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Power play on NPDES permit?

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EPA is currently developing an NPDES permit for pesticide applications over or near water. The permit results from a 6th U.S. Circuit Court of Appeals ruling overturning an EPA finding that such applications were not covered by the Clean Water Act. Farm organizations say EPA should have done more to defend the ruling and preserve the Federal Insecticide, Fungicide and Rodenticide Act as the ruling document for pesticides. Several members of Congress have introduced legislation that would prohibit the use of NPDES permits for aquatic pesticides. It's not clear whether the legislation will pass this or the next Congress and force EPA to set aside the NPDES permit.

There’s an interesting power play shaping up between members of Congress and the Environmental Protection Agency over the National Pollutant Discharge Elimination System or NPDES permit EPA is developing.

Readers may recall that EPA was ordered to set up the permitting system for applications of pesticides over water after the U.S. 6th Circuit Court of Appeals overturned a 2006 EPA rule which specifically exempted those from Clean Water Act requirements.

A number of farm and farm-related groups including the American Farm Bureau Federation (AFBF) filed friend of the court briefs in the appeal of the 6th Circuit decision in the case of National Cotton Council vs. EPA. But the appeal was rejected and EPA was given until April 2011 to develop and implement a new permit.

The farm groups and Crop LifeAmerica, the organization that represents the nation’s pesticide manufacturers, believe the EPA, which changed hands from one administration to another during the course of the appeal, should have done more to defend the 2006 rule.

Be that as it may, EPA has now issued a draft permit, which it says it hopes to finalize by December. It would be up to EPA and the states affected by the court decision to begin enforcing the new permit requirement by next April.

Sens. Blanche Lincoln, D-Ark., and Saxby Chambliss, R-Ga., the chairman and ranking member of the Senate Agriculture Committee, have filed a bill seeking to clarify the Federal Insecticide, Fungicide and Rodenticide Act to say no such permits are required for pesticide applications over water.

Last Wednesday (Sept. 30), House Agriculture Committee Chairman Collin Peterson, D-Minn., introduced legislation amending FIFRA to prohibit additional permits for pesticides when applied consistently with FIFRA.

Whether any of these or other similar bills can develop enough traction in a lame duck session or in the new Congress that will convene in January remains to be seen. It’s doubtful enough members of the current body will throw their support behind them to win passage this term.

Environmentalist groups will be working hard to make sure the permit requirement stays on track because it would add a new element of uncertainty to the process of applying pesticides whether for mosquito control or control of aquatic vegetation in streams and ponds or for applications over land further down the road.

In the current environment, it’s also likely EPA will come down on the side of more obstacles for pesticide applications rather than less.  

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