By James V. Aidala and Susan M. Kirsch
On April 23, 2019, the U.S. Environmental Protection Agency (EPA) announced it was making available its Interpretive Statement addressing whether the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System (NPDES) permit program applies to releases of a pollutant from a point source to groundwater (Interpretive Statement) for comment. 84 Fed. Reg. 16810. EPA is issuing the Interpretative statement to “provide clarity on [EPA’s] interpretation of the [CWA] given the mixed record of prior [EPA] statements and a split in the federal circuit courts regarding this issue.” EPA’s Interpretive Statement states that it “sets forth [its] interpretation of the [CWA NPDES] permit program’s applicability to releases of pollutants from a point source to groundwater that subsequently migrate or are conveyed by groundwater to jurisdictional surface waters” and “EPA concludes that the [CWA] is best read as excluding all releases of pollutants from a point source to groundwater from NPDES program coverage and liability under Section 301 of the CWA, regardless of a hydrologic connection between the groundwater and a jurisdictional surface water.” EPA also released a fact sheet on its Interpretive Statement, available online.
The April 23 Federal Register notice states that the Interpretative Statement reflects EPA’s consideration of the public comments received in response to its February 20, 2018, Federal Register notice (83 Fed. Reg. 7126) which requested comment on EPA’s previous statements regarding whether pollutant discharges from point sources that reach jurisdictional surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional surface water may be subject to CWA regulation. EPA received over 50,000 comments from a wide range of stakeholders, many of which affirmed that additional clarity from EPA was necessary. EPA reached its conclusion based on the comments received and on “a holistic analysis of the [CWA], its text, structure, and legislative history.” EPA also references numerous policy considerations that support excluding groundwater discharges from NPDES permitting, including existing state and federal authorities and statutes that play a role in regulating groundwater quality (e.g., Safe Drinking Water Act (SDWA) Underground Injection Control (UIC) program).
EPA is soliciting public comments on the Interpretive Statement, specifically regarding what may be needed to provide further clarity and regulatory certainty on this issue. Comments are due by June 7, 2019.
EPA’s Interpretive Statement comes at a critical time when the U.S. Supreme Court is set to address the question of “[w]hether the [CWA] requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater” (see SCOTUSblog) in its review of the Ninth Circuit decision in County of Maui v. Hawaii Wildlife Fund (Maui). A petition for U.S. Supreme Court review is also pending on the Fourth Circuit decision in Kinder Morgan Energy Partners v. Upstate Forever (Kinder Morgan), which held similarly to Maui that “a discharge that passes from a point source through ground water to navigable waters may support a claim under the CWA.” A pair of September 2018 Sixth Circuit decisions (Kentucky Waterways Alliance v. Kentucky Utilities Co. and Tennessee Clean Water Network v. TVA) expressly disagreed with the holdings in Maui and Kinder Morgan -- resulting in a “circuit split.” Although the facts in Maui (wastewater injected into UIC wells) and Kinder Morgan (gas spilled from underground pipeline) may not involve activities common in agriculture and pesticide applications, the new judicial “tests” created in these decisions could dramatically expand the scope of the NPDES universe in ways that could potentially implicate agricultural/pesticide practices. For example, in Maui, the Ninth Circuit held that Maui County’s discharges from UIC wells to groundwater should require CWA discharge permits because the pollutants from the UIC wells that reached a navigable water were “fairly traceable” and levels reaching the navigable water were “more than de minimis.” The Ninth Circuit’s Maui holding could be stretched broadly to support the assertion that pesticides and fertilizers applied to agricultural lands that migrate through groundwater and eventually reach a CWA jurisdictional water could be subject to NPDES permitting. Agriculture and pesticide stakeholders may wish to closely monitor developments around groundwater discharge issues at EPA and the U.S. Supreme Court.
