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EPA Wades Into the Pesticides and Water Issue, Seeks Public Comments
(Beyond Pesticides, July 22, 2003) On July 11, EPA issued an interim memorandum addressing two key jurisdictional issues pertaining to pesticides applied to water under FIFRA. EPA addressed two situations in which the agency believes that "the application of a pesticide to waters of the United States consistent with relevant requirements of FIFRA does not constitute the discharge of a pollutant that requires a National Pollutant Discharge Elimination System (NPDES) permit under CWA."

The situations where an applicator would not be required to obtain a NPDES permit occur with the direct application of a pesticide to water to control water-borne pests (such as mosquito larvae), and with the application of pesticides to control pests present over water bodies that result in a portion of the pesticide being deposited into the water (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 is planning to open this interim statement up for comments through the Federal Register prior to taking a final position on the issue.

The memorandum was issued, in part, in response to a statement by the U.S. Court of Appeals for the 2nd Circuit in its 2002 decision on Altman vs. Town of Amherst. The Court stated that EPA needs to articulate a clear interpretation of whether NPDES permits are required for applications of pesticides that comply with FIFRA.

In the Altman case, the plaintiffs, town residents of Amherst, NY, argued that the Town of Amherst violated CWA by applying pesticides for mosquito control in a federal wetland without a permit. Furthermore, the plaintiffs argued that these pesticides were pollutants discharged from a point source directly into federal waters, thus violating federal law. The district court ruled against the plaintiffs, stating that the pesticides were being used for their intended purpose, and therefore do not constitute a pollutant as defined by CWA. The plaintiffs appealed to the US Court of Appeals for the 2nd Circuit. The 2nd Circuit ruled in favor of the plaintiffs, arguing that the district court acted on the basis of an incomplete record, and sought the participation of the EPA to clarify the law as it is intended.

The concerns raised about EPA's ambiguity on pesticides and water is not new. In March 2002, Robert Wayland, director of EPA's Office of Wetlands, Oceans and Watersheds revealed that EPA lacked water quality standards for hundreds of pesticides due to the absence of intra-agency communication within EPA. Wayland stated that the pesticide program and water office must coordinate regulatory actions both with each other and with state water agencies and state pesticide agencies. He said that EPA's Office of Pesticide Programs must do a better job of providing states with information on how to detect new pesticides, and on the effects of pesticides on the environment. The response to Wayland began in June 2002 with the testimony of Benjamin Grumbles, Deputy Assistant Administrator for Water, in front of the Committee on Resources in the House of Representatives, on the NPDES permit granted to the Washington Aqueduct, in which the EPA laid the groundwork for further clarification of its position.