EPA has stated that the guidance, which was released July 11, is temporary and that the agency plans to solicit public comment on the matter before issuing final standards. The agency has concluded, for the time being, that so long as pesticides are applied consistently in accordance to all relevant requirements under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), applicators will not be required to obtain permits.
EPA issued the guidance partly in response to a recent case from the U.S. Court of Appeals for the Second Circuit (Altman v. Town of Amherst) in which a couple sued the town of Amherst, N.Y., for not having procured a permit for its application of pesticides to wetlands as part of a mosquito control program. The court remanded the case for further consideration and issued an order stating that EPA should articulate a clear interpretation of the law regarding permitting requirements for pesticides applied into or over water.
Previously, the U.S. Court of Appeals for the Ninth Circuit (Headwaters, Inc. v. Talent Irrigation District) held that applying herbicide to canals without a permit was a violation of the CWA.