As of April 9, 2011, anyone who applies a pesticide in, over, or near water must be covered by a permit issued under the Clean Water Act.

The U.S. Sixth Circuit Court of Appeals ruled in June that pesticide residuals are classified as pollutants regulated under the Clean Water Act, and made the ruling effective in April 2011. The two-year clock started ticking April 9, after stakeholders were given a chance to request a rehearing on the decision.

The ruling affects municipalities that want to battle mosquito infestations, agricultural producers’ efforts to manage pests, and environmental stewards’ attempts to control invasive species that could endanger valuable natural resources.

Before the court ruling, an EPA rule allowed crop protection chemicals legally registered under the  Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) of 1947  to be applied to or near aquatic environments to control pests at those sites without National Pollutant Discharge Elimination System (NPDES) permit.

In 2007, EPA received was petitioned by environmental and industry groups to review the rule. The case, National Cotton Council, et al, v. the Environmental Protection Agency, was assigned to the Sixth Circuit Court of Appeals. That court determined this year that the rule was not a reasonable interpretation of the Cleat Water Act and vacated the rule.

Agricultural groups, the aerial spraying industry and others had asked for a rehearing, but without the EPA’s support, the chance of  a rehearing is extremely unlikely. Instead, on June 8, the Sixth Circuit Court of Appeals granted EPA the two-year stay of the mandate to provide EPA time to develop, propose and issue a final NPDES general permit for pesticide applications, for states to develop permits, and to provide outreach and education to the regulated community.

Between now and the date the ruling takes effect, EPA says it will work closely with state water permitting programs, the regulated community and environmental organizations to develop general permits “that are protective of the environment and public health,” help authorized states to develop their permits, and provide outreach and education to those affected.

FFVA's Dan Botts told a meeting of the association's Environmental & Pest Management Committee that the recent NPDES court decision is a "complicated issue."

Agricultural organizations across the country pressed for the status quo. “Pests are capable of incredibly quick proliferation, and fields often need immediate pesticide applications and can’t wait; the spraying needed to be done yesterday,” an editorial in the Delta Farm Press publication stated. “So what happens if that application can’t be made?”

Irrigation return flows and agricultural runoff are specifically exempted from the Clean Water Act and will not require permits

For more information see  EPA's NPDES Web site.

FFVA producer members also may access related documents in the  Member Resources section of ffva.com or contact the E&PM Division  via e-mail or at (321) 214-5200.