On November 27, 2006, EPA issued a rule excluding from permit requirements under the Clean Water Act the application of pesticides consistent with all relevant requirements under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") in two circumstances: direct application to waters of the United States in order to control pests and to control pests that are present over waters of the United States, including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of the United States in order to target the pests effectively. 40 C.F.R. 122.3(h), 71 FR 68492. The regulation used as examples mosquito larvae, aquatic weeds and other pests.
EPA's 2006 rule was challenged in virtually all circuit courts. The cases were consolidated in the Sixth Circuit. On January 7, 2009, the rule was vacated by a three-judge panel. National Cotton Council of America v. EPA, 6th Cir., No. 06-4630. The court declined to defer to EPA's conclusion that the rule was a reasonable interpretation of the Clean Water Act's permitting requirements, rejecting as contrary to Congressional intent EPA's argument that pesticides are not considered pollutants when used in compliance with FIFRA.
Prior rulings held that permits were required for certain pesticide applications. In Headwaters Inc. v. Talent Irrigation District, the Ninth Circuit held that an herbicide applicator was required to obtain a discharge permit to place herbicides in irrigation canals. In 2002, the Ninth Circuit ruled that spraying for gypsy moths was subject to permitting. League of Wilderness Defenders v. Forsgren. That same year the Second Circuit urged EPA to articulate whether discharge permits are required for application of pesticides in compliance with relevant requirements of FIFRA, Ultam v. Amherst.
The Sixth Circuit's ruling may be appealed to the full circuit en banc or a petition for certiorari to the Supreme Court may be filed. It is unlikely that a decision regarding future appeals will be made by EPA prior to the inauguration of President Obama, but it is possible that another party will take the initiative with regard to further appeals. Spraying mosquito larvae to prevent the spread of West Nile Virus has occurred in Pennsylvania over strenuous objections from some. Pesticides are also used to combat other unwanted species on golf courses and elsewhere. Gypsy moths have also been the subject of extensive spraying activities.
Based on Cotton Council, pesticide applications that arguably affect waters of the United States are subject to CWA permit requirements. In the absence of aggressive enforcement by states or EPA, environmental groups may use the citizen suits provisions to attempt to prevent pesticide application, at least in the short term. Landowners who plan pesticide application should communicate with state agencies with jurisdiction over discharge permit programs to ascertain what, if anything they can do to assure compliance. The permit process takes time so applications should be filed in the near term if spraying is planned later in the year.
EPA chose to defend its regulation by emphasizing the statutory definition of "pollutant" rather than by addressing the definition of "discharge of a pollutant," which includes a requirement that the discharge occur from a "point source, which is "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." Agricultural storm water discharges and return flows from irrigated agriculture are statutorily excluded. 33 U.S.C. 1362(14). Aerial activities are not expressly within the definition although the Supreme Court accepted the proposition that missiles used in target practice that miss their targets and hit water are subject to CWA permitting. Weinberger v. Romero-Barcelo. While possibly an uphill battle, an argument that airplanes are not confined and discrete conveyances has potential. Whether or not Cotton Council is subjected to further judicial review, the 2006 regulation is no longer in effect to protect those applying pesticides in or near jurisdictional waters. Anyone receiving a notice of intent to file a citizen suit should seek a permit or consider potential defenses, as penalties for violations of the Clean Water Act are substantial.
It should be noted that the term "waters of the United States" has been the subject of continuing controversy. On December 2, 2008 EPA and the Corps of Engineers issued a memorandum, available at www.epa.gov/owow/wetlands/guidance/CWAwaters.html, providing guidance on the subject. The issue is likely to receive increased attention in the 111th Congress.
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