By Mary Ellen Ternes
Pesticide application is regulated pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). However, the Sixth Circuit Court of Appeals required the EPA to develop a separate general pesticide NPDES permit with its 2009 decision, National Cotton Council, et al., v. EPA, 553 F.3d 927 (6th Cir. 2009). Pursuant to the Sixth Circuit’s decision, the EPA developed its Pesticide General Permit (PGP) pursuant to the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES), regulating pesticide application near waters of the United States; however, its effective date has been continually delayed. After two and a half years of extensions, and continued attempts at legislative relief, this new general permit will become effective on October 31, 2011, in Oklahoma and New Mexico, as well as other states where the EPA has permitting authority. The PGP covers discharges to waters of the U.S. from the application of biological pesticides or chemical pesticides that leave a residue when the pesticide application is for: pest control of mosquitoes or other flying insects; control of aquatic weeds or algae; control of aquatic nuisance animals, e.g., fish, lampreys and mollusks; and control of forest canopy pests. The general permit is not available for use with respect to discharges into waters designated as impaired by that pesticide or its products of degradation, waters designated as Tier 3 for antidegradation purposes, or with respect to discharges covered by another NPDES permit.