Water Education Foundation
This is just one post in the Water Quality Category
Click here to view all posts

Sixth Circuit holds off on requiring additional Clean Water Act regulation of pesticide applications

Posted by: Maven on June 24, 2009 at 7:25 am

From Eric W. Davis of Somach Simmons & Dunn:

On June 8, 2009, the Sixth Circuit of the United States Court of Appeals stayed its decision in a case that overturned regulations adopted by the United States Environmental Protection Agency (USEPA). The regulations at issue clarified that pesticides applied directly to waters of the United States were not a pollutant as long as the application was consistent with federal pesticide regulations. The two-year stay will allow the USEPA to design a permitting program for pesticide applications that may introduce pollutants into the waters of the United States from point sources.

Background

In January 2009, the United States Court of Appeals for the Sixth Circuit issued its ruling in National Cotton Council of America v. EPA, 553 F.3d 927 (2009) (National Cotton). (The full opinion is available at http://bit.ly/NationalCotton.) National Cotton effectively invalidated a rule adopted by the USEPA that exempted discharges of pesticides from the federal Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., so long as the pesticides were applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. (The Sixth Circuit action was actually a consolidation of petitions for review filed in eleven different federal circuit courts, including the Ninth Circuit.) The Sixth Circuit Court found that, notwithstanding the user’s compliance with FIFRA, biological pesticides, excess chemical pesticides, and chemical pesticide residuals were pollutants under the CWA. Therefore, when pesticide use would result in the introduction of biological pesticides or chemical residuals from a point source to the waters of the United States, a National Pollutant Discharge Elimination System (NPDES) permit would be required.

Read more background and analysis from Somach Simmons & Dunn by clicking here.

June 24, 2009 · Filed Under Water Quality

Comments

Leave a Reply