Beveridge & Diamond
 
Related Practices
Related Practices

EPA Seeks Two-Year Stay of Sixth Circuit’s Invalidation of NPDES Permit Exemption for Pesticide Applications; Will Not Pursue Further Appeals

Beveridge & Diamond, P.C., April 13, 2009

On April 8, 2009, the Environmental Protection Agency (EPA) announced that it would not petition for rehearing of a federal court’s decision that vacated the Agency’s final rule exempting many pesticide applications from the need to obtain a Clean Water Act permit.  See National Cotton Council v. EPA, Slip Op. No. 06-4630 (6th Cir. Jan. 7, 2009).  However, the EPA has asked the Court to stay its mandate for a two-year period to allow EPA and state permitting authorities sufficient time to develop an appropriate permitting program to address pesticide applications to, over, or near waters of the United States.  If the request is granted, water permits would not be required until expiration of the stay. 

In 2007, EPA issued a final rule which gave legal effect to the Agency’s long-standing policy of not requiring permits under the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) for many applications of pesticides to, over, or near waters of the United States.  Under the EPA’s interpretation of the Clean Water Act’s definitions of “pollutant” and “point source,” pesticide applications made in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), did not require NPDES permits even if the pesticide entered waters of the United States.  In a lawsuit challenging the legal validity of the final rule, the United States Court of Appeals for the Sixth Circuit on January 7, 2009, struck down the rule as contrary to the plain meaning of the Clean Water Act.  National Cotton Council, Slip Op. at 19.

Many stakeholder representatives urged EPA to petition the Court for a rehearing of its decision.  On March 6, USDA Secretary Vilsack wrote a letter to EPA Administrator Lisa Jackson asking EPA to consider the “significant adverse effect” of the Court’s decision on farmers and USDA’s own pest control activities.  EPA received similar requests from the Association of State and Interstate Water Pollution Control Administrators, ranking members of both House and Senate Agriculture Committees, and industry associations.  Nevertheless, EPA declined to seek rehearing, opting instead to seek a two-year stay of the mandate. 

EPA's decision not to pursue rehearing left private stakeholders on their own to appeal the Sixth Circuit’s decision, which they have done.  On the other hand, EPA’s request for a two-year stay does recognize the significant steps that must be taken before the Court’s decision can be properly implemented.  In its motion to the Court, EPA argues that the stay is necessary to “avoid significant disruption” to EPA, state permitting authorities, and the hundreds of thousands of persons and business who apply pesticides to, over, or near waters of the United States.  If the rule were vacated immediately, neither EPA nor state authorities would have the capability under existing regulatory programs to address the many pesticide applications suddenly requiring NPDES permits.  Rather than issue thousands of individual permits to each discharger, EPA has announced a preference for authorizing pesticide discharges through a general permit which can broadly address a large number of similarly situated dischargers.  EPA estimates that a period of two years is necessary to craft a general permit, a process which entails environmental analyses, public notice and comment, and state certifications.  Additionally, EPA argues that it needs that time to assist state permitting authorities in developing their own general permits. 

If the Court refuses to issue the stay, the mandate takes effect on April 16.  With no currently applicable general permits, and because EPA and state permit authorities lack the resources to handle thousands of new individual permit applications, denial of the stay would present many pesticide applicators with the difficult choice of either not applying needed pesticides or risking citizen suits and enforcement actions for discharging without a permit.  However, if the Court grants the stay, the Court’s mandate will not take effect until April 9, 2011, or another date set by the Court, at which time EPA and states could have general permits in place to regulate pesticide applications to, over, or near waters of the United States. 

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