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Sixth Circuit Vacates EPA’s Clean Water Act NPDES Permit Exemption for FIFRA-Compliant Pesticide Applications

Beveridge & Diamond, P.C., January 8, 2009

On January 7, 2009, the Sixth Circuit vacated EPA’s 2007 rule exempting certain pesticide applications that are compliant with the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) from the permitting requirements of the Clean Water Act (“CWA”) (hereinafter “Final Rule”).  See National Cotton Council v. EPA, Slip Op. No. 06-4630 (6th Cir. Jan. 7, 2009).  The CWA prohibits the discharge of any “pollutant” into navigable waters from a “point source” without a National Pollutant Discharge Elimination System (NPDES) permit.  33 U.S.C. §§ 1311(a), 1342.  EPA’s Final Rule stated that the CWA was ambiguous with respect to pesticides and interpreted the terms “pollutant” and “point source” to support the pesticide exemptions.  The Court found that the CWA directly and unambiguously “forecloses the EPA’s Final Rule,” as more fully discussed below.  The result of the vacature, according to the Sixth Circuit, is that “dischargers of pesticide pollutants are subject to the NPDES permitting program” under the CWA.  National Cotton Council, Slip Op. at 19.  This result represents a significant departure from EPA policy and practice. 

EPA’s NPDES Pesticide Exemptions

EPA’s Final Rule was a response to a series of cases, primarily in the Ninth Circuit, that used the CWA citizen suit provision to challenge a variety of pesticide application activities that resulted in some portion of the pesticides reaching water bodies.  See, e.g., Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001) (finding that NPDES permits are required for discharges of residual pesticide remaining in water following application consistent with FIFRA).  The Final Rule exempted two types of pesticide application activities from regulation under the CWA’s NPDES permit program, as long as the applications were FIFRA-compliant:  (1) pesticides applied directly to waters of the United States to control pests such as mosquito larvae and aquatic weeds, and (2) pesticides applied over or near waters of the United States where a portion of the pesticide is unavoidably deposited to such waters in order to target pests effectively.  EPA explained its view that, as a general matter, pesticides applied in accordance with FIFRA are not “pollutants” for purposes of the CWA, defined in the CWA to include “chemical wastes” and “biological materials,” and thus are not subject to wastewater discharge permitting requirements even if discharged to water bodies.  According to EPA, pesticides are not “chemical wastes” because they are beneficial products registered for the purpose of controlling pests, and are designed, purchased, and applied to perform that purpose.  Similarly, EPA declined to treat pesticides as “biological materials,” because doing so would create an anomaly where biological pesticides would be deemed pollutants while chemical pesticides would not.

In the Final Rule, EPA nevertheless identified “pesticide residuals” as “excess” amounts of pesticide that remain in the water after application and completion of the intended pesticidal effect, and concluded that such residuals are “pollutants” for purposes of the CWA.  However, EPA also concluded that such pesticide residuals only become CWA pollutants at some point in time following application, and therefore do not constitute a discharge of a pollutant from a point source at the time of application.  As such, EPA determined that pesticide residuals should be treated as non-point source pollutants under the CWA that are exempt from NPDES permit requirements.    

Challenges to EPA Final Rule          

EPA published its Final Rule on November 27, 2007.  Environmental organizations and industry groups immediately challenged the Final Rule by filing petitions for review in every federal Circuit Court of Appeals.  Pursuant to an order of the Judicial Panel on Multidistrict Litigation, the petitions for review were consolidated in the Sixth Circuit.  National Cotton Council, Slip. Op. at 7.  The environmental petitioners claimed that EPA exceeded its authority under the CWA in promulgating the rule.  Industry petitioners claimed the rule was arbitrary and capricious because it differentiated the treatment of pesticides for purposes of the CWA “pollutant” definition on the basis of whether or not the pesticides were applied in compliance with FIFRA.  Id. at 9-10.  Certain industry groups also filed a motion to intervene in support of the Final Rule.

