6th Circuit Court/ NPDES Permit Issue

On January 7, 2009 the 6^th Circuit Court of Appeals struck down a rule issued by the Environmental Protection Agency (EPA) in 2006 regarding the application of aquatic pesticides.   The court held that Clean Water Act (CWA) permits are required for pesticide applications "in, over, or near" waters of the U.S.  This decision has significant impacts on agricultural production in the U.S. as it would require permits for all aquatic pesticide applications and likely a large number of terrestrial applications.  

NASDA sent a letter April 7, 2009 to EPA administrator Lisa Jackson urging the agency to file a request to the 6th Circuit Court for a rehearing of the court’s ruling on Clean Water Act permits for certain pesticide applications.  NASDA believes the court’s ruling is in direct conflict the agriculture exceptions in the Clean Water Act and urged EPA to appeal the ruling to the U.S. Supreme Court if necessary.  However, on April 9, EPA announced it would not seek a rehearing, but will file a Motion for Stay of the Mandate for a period of two years.

Although EPA refused to ask for a rehearing, a coalition of agriculture interests has requested that the full 6^th Circuit rehear the case.   On April 24, the court directed the environmental groups participating in the case to respond by May 8 to a rehearing petition filed by a coalition of agriculture interests, and supported by NASDA.  

If the Court’s decision stands, agricultural producers will be required to obtain a permit for an estimated 5.6 million pesticide applications annually.  Currently, no permitting system is in place to handle the dramatic increase in permit applications.  Furthermore, the Court’s ruling has placed producers in legal jeopardy under the Clean Water Act’s citizen-action provisions.