Generally, discharges of pollutants into the waters of the United States require permitting from either the EPA or the State’s authorized permitting process under the Clean Water Act (“CWA”). However, in 2006 the EPA issued a Final Rule which concluded that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) were exempt from the CWA’s permitting requirements.
This exemption was short-lived, however, as in 2009 the Sixth Circuit Court of Appeals determined, in the case of National Cotton Council of America, et al. v. US EPA, that the EPA’s exemption ran afoul of the CWA’s statutory requirements. The court held that an application of pesticides or other biological materials to surface waters could come within the CWA’s mandates, and thus the court vacated the rule. The review and vacation of the EPA’s final rule applies to all federal circuits, except the Eleventh Circuit, because cases in each of those federal circuits were consolidated for review.
The court set a deadline of April 9, 2011 to give the industry time to obtain the necessary permits. However, on March 30, 2011 the deadline was extended until October 31, 2011, which will mark the end date of the irrigation season. Therefore, compliance will not be necessary until next year’s irrigation season.
The Oregon Department of Environmental Quality (“DEQ”) has been working to develop pesticide general permits in order to comply with the Sixth Circuit’s ruling. The public comment period for the Pesticide General Permit (2300A) closed on March 7, 2011. The public comment period for the Irrigation District General Permit (2300J) will close at 5 pm on April 15, 2011. More information can be found on the DEQ’s website at: http://www.deq.state.or.us/wq/wqpermit/pesticides.htm.
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