National Pollutant Discharge Elimination System (NPDES) News

News Items:
NPDES Compliance Information
Senators Poised to Cut Deal on EPA Double-Permitting Requirement
EPA Requests Extension on Clean Water Act Permit Requirement for Pesticide Discharges
Please Act Now to Protect Public Health, Infrastructure, Natural Resources and Jobs
As House Markup Nears, Senate Delays Effort To Block EPA Spray Permit
Ag Committee Advances Bill to Protect Producers from Duplicative Permit Requirement
Government's Motion to Stay Granted

NPDES Compliance Information
John Madsen

Spring has come, and it is time to comply with the new NPDES permit requirements. These requirements go beyond simply filing a notice of intent (NOI). Among other things, the applicator or resource manager has to complete a pesticide discharge management plan (PDMP) and have a method to both estimate the level of nuisance and evaluate effectiveness.

Currently, the Aquatic Ecosystem Restoration Foundation (AERF) has several tools available to prepare permit holders to comply with NPDES requirements, available on their webpage at, under the NDPES/PGP tab. First, under the news tab, AERF has provided a template of the Pesticide Discharge Management Plan (PDMP) as a fillable PDF form. This seven-page form will help in making sure all the elements of a PDMP are completed. The news section also has a summary of the Pesticide General Permit (PGP) elements. The news tab also has updates on available training resources, such as the EPA web-based permit-writer’s training.

Under the state permits tab, links to each states permit and the contact information for a person in charge is available. Lastly, under the State NOI info tab, a state-by-state comparison of threshold levels for the permits is available.

The AERF will also be providing guidance on assessment methods for assessing nuisance plant levels in the near future.

Senators Poised to Cut Deal on EPA Double-Permitting Requirement
With a critical deadline looming next week, speculation is running rampant that the Senate is close to reaching a deal that would delay the court-ordered implementation of a new U.S. EPA permit for pesticide users.

At issue is H.R. 872, a measure that would undo a 2009 federal appeals court ruling in National Cotton Council v. EPA that requires EPA to issue new permits to pesticide users who spray over water.

Since passing the House in a 292-130 vote in March, the bill has been stuck in the Senate under a hold from Sens. Barbara Boxer (D-Calif.) and Ben Cardin (D-Md.).

The court-ordered deadline for the new permits is Monday, Oct. 31, and EPA has said it will comply with that date.

However, there are several scenarios under which EPA would not have to immediately begin enforcing the new permits, according to sources involved in the Senate negotiations and lobbyists.

Senate Agriculture Chairwoman Debbie Stabenow (D-Mich.) and ranking member Pat Roberts (R-Kan.) have been the key players in the negotiations with Boxer, who heads the Senate Environment and Public Works Committee, and Cardin.

Under one scenario, new legislation would be approved at the beginning of next week that grants a one- to two-year "moratorium" on the new permit requirement. That would provide time for EPA to consider how it can best enforce the permit and for senators to review the environmental impact of pesticides on the country's waterways.

It would also give the agricultural lobby additional time to seek a legislative fix to the National Cotton Council decision, which they say puts an undo economic burden on farmers.

Beau Greenwood, executive vice president of government relations at CropLife America -- a major pesticide trade association -- confirmed that option is still on the table.

"Not unexpectedly," he said, "Senate leaders left an opening for consideration of short-term moratorium on implementing the permit."

Stabenow, Roberts and Boxer's offices declined to comment on the potential deal. Sue Walitsky, a spokeswoman for Cardin, said only that the "negotiations are active" and "people are very aware of the deadline."

The senators' work comes after deliberations appeared to have stalled earlier this month.

Roberts has offered an amendment to the "minibus" spending package that will be on the Senate floor next week that is very similar to H.R. 872 and would remove the permitting requirement. But it is still unclear whether it will come up for a vote.

Another scenario would entail EPA issuing the final permit next week but delaying enforcement until 2012. Some sources said this idea makes sense because it would be logistically impossible for EPA to both begin sending out the new permits and require that users have them in place on the same day.

That may satisfy some environmentalist groups who are most concerned about EPA being able to enforce its authority in the event of a pesticide contamination problem.

EPA declined to comment on whether it is considering that possibility. The agency only said that it "is planning to publish the final permit by Oct. 31, 2011, the date when permits for these types of discharges will be required."

Senate Agriculture Committee ranking member Collin Peterson (D-Minn.), a supporter of H.R. 872, confirmed yesterday that the Senate is indeed working to push back the permit requirement before the deadline.

"I know they are working on something," Peterson said.

The National Cotton Council case has been controversial since it was decided. The court said EPA's current pesticide regulations do not sufficiently protect the country's waterways from pesticide contamination and ordered the agency to develop new permits under its Clean Water Act authority.

Agribusiness has strongly disagreed with the ruling, arguing that the new permit would be duplicative because farmers are already required to follow instructions on pesticide labels.

Environmentalists, however, applauded it and pointed to a handful of studies that have found high levels of pesticides in water bodies.

