FEATURE ARTICLE

April 2007

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EPA’s New Aquatic Pesticide Rule Leaves Wake of Uncertainty

The U.S. Environmental Protection Agency (EPA) has issued a new regulation exempting application of pesticides from Clean Water Act (CWA) permitting requirements in two limited circumstances. Specifically, under the new regulation, applicators of pesticides are not required to obtain a National Pollutant Discharge and Elimination System (NPDES) permit when: (1) the pesticide is applied directly to waters of the United States to control pests present in the water or (2) the pesticide is applied over or near waters of the United States. To qualify for the exemption, the pesticide must be applied in compliance with “relevant requirements” of the Federal Insecticide, Fungicide, and Rodenticide Act (FIRFA). The new regulation is based on EPA’s position that such pesticides do not fall within the definition of “pollutant” under the CWA.