Aquatic Herbicide NPDES Update

Over the past few months we have been reporting on the changes caused by lawsuits in the way aquatic herbicide treatments are permitted.  Some years back, the Talent Irrigation District made a off label application of a product that resulted in injury to fish.  The District violated FIFRA, the federal law that regulates pesticide use and insures protection of the environment.  They were sued under the Clean Water Act, and while the case was thrown out at the Federal Court Level as having no merit, the US 9th Circuit Court overturned that decision.  At that point case law in the Western United States (9th Circuit States) stated that an National Pollution Discharge Elimination System (NPDES) permit was required to apply these necessary materials.

This caused a significant number of problems as this law is designed to regulate the discharge of pollution from waste water plants and factories, not products that had met EPA registration requirements.  EPA recognized that and passed a final rule in November of 2006 that this permit was not necessary.   This of course caused environmental groups to sue again.  A number of cases where brought and they were consolidated in the 6th US Circuit Court.  That Court ruled this past January that EPA’s rule should not stand in situations where the application of an aquatic herbicide left a residue in the water after it fulfilled it’s intended purpose.  Of course that is another huge grey area. 

A number of industry groups appealed this to the Court.  On June 8th of this year, the court denied the request for rehearing and has issued a stay of the need for this permit until April of 2011, this time frame give the government time to develop a permit for this purpuse.  As such, no NPDES is required until that time.  Additional legal action may change this over this time period as well.

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