Sixth Circuit:  CWA Not Ambiguous, EPA’s Exemptions Flawed

The Sixth Circuit reviewed the rule under the familiar test set forth in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), to determine whether the CWA spoke directly to the issues raised.  The Court found that, contrary to EPA’s position, the CWA was not ambiguous on any of the issues for which EPA had provided interpretations in its Final Rule.  The court confined its analysis to a reading of the CWA, declining to analyze explicitly the relationship between the CWA and FIFRA.

“Chemical Waste:”   In particular, the Court found that “the plain language of ‘chemical waste’ and ‘biological materials’ in [CWA] § 1362(b) to be unambiguous as to pesticides.”   National Cotton Council, Slip. Op. at 12.   Focusing first on the “chemical waste” portion of the definition of “pollutant,” the Court indicated that not all chemical pesticide uses would constitute “discarded,” “superfluous,” or “refuse or excess” chemicals, such that their discharge would require an NPDES permit.  Instead, the Court concurred with the Ninth Circuit that “so long as the chemical pesticide ‘is intentionally applied to the water [to perform a particular useful purpose] and leaves no excess portions after performing its intended purpose[] it is not a ‘chemical waste,’” and does not require an NPDES permit.”  Id. at 13 (citing Fairhurst v. Hagener, 422 F.3d 1146, 1149 (9th Cir. 2005), which found an NPDES permit was not required where the pesticide would leave no excess portion in the water after it had achieved its intended purpose of eliminating non-native fish).  However, the court noted that “excess pesticide and pesticide residue meet the common definition of waste,” as EPA had stated in the Final Rule, and would be considered “pollutants” under the CWA.   Id.  According to the Court, there are “at least” two pesticide application scenarios that fall into this category:  (1) terrestrial and aerial applications of pesticides above or near waterways when residual or excess pesticide impacts the water and (2) residual or excess pesticide that remains after direct application to water and completion of the beneficial  pesticidal purpose.  Id.

“Biological Materials:”  The court next found that the CWA’s use of “biological materials” within the definition of “pollutant” includes all biological pesticides that are discharged to waters of the United States.   Rejecting EPA’s interpretation that to treat biological pesticides and chemical pesticides differently would be an anomaly, the Court instead found that by specifically using the word “biological materials” instead of “biological wastes” in the definition of “pollutant” under the CWA, Congress demonstrated an intent to treat biological and chemical pesticides differently.  Therefore, under the court’s analysis, all biological pesticides applied to waters of the United States, even those leaving no residue, are pollutants for which NPDES permits are required.  National Cotton Council, Slip Op. at 14-16.

Pesticide Residuals:  Finally, the court rejected the EPA’s conclusion that pesticide residuals, while pollutants, do not require NPDES permits because they are not pollutants at the time of discharge.  EPA’s position was that the CWA requires permits “only for discharges that are ‘both a pollutant, and from a point source’ at the time of discharge.”  Id. at 11 (citations omitted).  EPA had concluded in the Final Rule that pesticides are applied by point sources.  The court found EPA’s “[i]nject[ion] [of] a temporal requirement to the [CWA’s] ‘discharge of a pollutant’ [language] not only unsupported by the Act, but [] also contrary to the purpose of the permitting program,” which is ‘to prevent harmful discharges into the Nation’s waters.”  Id. at 17. Instead, the Court held that a “pesticide residue or excess pesticide—even if treated as distinct from pesticide—is a pollutant discharged from a point source” at the time it is discharged.  Id. at 18. 

In sum, according to National Cotton Council,  NPDES permits are required for "at least" the two categories of pesticide application articulated in EPA’s Final Rule, namely, direct and over/near water pesticide applications.

For further information about the Sixth Circuit’s opinion and its implications, please contact Karen Hansen (khansen@bdlaw.com, (202) 789-6056), Richard Davis (rdavis@bdlaw.com, (202) 789-6025), Kathy Szmuszkovicz (kszmuszkovicz@bdlaw.com, (202) 789-6037), or Mike Neilson (mneilson@bdlaw.com, (202) 789-6061). This alert was prepared with the assistance of Graham St. Michel.