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The Maryland Department of the Environment has issued a new general permit that underscores the requirement to follow proper procedures when applying pesticides in and near waterways to control mosquitoes, algae, and other nuisances.
MDE administers a permit allowing the beneficial application of pesticides into waters on a limited scope, but the U.S. Environmental Protection Agency developed a new model discharge permit in response to a federal court ruling. That ruling struck down an EPA rule that said National Pollutant Discharge Elimination System (NPDES) permits were not required for applications of pesticides to waters. Much of Maryland’s new general NPDES permit is modeled on EPA’s proposed permit.
MDE issued its permit on April 8, one day before an original court-imposed deadline. But that deadline was extended to Oct. 31, and MDE’s permit will not take effect until then. This will give the regulated community time to become familiar with and comply with the permit’s requirements.
When it comes to protecting water quality, the deliberate use of pesticides in State waters has long posed a regulatory challenge. Both State and federal water pollution regulations prohibit the discharge of toxics in toxic amounts. But the assumption is that the source of these toxics is the disposal of wastes and wastewaters. What about the deliberate application of pesticides to our waters to kill plants or creatures?
MDE administers a “toxic materials permit” that allows the beneficial application of pesticides to State waters for aquatic life management as long as the scope is limited to a target species or limited in geographic area. The Department of Natural Resources assists MDE in the review, with consideration given to potential impact on nearby endangered or threatened species, downstream public water supply, and other uses of those waters. Permits are brief and consist mostly of operational requirements, such as preventing discharges from a treated impoundment and use of licensed professional applicators. One of the benefits of this program has been that the MDE has become a clearinghouse for aquatic pest management advice.
A decades-long debate over whether pesticide application activity should be regarded as a “point source discharge of pollutants” was addressed in a 2009 Sixth Circuit Court of Appeals ruling that biological pesticides and chemical pesticides with residuals were to be regulated by a NPDES permit. The decision to use the NPDES system to regulate pesticides applications fills a perceived regulatory hole. But it is a small one because, for chemical pesticides, permitting regulates only the small quantity that is left in excess of what is needed to achieve the purpose of the application. Biological pesticides are regulated in their entirety, but the most common ones used in Maryland (such as bti for mosquito control) have minimal adverse effects. This permit reiterates the need, already mandated by Maryland Department of Agriculture applicator certification programs, for careful handling of pesticides.
Because of the unique nature of what is being regulated, effluent limits in MDE’s pesticides permit are not numerical, but narrative. Monitoring is not the retrieval of water samples followed by analysis, but rather a requirement that the permittee check to verify that proper procedures are being followed. As in the EPA model, the permit will regulate four use patterns: flying insect control over water, aquatic weed control, aquatic animal control, and forest canopy spraying over water.
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