There has long been a controversy over the obligation of pesticide and herbicide users to obtain NPDES permits under the Clean Water Act either for “residual” pesticides entering waterways by overspray or for their direct application to water environments to kill waterborne plants and pests. In 2009, the Sixth Circuit Court of Appeals effectively ruled that these applications were subject to NPDES permitting requirements. National Cotton Council of America v. EPA, 553 F. 3d 927 (6th Cir. 2009). There, the Court vacated a United States Environmental Protection Agency (USEPA) regulation that excluded discharges of biological pesticides that leave a residue from the application of pesticides to, or over, including near waters of the United States from the need to obtain an NPDES permit if the application was done in accordance with other laws. The requirement to obtain a permit was stayed by the Court until October 31, 2011, at the request of USEPA, to allow USEPA time to develop a Pesticide General Permit. As a result of this case, after October 31, 2011, NPDES permits are required for point source discharges of biological pesticides, and of chemical pesticides that leave a residue to waters of the United States.
On November 7, 2011, USEPA issued its final NPDES Pesticide General Permit (PGP). See Final National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit for Point Source Discharges from the Application of Pesticides, 76 Fed. Reg. 68750 (Nov. 7, 2011). The PGP is for point source discharges from the application of pesticides to waters of the United States and is available at http://www.epa.gov/npdes/pubs/final_pgp.pdf. The PGP regulates discharges to waters from the application of (1) biological pesticides, and (2) chemical pesticides that leave a residue [Note: for purposes of this permit USEPA assumes that all chemical pesticides have a residue and, therefore, would need a permit unless it can be shown that there is no residual] for the following pesticide use patterns:
a. Mosquito and Other Flying Insect Pest Control—to control public health/nuisance and other flying insect pests that develop or are present during a portion of their life cycle in or above standing or flowing water. Public health/nuisance and other flying insect pests in this use category include mosquitoes and black flies.
b. Weed and Algae Pest Control—to control weeds, algae, and pathogens that are pests in water and at water’s edge, including ditches and/or canals.
c. Animal Pest Control—to control animal pests in water and at water’s edge. Animal pests in this use category include fish, lampreys, insects, mollusks, and pathogens.
d. Forest Canopy Pest Control—application of a pesticide to a forest canopy to control the population of a pest species (e.g., insect or pathogen) where, to target the pests effectively, a portion of the pesticide unavoidably will be applied over and deposited to water.
The permit requires:
• All permittees to minimize pesticide discharges through the use of pest management measures and monitor for and report any adverse incidents;
• Some permittees that apply pesticides in excess of specified annual treatment thresholds are also required to submit Notice of Intents (NOIs) prior to beginning to discharge and implement integrated pest management (IPM)-like practices requiring annul reports and maintain detailed records; and
• Certain smaller owners are required to complete a pesticide discharge evaluation worksheet for each pesticide application (in lieu of the more comprehensive PDMP), an annual report, and detailed recordkeeping.
West Virginia has its own delegated NPDES program; thus the USEPA PGP is not directly applicable to West Virginia. The WVDEP, though, issued its own PGP on October 31, 2011. See, WV NPDES Permit No. WV0116645 http://www.jacksonkelly.com/jk/pdf/C2211227.pdf. This permit is similar to the USEPA PGP in that it is available to operators who discharge to waters of the State from the application of (1) biological pesticides or (2) chemical pesticides that leave a residue (hereinafter collectively “pesticides”). The West Virginia permit defines pesticide to include both pesticides and herbicides as follows:
“Pesticide” means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, (2) any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant, and (3) any nitrogen stabilizer, except that the term ‘‘pesticide’’ shall not include any article that is a “new animal drug” within the meaning of section 201(w) of the Federal Food, Drug, and Cosmetic Act (21 STATE.C. 321(w)), that has been determined by the Secretary of Health and Human Services not to be a new animal drug by a regulation establishing conditions of use for the article, or that is an animal feed within the meaning of section 201(x) of such Act (21 STATE.C. 321(x)) bearing or containing a new animal drug. The term “pesticide” does not include liquid chemical sterilant products (including any sterilant or subordinate disinfectant claims on such products) for use on a critical or semi-critical device, as defined in section 201 of the Federal Food, Drug, and Cosmetic Act (21 STATE.C. 321). For purposes of the preceding sentence, the term “critical device” includes any device that introduced directly into the human body, either into or in contact with the bloodstream or normally sterile areas of the body and the term ‘‘semi-critical device’’ includes any device that contacts intact mucous membranes but which does not ordinarily penetrate the blood barrier or otherwise enter normally sterile areas of the body. [FIFRA Section 2(u)]
The term “pesticide” applies to insecticides, herbicides, fungicides, rodenticides, and various other substances used to control pests. The definition encompasses all uses of pesticides authorized under FIFRA including uses authorized under sections 3 (registration), 5 (experimental use permits), 18 (emergency exemptions), 24(c) (special local needs registrations), and 25(b) (exemptions from FIFRA).
