Flurry of Legal Paperwork

 
National Cotton Council v EPA The official opinion

 

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(EPA commentary and progress)

 

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Peggy Hall, OSU Agricultural & Resource Law Program

 

Producers who apply pesticides in, on, or near water will want to keep an eye on the U.S. EPA's development of a permitting program for aquatic pesticide applications. The program is not an EPA initiative, but results from a court case that challenged an EPA regulation exempting certain pesticide applications from the National Pollutant Discharge Elimination System (NPDES) permitting requirements. The court decision nullified the EPA's pesticide exemption regulation for aquatic pesticide applications. The issue has been a hard one to keep up with; below is a summary of the events leading to the permitting program and an explanation of its current status.

 

The Clean Water Act Permit Program. The federal Clean Water Act (CWA) creates a structure for regulating discharges of pollutants into waters and establishing surface water quality standards. Under the CWA, those who "discharge” a "pollutant” from a "point source” into "navigable waters of the United States ” must first obtain permission to do so via the EPA's National Pollutant Discharge Elimination System (NPDES) permit program, or the discharge will be unlawful. The law contains a list of exceptions for discharges that do not require an NPDES permit. The CWA's nearly forty year history has been fraught with legal battles to clarify terms such as "pollutant,” "discharge,” "point source” and "waters of the United States ,” as is the case with aquatic applications of pesticides.

 

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is the federal law governing the registration, labeling, and use of pesticides in the U.S. From 1977 until recently, the EPA required that a pesticide registered under FIFRA contain a notice on its label stating that the pesticide could not be "discharged into lakes, streams, ponds, or public waters unless in accordance with an NPDES permit.” The EPA modified this position with its pesticide exemption rule.

 

 

The EPA's Pesticide Exemption Rule. In November of 2006, the EPA finalized a regulation that created an exception from the CWA's NPDES permitting program for pesticides applied in compliance with FIFRA in two circumstances: 1) pesticides applied directly onto water to control pests such as mosquito larvae or aquatic weeds, and 2) pesticide applications over or near water where the pesticide could be deposited on or in the water, such as aerial applications over a forest canopy where water is present. In its rule, the EPA took the position that FIFRA pesticides are not "pollutants,” except for residual pesticides or excess applications that remain in the water after the application has accomplished its purpose. Even in the case of residual or excess pesticides, however, the EPA maintained that an NPDES permit is not required because the pesticide application resulting in the residual or excess was not a regulated "discharge from a point source” under the CWA.

 

The Legal Challenge to EPA's Rule . For different reasons, neither environmental nor industry organizations approved of the EPA's pesticide exemption rule and brought legal challenges that were joined together in the case of National Cotton Council of America v. EPA. The eventual decision by the U.S. Court of Appeals for the Sixth Circuit determined that the EPA's pesticide exemption rule was not a reasonable interpretation of the Clean Water Act. The court concluded that certain applications of aquatic pesticides could constitute "point source discharges” of "pollutants” and thus must be regulated by the NPDES permit program.

 

The court based its decision on the CWA definition of "pollutant,” which includes the terms "chemical waste” and "biological materials,” and determined that excess or residual pesticides applied in, near or above waters are "chemical wastes” and that biological pesticides such as artificial concentrations of viruses, bacteria, fungi, or plant materials are "biological materials.” The court clarified that an intentional application of a chemical pesticide to water for a particular useful purpose which leaves no excess portions after performing its purpose is not "chemical waste” and does not require an NPDES permit. According to the court, two scenarios of excess or residual pesticides could lead to a permit requirement: (1) where chemical pesticides are applied to land or air, and excess pesticides or pesticide residue is subsequently deposited into waters; and (2) where pesticide residue remains after a direct application of chemical pesticides to waters. The court also declined to follow EPA's reasoning that excess or residual pesticide applications are not "point source” discharges. Because the EPA incorrectly interpreted the Clean Water Act, the court vacated the pesticide exemption rule. Parties to the National Cotton lawsuit requested a rehearing on the case, but the court denied the request. The National Cotton decision is posted here.

 

 

EPA's Request for a "Stay.” The EPA asked the court for a "stay,” or a delay of the effective date of its decision. EPA argued that states and the EPA would need time to develop a permitting program for all of the pesticide applications in the U.S. that will now require an NPDES permit due to the court's decision. The court agreed, and has stayed its decision until April 9, 2011. The EPA's pesticide exemption rule thus remains in effect until April 9, 2011, or until the NPDES permit program for pesticides is in place.

 

 

EPA's Permit Program Development. EPA has announced that: " EPA plans, before the ruling takes effect (April 9, 2011), to issue a final general NPDES permit for covered pesticide applications, to assist authorized states to develop their NPDES permits, and to provide outreach and education to the regulated community. EPA will work closely with state water permitting programs, the regulated community and environmental organizations in developing a general permit that is protective of the environment and public health. NPDES permits will be required for pesticides applied directly to water to control pests and/or applied to control pests that are present in or over, including near waters. Irrigation return flows and agricultural runoff will not require NPDES permits as they are specifically exempted from the CWA.”

