Environmental Law Alert: EPA Issues Final Rule Exempting FIFRA-Consistent Pesticide Applications from NPDES Requirements By Beth S. Ginsberg, J. Mark Morford
12/12/2006

In late November, EPA issued a final rule interpreting the definition of the term "pollutant" under the Clean Water Act (CWA) to exclude pesticides applied in compliance with relevant water quality requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). 71 Fed. Reg. 68483 (Nov. 27, 2006). According to this rule, pesticide applicators do not need to obtain a National Pollutant Discharge Elimination System (NPDES) permit in two specific circumstances: (1) when the pesticide is applied directly to a waters of the United States to control pests present in the water; and (2) when the application of the pesticide is made to control pests that are over, including near, waters of the United States.

As a result of EPA’s final rule, those who apply pesticides to control mosquito larvae, aquatic weeds or other pests that are present in waters regulated under the CWA, will now be exempt from NPDES permit requirements. Similarly, those who apply pesticides to control pests that are present over or near such waters, where some amount of pesticide will unavoidably be deposited to waters of the United States to effectively target the pests, and where the pesticide necessarily must enter the water in order for the application to achieve its intended purpose, will be exempt from NPDES permit requirements. EPA provided examples of such situations, specifically including wide-area forest canopy insecticide applications resulting in pesticide deposition to waters which are either not visible to the applicator or not possible to avoid, mosquito adulticide applications, and pesticide applications to control non-native plants which grow at the water’s edge such as purple loosestrife.

To arrive at this rule, EPA interpreted the terms "chemical wastes" and "biological materials" (included in the CWA’s definition of "pollutant") to exclude pesticides applied consistently with EPA approved label restrictions. According to EPA, the term "waste" means that which is eliminated or discarded as no longer useful or required after the completion of a process. Pesticides applied consistent with the water quality related restrictions imposed under the FIFRA label approved by EPA are useful products, and not "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" (quoting Fairhust v. Hagener, 422 F.3d at 1150). EPA similarly interpreted the term "biological materials" to exclude biological pesticides applied consistent with relevant FIFRA label requirements, emphasizing that these types of pesticides are generally "reduced-risk products" that have a narrower range of potential adverse environmental effects compared to chemical pesticides and that thus present even less of a rationale for CWA permitting.

In exempting these two pesticide application scenarios from NPDES requirements, EPA emphasized that those who apply pesticides to terrestrial agricultural crops will remain subject to CWA requirements in the event such pesticides unintentionally reach waters covered under the CWA. EPA identified spray drift from aerial applications covered by the rule as exempt; drift from terrestrial applications is not yet exempted, but will be addressed by an EPA work group. EPA also clarified that pesticides are wastes when contained in a waste stream, including storm water or other industrial or municipal discharges regulated under CWA section 402(p). In addition, EPA clarified that residual materials resulting from pesticides that remain in the water after the application and its intended purpose have been completed will be regulated as "pollutants" subject to NPDES permit requirements, unless the application was performed consistent with all relevant FIFRA requirements.

EPA’s rule comes on the heels of several high profile court decisions that have inconsistently addressed the question of whether the CWA requires NPDES permits for pesticide applications. The Ninth Circuit issued three opinions on this issue causing widespread regulatory confusion. The preamble to EPA’s rule discusses the most important cases. The most vexing of these cases is Headwaters, Inc. v. Talent Irrigation District, 243 F.3rd 526 (9th Cir. 2001). In Talent, the Ninth Circuit held that application of herbicide Magnacide H to irrigation canals to control aquatic weeds and vegetation requires an NPDES permit because application left "residue" after pesticide performed its "intended effect." In the Talent case, the applicator violated the FIFRA label requirement to contain the herbicide-laden water in an irrigation canal for a specified number of days, leading to large fish kill in a downstream creek. In the preamble to the new rule, EPA attempts to distance itself from arguably contradictory positions the government took in amicus briefs it filed in the Talent litigation. EPA now asserts that its brief was based on "evaluation of the law in the context of specific factual situations, and did not result from deliberative consideration through an administrative process." 71 Fed Reg at 68485. In effect, EPA is attempting to distinguish its rule from the facts in Talent, by asserting that the Talent holding only applies to circumstances where the applicator has not complied with the FIFRA label or other relevant FIFRA requirements.

EPA’s preamble also discusses League of Wilderness Defenders et al. v. Forsgren, 309 F.3d 1181 (9th Cir. 2002). In this case, the Ninth Circuit held that the aerial application of pesticide to control gypsy moths constituted a point source discharge subject to NPDES permitting. EPA points out, however, that the court in this case did not decide whether the pesticide was a pollutant because the Forest Service had conceded that point. In this regard, EPA’s new rule can be distinguished from Forsgren because it addresses the question of whether a pesticide properly applied is a pollutant and does not question the point source determination in Forsgren. The rule specifically exempts the application of pesticides that are "aerially applied to a forest canopy where waters of the United States may be present below the canopy." 17 Fed Reg at 68492. EPA is clear, therefore, in attempting to undo the effects of the Forsgren case.

