Vroom, whose members produce and sell most of the crop protection and biotechnology products used in the U.S., said EPA might not be up against the April 2011 court-imposed deadline if it had been willing to fight harder to defend its previous position that the Federal Insecticide, Fungicide and Rodenticide Act was the governing document for pesticide use.

“Never in the 62 years of FIFRA nor 38 years of the Clean Water Act has the federal government required a permit to apply pesticides “to, over or near” waters of the U.S. for control of such pests as mosquitoes, forest canopy insects, algae, or invasive aquatic weeds and animals, like Zebra mussel,” he said.

“As a matter of fact, Congress specifically omitted pesticides in 1972 when it enacted the CWA, and despite major rewrites since, never looked beyond FIFRA for the regulation of the regular, label-approved uses of pesticides.”

That is, until last year when the U.S. 6th Circuit Court of Appeals overturned EPA’s 2006 rule which specifically exempted from the Clean Water Act, NPDES permitting of aquatic pesticide applications.

“Agriculture and the rest of the pesticide user community are still baffled by the federal government’s choice not to more rigorously defend the 2006 rule,” said Vroom in testimony delivered on Sept. 23. “CropLife America believes the 6th Circuit got it wrong, and EPA should have done more to defend its previous rule.”

Aside from the legal precedent, Vroom notes the permit will add performance, recordkeeping and reporting requirements to an estimated 1.5 million pesticide applications per year and pre-empt the science-based ecological review of pesticides and label requirements for uses regulated under the FIFRA.