Sixth Circuit Stays Decision Requiring NPDES Permits to Spray Pesticides

The Sixth Circuit Court of Appeals recently granted the U.S. Environmental Protection Agency’s (EPA) request for a two-year stay of the court’s January 7, 2009 decision which made applications of aquatic pesticides subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements. National Cotton Council v. EPA.[1] The stay gives EPA, and the states which are delegated the authority to enforce the NPDES program, until April 9, 2011 to develop, propose and issue NPDES general permits for pesticide applications covered by the Sixth Circuit’s decision. The stay also provides a temporary reprieve for hundreds of thousands of regulated entities nationwide, including farms and timberlands.

The EPA Rule

At issue in this case is an EPA Final Rule[2], issued in November 2006, which exempted discharges of pesticides from NPDES permitting requirements, where such discharges occurred in compliance with a second law – the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).[3] The Clean Water Act requires an NPDES permit for the discharge of a pollutant into waters of the United States.[4] A “discharge of a pollutant” is defined to mean the “addition of any pollutant to navigable waters from any point source.”[5] The term pollutant includes both “chemical wastes” and “biological materials”.[6]

In the rule, EPA wrote that an NPDES permit was specifically not required for: (1) the application of pesticides directly to water in order to control pests; or (2) the application of pesticides to control pests present over or near water (such as via aerial application) where some portion of the pesticide would unavoidably be deposited into waters.[7] EPA intended the second circumstance, among other things, to cover pesticide spraying to control non-native plants growing at the water’s edge because some pesticide would be expected to enter the water as a result of the application.

The rule was based on EPA’s longstanding policy that pesticides applied according to its federal label are not CWA “pollutants” and, thus, do not require NPDES permits. EPA explained that aquatic pesticides that are sprayed or otherwise applied consistent with FIFRA are not “chemical wastes” because “they are products that EPA has evaluated and registered for the purpose of controlling target organisms, and are designed, purchased, and applied to perform that purpose.”[8] Further, EPA stated that aquatic pesticides are not “biological materials” because, to find otherwise, “would mean that biological pesticides are pollutants, while chemical pesticides applied in the same circumstances are not.”[9] Finally, EPA wrote that, while residual material remaining following pesticide application may be considered “pollutants”, the pesticide itself is not a pollutant at the time of discharge. Accordingly, EPA encouraged treating the residual as a nonpoint source pollutant for which no NPDES permit would be required.[10]

The National Cotton Decision

In National Cotton, environmental groups[11]challenged the EPA rule, arguing that: (1) EPA exceeded its authority under the CWA by excluding pesticides from the definition of a CWA “pollutant”; (2) EPA exceeded its authority under the CWA by determining that, while pesticides are discharged from a point source, the residue of such pesticides is a “nonpoint source pollutant”; and that (3) EPA may not exempt FIFRA compliant pesticide applications from the reach of the CWA. Industry Petitioners[12] argued that EPA’s final rule was arbitrary and capricious because, under that rule, pesticides applied in violation of FIFRA are “pollutants” while the same pesticides applied in compliance with FIFRA are not.[13]

The Sixth Circuit Court of Appeals held that the Final Rule was not a reasonable interpretation of the CWA, and vacated the EPA Rule. In reaching this decision, the Court examined whether the CWA unambiguously includes pesticides within its definition of a “pollutant” and concluded that it does. The CWA defines a “pollutant” to include “chemical wastes” and “biological materials”.[14] After analyzing the plain meaning of the word “waste”, the court found that the CWA definition of “chemical waste” includes “discarded chemicals, superfluous chemicals, or refuse and excess chemicals.”[15] Like the Ninth Circuit in Fairhurst v. Hagener,[16] the Court decided 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.”[17]

However, the Court decided that excess chemical pesticide and pesticide residue may be “pollutants.”[18] The Court observed that there are at least two situations in which excess pesticide or pesticide residue would meet the CWA definition of “chemical wastes”: (1) where chemical pesticides are applied to land or air, and excess pesticides or pesticide residue is subsequently deposited into jurisdictional waters; and (2) where pesticides residue remains following the direct application of chemical pesticides to jurisdictional waters.[19]

