February 11, 2011
The Honorable Lisa Jackson
U. S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, NW
Washington, DC 20460
RE: EPA Pesticides Permit & Request for Six Month Stay
Dear Administrator Jackson:
The undersigned organizations request that EPA pursue a six month stay of the 6th
Circuit Court of Appeals’ mandate in National Cotton Council of America, et al. v.
USEPA, which requires pesticide discharges to U.S. waters be covered by Clean Water
Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits. While
states have been making tremendous progress in the development and issuance of
state pesticides permits, there are several factors beyond our control for which we
believe a six month extension is both necessary and appropriate to ensure significant
vulnerability does not exist after April 9, 2011, when the current stay expires.
While it is greatly appreciated that EPA has worked with many stakeholders in
developing the federal general permit, EPA has not yet finalized and circulated this
permit, which will be used in jurisdictions where EPA administers the NPDES program.
This delay has compromised authorized states’ ability to finalize their permits, as many
of these states are using the federal permit as a design and implementation template.
While a state can deviate from the final pesticide use patterns and threshold limits
selected by EPA, several states are relying on the expertise reflected in EPA’s final
permit. States with proposed permits may want to make adjustments to enhance
consistency with the federal permit, which could require further public comment. If these
adjustments and modifications are controversial, some states will also have to hold
public hearings. In the minority of states that will have final permits issued on or before
April 9, 2011, coverage may not be immediate or automatic.
This expanded universe of NPDES permittees is likely to exceed more than 365,000.
Several states have had to make regulatory changes to include these dischargers, and
at least two states are going through a legislative change. States are still updating their
electronic notice of intent (NOI) for coverage systems to include these dischargers, and
are developing management systems to process thousands of NOIs. Additionally, the
current timeline will not allow for adequate—if any—outreach to applicators to educate
them on the requirements of the final permit. Because this permit will apply to a large
number of applicators who have never before required NPDES permit coverage, it is
imperative that applicators have sufficient time to understand how to comply with the
requirements of the permit. EPA has long recognized the need to provide states with
adequate time to revise and update their NPDES programs, as reflected in 40 CFR
We believe EPA can articulate a compelling case to the court that six months will
ensure the appropriate regulatory infrastructure is in place nationwide. A stay will be the
least disruptive to critical pest and vector control programs, including mosquito control,
that will occur this Spring and Summer, and which face immediate liability without permit
coverage. The importance of pesticide control to public health cannot be overstated.
We appreciate your consideration of these issues and look forward to your response.
Dr. Andrew Fisk
President of ASIWPCA
Maine Bureau of Land and
President of AAPCO
North Carolina Department of
Agirculture & Consumer Services
President of NASDA
Utah Department of
Agriculture and Food