The Clean Water Act, the Endangered Species Act, and the Federal Insecticide, Fungicide, and Rodenticide Act Collide, But With What Result?

July 24, 2012 12:27 pm — 12:27 pm

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the use, distribution, and sale of pesticides. The Clean Water Act’s (CWA) section 402 regulates the emission of pollutants into navigable waters of the United States through the National Pollutant Discharge Elimination System (NPDES). The Endangered Species Act (ESA) protects federal listed endangered and threatened species and designated critical habitat. When a pesticide is applied to a navigable water of the United States, directly or indirectly, which statute(s) apply and what permits and other regulatory reviews are required, if any? The EPA attempted to clarify some of these questions in 2006, but the Sixth Circuit struck down the rule in Nat’l Cotton Council of America v. EPA (2008) and ordered the EPA to begin permitting under the CWA for pesticides sprayed over water. In October 2011, after public comment and consultation with the National Marine Fisheries Service (NMFS) and Fish and Wildlife Service, as required under the Endangered Species Act, EPA issued a final NPDES Pesticide General Permit for point source discharges from the application of pesticides to waters of the United States. This permit applies to states for which EPA is the NPDES permitting authority. The 44 states authorized to run the NPDES program are responsible for issuing similar permits. Legislation has been introduced in Congress that would overturn the Cotton Council requirement that EPA issue NPDES permits, most recently the Hagan-Crapo bill, but none has passed to date.

What does the permit cover and how is it administered? What are the procedures for discharges into waters that contain NMFS "Listed Resources of Concern"? Experts addressed pesticide use and regulation and discussed the state of the law, litigation, policy, and regulatory processes at play to successfully balance human, environmental, and economic health concerns.

Linda Breggin, Senior Staff Attorney, ELI (moderator)
Deborah Nagle, Director, Water Permits Division, Office of Water, EPA
Doug Nelson, Executive Vice President and General Counsel, CropLife America
Charlie Tebbutt, Attorney, Law Offices of Charles M. Tebbutt, P.C.