In response to a 2009 Sixth Circuit Court of Appeals ruling that vacated the 2006 NPDES Pesticides Rule, EPA has revised regulations to remove language added by the that rule. This language had exempted the application of pesticides from National Pollutant Discharge Elimination System (NPDES) permit requirements in two circumstances:
- When the application of the pesticide is made directly to waters of the United States to control pests that are present in the water, and
- when the application of the pesticide is made to control pests that are over, including near, waters of the United States.
The final rule removes this exemption and is effective on June 27, 2013.
As background, in 2006, EPA issued a final rule, Application of Pesticides to Waters of the United States in Compliance with FIFRA (“2006 NPDES Pesticides Rule”). The rule specified two circumstances in which an NPDES permit would not be required for the application of pesticides to waters of the United States. They were: (1) the application of pesticides directly to waters of the United States to control pests; and (2) the application of pesticides to control pests that are present over waters of the United States, including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of the United States to target the pests effectively; provided that the application is consistent with relevant Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) requirements.
In 2007, petitions for review of the 2006 NPDES Pesticides Rule were filed in federal court by industry and environmental groups. In 2009, the Sixth Circuit Court concluded the EPA’s 2006 NPDES Pesticides Rule was inconsistent with the Clean Water Act and the court issued a mandate vacating the Rule. EPA’s final rule removes 40 CFR 122.3(h) from the Code of Federal Regulations (CFR), in accordance with the vacatur of that section by the Court. Based on the Court’s decision, the 2006 NPDES Pesticides Rule is no longer effective.