The Sixth Circuit Court of Appeals has granted an Environmental Protection Agency (EPA) request for a two-year stay of its ruling in the National Cotton Council v. Environmental Protection Agency decision issued on January 7, 2009. This “stay of the mandate” makes the original EPA rule valid until April 2011 and puts off any potential pesticide permitting requirements until that time. AFBF filed a petition in April asking the full Sixth Circuit to re-hear the case. In that case a three-judge panel reversed an EPA rule that would have clarified that federal Clean Water Act (CWA) permits are not required for pesticide application to waters or over waters, so long as the application complies with pesticide labeling laws. AFBF is disappointed that EPA did not seek a rehearing of the federal court decision and opted instead to request a delay of two years before the new permits would be required. AFBF, with the help of OFBF and many other State Farm Bureaus, was successful in getting the Secretary of Agriculture and many members of Congress to urge EPA to seek rehearing. Unfortunately, that hard work ultimately did not prove to be a factor in the EPA Administrator’s decision to ignore the potential impacts this case will have on American agriculture. We are still awaiting the court’s decision on the AFBF rehearing petition.
The Sixth Circuit court reasoned that any application of a chemical pesticide that results in excess or residual pesticide finding its way into navigable waters of the U.S. constitutes the discharge of a “chemical waste” and therefore a “pollutant” subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements. The court ruled that the term “pollutant” also includes all biological pesticides, meaning that application of a biological pesticide that results in any of the pesticide entering such waters is a regulated discharge.
Since the passage of the CWA in 1972 and major reforms of Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) in 1972, EPA has never required NPDES permits for the application of pesticides. The court’s broad ruling now requires – for the first time – that pesticide application be subject to a permit under the CWA when that application would result in the addition of pesticide residue to a water of the U.S. The court’s ruling is not limited to direct discharges to water and also may have opened the door to questioning the reach of the agricultural stormwater exemption from the definition of a point source under the CWA. If the ruling stands, EPA must develop an NPDES permitting scheme for pesticide users. The permits will be either individual site-specific permits for individual pesticide applications or some type of general permit.