United States Environmental Office of Water, 4204M November 2006
Protection Agency Office of Prevention, Pesticides, and Toxic
Substances, 7502C
Application of Pesticides to Waters of the United
States in Compliance with FIFRA: Final Rule
A new rule issued by the Environmental Protection Agency (EPA) clarifies that a Clean Water Act (CWA)
permit will not be required when application of a particular pesticide to or over, including near, waters of
the United States is consistent with requirements of the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA). The rule identifies two specific circumstances where CWA permits are not required: the
application of pesticides directly to water in order to control pests; and the application of pesticides to
control pests that are present over or near water, where a portion of the pesticides will unavoidably be
deposited to the water in order to target the pests.
Background
In recent years, courts have been faced with the question of whether the Clean Water Act (CWA) requires a
National Pollutant Discharge Elimination System (NPDES) permit for pesticide applications (e.g.
Headwaters, Inc. v. Talent Irrigation District). As a result, public health authorities, natural resource
managers, and others who rely on pesticides, have expressed to EPA their concern and confusion about
whether they have a legal obligation to obtain an NPDES permit under the CWA when pesticides are
applied to or over waters of the United States.
On August 13, 2003 EPA published an Interim Statement presenting the Agency's position on two
circumstances in which pesticides applied to waters of the United States consistent with all relevant
requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are not "pollutants" under
the CWA and thus do not require NPDES permits. On February 1, 2005 the Agency published a final
Interpretive Statement and simultaneously published a proposed rule to incorporate the substance of the
Interpretive Statement into EPA regulations. EPA received comments from more than 700 stakeholders on
the Interim Statement and proposed rulemaking. This final rule is intended to clarify the applicability of the
CWA to these pesticide applications.
What does the Final Rule say?
The application of a pesticide to waters of the United States consistent with all relevant requirements under
FIFRA does not constitute the discharge of a pollutant that requires an NPDES permit in the following two
circumstances:
1. The application of pesticides directly to waters of the United States in order to control pests.
Examples of such applications include applications to control mosquito larvae, aquatic weeds,
or other pests that are present in waters of the United States; and
2. The application of pesticides to control pests that are present over waters of the United States,
including near such waters, where a portion of the pesticides will unavoidably be deposited to
waters of the United States in order to target the pests effectively; for example, when
insecticides are aerially applied to a forest canopy where waters of the United States may be
present below the canopy or when pesticides are applied over or near water for control of adult
mosquitoes or other pests.
Residuals of applications within the scope of the two circumstances described in the rule are pollutants.
However, NPDES permits are not required for an application that may leave residuals. This is because the
pesticide is not a pollutant at the time of discharge and becomes a residual only after it has served its
intended purpose.
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This rule does not address pesticide spray drift. A workgroup of the Pesticide Program Dialogue
Committee (PPDC), established under the Federal Advisory Committee Act (F AC A), is investigating this
issue and intends to provide advice to EPA.
Regulatory Impacts
The Final Rule incorporates the substance of EPA's Interpretive Statement into regulation. It has no cost
implications.
How to Get Additional Information
Copies of the Federal Register notice that contains the final rule are available on EPA's website at
www. epa. gov/npdes/agriculture. You can also obtain copies of the Federal Register notice by contacting
EPA's Water Resource Center, Mail Code RC-4100T, 1200 Pennsylvania Avenue NW, Washington, DC
20460, 202-566-1729, or via email at center.water-resource@epa.gov.
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