August 2003
Interim Guidance Memorandum on Pesticide Application Issued by EPA
On July 11, the EPA Assistant Administrator for Water and the Assistant Administrator for Prevention, Pesticides, and Toxic Substances issued a joint memorandum
regarding interim guidance on application of pesticides to waters of the United States. The EPA administers both the Clean Water Act (CWA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The memorandum was issued in part to respond to a statement by the U.S. Court of Appeals for the Second Circuit in Altman vs. Town of Amherst that highlighted the need for EPA to articulate a clear interpretation of whether National Pollutant Discharge Elimination System (NPDES) permits under section 402 of the CWA are required for applications of pesticides that comply with relevant requirements of FIFRA.
The memorandum addresses two sets of circumstances for which EPA believes that the application of a pesticide to waters of the U.S. consistent with all relevant requirements of FIFRA does not constitute the discharge of a pollutant that requires an NPDES permit. These two circumstances are:
- The application of pesticides directly to waters of the U.S. in order to control pests. Examples of such applications include applications to control mosquito larvae or aquatic weeds that are present in the waters of the U.S., and
- The application of pesticides to control pests that are over waters of the U.S. that results in a portion of the pesticides being deposited to water of the U.S.; for example, when insecticides are aerially applied to a forest canopy where water of the U.S. may be present below the canopy or when the insecticides are applied over water for control of adult mosquitos.
It is the position of the EPA that these type of applications do not require NPDES permits under the CWA if the pesticides are applied consistent with all relevant requirements of FIFRA. The interpretation does not preclude or nullify any existing authority vested with states or tribes to impose additional requirement on the use of pesticides to address water quality issues to the extent authorized by federal, state, or tribal law.
In the legal opinions which served as the impetus for the memorandum, the terms “pollutant”, chemical waste, or biological material were used to describe pesticide residues. In one case, aquatic herbicide residues were determined to be chemical wastes or pollutants, while in another the pesticide B.t. was determined to be a biological material. Consequently, EPA staffers went to the section of the CWA that defines a pollutant. Specifically, the term pollutant means “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water.” EPA believes that pesticide residues are neither chemical waste (a term applied to something unwanted or unusable) nor biological materials (such as pathogenic agents). The Agency said that the interpretation for biological materials, when taken to the extreme, would mean that activities such as fishing with bait would constitute addition of a pollutant. (EPA Memo of 7/11/03).
