Title of Regulation: 9VAC25-800. Virginia Pollutant Discharge Elimination System (VPDES) General Permit for Discharges Resulting From the Application of Pesticides to Surface Waters (adding 9VAC25-800-10 through 9VAC25-800-60).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; § 402 of the federal Clean Water Act.

Notice is hereby given that, pursuant to § 2.2-4015 A 4 of the Code of Virginia, the Director of the Department of Environmental Quality is suspending the effective date of 9VAC25-800, Virginia Pollutant Discharge Elimination System (VPDES) General Permit for Pesticide Discharges Resulting from the Application of Pesticides to Surface Waters. This regulation was adopted by the State Water Control Board on February 4, 2011, with an effective date of April 10, 2011. It was published in the Virginia Register on February 28, 2011 (27:13 VA.R. 1647-1665).

On November 27, 2006, the Environmental Protection Agency (EPA) issued a final rule to codify its interpretation of the Clean Water Act as not requiring NPDES permits for application of pesticides to or over, including near, waters of the United States, if the applications are consistent with Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requirements. On January 7, 2009, the 6th Circuit Court of Appeals vacated the EPA rule requiring NPDES permits be issued for all biological pesticide applications and chemical pesticide applications that leave a residue in water when such applications are made in or over, including near, waters of the U.S. On June 8, 2009, the court granted the Department of Justice's request for a two-year stay of the court's decision, until April 9, 2011, to provide EPA and states time to develop and issue NPDES permits. Based on the stay, EPA's rule remained in effect and NPDES permits for applications of pesticides to or over, including near, U.S. waters were not required until after April 9, 2011.

This Virginia VPDES general permit regulation was developed to comply with the 6th circuit court's ruling. On March 28, 2011, the 6th Circuit Court of Appeals granted EPA's request for a further extension of the effective date of the court's ruling and deadline for when permits will be required for pesticide discharges from April 9, 2011, to October 31, 2011. The Director of the Department of Environmental Quality is suspending the effective date of 9VAC25-800 to be consistent with the 6th circuit court's ruling.

The department will present an amended pesticides general permit regulation with a revised effective date of October 31, 2011, and a revised expiration date of December 31, 2013, to the State Water Control Board for readoption at their April 14, 2011, meeting.

Agency Contact: Fred Cunningham, Director of the Office of Water Permits and Compliance Assistance, Department of Environmental Quality, 629 East Main Street, Richmond, VA 23219, telephone (804) 698-4285, email frederick.cunningham@deq.virginia.gov.