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Senate bill introduced on NPDES requirement

Legislation has been introduced in the Senate to eliminate the NPDES requirement for pesticides applications. If passed by the Senate and signed into law, the bill would overturn a 2009 Sixth Circuit decision which mandated, for the first time, that pesticides applied to, over, or near water would need a National Pollutant Discharge Elimination System (NPDES) under the CWA.

Sen. Roberts, R-Kan., the ranking member of the Senate Committee on Agriculture, Nutrition and Forestry, introduced legislation to eliminate the NPDES requirement for pesticides applications.

The bill has the following original co-sponsors: Sens. Barrasso, R-Wyo., Enzi, R-Wyo., Crapo, R-Idaho, Johanns, R-Neb., Lugar, R-Ind., Risch, R-Idaho, Chambliss, R-Ga., Cochran, R-Miss., Burr, R-N.C., Blunt, R-Mo., Moran, R-Kan., and Grassley, R-Iowa.

This follows the March 31 House passage of H.R. 872 on a bipartisan vote of 292-130. That bill would amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Clean Water Act (CWA) such that a CWA permit would not be necessary for pesticides that are applied according to the FIFRA label.

If passed by the Senate and signed into law, the bill would overturn a 2009 Sixth Circuit decision which mandated, for the first time, that pesticides applied to, over, or near water would need a National Pollutant Discharge Elimination System (NPDES) under the CWA.

On March 28, the court had granted EPA’s request for a six-month extension, making the new effective date Oct. 31, ’11. On April 1, EPA released its draft final general permit for pesticide applications. The agency said in a statement that it was releasing its permit ahead of final publication in the Federal Register in order for states and permittees to have as much time as possible to understand the permit's requirements before its implementation on Oct. 31. To view the permit, go to http://cfpub.epa.gov/npdes/home.cfm?program_id=410.

This latest version has been moderated somewhat from the June 4 proposal. The earlier proposal would have required permits for pesticide users applying pesticides for mosquito control on more than 640 acres a year or applying aquatic pesticides to more than 20 linear miles of a water's edge or 20 acres of open water. The final version raises those thresholds to 6,400 acres for mosquito control and 80 acres of open water, yet the 20 linear mile threshold remains unchanged.

Under this proposed draft, approximately 35,000 pesticide applicators will need permits to cover about 500,000 applications per year. EPA estimates the permit will cost states, local entities and pesticide applicators $50 million and require one million hours to implement per year. Under the CWA, unlawful discharges are subject to $37,500 per day in fines.

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