Under court order, newNational Pollution Discharge Elimination System (NPDES) permits -- requiring farmers and other applicators to obtain a permit for pesticide applications made to, over or near bodies of water -- have long been in development at the EPA. Facing an April 9 deadline to implement the permitting process, the agency recently requested the court allow a six-month delay. The new permitting system is also the target of a House bill (HR 872).

Jackson said the court is yet to comment on the deadline extension.

“If you don’t receive the extension what will farmers to do by April 9?” asked Ohio Rep. Jean Schmidt.

“If there’s no extension, we’re under order to get a permit out,” answered Jackson. “That’s not our preferred path because not only do we have more work to do on biological opinions and endangered species, but with the states.”

Asked by Ohio Rep. Bob Gibbs about an important NPDES-specific definition of “navigable waters” Jackson admitted the term’s meaning remains unsettled.

“That’s a much-debated and discussed topic,” said Jackson. “Suffice it to say, I recognize in my job that the jurisdiction of the Clean Water Act and its limitation to ‘navigable waters’ and the two Supreme Court cases that spoke to that issue are all very important and have created quite a bit of uncertainty in terms of jurisdiction.”

Gibbs: “I’m concerned there’s a broad expansion of EPA’s jurisdiction that will impact our economy and agriculture. … Wouldn’t that be better left to states?”

“Right now, as a result of the two Supreme Court cases, there is great variation and confusion on what waters are covered under the CWA,” said Jackson. “EPA has been developing … guidance that is intended to (provide) clarity. We’ve heard from the regulated community that they need certainty.

“I do want to point out that we’re well aware of the exemptions that agriculture currently holds from the CWA. And we’re very respectful of that fact those exemptions are statutory.”

Would requiring pesticide users to obtain NPDES permits under the CWA increase environmental protection?

“EPA took the position that there wouldn’t be a need to get a separate permit,” said Jackson. “But the courts found otherwise. The courts have ruled that if you apply pesticides directly to water – not land, not terrestrial application – then you need a CWA permit. EPA has been working with states and just recently requested from the court another delay to continue working with states on a ‘general’ permit. General permits are the least burdensome.”