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In May 2015, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers released the final Clean Water rule (final rule). The final rule broadly defines waters of the U.S. (WOTUS) and expands those waters that fall within the federal government’s regulatory jurisdiction pursuant to the Clean Water Act (CWA).
The final rule maintains the historic definition of “navigable” waters, including interstate waters and territorial seas and adds tributaries and adjacent waters within the WOTUS definition if they “significantly affect the chemical, physical, or biological integrity of the aforementioned traditional navigable waters.” Tributaries are identified by evidence of flowing water such as a tidemark or bank, while adjacent waters work in conjunction as part of a network with other waters e.g.; wetlands, ponds and lakes.
Currently, the WOTUS rule remains stayed by a court order as jurisdictional litigation is on going in the 6th Circuit. In March, President Trump signed an executive order that will begin the process of redeveloping the controversial Waters of the U.S. Rule (WOTUS). The order instructs EPA and U.S. Army Corps of Engineers to begin the process of re-writing the rule and redefining a WOTUS.
The requirement for National Pollutant Discharge Elimination System (NPDES) permits is a result of a 2009 U.S. Sixth Circuit Court of Appeals decision in Nat’l Cotton Council v. EPA. The court determined that under the Clean Water Act (CWA) discharges of pollutants (chemical pesticides) into Waters of the United States (WOTUS) require an NPDES permit. The ruling came despite EPA’s opposition and argument that pesticides applied in accordance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) are exempt from CWA’s permitting requirements.
Under FIFRA, human health and environmental impacts are reviewed on all pesticides that are registered for use with strict directions for use on the EPA approved product label. A thorough review and accounting of impacts to water quality and aquatic species is included in every EPA registration and registration-review decision. Requiring water permits for pesticide applications is redundant and provides no additional environmental benefit. In addition, EPA’s new far-reaching definition of WOTUS could result in an unnecessary expansion of NPDES permitting and reporting.
Compliance with unnecessary NPDES water permits imposes duplicative resource burdens on thousands of pest management professionals, with no commensurate environmental benefits. Pest management professionals are tasked with protecting public health from deadly diseases transmitted by mosquitos and other pests throughout the nation.