Since 2007, the U.S. Environmental Protection Agency has regulated the application of pesticides, including those applied on or near water in the United States, through a combination of the National Pollutant Discharge Elimination System (known as NPDES and administered in Texas by the Texas Commission on Environmental Quality) and the Federal Insecticide, Fungicide, and Rodenticide Act. 

In 2009, the U.S. Sixth Circuit Court of Appeals vacated the EPA’s rule that no permit would be required for the application of pesticides to or around water in certain circumstances.  The court held that the federal Clean Water Act includes certain pesticides that are discharged from point sources (rather than coming from nonpoint sources like storm water runoff) within its definition of “pollutant.”  Thus, because the Clean Water Act requires permitting for the discharge of most pollutants in or near the waters of the United States, the EPA rule excepting certain pesticide applications over water from permitting was in violation of the Act. 

The EPA requested a two-year stay of the court’s decision, which was to expire this spring.  On April 9, 2011, the court’s decision vacating the rule that exempted many pesticide applications over and to water from NPDES permitting was to take effect, and the EPA (through the TCEQ as the local administrator of the NPDES program) would start requiring permits for discharges to waters of the United States for many pesticides. 

TCEQ staff and stakeholders worked hard to ensure that a pesticide application permitting rule would be in place by that date.  However, the Sixth Circuit recently granted a further six-month stay of the original 2009 vacature of the rule. That extended the time for the TCEQ to create a permitting system to October 31 of this year.  If you have any questions about this proposed rule, please contact the TCEQ’s Water Quality Division at (512) 239-4671.

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