January 2009 – DECISION:  National Cotton Council of America  v. EPA

You may be interested in the attached decision out of the Sixth Circuit, National Cotton Council v. EPA, 2009 WL 30292 (6th Cir. Jan. 7, 2009), which held that NPDES permits are required for applications of aquatic pesticides in and around rivers, lakes, and other waterbodies. This decision affects, among others, farmers, land managers, and developers who routinely use the pesticides to protect their land.

On November 27, 2006, the EPA issued a final rule exempting the application of aquatic pesticides in compliance with FIFRA from the CWA. Environmental and industry groups subsequently challenged EPA’s final rule in eleven circuit courts throughout the United States — the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits. The petitions for review in each such circuit  were consolidated in the Sixth Circuit by an order of the Judicial Panel on Multidistrict Litigation. A number of industry groups also intervened in support of the final rule.

In National Cotton Council, the Court held that EPA’s final rule was not a reasonable interpretation of the CWA since the plain language of the terms “chemical waste” and “biological materials” unambiguously include aquatic pesticides. Accordingly, the Court vacated EPA’s final rule. The Court did not analyze arguments addressing the relationship between the CWA and FIFRA.

Because the multidistrict challenges were consolidated in this one action, the Sixth Circuit’s decision affects states in eleven circuits, including the Ninth Circuit. Applicators will need an NPDES permit to apply aquatic pesticides into, around, and over water in most instances.  NPDES permits will not be required, however, for applications of chemical pesticides that leave no residue in receiving waters. States are expected to review their current NPDES permitting requirements for aquatic pesticide use in light of the court’s decision.

If you require assistance or have further questions, please contact
Amy Bauer

251-533-6949

Amy.Bauer@ehs-support.com

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