Next, the Court examined the plain meaning of the term “biological materials” and decided that the term unambiguously includes biological pesticides and their residue that are discharged into water. The Court declined to define the outermost bounds of “biological materials” – which could hypothetically include a worm on the end of a hook – and instead simply decided that “biological pesticides fit into the ordinary meaning of biological materials.”[20]

Finally, the Court rejected EPA’s argument that excess and residual pesticides should be exempt from NPDES permitting requirements because they do not qualify as pollutants at the time of discharge. The Court found: “[t]here is no requirement that the discharged chemical, or other substance, immediately cause harm to be considered as coming from a ‘point source.’ Rather, the requirement is that the discharge come from a ‘discernable, confined, and discrete conveyance,’ 33 U.S.C. § 1362(14), which is the case for pesticide applications.”[21] Thus, the Court found that EPA’s attempt to inject a temporal requirement for the discharge of pollutants into water was unsupported by the CWA.

In light of the statutory language, the Court held that EPA’s Final Rule was not a reasonable interpretation of the CWA since the plain language of the term “pollutant” unambiguously includes pesticides. Accordingly, the Court vacated the final rule.

The Court’s ruling made dischargers of biological pesticides, and excess chemical pesticides and pesticide residues, subject to the NPDES permitting program of the CWA. The Court did not analyze arguments addressing the relationship between the CWA and FIFRA.

The Stay

On April 9, 2009, EPA asked the court to stay the mandate in National Cotton until April 9, 2011. EPA argued that the stay was necessary: “to avoid significant disruption to EPA and the 46 states that, along with the U.S. Virgin Islands, administer the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”) permit programs.” According to EPA, the Court’s ruling would be disruptive to EPA and States because, following the Court’s ruling, NPDES permits were now required for “all applications of biological pesticides” and “almost all applications of chemical pesticides to, over, or near waters of the United States”.[22] EPA argued that the use of individual permits for the hundreds of thousands of covered pesticide discharges that occur annually was not “practical at this time,” [23] and that there was not a general permit currently in place to address all of the discharges addressed by the Sixth Circuit’s ruling. Thus, a stay was needed to give EPA and States time to develop and issue appropriate general permit to authorize certain pesticide discharges to waters of the United States in accordance with CWA requirements.

EPA also argued that a stay was needed to avoid significant disruption to the hundreds of thousands of affected entities nationwide, including agriculture and timber industries, public entities, and other pesticide users who currently “apply pesticides to, over, or near waters of the United States without NPDES permits and now, as a result of this Court’s decision, will need to obtain permits in order to continue doing so consistent with the Clean Water Act.”[24] The pesticide applications by these entities would be illegal if the rule is vacated before EPA and States had NPDES permits in place to authorize the pesticide applications.[25]

In May 2009, Respondent-Intervenors, including CropLife America and other agriculture and industry groups, filed a response in support of EPA’s request to stay the mandate so that pesticide users could apply for and obtain NPDES permits for their pesticide applications in compliance with CWA requirements. Environmental Petitioners opposed EPA’s motion.

On June 8, 2009, the Court granted the request to stay mandate until April 9, 2011. As a result of the stay, regulated entities will not require NPDES permits for discharges covered by the National Cotton decision until April 9, 2011, and EPA and States will have until that time to develop permits for regulated entities.

Conclusion

The Sixth Circuit is currently considering a motion by the National Cotton Council and other agriculture and industry groups for Rehearing and Rehearing en Banc of the panels’ decision vacating the EPA Final Rule. While the request for rehearing is pending, the stay in National Cotton provides a reprieve for hundreds of thousands of regulated entities nationwide – including the timber and agricultural industry – who would otherwise need NPDES permits to authorize their pesticide applications.

For more information on this and other water quality and permitting issues, please contact any member of Marten Law Group’s Water and Wetlands Practice Group.