as an opportunity to ask for clarification and pose questions in order to have a better understanding of the permit, EPA representatives noted that testimony on the permit would not be taken at the time. Testimony on the draft permit must be made in writing via hand delivery, US mail or online. The public comment on the draft permit extends through July 19.

Allison Wiedeman, Chief of the Rural Branch, Water Permits Division, noted that drafting this permit has been one of the most challenging issues in her 30 years with the EPA. The U.S. 6th Circuit Court of Appeals overturned EPA’s 2006 rule that said pesticides were not pollutants under the Clean Water Act and their application did not require NPDES permits. Rather than appeal the decision, EPA asked the court for time to develop a general NPDES permit.

Wiedeman says her department has talked with hundreds of groups including growers and applicators, manufacturers, NRCS, USDA and the state regulatory authorities as part of this process. This draft permit is, she says, the best shot at a balance between environmental protection and feasibility and practicality.

Presentation slides are available from the website: http://www.regulations.gov/, along with the 112-page fact sheet and FAQ.

Presentation Highlights:
The Sixth Circuit Court of Appeals determined that EPA’s interpretation of the Clean Water Act that said pesticides are not pollutants is wrong.

At the time of this decision, the EPA asked the court for two years to develop a general permit for which industry could apply. After the public comment period, the permit will be finalized in December. EPA has until April 9, 2011 for implementation. The 2006 regulation that determines that permits are not necessary is still in effect today, but only until next spring.

The permit EPA has proposed applies only to the 6 states that do not have primacy—Alaska, Idaho, New Mexico, Oklahoma, New Hampshire and Massachusetts. Forty-four states have their own state process for permitting. These states have some flexibility in developing their own permits, as long as they support the same kind of protection or are more stringent than the EPA’s permit.

EPA is proposing a structure whereby a general permit would be necessary if an entity is determined to be a point source, and is discharging into Waters of the US. Individual operators would apply for coverage under the general permit without going through their own, separate public process. EPA representatives hope this will cut down on the number of individual permit applications.

For the purpose of this draft, pesticide uses covered under the permit include:
- Mosquito and Other Flying Insect Control
- Aquatic Weed and Algae Control
- Aquatic Nuisance Animal Control
- Forest Canopy Pest Control

Some pesticide uses are not included:
- Terrestrial applications to control pests on agricultural crops or forest floors
- Off target spray drift

Activities exempt from permitting under the Clean Water Act:
- Irrigation Return Flow
- Agricultural Storm Water Runoff

The application of pesticides for control of terrestrial pests associated with crop production is not covered under EPA’s NPDES PGP.

In addition, discharges of pesticides to water bodies that are already considered impaired for the specific pesticide in question are not covered under the permit. It may be that in that instance, an operator would need to apply for an individual permit. EPA officials say they don’t anticipate this will happen very often.

Operators under this umbrella permit would be required to submit Notices of Intent (NOIs) to discharge pesticides.

Operators would be required to prepare plans for monitoring pesticide discharge. Monitoring should include visual monitoring for adverse incidents during and after application and monitoring of management practices.

Operators would also be required to provide:
- Annual documentation of pesticide application activities, and
- Adverse Incident reporting to help EPA identify possible permit violations where the permit may need modification to further protect water quality.

Questions and Comments reveal anxiety over costs, red tape, and lawsuits
Some audience members were undeterred by the fact that official public statements would not be recorded for consideration. Comments directed at the panel were prolific and largely critical of the draft EPA permit.

Norm Semanko with the Idaho Water Users Association asked why the EPA didn’t seek review of this court decision. In his mind, the EPA didn’t exhaust all avenues of appeal. EPA representatives noted that their legal counsel advised them that such efforts had little chance of success.

Scott Campbell, a water user attorney vented his frustration to the panel.

“This rule not only angers me to the depth of my soul, but it saddens me that people are being exposed to this kind of red tape and exposure to law suits and giving environmental terrorist ammunition to anyone who wants to file a notice of intent,” he said.

Other respondents commented that the record keeping and reporting requirements placed an undue burden on operators.

Roger Batt of the Idaho Weed Awareness Campaign asked about the relationship between the permit and the standards as outlined by FIFRA, which covers the correct application of pesticides. EPA representatives noted that the idea is to minimize the discharge of pollutants, but Batt noted that this can subject someone to the threat of third-party lawsuits.

Another audience member asked the panel if they had considered homeowners, who often overuse pesticides and other products on their lawns and gardens.

“The poor people who are feeding over 90 percent of the population are unduly burdened,” Campbell said of the impact of this permit to the agricultural industry.

Comments may be submitted online at http://www.regulations.gov/. Click the “submit a comment” link near the top of the page. Enter the key word: DPA-HQ-OW-2010-0257. Click the orange “search” link which will pull up one item: The PGP docket. Click the blue “submit a comment” link and complete the form provided and upload your file. For more information, visit: www.epa.gov/npdes/pesticides.