Note: drugs used to control diseases of humans or animals (such as livestock and pets) are not considered pesticides; such drugs are regulated by the Food and Drug Administration. Fertilizers, nutrients, and other substances used to promote plant survival and health are not considered plant growth regulators and thus are not pesticides. Biological control agents, except for certain microorganisms, are exempted from regulation under FIFRA. (Biological control agents include beneficial predators such as birds or ladybugs that eat insect pests, parasitic wasps, fish, etc).
[T]his permit uses the term “pesticide” when referring to the “pesticide, as applied.” When referring to the chemical in the pesticide product with pesticidal qualities, the permit uses the term “active ingredient.”
The West Virginia permit is applicable when the pesticide application is for the same pesticide use patterns as described in the USEPA PGP, and requires certain operators to submit a Notice of Intent to obtain coverage under this general permit for discharges to waters of the State resulting from the application of pesticides:
a. If you are in control over the financing for, or over the decision to perform pest control activities that will result in a discharge and know or reasonably should have known that those activities will exceed one or more of the annual (i.e., calendar year) treatment area thresholds listed in Table 1 below for the “treatment area,” as defined in the definition.
b. If you apply pesticides that result in a discharge and know or reasonably should have known that those activities will exceed one or more of the pesticide application annual (i.e., calendar year) treatment area thresholds listed in Table 1 below for the “treatment area,” as defined in the definition. To determine whether an entity’s activities will exceed one or more of the annual treatment area thresholds, the entity should exclude from its calculation any pesticide application activities conducted under another entity’s NOI required under (a) above.
|
|
Table 1. Annual Treatment Area Thresholds
|
|
PGP Part
|
Pesticide Use
|
Annual Threshold
|
|
2.2.1
|
Mosquitoes and Other Flying Insect Pests
|
6400 acres of treatment area
|
|
2.2.2
|
Aquatic Weed and Algae Control:
|
|
|
-In Water
|
80 acres of treatment area1
|
|
- At Water’s Edge:
|
20 linear miles of treatment area at water’s edge2
|
|
2.2.3
|
Animal Pest Control:
|
|
|
-In Water
|
80 acres of treatment area1
|
|
- At Water’s Edge
|
20 linear miles of treatment area at water’s edge2
|
|
2.2.4
|
Forest Canopy Pest Control
|
6400 acres of treatment area
|
1 Calculations should include the area of the applications made to: (1) waters of the State and (2) conveyances with a hydrologic surface connection to waters of the State. at the time of pesticide application. For calculating annual treatment area totals, count each pesticide application activity as a separate activity. For example, applying pesticides twice a year to a ten acre site should be counted as twenty acres of treatment area.
2 Calculations should include the linear extent of the application made at water’s edge adjacent to: (1) waters of the State and (2) conveyances with a hydrologic surface connection to waters of the State at the time of pesticide application. For calculating annual treatment totals, count each pesticide application activity and each side of a linear water body as a separate activity or area. For example, treating both sides of a ten mile ditch is equal to twenty miles of water treatment area.
As a result, an NPDES permit must be obtained for point source discharges of biological pesticides, and of chemical pesticides that leave a residue to waters of the United States. Pesticide users who fall under the notification thresholds are still required to hold a permit and can do so simply by meeting the other requirements of the general permit as set out above.to waters of the United States, whose discharges are under the threshold limits, are automatically covered under the general permit and are not required to send an NOI to the agency, they must meet the terms of the general permit.
This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.
Energy and Environment Monitor