H.R. 872 would amend the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) to prohibit EPA from issuing permits for pesticide use. It would also amend the Clean Water Act so EPA could not use it to issue pesticide permits.

Frustration in the House

Members of the House were quick to express their frustration with the Senate for waiting until the last minute to broker a deal.

"I would hope that some sort of accommodation could be worked out," said House Agriculture Chairman Frank Lucas (R-Okla.).

Lucas added that H.R. 872 received strong bipartisan support in the House, with 57 Democrats voting for it.

"It's unacceptable that despite strong bipartisan support for this common sense initiative, Senate Majority Leader Harry Reid (D-Nev.) and other Senate Democrats have refused to bring the measure to the full Senate for a vote," he said.

Rep. Bob Gibbs (R-Ohio), the original sponsor of H.R. 872, said the lack of action in the Senate is an "embarrassment" and a "perfect illustration of why Americans have no faith in Congress."

"Rather than considering or amending H.R. 872, the Senate is now going to waste time coming up with a brand new bill of their own that will just kick the can down the road without addressing the problem," Gibbs said.

EPA Requests Extension on Clean Water Act Permit Requirement for Pesticide Discharges
Today, the U.S. Environmental Protection Agency (EPA) is requesting an extension to allow more time for pesticide operators to obtain permits for pesticide discharges into U.S. waters. EPA is requesting that the deadline be extended from April 9, 2011 to October 31, 2011. During the period while the court is considering the extension request, permits for pesticide applications will not be required under the Clean Water Act.

EPA is developing a pesticide general permit in response to the 6th Circuit Court's 2009 decision, which found that discharges from pesticides into U.S. waters were pollutants, and, therefore, will require a permit under the Clean Water Act as of April 9, 2011. The final permit will reduce discharges of pesticides to aquatic ecosystems, thus helping to protect the nation's waters and public health.

The extension request is important to allow sufficient time for EPA to engage in Endangered Species Act consultation and complete the development of an electronic database to streamline requests for coverage under the Agency's general permit. It also allows time for authorized states to finish developing their state permits and for permitting authorities to provide additional outreach to stakeholders on pesticide permit requirements.

EPA's general permit will be available to cover pesticide discharges to waters of the U.S. in MA, NH, NM, ID, OK, AK, DC, most U.S. territories and Indian country lands, and many federal facilities.

For more information:

Please Act Now to Protect Public Health, Infrastructure, Natural Resources and Jobs
Take Action! - Help Pass HR 872

Court-ordered National Pollutant Discharge Elimination System (NPDES) permits will be required as of April 9, 2011 by the U.S. EPA for pesticide applications "to, over, or near" water. Congress never intended to regulate pesticide applications with Clean Water Act NPDES permits. In fact, EPA has no concerns in this area, but must now comply with a court order in National Cotton Council v. EPA.

These applications are important to protect public health from mosquito-borne diseases such as West Nile virus and eastern equine encephalitis, and protect our waterways from dangerous invasive species such as snakehead fish, zebra muscles and hydrilla and Eurasian milfoil. In addition, this burdensome process will increase costs of controlling pests, which puts jobs at risk.

Please ask your representatives to sponsor and pass H.R. 872: 'Reducing Regulatory Burdens Act of 2011.

As House Markup Nears, Senate Delays Effort To Block EPA Spray Permit
One day before a key House subcommittee is poised to mark up legislation exempting pesticide spraying from EPA's Clean Water Act (CWA) permit requirements, Senate agriculture committee members say they have no immediate plans to move companion legislation. The senators comments come after a March 8 meeting in which Administrator Lisa Jackson assured them that the agency would seek to delay the requirements or exempt some spraying activities from them. Several committee members emerged from the meeting with Jackson and Agriculture Secretary Tom Vilsack optimistic that EPA was cognizant of concerns farmers and ranchers have raised regarding its regulations, and committee leaders say they are taking a wait-and-see approach before deciding whether to introduce legislation on pesticide spraying. "We're working through how much they can do from a regulatory sense," Committee Chairwoman Debbie Stabenow (D-MI) said March 8. Sen. Pat Roberts (R-KS), the committee's ranking Republican, said he would support the House bill but was unaware of interest in moving companion legislation in the Senate in the near future. The House bill, H.R. 872, which will be marked up in the House Agriculture Committee March 9, would eliminate CWA permit requirements for pesticide spraying regulated under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA).

The legislation comes in response to a 2009 decision in National Cotton Council, et al. v. EPA in the U.S. Court of Appeals for the 6th Circuit that vacated EPA's rule exempting chemical spraying activities from permit requirements. The agency is now working to craft a general permit that would cover several classes of spraying activities – a permit under which applicators must seek coverage to avoid liability for unpermitted discharges. EPA proposed its draft general permit for pesticide applications June 2, 2010, but the permit has not yet been finalized, despite the agency's initial goal of finalizing it by December 2010. The agency March 3 asked the 6th Circuit for an extension of the court's April 9 deadline to Oct. 31 to begin requiring the permit, saying additional time was needed for operators to obtain permits, for states with delegated permitting authority to craft their own versions of the national general permit and for required endangered species consultations with other federal agencies. The court has not ruled on EPA's request for an extension. Sources say if the court denies EPA's request, it could spur senators to consider a legislative fix to the permitting issue but that no decisions have yet been made.

