About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 1 (May 27, 2022)

handle is hein.crs/govegkp0001 and id is 1 raw text is: Congressional Research Service Informing the legislitive debate since 1914 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 around the nation's waters has been a long-standing issue. Under the Clean Water Act (CWA; 33 U.S.C. §1251 et seq.), discharges of pollutants into navigable waters are unlawful unless specifically authorized by a permit. For decades following the enactment of the CWA, the U.S. Environmental Protection Agency (EPA) did not consider registered pesticides used in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA; 7 U.S.C. §136 et seq.) as pollutants that required permitting for their discharge into waters. However, in 2009, the U.S. Sixth Circuit Court of Appeals ruled that (1) the statutory definition of pollutant in the CWA encompasses biological pesticides and chemical pesticides that leave a residue in navigable waters, and (2) discharges of such pollutants require permitting. In response to the ruling, EPA issued a general discharge permit to cover the majority of pesticide applications resulting in point source discharges. States with delegated authority to issue their own discharge permits issued similar general discharge permits. Certain public health and environmental organizations have argued that discharge permits under the CWA allow states and EPA to regulate pollutants, such as residual pesticides, in local navigable waters based on site-specific situations. However, pesticide manufacturers and applicators have argued that the federal evaluation and registration of a pesticide under FIFRA, which governs proper use, is sufficiently protective of water quality nationwide and that permitting for pesticide discharges is unnecessary. Legislation proposed in the 117th Congress would prohibit EPA and states from requiring discharge permits under the CWA for pesticides registered under FIFRA by EPA or residues resulting from the application of such pesticides, with certain exceptions. F IFRA Pesticide Registration Process Prior to distribution or sale of a pesticide, FIFRA requires EPA to have issued a registration for the pesticide after an evaluation of the terms and conditions for its use. Registration approval requires a finding that the pesticide will not pose unreasonable adverse effects on the environment when used in conformance with labeling directions. To inform such a finding, EPA assesses the ingredients of the pesticide, its intended uses, and relevant scientific and technical information to characterize the properties of the pesticide (e.g., environmental fate) and the risk it may pose to human health or the environment (e.g., effect on nontarget organisms). To ensure pesticide registrations continue to satisfy the criteria for registration, FIFRA directs EPA to periodically reevaluate existing pesticide registrations. Reevaluation is referred to as registration review. Use of a pesticide in a manner inconsistent with its labeling is unlawful under FIFRA, subject to civil and criminal penalties. FIFRA generally does not require prior approval for each application of a registered pesticide. However, applicators must be trained and certified to use pesticides classified by EPA as restricted use. Certified applicators must comply with recordkeeping, reporting, and other requirements promulgated by EPA. Reporting is intended for the evaluation of compliance with pesticide registrations and not for purposes of applying for approval to use a restricted use pesticide. Under FIFRA, the authority to enforce use violations and to certify applicators is delegated to states that meet the statutory criteria for delegation (e.g., adequate laws and procedures). EPA is responsible for enforcing use violations and certifying applicators for states that do not meet the criteria for, or do not request, delegated authority. CRS Report RL31921, Pesticide Law: A Summary of the Statutes provides more information on the federal pesticide regulatory framework. CWA Nationa Pollutant Discharge Elimnination System Permkiting CWA Section 402 establishes the National Pollutant Discharge Elimination System (NPDES) permitting program for regulating the discharge of any pollutant from any point source into navigable waters. The CWA defines pollutant to include several broad categories of materials and wastes, including chemical wastes and biological materials discharged into water. The act defines point source as any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged. Aerial applications of pesticides, for example, are considered point sources. However, in defining point source, the CWA excludes agricultural stormwater discharges and return flows from irrigated agriculture, so such sources are not subject to NPDES permitting. NPDES permits specify limits on what pollutants may be discharged and in what amounts. Permits also include monitoring and reporting requirements. There are two types of NPDES permits: (1) individual permits for a specific discharger and (2) general permits covering categories of point sources that have common elements and discharge similar pollutants. General permits are issued in advance of discharges and allow the permitting authority to allocate resources efficiently-especially when a large number of permittees exist-and to provide timely permit coverage. NPDES permits may be issued for a period not exceeding five years. Regulations governing NPDES permits are codified at 40 C.F.R. Part 122.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most