The Sixth Circuit Court of Appeals has granted EPA’s motion for an additional six-month stay of a court order requiring tens of thousands of pesticide applicators to obtain Clean Water Act (CWA) permits before they discharge pollutants into navigable waters. Nat’l Cotton Council v. EPA, No. 0-64630 (6th Cir. motion granted 3/28/11). NPDES permits for pesticide applicators are required under a prior Sixth Circuit decision that vacated an EPA rule which had erroneously concluded that pesticides applied in accordance with FIFRA were exempt from the CWA’s permitting requirements. Nat’l Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009).
In its motion for an additional stay, EPA cited (i) the White House Office of Management and Budget’s March 25, 2011, release of EPA’s final general permit requiring that pesticide discharges to waters be covered by NPDES permits under the CWA; (ii) the need to complete a mandatory consultation under the Endangered Species Act; (iii) the time needed to allow states authorized to issue their own permit programs to review EPA’s final permit; and (iv) the time EPA needs to develop an electronic system to help the regulated community by providing information about which dischargers will need to obtain a permit or are eligible for coverage under EPA’s NPDES pesticide general permit.
The general permit the court required would cover discharges in areas where EPA is the permitting authority for the NPDES program, including several states, Indian Country lands and some federal facilities. It would apply to pesticide control for mosquitoes and other flying insects; aquatic weeds and algae; aquatic nuisance animals, including mollusks and lamprey eels; and forest canopy pests. The court order has extended the stay until October 31, 2011.