 

Impacts on Aquatic Pesticide Applications . For now, operators using FIFRA registered pesticides in, on or near waters are exempt from the NPDES permitting requirement. The EPA has stated its intent to issue a "general” NPDES permit for aquatic pesticides before the April 9, 2011 deadline. A general NPDES permit covers a group in the same geographic area with the same type of pollutant discharge. The general permit applies similar permitting conditions to all dischargers covered under the permit. Once the EPA or a state has developed the general permit for aquatic pesticides, a person who will make aquatic pesticide applications must submit a Notice of Intent to the EPA or the State in order to be covered by the general permit. However, the EPA or State may still require an applicator to submit an individual permit application and receive an individual NPDES permit, rather than the general permit, if it determines that coverage under the general permit is inappropriate for the situation.

 

A challenge for the EPA in developing the permitting program will be discerning between applications that do and do not create excess chemical waste, residual chemical waste, or biological matter. Chemical pesticide applications leaving no excess or residual waste will not require NPDES permits, according to the court, but applications resulting in residuals or excess chemicals will require a permit, as will applications involving "biological pesticides” or "biological wastes.”

 

 

Keeping Track of EPA's Progress . To follow future developments in the aquatic pesticides NPDES permitting program, check the EPA's NPDES - Agriculture web page at http://cfpub.epa.gov/npdes/home.cfm?program_id=41 .

 

 

Another Issue: "Waters” covered by the Clean Water Act. A concurrent development that will likely impact all NPDES permits is a proposal before Congress to amend the Clean Water Act to clarify which waters are "waters of the United States ” and thus are subject to the CWA. Senate Bill 787 attempts to clarify the government's jurisdiction over "waters,” and many claim will greatly expand federal authority under the CWA. Search for S. 787 here.

 

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The American Farm Bureau Federation has filed a petition with the U.S. Supreme Court, asking the high court to review a lower court ruling that will otherwise impose Clean Water Act permitting requirements on the application of pesticides on, over or near water.

 

"Allowing the lower court ruling to stand would pose serious challenges to farmers battling pests,” said AFBF President Bob Stallman. "When pests strike, time is of the essence, and any length of time waiting for permit approval for products that are already approved would be disastrous.”

 

The problem stems from a January 2009 ruling by the U.S. Sixth Circuit Court of Appeals, which struck down a 2006 Environmental Protection Agency (EPA) rule that interpreted the Clean Water Act did not regulate most pesticide applications into, over or near "waters of the United States,” so long as the pesticide use complied with EPA's requirements (such as EPA-approved label restrictions).

 

The Sixth Circuit found in "National Cotton Council v. EPA” that EPA must require Clean Water Act permits for pesticide application in water or near waters where pesticide falls into the water. The court recognized only a very narrow exception for chemical pesticides intentionally applied to water that leave no "residue” after their use is complete. AFBF's petition seeks Supreme Court review of that decision.

 

The practical effect of the Sixth Circuit decision is that almost all pesticide applications directly to water, over water, or "near” water will require a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit. If the decision is allowed to stand, farmers and others who use pesticides, such as mosquito abatement districts, will be required to obtain permits in order to apply pesticides on or near water. Since EPA views "waters of the United States” very broadly—including wetlands and even some ditches—the decision could affect hundreds of thousands of farmers.

 

In its petition to the U.S. Supreme Court, AFBF argues that the EPA pesticide rule simply formalized how EPA and Congress have always addressed environmental regulation of pesticide use.

 

"Since Congress enacted the Clean Water Act in 1972, EPA has never subjected the use of pesticides to NPDES permitting,” explained Julie Anna Potts, the AFBF's general counsel. "This court opinion dramatically changes the scope of the Clean Water Act and will force farmers, public health agencies, and many others into burdensome, time-consuming, and costly permitting requirements that could seriously impair their ability to use pesticides to protect croplands and public health.

 

"AFBF submitted its petition to the U.S. Supreme Court to seek correction of a decision that threatens very real consequences for crop protection and public health,” Potts said. "Right now, the Supreme Court is all that is standing between us and broad new restrictions that will obstruct essential, often time-critical responses to pest and disease outbreaks.”

 

In its petition, AFBF warns that "even slight delays caused by permit requirements can result in less effective crop protection, the spread of pests and disease, and significant crop loss.” The petition also explains that effective mosquito control through pesticide use is our nation's best weapon against mosquito-borne disease, cautioning "anything that significantly curtails the use of pesticides in, over, and near waters threatens public health with outbreaks of West Nile virus, encephalitis, Dengue fever, and other mosquito-borne diseases.” The petition stresses that "few decisions in the history of the CWA have had such a far-reaching and disruptive impact.”

 

Responses to the AFBF petition, and friend-of-the-court briefs in support of the petition, will be due in early December. The Supreme Court is expected to decide whether to hear the case by the end of the year.