Permitting for Pesticide Discharges into Navigable Waters: Issues and Legislation in the 117th Congress

Permitting for Pesticide Discharges into Navigable Waters: Issues and Legislation in the 117th Congress

Updated May 27, 2022
Permitting for Pesticide Discharges into Navigable Waters:
Issues and Legislation in the 117th Congress
Permitting requirements for using registered pesticides in or
Use of a pesticide in a manner inconsistent with its labeling
around the nation’s waters has been a long-standing issue.
is unlawful under FIFRA, subject to civil and criminal
Under the Clean Water Act (CWA; 33 U.S.C. §1251 et
penalties. FIFRA generally does not require prior approval
seq.), discharges of pollutants into navigable waters are
for each application of a registered pesticide. However,
unlawful unless specifically authorized by a permit. For
applicators must be trained and certified to use pesticides
decades following the enactment of the CWA, the U.S.
classified by EPA as “restricted use.” Certified applicators
Environmental Protection Agency (EPA) did not consider
must comply with recordkeeping, reporting, and other
registered pesticides used in compliance with the Federal
requirements promulgated by EPA. Reporting is intended
Insecticide, Fungicide, and Rodenticide Act (FIFRA; 7
for the evaluation of compliance with pesticide registrations
U.S.C. §136 et seq.) as pollutants that required permitting
and not for purposes of applying for approval to use a
for their discharge into waters. However, in 2009, the U.S.
restricted use pesticide.
Sixth Circuit Court of Appeals ruled that (1) the statutory
definition of pollutant in the CWA encompasses biological
Under FIFRA, the authority to enforce use violations and to
pesticides and chemical pesticides that leave a residue in
certify applicators is delegated to states that meet the
navigable waters, and (2) discharges of such pollutants
statutory criteria for delegation (e.g., adequate laws and
require permitting. In response to the ruling, EPA issued a
procedures). EPA is responsible for enforcing use violations
general discharge permit to cover the majority of pesticide
and certifying applicators for states that do not meet the
applications resulting in point source discharges. States
criteria for, or do not request, delegated authority. CRS
with delegated authority to issue their own discharge
Report RL31921, Pesticide Law: A Summary of the Statutes
permits issued similar general discharge permits.
provides more information on the federal pesticide
regulatory framework.
Certain public health and environmental organizations have
argued that discharge permits under the CWA allow states
CWA National Pollutant Discharge
and EPA to regulate pollutants, such as residual pesticides,
Elimination System Permitting
in local navigable waters based on site-specific situations.
CWA Section 402 establishes the National Pollutant
However, pesticide manufacturers and applicators have
Discharge Elimination System (NPDES) permitting
argued that the federal evaluation and registration of a
program for regulating the discharge of any pollutant from
pesticide under FIFRA, which governs proper use, is
any point source into navigable waters. The CWA defines
sufficiently protective of water quality nationwide and that
pollutant to include several broad categories of materials
permitting for pesticide discharges is unnecessary.
and wastes, including chemical wastes and biological
Legislation proposed in the 117th Congress would prohibit
materials discharged into water. The act defines point
EPA and states from requiring discharge permits under the
source as “any discernible, confined and discrete
CWA for pesticides registered under FIFRA by EPA or
conveyance ... from which pollutants are or may be
residues resulting from the application of such pesticides,
discharged.” Aerial applications of pesticides, for example,
with certain exceptions.
are considered point sources. However, in defining point
source, the CWA excludes “agricultural stormwater
FIFRA Pesticide Registration Process
discharges and return flows from irrigated agriculture,” so
Prior to distribution or sale of a pesticide, FIFRA requires
such sources are not subject to NPDES permitting.
EPA to have issued a registration for the pesticide after an
evaluation of the terms and conditions for its use.
NPDES permits specify limits on what pollutants may be
Registration approval requires a finding that the pesticide
discharged and in what amounts. Permits also include
will not pose “unreasonable adverse effects on the
monitoring and reporting requirements. There are two types
environment” when used in conformance with labeling
of NPDES permits: (1) individual permits for a specific
directions. To inform such a finding, EPA assesses the
discharger and (2) general permits covering categories of
ingredients of the pesticide, its intended uses, and relevant
point sources that have common elements and discharge
scientific and technical information to characterize the
similar pollutants. General permits are issued in advance of
properties of the pesticide (e.g., environmental fate) and the
discharges and allow the permitting authority to allocate
risk it may pose to human health or the environment (e.g.,
resources efficiently—especially when a large number of
effect on nontarget organisms). To ensure pesticide
permittees exist—and to provide timely permit coverage.
registrations continue to satisfy the criteria for registration,
NPDES permits may be issued for a period not exceeding
FIFRA directs EPA to periodically reevaluate existing
five years. Regulations governing NPDES permits are
pesticide registrations. Reevaluation is referred to as
codified at 40 C.F.R. Part 122.
