The Nebraska Department of Environmental Quality (NDEQ) is proposing a Permit-By-Rule related to the application of pesticides in and near waters of the State.
As background, the Permit-by-Rule is being proposed to address a gap in permit coverage left after a decision by the 6th Circuit Court of Appeals on January 7, 2009, which vacated the U.S. Environmental Protection Agency (EPA)’s pesticide rule. The EPA rule had exempted certain pesticides applied to waters in accordance with Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) labeled instructions from requiring a National Pollutant Discharge Elimination System (NPDES) under the federal Clean Water Act (CWA). Vacating the EPA rule means a NPDES permit under the CWA is required for each application of pesticides to water to control pests and noxious plants.
The NDEQ rule establishes a Permit-by-Rule for the application of pesticides to, over, or near, waters of the state provided that the pesticide applicator:
(1) complies with FIFRA requirements relating to water quality, including compliance with all label application directions, such as application rates, active ingredient concentrations and dilution requirements, buffer zones, application locations, intended targets, protecting threatened or endangered species, times of day, temperature or other application requirements, and proper disposal of pesticide residues; and
(2) retains certain information relating to name of the pesticide, targeted pests or weeds, and a copy of the FIFRA labeling instructions, pesticide label, and date, time, and location of the application, application rate and the total amount of material applied.
The Permit-by-Rule applies to chemical pesticides only; no biological pesticides are allowed under the Permit-by-Rule. NDEQ also requires the applicator to report any adverse impacts to non-targeted species or the environment to the Department within 24 hours.
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