Somach Simmons & Dunn - Sixth Circuit Holds Off on Requiring Additional Clean Water Act Regulation of Pesticide Applications
Sixth Circuit Holds Off on Requiring Additional Clean Water Act Regulation of Pesticide Applications
June 23, 2009
by Eric W. Davis
On June 8, 2009, the Sixth Circuit of the United States Court of Appeals stayed its decision in a case that overturned regulations adopted by the United States Environmental Protection Agency (USEPA). The regulations at issue clarified that pesticides applied directly to waters of the United States were not a pollutant as long as the application was consistent with federal pesticide regulations. The two-year stay will allow the USEPA to design a permitting program for pesticide applications that may introduce pollutants into the waters of the United States from point sources.
In January 2009, the United States Court of Appeals for the Sixth Circuit issued its ruling in National Cotton Council of America v. EPA, 553 F.3d 927 (2009) (National Cotton). (The full opinion is available at http://bit.ly/NationalCotton.) National Cotton effectively invalidated a rule adopted by the USEPA that exempted discharges of pesticides from the federal Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., so long as the pesticides were applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. (The Sixth Circuit action was actually a consolidation of petitions for review filed in eleven different federal circuit courts, including the Ninth Circuit.) The Sixth Circuit Court found that, notwithstanding the user’s compliance with FIFRA, biological pesticides, excess chemical pesticides, and chemical pesticide residuals were pollutants under the CWA. Therefore, when pesticide use would result in the introduction of biological pesticides or chemical residuals from a point source to the waters of the United States, a National Pollutant Discharge Elimination System (NPDES) permit would be required.
A three-judge panel handed down the National Cotton opinion. Agricultural organizations have requested an en banc rehearing by the full Sixth Circuit Court of Appeals. No ruling on that request has been released to date.
Because the court invalidated a USEPA rule, the effect of the National Cotton opinion has potential impacts far beyond the jurisdiction of the Sixth Circuit. In California, for example, 45 mosquito abatement districts charged with controlling mosquito populations all received 60-day notices of intent to sue from a state pesticide watch organization. The notices alleged, based on the National Cotton ruling, that aerial spraying to control adult mosquitoes without an NPDES permit was a violation of the CWA.
The Stay of the Court’s National Cotton Order
On June 8, 2009, in response to a request by the USEPA, the Sixth Circuit granted a two-year stay of its order in National Cotton. The stay, which is in effect until April 9, 2011, will allow USEPA to “issue a final general NPDES permit for covered pesticide applications, to assist authorized states to develop their NPDES permits, and to provide outreach and education to the regulated community.” (See USEPA NPDES website, available at http://bit.ly/EPAstayannouncement.) In the meantime, the stay leaves in place the USEPA rule that exempted FIFRA-compliant pesticide applications directly to or over waters of the United States from NPDES permitting requirements. Therefore, it effectively removes the threat of Clean Water Act litigation for pesticide applications covered by the USEPA regulation.
Conclusion and Implications
While the Sixth Circuit’s stay of its order in National Cotton does not change the fact that pesticide applications from point sources are potentially subject to Clean Water Act regulation regardless of whether they are also regulated under FIFRA, it does relieve them of the need to immediately seek an NPDES permit. The stay will permit USEPA to develop a permitting process tailored to pesticide applications now subject to CWA rules.
Industry petitioners’ request for a rehearing of National Cotton by the full Sixth Circuit Court of Appeals, which might overturn the decision of the three-judge panel, is outstanding.
Nothing in either the National Cotton decision or the recent stay affects the exemption in the Clean Water Act from NPDES permit requirements for pesticides that may be in agricultural return flows, or agricultural stormwater that may enter waters of the United States. The exemption for agricultural runoff is distinct from the rule challenged in National Cotton.