Key Members of Congress are quickly looking for solutions to a pesticide permitting debacle set to hit farmers and other users of crop protection products at month’s end. 

The problem was created by a January 2009 Sixth Circuit Court decision saying pesticide discharge is a point source of pollution subject to additional regulation under the Clean Water Act.

This means agricultural producers seeking to control aquatic plant pests, urban public health officials seeking to control disease-spreading mosquitoes and others would have to apply for National Pollutant Discharge Elimination System (NPDES) permits to use products already regulated and permitted under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) — spending tens of millions of dollars without adding any environmental benefit.

The decision has been stayed twice to allow time for government agencies to implement it, though regulators at the state and national levels remain uniformly unprepared to review and issue permits for an estimated 5 million applications annually.  

A draft pesticide general permit produced by the Environmental Protection Agency (EPA) only applies to aquatic applications of pesticides, meaning farmers are not covered by EPA’s pending permit, unless the application happens to end up in a “water of the United States” — itself an ill-defined legal term. 

In that case, farmers could face potentially catastrophic financial liability. Fines for those found to be out of compliance could reach $37,500 a day — enough to put most producers out of business quickly. 

The unclear regulations and permitting process also open farmers up to lawsuits from activists who have proven themselves hungry for court fights based on process issues.