by Sara Smith, InterTrade Services Corp.
A new permit that will effect approximately 35,000 pesticide applicators performing nearly 500,000 applications per year is now a necessity. As of October 31, 2011, the majority of applications in the following use patterns that leave a residue in waters of the State, will require a permit: mosquito and other insect pest control, weed and algae pest control, animal pest control, forested areas pest control and other pest control activities. The EPA estimates the burden of this permit to be approximately one million hours and $50 million per year. National Pollutant Discharge Elimination System (NPDES) permits have been available for many years for other discharges such as storm water, but the addition of pesticide discharges will increase the total number of NPDES permits by approximately 65 percent.
In 1977, the Clean Water Act was created with the intention of protecting our nations waterways from pollution and it required a permit to be obtained for any pollutant to be discharged to navigable waters. For the next 30 years, properly labeled pesticides were applied to water without a permit. In November of 2006, the EPA actually issued a final rule that pesticides applied in accordance with the Federal, Insecticide, Fungicide and Rodenticide Act (FIFRA) are exempt from the Clean Water Act’s permitting requirement. Unfortunately, in 2009, the 6th Circuit Court in their decision on the case of National Cotton Council v. EPA, disagreed with the EPA and determined that it was the intent of Congress to include pesticides in the Clean Water Act. The Court vacated the EPA’s 2006 rule and decided that pesticide applications would require a NPDES permit. The court gave the EPA two years to create the permit that was to become effective April 9, 2011. Just weeks before this date, the EPA asked, and was granted, an extension from the court until October 31, 2011. There was hope that during this extension Congress would act and clarify their intent. In fact, on March 31, 2011, the House of Representatives passed H.R. 872 which sought to amend FIFRA and the Clean Water Act and eliminate the NPDES permit requirements. From there, on June 21st, it was passed with a strong bi-partisan vote by the Senate Agriculture, Nutrition and Forestry Committee. Unfortunately, Senators Boxer and Cardin put a hold on the bill where it remains at this time.
The majority of states have issued their own permits based on the Federal permit. This winter, the Illinois EPA will be working on outreach to educate potential applicators on their permit. There are different requirements based on the size of the treatment area, the entity performing the treatment, etc. Unfortunately, Illinois has chosen to make their permit more restrictive than most other states and require nearly all dischargers to submit a Notice of Intent whereas the Federal EPA’s permit covers most activities without this submission.
There is also a slight chance that Congress could pass a bill that would negate the permits. However, if you believe that you will need a permit for next season, apply early as the issuance of the permits will likely be very slow in the beginning. At this time, there is no charge for a permit. For additional information visit the Illinois EPA’s website at: http://www.epa.state.il.us/water/permits/pesticide/index.html