Pesticide Alert November 2006
EPA Issues Final Rule on Pesticide Applications to Water

Date: Nov 27, 2006

In 2001, in Headwaters, Inc. v. Talent Irrigation District, a case that has roiled the pesticide industry and threatened EPA's FIFRA process, the United States Court of Appeals for the Ninth Circuit decided that the Clean Water Act (CWA) requires a National Pollutant Discharge Elimination System (NPDES) permit for pesticide applications to water. In the Talent case, the Court held that a pesticide applied to surface water resulted in a "waste" being deposited in the water, and thus the application was subject to the permit requirements of the NPDES system. As a result, public health authorities, natural resource managers, and others who rely on pesticides have expressed to EPA their concern and confusion about whether they have a legal obligation to obtain an NPDES permit under the CWA when pesticides are applied to or over waters of the United States.

Reacting to the decision on August 13, 2003, EPA published an Interim Statement presenting the Agency's position on two circumstances in which pesticides applied to waters of the United States consistent with all relevant requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are not "pollutants" under the CWA and thus do not require NPDES permits. On February 1, 2005, the Agency published a final Interpretive Statement and simultaneously published a proposed rule to promulgate the substance of the Interpretive Statement as an EPA rule. EPA received comments on the Interim Statement and proposed rulemaking from more than 700 stakeholders.

On November 20, 2006, EPA issued its final rule. The rule states that the application of pesticides to waters of the United States does not constitute the discharge of a pollutant that requires an NPDES permit when pesticides are applied:

  • Directly to waters of the United States in order to control pests. Examples of such applications include applications to control mosquito larvae, aquatic weeds, or other pests that are present in waters of the United States or,
  • To control pests that are present over waters of the United States, including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of the United States in order to target the pests effectively. For example, when insecticides are aerially applied to a forest canopy where waters of the United States may be present below the canopy or when pesticides are applied over or near water for control of adult mosquitoes or other pests.

The final rule concludes that while residuals resulting from the application of pesticides within the scope of either of these two circumstances are technically pollutants, NPDES permits are not required for such applications because the pesticide is not a pollutant at the time of discharge and becomes a residual only after it has served its intended purpose.

EPA has a fact sheet, a copy of the final rule and related documents available on its website at http://cfpub.epa.gov/npdes/home.cfm?program_id=41#water_transfer.

The rule does not address pesticide spray drift. A workgroup of the Pesticide Program Dialogue Committee (PPDC), established under the Federal Advisory Committee Act (FACA), is investigating this issue and intends to provide advice to EPA in the near future.

If you have any questions about the impact of the final rule on the pesticide programs, or would like more information on Keller and Heckman's pesticide practice, please do not hesitate to contact our offices at 202-434-4100 or at pesticide@khlaw.com.