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Court Ruling NPDES Permit Required for Pesticide Spraying Is Temporarily Stayed; Industry Petition for Rehearing Is Denied

08.01.2009

By Larry Kane, Attorney, Bingham Greenebaum Doll LLP

There has been recent developments concerning the decision of the Sixth Circuit Court of Appeals in National Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009) holding an NPDES permit is required to apply pesticides to or near navigable waters or federally regulated wetlands. To review succinctly, National Cotton Council involved a challenge by various environmental advocacy organizations to a 2007 EPA rulemaking that established an express exemption from NPDES permitting requirements for the application of pesticides into waters of the United States for control of aquatic pests or over such waters to control mosquitoes or other flying insect pests so long as the pesticide application was consistent with all relevant requirements set under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). See 40 CFR 122.3(h), as added at 71 FR 68492 (Nov. 27, 2006). Various industry groups intervened in the litigation to support EPA’s rulemaking. Prior to adoption of the regulatory exemption, EPA and states with NPDES authority had tacitly avoided requiring NPDES permits for pesticide application where conducted in conformance with FIFRA requirements.

The Sixth Circuit ultimately sided with arguments of the environmental advocacy groups that the regulatory exemption from NPDES permitting for pesticide application was inconsistent with the express language of the definition of “pollutant” in Section 502(6) of the Clean Water Act, 42 U.S.C. § 1362(6). The Court concluded that biological pesticides were “biological materials,” one of the listed examples of a “pollutant.” Similarly, excess pesticides that are applied into waters or sprayed over or near waters and also enter waters were construed to be “chemical wastes,” another express example of “pollutant” from the statute. Given this view of “pollutants” and the point source nature of pesticide applicators, the Court found the NPDES permit requirements of Section 402 of the Clean Water Act to unambiguously apply to the application of pesticides to waters. As a result, the Court vacated the EPA rule.

Following the Court’s decision, industry interveners petitioned for a rehearing of the case by the Sixth Circuit en banc. On August 3, 2009, the Sixth Circuit denied the petition for rehearing, leaving no further recourse for those parties except to seek review by the U.S. Supreme Court. If such an appeal is sought, a petition for certiorari must be filed by November 3.

Denial of the petition for rehearing does not affect the 24-month stay of the National Cotton Council decision granted to EPA (and effectively to states with NPDES authority) to develop a general permit or other strategy for providing NPDES authorization for pesticide applicators. EPA had petitioned the Court on April 9, 2009, for a stay of the vacatur order for a two-year period “to avoid significant disruption to EPA and [the states with NPDES authority]”. EPA contended that immediate vacation of the EPA rule would be disruptive because NPDES permits would be now required for “all applications of biological pesticides” and “almost all applications of chemical pesticides to, over, or near waters of the United States. EPA estimated that hundreds of thousands of pesticide applications occur annually and the only feasible manner of addressing the permit obligation would be through development and adoption of a general permit. State NPDES authorities will need to develop their own general permit authorities for pesticide application.

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