Forest Industry Law Alert: Sixth Circuit Strikes EPA's Aquatic Pesticide Rule
1/9/2009

Yesterday, the Sixth Circuit struck EPA's aquatic pesticide rule in Nat'l Cotton Council of Am. v. EPA, No. 06-4630 et seq., 2009 WL 30292 (6th Cir Jan. 7, 2009). In November 2006, EPA promulgated a new rule concluding that pesticides applied in accordance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) are exempt from Clean Water Act permitting requirements. See 71 Fed Reg 68,483 (Nov. 27, 2006). This rule was in direct response to federal court decisions finding that NPDES permits were required for certain application of aquatic herbicides, e.g., Headwaters, Inc. v. Talent Irrigation Dist., 243 F3d 526 (9th Cir 2001), and for aerial application of pesticides where residue drifts or washes into surface water, League of Wilderness Defenders v. Forsgren, 309 F3d 1181 (9th Cir 2002). In its rule, EPA reasoned that application of aquatic pesticides is not the discharge of a pollutant from a point source, because the pesticide is not a waste at the time it is applied to the water. EPA conceded that residuals from pesticide application are a waste but concluded that such residuals are not discharged from a point source, but are the product of the breakdown of diffuse pesticide after it is in the water. The Sixth Circuit rejected most of EPA's logic.

In particular, the court concluded that biological pesticides are pollutants from the moment they enter the water. The court appears to agree with EPA's interpretation that chemical pesticides are not a pollutant until they become a waste, which the court interpreted as the point at which the pesticide has performed its intended purpose. The court, however, rejected EPA's point source argument and held that such pesticide residuals are discharged by a point source at the moment of the pesticide application. The court did not reach the arguments involving the intersection of FIFRA and the Clean Water Act.

In vacating EPA's rule and providing detailed interpretation of the Clean Water Act, the court catapulted aquatic pesticides back to the post-Talent period, albeit with a broader and clearer opinion. The case is clear that NPDES permits will be required for most applications of aquatic pesticides. The one exception is the possibility of an aquatic pesticide that leaves no residual or excess in the water after completing its intended purpose. The implications of this decision are fairly clear with respect to aquatic pesticides. The case, however, also has implications for aerial or terrestrial application of pesticides that drift or wash into surface waters. The court cites with approval the Forsgren opinion that aerial application is a point source. Given the court's conclusion that the point of application is a point source for excess and residual pesticide, the opinion appears to speak to aerial and terrestrial applications as well as direct aquatic applications. We also note that the court's opinion potentially has broad geographic reach because the case consolidated petitions challenging the rule that were filed in most of the circuit courts, including the Ninth Circuit.

In response to the Talent and Forsgren cases, the Oregon, Washington and California agencies began issuing permits, either individual or general permits, variously for aquatic pesticides and aerial applications. We expect the agencies in these states to continue or resurrect those permitting programs.

If you have any questions about the issues raised in this alert, please contact: