The U.S. Environmental Protection Agency issued a final rule in November 2006 that clarified two specific circumstances in which a Clean Water Act permit is not required before pesticides are applied. The two situations are when pesticides are:
applied directly to water to control pests, including mosquito larvae, aquatic weeds and other pests in the water
applied to control pests that are present over or near water where a portion of the pesticide will unavoidably be deposited to the water in order to target the pests effectively.
In effect the rule meant that pesticides legally registered under the Federal Insecticide, Fungicide, and Rodenticide Act for application to or near aquatic environments, and legally applied to control pests at those sites, were not subject to NPDES permit requirements. The rule became effective Jan. 26, 2007. Challenges to the rule were filed in 11 circuit courts around the country. The challenges were consolidated for hearing in the Sixth Circuit Court. On Jan. 7, 2009, the Sixth Circuit Court ruled that NPDES permits are required for:
When the applications are made in or over or near U.S. waters. The court ruling affects DEQ because EPA authorizes DEQ to issue NPDES permits and conduct the compliance and monitoring for these permits.
The Sixth Circuit Court gave EPA two years to develop a general permit so that by April 9, 2011, the regulated community was required to be covered under the pesticide general permit. EPA requested and received an extension on the court-ordered date. NPDES permits were required by Oct. 31, 2011. EPA issued the permit on Oct. 31, 2011.
EPA’s Pesticide General Permit covers discharges in areas where EPA is the NPDES permitting authority, which include four states (Massachusetts, New Hampshire, and New Mexico), Washington, D.C., all U.S. territories, most Indian Country lands, and federal facilities in four additional states (Colorado, Delaware, Vermont, and Washington).