Confusion reigns as EPA’s pesticide deadline approaches

Date:11-01-2011

New pesticide permitting requirements has went into effect on October 31, 2011 despite a lack of clarity around who really needs to obtain the permits – or if agencies charged with issuing them are ready to do so in a timely manner.

The problem was created by a January 2009 Sixth Circuit Court decision saying pesticide discharge is a point source of pollution subject to additional regulation under the Clean Water Act, necessitating National Pollutant Discharge Elimination System (NPDES) permits for each application.

The decision has been stayed twice to allow time for government agencies to implement it. It is now set to go into effect at the end of the month, though federal and local governments remain unprepared for the mountain of paperwork it could cause.

The Environmental Protection Agency (EPA) has estimated the ruling will affect approximately 365,000 pesticide applicators that perform 5.6 million pesticide applications annually.

When the new requirement goes into effect, farmers running afoul of it could be subject to fines of up to $37,500 per day.

The House passed a bipartisan bill, H.R. 872, in June to clarify congressional intent with regard to the new requirements, but the bill has been subject to multiple holds in the Senate, and attempts to attach it to other legislation have proved unsuccessful.

NAWG remains deeply involved in ongoing Hill discussions about moving the pending legislation before the deadline.

NAWG also continues to press upon members of Congress, the administration and the public the importance of a clarification of the new requirements in light of confusion over the legal definition of the “waters of the United States”, which are subject to regulation under the Clean Water Act.

Claims continue that farmers applying pesticides only on land will not need additional permits and, in fact, producers in that situation are not even eligible for a new general permit developed by EPA.

Still, recent legal decisions, including one by the Supreme Court, have muddied the definition of “waters of the United States” to the extent that it is unclear if common farm structures, like ditches, that only sometimes experience water would qualify or not.

This means farmers applying crop protection products could be subject to citizen suits and other legal actions if they don’t secure new permits but are following all other applicable laws and product labels under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).