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Interim Guidance Clarifies Circumstances when NPDES Permit not Required to Apply Pesticide to Water
Release Date: 07/18/2003
David Deegan, 202-564-7839
(07/18/03) On July 11, EPA issued interim guidance and its interpretation of the Clean Water Act (CWA) to resolve jurisdictional issues pertaining to pesticides regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and applied to waters of the United States. The statement and guidance address two sets of circumstances for which EPA believes that the application of a pesticide to U.S. waters, consistent with relevant requirements of FIFRA, do not constitute the discharge of a pollutant that requires a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act. The two circumstances are: (1) the application of pesticides directly to U.S. waters in order to control pests (for example mosquito larvae or aquatic weeds that are present in the water); and (2) the application of pesticides to control pests that are present over U.S. waters that result in a portion of the pesticide being deposited to water bodies (for example when insecticides are aerially applied to a forest canopy where water may be present below the canopy, or when insecticides are applied for control of adult mosquitoes). EPA will formally solicit public comments on this interim statement and guidance with a notice to be published in the Federal Register prior to determining a final Agency position. However, until a final position is established, the application of pesticides in compliance with relevant FIFRA requirements is not subject to NPDES permitting requirements, as described in the July 11 memorandum. The memorandum has been issued, in part, in response to a statement by the U.S. Court of Appeals for the Second Circuit in Altman v. Town of Amherst that highlighted the need for EPA to articulate a clear interpretation of whether NPDES permits are required for applications of pesticides that comply with the relevant requirements of FIFRA. The memorandum is available at: https://www.epa.gov/npdes/pubs/pesticide_interim_guidance.pdf .