By Susan M. Kirsch
On October 17, 2017, the U.S. Environmental Protection Agency (EPA) issued a “Quick Guide for Disinfectant Products for Drinking Water Use by Public Water Systems” (Quick Guide) which it states was developed “in response to requests to help prospective pesticide registrants gain a basic understanding of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) product registration process and how it relates to the Safe Drinking Water Act (SDWA) requirements.” Further, “applicants seeking to register pesticide products for treatment of drinking water in public water systems [(PWS)] should refer to this [Quick Guide] for a broad overview of the applicability of FIFRA and SDWA and for references to additional relevant resources.” EPA states the Quick Guide can be used to:
- Compare the jurisdictional authority of FIFRA and SDWA;
- Determine whether a product is required to obtain FIFRA registration; and
- Identify SDWA standards that are applicable to pesticide products used in drinking water disinfection.
EPA states that “it does not register or approve disinfection products under the SDWA, but instead imposes requirements on each regulated PWS to deliver water that meets specific standards to persons served by the system,” and that each PWS “must determine what product or combination of products to use to meet the federal and any applicable state, tribal or territorial drinking water requirements.”
A review of the Quick Guide reveals it is a high level decision support and reference tool which lists the basic steps necessary to obtain product approval for drinking water disinfection use by PWSs under both FIFRA and SDWA; and includes a corresponding flow chart that highlights the intersection between the jurisdictional authorities of the two statutes and illustrates more generally the steps for obtaining product approval. The flow chart also ties these steps to relevant EPA guidance/manuals and applicable Code of Federal Regulations citations, and provides online links to these resources. The Quick Guide does not supply details on any applicable state, tribal, or territorial laws. As EPA notes, some states, tribes, and territories have requirements for the regulatory approval, registration, and licensing of disinfectant products that may be used in their PWSs. Similarly, “FIFRA registration does not mean that the product meets state, tribal or territorial laws regarding drinking water products for use by PWSs.”
More information is available on EPA’s website.
By Susan M. Kirsch
On May 24, 2017, the U.S. House of Representatives passed H.R. 953, the Reducing Regulatory Burdens Act of 2017, by 256-165 vote. H.R. 953, which is similar to bills introduced in the past three congresses, would overturn a 2009 U.S. Court of Appeals for the Sixth Circuit decision requiring Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits for pesticide spraying activities into, over, or near waters. The legislation would eliminate NPDES permitting for pesticide spraying that complies with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
Proponents of the legislation assert that the addition of CWA regulation is duplicative, burdensome, and costly for industry without resulting in any additional environmental benefits. Opponents argue that the bill would strip clean water protections for waters already listed as impaired for pesticides. Championed by Representative Bob Gibbs (R-OH), the recent vote received significant bipartisan support, with twenty-five Democrats voting in support of the bill. Senators Claire McCaskill (D-MO) and Mike Crapo (R-ID) introduced companion legislation in the Senate (S. 340), which currently awaits action by the Committee on Environment and Public Works. The prospects for a Senate vote are mixed in light of the number of confirmations in the queue for political appointees, as well as big ticket legislative priorities, such as health care and tax reform. If legislation is enacted, it would only apply to the four states (Idaho, New Hampshire, New Mexico, and Massachusetts), tribal lands, and other federally managed areas that are governed by the federal NPDES permit. Forty-six states administer state versions of pesticide permits. Mmany states would be expected to phase out permitting if the federal requirement is eliminated, however.
More information regarding CWA NPDES issues is available on our blog under key word NPDES.
By Susan M. Kirsch and Margaret R. Graham
The U.S. Environmental Protection Agency (EPA) has announced that it will be hosting several events to gather input on regulatory actions that could be repealed, replaced or modified as part of EPA’s regulatory reform efforts under Executive Order (EO) 13777.
The Office of Pesticide Programs (OPP) will host a public meeting on the Pesticide Program Dialogue Committee (PPDC) on May 3, 2017, from 9:00 a.m. to 4:45 p.m. (EDT), and on May 4, 2017, from 8:30 a.m. to 12:00 p.m. (EDT). The session on May 4, 2017, will focus on receiving public feedback on pesticide regulatory reform issues. Registration will be required to attend the May 4, 2017, meeting only. Interested participants may register here. The deadline for registration is April 27, 2017.
