Permitting for Pesticide Discharges into Navigable Waters: Issues and Legislation in the 117th Congress

Updated May 27, 2022

Permitting for Pesticide Discharges into Navigable Waters:

Issues and Legislation in the 117th Congress

Permitting requirements for using registered pesticides in or

around the nation’s waters has been a long-standing issue.

Under the Clean Water Act (CWA; 33 U.S.C. §1251 et

seq.), discharges of pollutants into navigable waters are

unlawful unless specifically authorized by a permit. For

decades following the enactment of the CWA, the U.S.

Environmental Protection Agency (EPA) did not consider

registered pesticides used in compliance with the Federal

Insecticide, Fungicide, and Rodenticide Act (FIFRA; 7

U.S.C. §136 et seq.) as pollutants that required permitting

for their discharge into waters. However, in 2009, the U.S.

Sixth Circuit Court of Appeals ruled that (1) the statutory

definition of pollutant in the CWA encompasses biological

pesticides and chemical pesticides that leave a residue in

navigable waters, and (2) discharges of such pollutants

require permitting. In response to the ruling, EPA issued a

general discharge permit to cover the majority of pesticide

applications resulting in point source discharges. States

with delegated authority to issue their own discharge

permits issued similar general discharge permits.

Certain public health and environmental organizations have

argued that discharge permits under the CWA allow states

and EPA to regulate pollutants, such as residual pesticides,

in local navigable waters based on site-specific situations.

However, pesticide manufacturers and applicators have

argued that the federal evaluation and registration of a

pesticide under FIFRA, which governs proper use, is

sufficiently protective of water quality nationwide and that

permitting for pesticide discharges is unnecessary.

Legislation proposed in the 117th Congress would prohibit

EPA and states from requiring discharge permits under the

CWA for pesticides registered under FIFRA by EPA or

residues resulting from the application of such pesticides,

with certain exceptions.

FIFRA Pesticide Registration Process

Prior to distribution or sale of a pesticide, FIFRA requires

EPA to have issued a registration for the pesticide after an

evaluation of the terms and conditions for its use.

Registration approval requires a finding that the pesticide

will not pose “unreasonable adverse effects on the

environment” when used in conformance with labeling

directions. To inform such a finding, EPA assesses the

ingredients of the pesticide, its intended uses, and relevant

scientific and technical information to characterize the

properties of the pesticide (e.g., environmental fate) and the

risk it may pose to human health or the environment (e.g.,

effect on nontarget organisms). To ensure pesticide

registrations continue to satisfy the criteria for registration,

FIFRA directs EPA to periodically reevaluate existing

pesticide registrations. Reevaluation is referred to as

registration review.

Use of a pesticide in a manner inconsistent with its labeling

is unlawful under FIFRA, subject to civil and criminal

penalties. FIFRA generally does not require prior approval

for each application of a registered pesticide. However,

applicators must be trained and certified to use pesticides

classified by EPA as “restricted use.” Certified applicators

must comply with recordkeeping, reporting, and other

requirements promulgated by EPA. Reporting is intended

for the evaluation of compliance with pesticide registrations

and not for purposes of applying for approval to use a

restricted use pesticide.

Under FIFRA, the authority to enforce use violations and to

certify applicators is delegated to states that meet the

statutory criteria for delegation (e.g., adequate laws and

procedures). EPA is responsible for enforcing use violations

and certifying applicators for states that do not meet the

criteria for, or do not request, delegated authority. CRS

Report RL31921, Pesticide Law: A Summary of the Statutes

provides more information on the federal pesticide

regulatory framework.

CWA National Pollutant Discharge

Elimination System Permitting

CWA Section 402 establishes the National Pollutant

Discharge Elimination System (NPDES) permitting

program for regulating the discharge of any pollutant from

any point source into navigable waters. The CWA defines

pollutant to include several broad categories of materials

and wastes, including chemical wastes and biological

materials discharged into water. The act defines point

source as “any discernible, confined and discrete

conveyance ... from which pollutants are or may be

discharged.” Aerial applications of pesticides, for example,

are considered point sources. However, in defining point

source, the CWA excludes “agricultural stormwater

discharges and return flows from irrigated agriculture,” so

such sources are not subject to NPDES permitting.

NPDES permits specify limits on what pollutants may be

discharged and in what amounts. Permits also include

monitoring and reporting requirements. There are two types

of NPDES permits: (1) individual permits for a specific

discharger and (2) general permits covering categories of

point sources that have common elements and discharge

similar pollutants. General permits are issued in advance of

discharges and allow the permitting authority to allocate

resources efficiently—especially when a large number of

permittees exist—and to provide timely permit coverage.

