If you were planning on applying pesticides near or on U.S. waters without a NPDES permit, think again. In National Cotton Council of America v. EPA, decided January 7, 2009, the Sixth Circuit United States Court of Appeals vacated EPA’s final rule, enacted in November 2007, exempting pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) from the Clean Water Act’s (CWA) permitting requirements. The Court held that pesticide residuals and biological pesticides constitute pollutants under the CWA, and therefore, EPA’s final rule must be vacated.

In the case, EPA argued its determination that pesticides applied according to FIFRA requirements are not pollutants and therefore not subject to NPDES regulation was reasonable under the CWA. EPA also argued that chemical pesticides, when they are applied, are not waste, and that biological pesticides should be treated similarly. Finally, EPA asserted that because chemical pesticides are not waste when they are applied, the chemical waste produced from application is not from a point source, which qualifies as an exemption to the permitting requirements.

The court agreed with EPA that although chemical pesticides that are applied and leave no residue or waste most likely do not require a NPDES permit, any application of a chemical pesticide that produces a residue or waste and all biological materials do require a permit. The court also determined that EPA’s injection of a temporal requirement to the “discharge of a pollutant” is unsupported by the CWA, and rejected the argument that pesticide application does not qualify as a point source, stating that if EPA’s interpretation was to stand, “discharges that are innocuous at the time they are made but extremely harmful at a later point would not be subject to the permitting program.”

What this mean to you? If you apply commercial pesticides near or on any waterways, you are now required to obtain a NPDES permit to do so.