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March 18, 2021
NAAA Submits Comments to EPA on Agency’s Second Proposed, Revised NPDES PGP

NAAA has submitted comments on the EPA’s proposed reissuance of a five-year National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit (PGP) for Point Source Discharges. This is the second five-year reissuance of the EPA’s NPDES-PGP. The first was issued in 2016, five years after the initial PGP went into effect in 2011.


NAAA had commented on the original permit and now on all reissuances. In fact, in the opening paragraphs of NAAA’s comments sent on Monday, it stated its historical position was that PGPs should not be legally required for applications of pesticides made in a manner fully consistent with EPA-approved label restrictions and the scientific parameters established for the safe use of pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Food Quality Protection Act (FQPA), and other existing state pesticide authorities’ requirements because these regulations already test for water safety. NAAA continued that it agreed with many Congressional lawmakers; pest-control officials in federal, state, county and municipal governments; and commercial and private interests that PGPs are duplicative, unwarranted burdens that do nothing to further environmental protection and that its comments to the permit reissuance were in no way an endorsement of the 2009 6th Circuit decision (National Cotton Council v. EPA) that overturned the EPA’s 2006 regulation clarifying NPDES permits were not required for such pesticide uses.

NAAA’s also commented that in the EPA’s 2020 proposed and revised PGP, that the definition of “waters of the U.S. (WOTUS),” which influences the parameters of an NPDES PGP requirement, remains controversial and if any changes were to be made from the current Trump Administration WOTUS rule currently in effect, a comment period reopening the PGP permit should take place before any new interpretation of the WOTUS should occur. NAAA’s comments stated:

Under the Trump administration in 2020 the EPA announced that “EPA and the Army are providing much needed regulatory certainty and predictability for American farmers.” Just recently, the U.S. Court of Appeals for the Tenth Circuit reversed a state of Colorado injunction of the Trump administration’s WOTUS rule, siding with a coalition of trade groups including the American Farm Bureau Federation, National Cattlemen’s Beef Association and National Pork Producers Council.

The ruling indicates that the new rule is effective law in Colorado and all 50 states and that all must abide by the water definitions laid out with the Trump rewrite of the Waters of the U.S. rule. The new Biden Administration, however, has already announced that many policies and regulations issued by EPA over the past four years will be subject to “review.” If new EPA initiatives go back to some previous Clean Water Act (CWA) definitions and requirements, possible changes could lead to interpretations of PGP requirements to restrict pesticide applications into, over, or near any ditch, dry wash, wetland, or other waterbody. Potential permittees could be left to guess which applications would require a permit. This lack of clarity, and uncertainty if EPA continues to consider continually changing definitions, could make compliance more difficult and would likely lead to further challenges to EPA’s definitional scheme.

Should EPA change the current WOTUS framework, the agency should give additional PGP notice and comment opportunity if changes come into effect. If changes are made effective during the 2021 PGP period, EPA should delay changes until the next five-year cycle or allow a new notice and comment period on any relevant changes to the PGP.
NAAA also expressed concerns to the EPA that the practice of holding all operators jointly and severally liable for violations that occur in connection with permitted activities, including any action or inaction of others beyond their control, is an unfair punishment in the permit that needs correction. NAAA notes that this provision has caused aerial applicators to decline contracts for mosquito control services due to fear of citizen suits stemming from the EPA’s language going all the way back to the 2011 PGP that was carried forward in the final 2016 PGP and will continue if the EPA doesn’t correct the situation in its 2020 permit.

NAAA raised several other points in its comments, including that additional water quality-based effluent limitations (WQBELs) would create undue burdens on operators; that Notice of Intent and annual reports submitted by some operators during the course of the past two permits should be sufficient unless there is evidence the two permits had not sufficiently protected water quality; and that the agency should resolve pending Endangered Species Act (ESA) issues before PGP comment period closure. The EPA’s attempt to integrate its pesticide assessments compliant with FIFRA and ESA provisions remains controversial and subject to continual litigation. If the outcome of litigation or program decisions requires changes to PGP requirements, the EPA should incorporate any proposed changes only after providing an additional opportunity for notice and comment by the public.

Click here to read NAAA’s comments to the EPA in their entirety. NAAA will keep the industry updated about the EPA’s PGP reauthorization process as it moves forward in 2021.

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This newsletter is intended for NAAA members only. NAAA requests that should any party desire to publish, distribute or quote any part of this newsletter that they first seek the permission of the Association. The views, thoughts, and opinions expressed herein do not necessarily represent those of the National Agricultural Aviation Association (NAAA), its Board of Directors, staff or membership. Items in this newsletter are not the result of paid advertising and are only meant to highlight newsworthy developments. No endorsement by NAAA is intended or implied.
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