NPDES permits may be issued for a period not exceeding

five years. Regulations governing NPDES permits are

codified at 40 C.F.R. Part 122.

https://crsreports.congress.gov

Permitting for Pesticide Discharges into Navigable Waters: Issues and Legislation in the 117th Congress

Under the CWA, the authority to issue NPDES permits to

regulated sources and enforce permits is delegated to states

that meet the statutory criteria for delegation (e.g., adequate

laws and procedures), and the law allows states to adopt

water quality requirements more stringent than federal

requirements. EPA has authorized 47 states and one

territory to administer the permit program. The agency

issues discharge permits in states and territories not

authorized to administer such program.

NPDES and Pesticides

In 2006, EPA promulgated a rule formalizing its longstanding position that pesticides applied in a manner

consistent with FIFRA did not require NPDES permits (71

Federal Register 68483, November 27, 2006). EPA

asserted that pesticides applied directly to navigable waters

to control pests present in the water or applied to control

pests that are over or near navigable waters are not

pollutants as defined under the CWA.

Agricultural and environmental organizations challenged

the EPA rule, and in 2009, the U.S. Sixth Circuit Court of

Appeals vacated the rule, finding that biological

pesticides—as well as chemical pesticides that leave a

residue—are pollutants under the CWA. The court also

ruled that the addition of such pollutants to navigable

waters are point source discharges that require permitting

under the CWA (National Cotton Council of America v.

EPA, 553 F. 3d 927). For information on the rulemaking

and court decision, see CRS Report RL32884, Pesticide

Use and Water Quality: Are the Laws Complementary or in

Conflict?

Pesticide General Permit

In responding to the 2009 ruling, EPA issued a pesticide

general permit (PGP) covering the “majority of pesticide

applications that would result in point source discharges” to

navigable waters for states not authorized to issue their own

NPDES permits in 2011. States and territories authorized to

issue NPDES permits are to issue and administer their own

general permits (i.e., a state PGP). Discharges not covered

by a PGP may require an individual NPDES permit. In

2016 and 2021, EPA reissued a five-year PGP at the end of

the five-year term. State PGPs may have different

requirements than EPA’s PGP, though state PGPs must

satisfy NPDES requirements, CWA, and relevant state law.

EPA’s 2021 PGP covers the discharge of biological

pesticides and chemical pesticides that leave a residue in

navigable waters resulting from the following four use

patterns: (1) mosquito and other flying insect pest control,

(2) weed and algae pest control (e.g., treatment in a ditch or

at a water’s edge to control weeds or algae), (3) animal pest

control (e.g., for invasive species eradication in navigable

waters), and (4) forest canopy pest control (e.g., for

airborne nonaquatic pest outbreaks). The PGP does not

cover certain discharges determined by EPA or certain

other federal agencies to warrant additional scrutiny, which,

for example, include discharges of pesticides to waters

impaired by that pesticide or related substances or certain

pesticide applications to outstanding national resource

waters. Based on EPA’s biological evaluation of the PGP,

the agency expected that the most common use pattern

covered by the PGP would be weed and algae control.

The PGP automatically covers certain discharges for which

EPA has determined that a notice prior to the discharge

would be inappropriate. Other discharges require the

submission of a notice of intent (NOI) prior to the discharge

to be covered. For example, NOIs are required for mosquito

control districts that exceed annual treatment area

thresholds defined in the PGP or for discharge into

outstanding national resource waters or into waters with

National Marine Fisheries Service Listed Resources of

Concern (e.g., endangered and threatened species). The

PGP also provides for modified requirements in instances

of declared pest emergency situations (i.e., public health

emergencies).

Discharges that do not require NOI submission still must

comply with PGP requirements, which generally include

compliance with effluent limitations, monitoring,

recordkeeping, and reporting. The PGP tailors these

requirements for those responsible for the discharge of

pesticides in or around navigable waters, depending on the

types of pesticide application activities and locations of

those activities.

Legislation in the 117th Congress

Since the 109th Congress, bills have been introduced to

prohibit EPA and states from requiring discharge permits

under the CWA for pesticides registered under FIFRA with

certain exceptions. In the 117th Congress, H.R. 1821 would

amend the CWA to prohibit EPA or a state from requiring

permits under the act for point source discharges of

pesticides into navigable waters if the pesticide is registered

under FIFRA. H.R. 1821 would provide exceptions to this

prohibition, including (1) discharges that result from

pesticide applications in violation of FIFRA and (2)

pesticides from stormwater discharges, manufacturing or

industrial effluent, treatment works effluent, and discharges

incidental to the normal operation of a vessel. H.R. 1821

would also amend FIFRA to prohibit EPA or a state from

requiring a permit under the CWA for point source

discharges of pesticides registered under FIFRA into

navigable waters.

Laura Gatz, Analyst in Environmental Policy

Jerry H. Yen, Analyst in Environmental Policy

https://crsreports.congress.gov

IF10919

Permitting for Pesticide Discharges into Navigable Waters: Issues and Legislation in the 117th Congress

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to

congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.

Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has

been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the

United States Government, are not subject to copyright protection in the United States. Any CRS Report may be

reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include

copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you

wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF10919 · VERSION 3 · UPDATED