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Court Cancels EPA Clean Water Act Exemption for Pesticides

Environmental News Service
January 7, 2009


Cincinnati, Ohio - Environmental groups today
celebrated their victory as an appeals court vacated a U.S. Environmental
Protection Agency rule that has allowed pesticides to be applied to U.S.
waters without a Clean Water Act permit.

On November 27, 2007, the EPA issued the final rule, which states that
pesticides applied in accordance with the Federal Insecticide, Fungicide,
and Rodenticide Act, or FIFRA, are exempt from the Clean Water Act's
permitting requirements.

The Clean Water Act regulates the discharge of pollutants into the
nation's waters by, among other things, requiring entities that emit
pollutants to obtain a National Pollutant Discharge Elimination System,
NPDES, permit.

For nearly 30 years before adoption of the rule, pesticide labels issued
under the FIFRA were required to contain a notice stating that the
pesticide could not be "discharged into lakes, streams, ponds, or public
waters unless in accordance with an NPDES permit."

Two different groups of petitioners, one representing environmental
interest groups and the other representing industry interest groups, for
different reasons opposed the rule as exceeding the EPA's interpretive
authority.

The EPA defends the rule by arguing that the terms of the Clean Water Act
are ambiguous and that the rule is a reasonable construction of the Clean Water Act.

In their decision, a three-judge panel of the 6th Circuit Court of Appeals
wrote, "We cannot agree. The Clean Water Act is not ambiguous. Therefore,
we hold that the EPA's Final Rule is not a reasonable interpretation of
the Act and vacate the Final Rule."


"The decision today is a victory for clean water, and for fish and
wildlife," declared Charlie Tebbutt, Western Environmental Law Center
attorney and lead counsel for the environmental organizations and organic
farms that challenged the rule.

The organizations bringing the case include Baykeeper, National Center for
Conservation Science and Policy, Oregon Wild, Saint John's Organic Farm,
Californians for Alternatives to Toxics, California Sportfishing
Protection Alliance, Waterkeeper Alliance, Environment Maine, Toxics
Action Center, Peconic Baykeeper and Soundkeeper.

"This decision is another in a long line of rebukes to the Bush
administration policies that overstepped their statutory authority and to
the chemical manufacturers who peddle their poisons without concern to the
effect on human health and the environment," said Tebbutt. "We look
forward to working with the new EPA to protect the environment rather than
the chemical industry."

The industry petitioners were the Agribusiness Association of Iowa, BASF
Corporation, Bayer CropScience, CropLife America, Delta Council, Eldon C.
Stutsman, Inc., FMC Corporation, Illinois Fertilizer & Chemical
Association, The National Cotton Council of America, Responsible Industry
for a Sound Environment, Southern Crop Production Association, and
Syngenta Crop Protection, Inc.

With the intention of broadening the EPA exemption, they argued that the
EPA rule is "arbitrary and capricious" because it treats pesticides
applied in violation of the FIFRA as pollutants, while it treats the very
same pesticides used in compliance with the FIFRA as non-pollutants.
The court denied their claim and ruled that pesticide residues and
biological pesticides constitute pollutants under federal law and
therefore must be regulated under the Clean Water Act in order to minimize
the impact to human health and the environment.

"This decision will help ensure, in communities across the country, that
aquatic pests are addressed in ways that protect both water quality and
the public health," said Chuck Caldart of the National Environmental Law
Center, one of the attorneys representing the plaintiffs.

"We're thrilled by the court's decision - particularly in providing
clarity on the aerial applications of pesticides over navigable waters for
mosquito control," said Peconic Baykeeper Kevin McAllister. "Ensuring that
the required discharge permits have been obtained provides for greater
protection of our water resources."

"Time and again during these past eight years EPA has walked into federal
courts and tried to defend absolutely indefensible rules like the one
vacated today," said Waterkeeper Alliance Legal Director Scott Edwards.
"And time and again they've been sent back to the drawing board to rewrite
these unlawful rules. Hopefully, EPA's days of pandering to industry and
other polluters and wasting taxpayers dollars in illegal rulemaking are
drawing to a welcome close."

"This is a significant victory for our nation's waters. More than eight
million pounds of pesticides are applied each year in the Bay Area alone,"
said Sejal Choksi, program director for San Francisco Baykeeper. "These
toxic chemicals enter our creeks harming numerous species of fish, frog
and other aquatic life and will now be regulated under the Clean Water Act."

"Pesticides have been documented as the most pervasive group of toxic
pollutants in our waterways. This decision is a significant step forward
in protecting and restoring our seriously degraded fisheries," said Bill
Jennings, chairman and executive director of the California Sportfishing
Protection Alliance.

Steve Pedery, Oregon Wild conservation director, said, "When it comes to
toxic pesticides and their effects on our rivers and salmon, we need to be
certain that good science is being used and those resources are protected.
This ruling is a victory for clean water and fish, and a victory for
Americans who care about healthy rivers and streams."

 

 

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