The Office of Water (OW) will also host a listening session on May 2, 2017, from 11:00 a.m. to 2:00 p.m. (EDT) and participants may either pre-register here to join by phone (space limited) or join via web conference here. Pre-registration is not required for web participation. The deadline for registration is April 27, 2017.
In the pesticide space, EPA-OW is responsible for the National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit (PGP), which requires NPDES permitting for pesticide applications into, over and near “Waters of the United States,” including mosquito abatement activities. The U.S. Court of Appeals for the Sixth Circuit issued a 2009 decision requiring EPA to regulate pesticides under the NPDES program. Both industry and state co-regulators have criticized PGP requirements as duplicative, burdensome, and unnecessary for pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Attempts to pass legislation that would eliminate NPDES permitting for FIFRA-compliant pesticides applications have not been successful to date. EPA’s actions under EO 13777 may offer an administrative mechanism to repeal the PGP. It is unclear, however, if a repeal would be legally defensible in light of the Sixth Circuit ruling. Alternatively, EPA could modify the PGP to eliminate the reporting and recordkeeping requirements that opponents find overly burdensome. Pesticide stakeholders may wish to join the May 2, 2017, OW listening session to provide recommendations.
Written comments on regulatory reforms on all regulatory reforms, including OW and OPP issues, will also be accepted in docket EPA-HQ-OA-2017-0190, Evaluation of Existing Regulations, currently open through May 15, 2017. More details on the NPDES permit for pesticides are available in our blog item EPA Issues Final 2016 NPDES Pesticide General Permit.
By Susan M. Kirsch
On January 26, 2016, the U.S. Environmental Protection Agency (EPA) published its draft National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges from the Application of Pesticides in the Federal Register, which applies to discharges of pesticides to waters of the United States. EPA is requesting comments on the draft permit by March 11, 2016. This draft 2016 pesticide general permit (PGP) is largely an updated version of the 2011 PGP, which will expire on October 31, 2016. EPA’s permit would apply to Maine, New Hampshire, New Mexico, Idaho, and the District of Columbia; Puerto Rico and certain other territories; as well as Indian lands and federal facilities in other states that are covered by state-developed PGPs. Separately, 46 states must update their existing permits, and some states have already begun this process or have already reissued permits within the last year.
The draft 2016 PGP retains coverage of the previous pesticide use patterns (mosquito/flying insect; weed and algae; animal pest; and forest canopy), and leaves unchanged the reliance on technology-based effluent limitations (TBELs) to satisfy permit requirements, which require proper maintenance and calibration of equipment along with visual inspections to minimize discharges and meet water quality standards and Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) label requirements. The draft 2016 PGP also retains the distinctions in compliance requirements of “For-hire Applicators” and “Decision Makers,” and includes the same requirements for recordkeeping and reporting of adverse incidents. The draft permit now mandates electronic reporting, which will make Notice of Intent (NOI) and Annual Report submissions public on EPA’s e-reporting website. The draft permit retains the “joint and several liability” provision that would extend potential legal risks to all parties involved in decision-making and application of pesticides. In spite of the lack of new or altered provisions, there are some aspects of the draft 2016 PGP that could signal an EPA policy change going forward, and could potentially appear in the final version of the permit. These areas include:
- Absence of a definition for “Waters of the U.S.,” which could create confusion as to the scope of jurisdiction;
- An ongoing Endangered Species Act (ESA) consultation, which could expand the list of requirements included in the final permit;
- Request for comments on whether water quality-based effluent limitations (WQBELs), such as water quality monitoring and fish tissue testing (i.e., laboratory studies), should be included in the final permit;
- Request for comments on whether additional information should be included in NOI submissions, including whether the treatment area includes a source water for public drinking water supplies; and
- An expanded discussion of required compliance with all other applicable state and federal laws, including FIFRA storage and handling requirements, which could be perceived to attach Clean Water Act liability to a PGP permittee’s violations of FIFRA and other laws.
EPA’s webpage for pesticide NPDES permitting includes links to the draft permit, fact sheet, and Federal Register docket.