EPA’s new rule is in harmony with a third Ninth Circuit decision. See Fairhurst v. Hagener, 422 F.3d 1146 (9th Cir. 2005)(pesticides intentionally applied directly to a lake to eliminate non-native fish species, where there are no residues or unintended effects, are not "pollutants" under the CWA because they are not chemical wastes). The rule is also responsive to the Second Circuit in Altman v. Town of Amherst, 47 Fed. Appx 62, 67 (2nd Cir. 2002), which remanded a lower court decision holding that the Town of Amherst was not required to obtain an NPDES permit to spray mosquitocides over waters of the United States, admonishing EPA to resolve the question of whether properly used pesticides can become pollutants.

While EPA asserts that its final rule is both consistent with and was expressly intended to resolve any uncertainty created by these decisions, its critics contend that it continues to foster a regulatory morass leaving important questions unresolved and inconsistent results among the various states. First, many would argue that the rule itself cannot overturn the Ninth Circuit’s Talent decision, which broadly held that the discharge of a pesticide from a point source constituted an activity requiring an NPDES permit because residues from the Magnacide H application constituted "pollutants" covered under the CWA, notwithstanding the pesticides’ registration under FIFRA. 243 F.3rd 526. As discussed above, however, EPA attempts to distinguish this case on the factual basis that the applicator violated the FIFRA label resulting in a fish kill.

Delegated states in the Ninth Circuit, including Washington, Oregon and California, currently regulate the discharge of FIFRA regulated pesticides into jurisdictional waters under their respective state-delegated permitting programs. It remains to be seen how each of these states will respond to EPA’s new rule. Conversations with state regulators reveal that the Oregon Department of Environmental Quality (ODEQ) will stay the course it set when it originally responded to the Talent decision by adopting EPA’s position on this issue. ODEQ continues to maintain that permits are not required for pesticides discharged in compliance with relevant FIFRA labeling requirements but has agreed to issue a number of individual permits to irrigation districts and others desirous of additional regulatory certainty. The Washington Department of Ecology is currently evaluating its options to either re-issue the existing individual NPDES and general permits for pesticides, to re-issue them as state waste discharge permits, or to rescind existing permits as unnecessary. In California, the State Water Resources Control Board is similarly considering all options available to it including permit rescindment. Interestingly, in Idaho where EPA administers the NPDES permitting program, it has refused to issue NPDES permits for pesticide applications.

Second, and equally important, EPA’s preamble to the rule describes pesticide residues as pollutants subject to CWA restrictions in certain circumstances, including when discharged into regulated discharges of industrial or municipal stormwater. The preamble describes a pesticide residue as "residual materials resulting from pesticides that remain in the water after the application and its intended purpose (elimination of targeted pests) have been completed." 71 Fed Reg at 68487. This description could include aquatic herbicides at concentrations below efficacy levels or trace levels of forest pesticides that make their way into stormwater runoff. Fortunately, the preamble follows this confusing discussion with a statement that such residues are not subject to permitting requirements when associated with the two types of applications exempted by the rule. Also, a footnote in the rule clarifies that nothing in this rulemaking undoes EPA’s prior statement that pesticide application to irrigation return flows systems is a non-point source not subject to NPDES permitting requirements.

Third, as mentioned above, EPA’s rule does not purport to cover pesticide "spray drift" in connection with terrestrial applications or the unintentional discharge of a pesticide that makes its way into waters covered under the CWA, as contrasted with drift from the aerial application of a pesticide to a forest canopy, which EPA has expressly exempted from NPDES permit requirements when CWA covered waters exist below the canopy. Instead, EPA has committed to exploring how and whether to address spray drift through a workgroup formally established under Federal Advisory Committee Act.

Unless and until the states roll back their permitting programs, applicators in the Ninth Circuit, particularly timberland managers, irrigation system managers and others in the regulated community are left to ponder whether to pursue NPDES permits for their activities. Even if the states take the position that NPDES permits are not required, the rule does not prevent environmentalists or other interested citizens from filing lawsuits to compel NPDES permits. Consequently, the courts are likely to continue to wrestle with these issues until and unless Congress legislates a broad statutory fix.

If you have any questions about this update or if you would like our assistance in connection with this matter, please contact one of the following attorneys or another Stoel Rives' Environmental attorney:

Beth S. Ginsberg, bsginsberg@stoel.com, (206) 386-7581
J. Mark Morford, jmmorford@stoel.com, (503) 294-9259
David E. Filippi, defilippi@stoel.com, (503) 294-9529
Kevin J. Beaton, kjbeaton@stoel.com, (208) 387-4214
Michael R. Campbell, mrcampbell@stoel.com, (503) 294-9676
Michael P. O’Connell, moconnell@stoel.com, (206) 386-7692
Barbara A. Brenner, babrenner@stoel.com, (916) 319-4676
Andrew F. Brimmer, afbrimmer@stoel.com, (530) 584-5756