In January 2009, the 6th Circuit Court of Appeals in Cincinnati, OH ruled that National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act are required for any pesticide applications that reach waters of the U.S. This was a game changing decision, as the ruling was written so broadly that growers now have no assurance that they are exempt from this requirement.
You and I are more vulnerable to citizen lawsuits on the Clean Water Act than ever before.
In the past, the EPA had decided that pesticides were adequately regulated under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and did not subject farmers to Clean Water Act requirements. That is no longer the case.
The new permitting program is scheduled to take effect in April, 2011 which is sneaking up on us. Legislation introduced in the House and Senate this past year would have overturned the 6th Circuit decision and clarified that permits are not necessarily with pesticide applicators are following the FIFRA label. As we begin a new session of Congress, we’ll have to start over on this type of legislation and try, try again.
But while we wait on that …the Illinois EPA moves forward preparing their rules for the new NPDES permits. And they don’t look pretty. In fact, Illinois Corn’s initial assessment (and that of other commodity and farm organizations within the state) is that the state of Illinois is taking the new ruling much further than they need to.
Whether this is due to oversight or intention remains to be seen. What I can assure you is that Illinois Corn and NCGA continue to watch over this matter, making sure that realistic guidelines for the application of crop protection products are considered.