Court Further Expands Reach of Clean Water Act to Agricultural Activities

January 13, 2009

A Federal Circuit Court of Appeals has ruled that even though a pesticide complies with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the pesticide is not exempt from the Clean Water Act’s permitting requirements. As a result, the court invalidated an EPA regulation made final in late 2007, and the impact of the court’s ruling will be to broaden the potential application of the CWA to agricultural activities.

The EPA’s final rule excluded pesticides from the CWA’s permitting requirements so long as the pesticides complied with the labeling requirements of FIFRA. FIFRA is the law that requires registration of all pesticides intended to prevent, destroy, repel or mitigate certain pests. FIFRA also regulates pesticide use and requires certification of all pesticide applicators. Importantly, the EPA cannot register a pesticide for use (or approve its label) unless it determines that that pesticide will not have “unreasonable adverse effects on the environment.” So, by definition, a pesticide that meets FIFRA requirements does not have any unreasonable adverse effects on the environment. Thus, EPA’s final rule makes sense – if a pesticide won’t have any unreasonable adverse effect on the environment (i.e., it satisfies FIFRA), then it should also be exempt from the CWA permitting requirements. But, environmental groups challenged the rule, arguing that the EPA has overstepped its authority by excluding “pesticide residuals” from the definition of pollutants, deeming pesticides a “nonpoint source pollutant,” and exempting FIFRA-compliant pesticides from CWA requirements. The EPA, on the other hand, argued that its decision was a "reasonable construction" of the Clean Water Act.

Judge Cole, writing for the Sixth Circuit, concluded that the CWA clearly establishes a list of pollutants that don't require permits, and noted that pesticides are not on that list. The court also rejected the EPA's attempt to introduce a temporal restraint to the meaning of the phrase "discharge of a pollutant." EPA claimed (based on the plain language of the CWA) that pesticide residue is not subject to the permitting program, because "at the time of discharge ... the material in the discharge must be both a pollutant, and from a point source." But the court said that if it adopted the plain statutory meaning, "discharges that are innocuous at the time they are made but extremely harmful at a later point would not be subject to the permitting program." Thus, the court vacated the EPA’s final rule. But, that conclusion doesn’t seem correct. As noted above, to meet the FIFRA requirements, a pesticide must not have any unreasonable adverse effects on the environment. So, a FIFRA-approved pesticide is not a “pollutant” for CWA purposes. Seems as if the court was a bit confused on the issue.

Also, while the CWA clearly applies to the discharge of a pollutant from a point-source, pesticide residue is something that occurs after a discharge occurs. In addition, other federal courts have ruled that pesticides applied consistent with FIFRA are not “chemical wastes” (i.e., not “pollutants”) and no CWA permit is required. But, some of these courts have reached this conclusion only when the pesticide leaves no residue.

Stay tuned for further developments on this issue. The court’s opinion doesn’t seem well reasoned and doesn’t appear to be a good outcome for agriculture. The National Cotton Council of America, et al. v. United States Environmental Protection Agency, No. 06-4630, 2009 U.S. App. LEXIS 45 (6th Cir. Jan. 7, 2009).

Note: In case you’re keeping score, both Iowa Senators (Grassley and Harkin) voted to confirm Judge Cole, a Clinton appointee.