registration review.
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Permitting for Pesticide Discharges into Navigable Waters: Issues and Legislation in the 117th Congress
Under the CWA, the authority to issue NPDES permits to
cover certain discharges determined by EPA or certain
regulated sources and enforce permits is delegated to states
other federal agencies to warrant additional scrutiny, which,
that meet the statutory criteria for delegation (e.g., adequate
for example, include discharges of pesticides to waters
laws and procedures), and the law allows states to adopt
impaired by that pesticide or related substances or certain
water quality requirements more stringent than federal
pesticide applications to outstanding national resource
requirements. EPA has authorized 47 states and one
waters. Based on EPA’s biological evaluation of the PGP,
territory to administer the permit program. The agency
the agency expected that the most common use pattern
issues discharge permits in states and territories not
covered by the PGP would be weed and algae control.
authorized to administer such program.
The PGP automatically covers certain discharges for which
NPDES and Pesticides
EPA has determined that a notice prior to the discharge
In 2006, EPA promulgated a rule formalizing its long-
would be inappropriate. Other discharges require the
standing position that pesticides applied in a manner
submission of a notice of intent (NOI) prior to the discharge
consistent with FIFRA did not require NPDES permits (71
to be covered. For example, NOIs are required for mosquito
Federal Register 68483, November 27, 2006). EPA
control districts that exceed annual treatment area
asserted that pesticides applied directly to navigable waters
thresholds defined in the PGP or for discharge into
to control pests present in the water or applied to control
outstanding national resource waters or into waters with
pests that are over or near navigable waters are not
National Marine Fisheries Service Listed Resources of
pollutants as defined under the CWA.
Concern (e.g., endangered and threatened species). The
PGP also provides for modified requirements in instances
Agricultural and environmental organizations challenged
of declared pest emergency situations (i.e., public health
the EPA rule, and in 2009, the U.S. Sixth Circuit Court of
emergencies).
Appeals vacated the rule, finding that biological
pesticides—as well as chemical pesticides that leave a
Discharges that do not require NOI submission still must
residue—are pollutants under the CWA. The court also
comply with PGP requirements, which generally include
ruled that the addition of such pollutants to navigable
compliance with effluent limitations, monitoring,
waters are point source discharges that require permitting
recordkeeping, and reporting. The PGP tailors these
under the CWA (National Cotton Council of America v.
requirements for those responsible for the discharge of
EPA, 553 F. 3d 927). For information on the rulemaking
pesticides in or around navigable waters, depending on the
and court decision, see CRS Report RL32884, Pesticide
types of pesticide application activities and locations of
Use and Water Quality: Are the Laws Complementary or in
those activities.
Conflict?
Legislation in the 117th Congress
Pesticide General Permit
Since the 109th Congress, bills have been introduced to
In responding to the 2009 ruling, EPA issued a pesticide
prohibit EPA and states from requiring discharge permits
general permit (PGP) covering the “majority of pesticide
under the CWA for pesticides registered under FIFRA with
applications that would result in point source discharges” to
certain exceptions. In the 117th Congress, H.R. 1821 would
navigable waters for states not authorized to issue their own
amend the CWA to prohibit EPA or a state from requiring
NPDES permits in 2011. States and territories authorized to
permits under the act for point source discharges of
issue NPDES permits are to issue and administer their own
pesticides into navigable waters if the pesticide is registered
general permits (i.e., a state PGP). Discharges not covered
under FIFRA. H.R. 1821 would provide exceptions to this
by a PGP may require an individual NPDES permit. In
prohibition, including (1) discharges that result from
2016 and 2021, EPA reissued a five-year PGP at the end of
pesticide applications in violation of FIFRA and (2)
the five-year term. State PGPs may have different
pesticides from stormwater discharges, manufacturing or
requirements than EPA’s PGP, though state PGPs must
industrial effluent, treatment works effluent, and discharges
satisfy NPDES requirements, CWA, and relevant state law.
incidental to the normal operation of a vessel. H.R. 1821
would also amend FIFRA to prohibit EPA or a state from
EPA’s 2021 PGP covers the discharge of biological
requiring a permit under the CWA for point source
pesticides and chemical pesticides that leave a residue in
discharges of pesticides registered under FIFRA into
navigable waters resulting from the following four use
navigable waters.
patterns: (1) mosquito and other flying insect pest control,
(2) weed and algae pest control (e.g., treatment in a ditch or
Laura Gatz, Analyst in Environmental Policy
at a water’s edge to control weeds or algae), (3) animal pest
Jerry H. Yen, Analyst in Environmental Policy
control (e.g., for invasive species eradication in navigable
waters), and (4) forest canopy pest control (e.g., for
IF10919
airborne nonaquatic pest outbreaks). The PGP does not

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Permitting for Pesticide Discharges into Navigable Waters: Issues and Legislation in the 117th Congress

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