• Pesticide Application Residues Now Need EPA Water Permits if Residues Reach Waters of the United States
  • February 4, 2009 | Author: Harvey M. Sheldon
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • The Sixth Circuit Court of Appeals ruled on January 7, 2009, that the USEPA exemption of pesticides applied in accordance with FIFRA from NPDES permit requirements is unlawful.

    In National Cotton Council of America, et al v. USEPA, ___F.3d___, 2009 WL 30292, (“National Cotton”), which was a review of a Final Rule issued in November 2006, the Court held that the EPA’s interpretation of the statute was so flawed that it could not pass muster as a reasonable statutory interpretation under the doctrine of Chevron USA v. NRDC, 467 US 837 (1984). The rule was vacated.

    The implications of this case for pesticide applicators depend in part on what EPA does next. Nevertheless, the application of pesticides near or over water is now a serious potential target for Clean Water Act litigation.

    EPA had sought by Rule to exempt FIFRA applications from NPDES water permitting where the application was in accordance with FIFRA, the law governing pesticide registration and use. With the Rule vacated on a national basis, EPA now, in effect, must require, and citizens can allege, that pesticide application on land that results in water runoff requires an NPDES permit. Rather than exempting applications consistent with FIFRA, the EPA must now either issue NPDES permits or it can, and likely will, fashion a “general permit” to cover pesticide applications in keeping with FIFRA. Nevertheless, it appears there is now an unlocked door to Water Act citizen suit litigation, over whether a particular application was proper where waters receive pesticides as a result of terrestrial application.

    Based on statements in the news attributed to industry groups, it seems likely that a petition for review en Banc and an appeal to the Supreme Court could be filed in this case. Environmental groups heralded the decision as a victory, and expressed satisfaction that going forward they will be able to work with a new EPA administration on future pesticide related Clean Water Act regulation. As of publication of this Alert, no stay or appeal is on file.

    Until Agency procedures are clarified, applicators aware that pesticide residues could reach waters of the United States would be well advised to check with their counsel or with state environmental authorities. Two western states ¿ California and Washington ¿ have provided General Permits for pesticide applicators to take advantage of, and other NPDES authorized states are likely to follow suit.