Roberts said Jackson reassured committee members that the agency would not place undue burdens on chemical sprayers as a result of the court decision, but that he wanted a more formal guarantee before ruling out a legislative fix. "Reassurances are fine . . . but we need something in writing," he said. Sen. Ben Nelson (D-NE) also said he was heartened by Jackson's attempt to reassure the committee, although he noted he was not entirely clear on her promises regarding the pesticide permit. "She was talking about that the permits would not adversely impact spray. So we're going to try to find out more about that. . . . But based on what she was saying, there may be certain applications of the rules that wouldn't apply to spraying," Nelson said. An EPA spokesperson did not immediately respond to a request for comment.

Sen. Charles Grassley (R-IA) also praised the meeting, and said Jackson was able to correct some "misunderstandings" about the impact of upcoming EPA rules. "One of the rules doesn't seem to me that it's as anti-agriculture as I interpreted it to be," Grassley said, although he declined to specify which rule he was talking about because he did not want to divulge concerns other members raised in the closed-door meeting. Grassley said the meeting demonstrated that within EPA "there's really an attempt to try to respond to agriculture's interest," although he acknowledged that the agency's options were limited while rules and permits were still being finalized. "I suppose it's impossible for EPA to say anything too definitive until it's over, but that's where you get all this misunderstanding," he said. "So maybe meetings like this will, even though it can't be official what directions they're headed, it can be helpful."

Ag Committee Advances Bill to Protect Producers from Duplicative Permit Requirement
WASHINGTON, March 9, 2011 – The House Agriculture Committee approved H.R. 872, The Reducing Regulatory Burdens Act of 2011. It is a bipartisan bill that would amend the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA) and the Clean Water Act (CWA) to clarify Congressional intent and eliminate the requirement of a National Pollutant Discharge Elimination System (NPDES) permit for pesticides approved for use under FIFRA. The legislation, which is cosponsored by 39 of the 46 members of the Agriculture Committee, is necessary to address the negative economic consequences of the ruling posed by the case National Cotton Council v. EPA (6th Cir. 2009). Under the court ruling, pesticide users would have to obtain a duplicative permit under the Clean Water Act (CWA) by April 9, 2011 or be subject to a fine of up to $37,500 per day per violation. The next step in the legislative process will be for the House Committee on Transportation and Infrastructure to consider the bill as it is the committee of primary jurisdiction.

"Without Congressional action, this misguided ruling would be a crushing blow to an already fragile economy. It would unleash a blitz of regulatory burdens on our farmers and ranchers starting with requiring an extra permit for pesticide applications, thousands of dollars in fines for non-compliance, and an increased risk of lawsuits down the road. I urge my colleagues in both the House and Senate to work together on this issue so we can send a bill to the President," said Rep. Frank Lucas, Chairman of the House Agriculture Committee.

"For too long we've watched organizations use the courts to twist laws against American farmers and agricultural production. The courts are not the place to decide agriculture policy. This legislation is a step in the right direction to address this problem and make it clear that Congress never intended to burden producers with additional permit requirements that would have little to no environmental benefit," said Rep. Collin Peterson, Ranking Member of the House Agriculture Committee.

"I am pleased that H.R. 872 passed the Agriculture Committee so quickly because the April 9th deadline is fast approaching. Without this bill becoming law, this permit would cost jobs and further strain already tight state budgets," stated Rep. Jean Schmidt, Chairman of the House Agriculture Committee's Subcommittee on Nutrition and Horticulture.

"I thank my colleagues in the House Agriculture Committee for their swift action to ensure FIFRA remains the standard for safe and effective pesticide regulation. If left unfixed, the misguided ruling in the National Cotton Council v. EPA decision will lead to devastating consequences for the public health of Americans and the economic well-being of state regulating agencies, agricultural producers, and small businesses. I will continue to work towards quick passage of this responsible legislation from the House, so this fix can soon be signed into law," said Rep Joe Baca, Ranking Member of the House Agriculture Committee's Subcommittee on Nutrition and Horticulture.

"This unprecedented judicially-triggered expansion of government regulation creates duplicative, burdensome and costly obligations that provide no quantifiable benefits to human health or the environment. Unless Congress acts, the only measureable results of this ruling will be the higher costs for farmers and ranchers and the number of lost jobs in Ohio's leading industry. We must ensure that FIFRA remains the standard for pesticide regulation, and continues to protect the health and safety of our families and communities," said Rep. Bob Gibbs, Chairman of the House Transportation and Infrastructure Committee's Subcommittee on Water Resources and Environment.

Government's Motion to Stay Granted
WASHINGTON, March 28, 2011 – The 6th Curcuit Court of Appeals granted the government's motion to stay on the case of The National Cotton Council vs. EPA. Refer to The Order for more information.

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