Congress to the Rescue? An Update on the Sixth Circuit Case

October 22, 2010 Bookmark and Share

By Stewart D. Fried, Esq.

Can wheat growers apply pesticides without a Clean Water Act (CWA) permit?

The answer to that question has been largely unsettled since January 2009, when the Sixth Circuit Court of Appeals vacated the Nov. 26, 2006, Environmental Protection Agency (EPA) Final Rule. The Final Rule exempted pesticides applied in accordance with FIFRA labels from the Clean Water Act’s (CWA) NPDES permitting requirements.

In National Cotton Council of America v. U.S. Environmental Protection Agency, the appeals court concluded that the Final Rule was inconsistent with the unambiguous language utilized by Congress in the Clean Water Act and did not further the general goal of restoring and maintaining the integrity of the Nation’s waters.

Two-Year Stay

Shortly after the opinion was issued, NAWG and other agricultural interest petitioned the court for rehearing en banc. Although it declined to join growers seeking rehearing, EPA requested that the Sixth Circuit stay enforcement of its ruling for a two-year period. During June 2009, although it did deny the wheat growers’ petition, the Court entered a stay of its ruling until April 2011 in order to afford EPA and delegated states time to develop a general permit for pesticide applications covered by the ruling.

Draft General Permit

On June 2, 2010, EPA issued a draft permit that would set general conditions for point source discharges from the application of pesticides to waters of the United States, which includes rivers, streams and tributaries thereof (regardless of navigability), as well as adjacent wetlands.

The draft Pesticides General Permit (PGP) is limited, however, to the application of biological pesticides and chemical pesticides that leave a residue, when applied for “mosquito and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal control, and forest canopy pest control.”

The EPA advised stakeholders that land applications to control pests on agricultural crops are not covered by the PGP. Thus, the PGP would likely provide little or no benefit to wheat growers who apply pesticides to their fields.

Absent a substantial expansion of the scope of the PGP, this will have profound impacts on wheat growers and other farmers. Growers will likely be required to obtain individual NPDES permits prior to the application of pesticides to their fields. At this time, neither the states nor the EPA is currently able to handle the onslaught of individual permit applications which will likely occur during early 2011 from wheat (and other row crop) growers in the event that the PGP is not expanded to include land application of pesticides.

Congress to the Rescue?

Twelve members of the House of Representatives, including House Agriculture Committee Chairman Collin Peterson (D-Minn.) have co-sponsored legislation designed to remedy the problems caused by the National Cotton and draft Pesticides General Permit. On Sept. 30, 2010, Chairman Peterson introduced H.R. 6273 to amend FIFRA and the CWA to exempt the application of all pesticides applied in conformance with the FIFRA label from CWA NPDES permitting requirements.

If passed by Congress and signed into law by President Obama, this amendment would constitute a de facto legislative overruling of National Cotton and immediately obviate the need for wheat growers to obtain an individual permit and thereby cure the impending problems for wheat growers caused by that decision and the draft PGP.

Unfortunately, with Congress in recess until after the midterm elections, it is doubtful that this straight-forward amendment will receive a floor vote during the short lame-duck session(s). On a positive note, passage of this remedial legislation may be more likely during 2011, given the expected increase in the numbers of Republicans in the House and Senate during the 112th Congress.

Until that happens, the ability of wheat growers’ to continue the application of pesticides without needing a CWA permit remains in dire jeopardy.

Editor’s note: Fried is an attorney in the Washington, D.C., office of Kilpatrick Stockton LLP and serves as NAWG’s counsel.