Sixth Circuit Court Denies Ag Groups Request for Rehearing

July 7, 2009 Bookmark and Share

The Sixth Circuit Court denied this week an agriculture coalition request for rehearing of a decision concluding pesticide discharge is a point source of pollution subject to additional regulation and permitting under the Clean Water Act (CWA).

The impact of the January decision, made in the case of National Cotton Council of America v U.S. Environmental Protection Agency, is that EPA will almost certainly require producers to obtain National Pollutant Discharge Elimination System (NPDES) permits or some other type of permits for each and every pesticide application, even if applied within label requirements.

In June, the Court ordered a two-year stay of the decision to allow time for EPA and state regulators to implement it properly, but NAWG and other agricultural organizations felt the ruling was wrongly made and requested a rehearing by the entire Sixth Circuit.

In its order this week, the Court disagreed, saying the their review showed “the issues raised in the petition were fully considered upon the original submission and decision of the cases”.

The industry petitioner, the Cotton Council, has 90 days to seek a Supreme Court review of the case, but that seems unlikely due to the time and cost involved and the improbability of a more positive outcome. EPA’s Office of Water has already started to work to establish permitting guidelines, a process in which NAWG and other commodity groups will be involved.

EPA estimates the ruling will affect approximately 365,000 pesticide applicators that perform 5.6 million pesticide applications annually.