Family Farm Alliance 12/5/06   EPA issues new pesticide rule
The Administrator of the Environmental Protection Agency on November 20, 2006 signed a new rule addressing the application of pesticides in compliance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). This new rule follows in the wake of several recent decisions from federal courts, commencing with Headwaters, Inc. v. Talent Irrigation District, in 2001.

Gary Sawyers, counsel for the Family Farm Alliance, prepared an assessment of this new rule, which is reflected in the attached Issue Alert. (I’ve also pasted the Alert, below).

Dan Keppen
Executive Director
Family Farm Alliance

Issue Alert

EPA Issues New Pesticide Rule

Action Is Latest Response

To Talent, Forsgren Court Rulings

On November 20, 2006, the Administrator of the Environmental Protection Agency signed a new rule addressing the application of pesticides in compliance with the Federal Insecticide, Fungicide and Rodenticide Act (AFIFRA@). 

This new rule follows in the wake of several recent decisions from federal courts, commencing with Headwaters, Inc. v. Talent Irrigation District, a water agency in Oregon, in 2001.

In the Talent Irrigation District case, the Ninth Circuit Court of Appeals held that an irrigation district applying herbicides into its canals as part of routine maintenance was required to obtain an NPDES permit even though the application of the pesticide was subject to a label issued by the EPA in accordance with FIFRA. 

A year later, the Ninth Circuit ruled in League of Wilderness Defenders v. Forsgren that an aerial application of chemicals over a national forest also required an NPDES permit if any of the aerially applied pesticide could reach waters of the United States.  Those cases resulted in a variety of new regulatory constraints on chemical applications within the Ninth Circuit.

Since the Talent Irrigation District decision, a number  of other courts throughout the country  have addressed the applicability of the Clean Water Act=s permitting requirements to chemical and pesticide use.  In addition, several states have implemented (sometimes inconsistent) programs in an effort to comply with Talent Irrigation District. 

The result has been a confused body of case law and regulation that leaves applicators at risk.

Further compounding the confusion was the Ninth Circuit’s 2005 decision in Fairhurst v. Hagener.  There, the court held that pesticides applied directly to a lake in order to eliminate non-native fish species were not subject to Clean Water Act regulation where there were no residues or unintended effects of the chemical application.  Many felt Fairhurst was inconsistent with Talent Irrigation District and Forsgren.

The new regulation promulgated by the EPA is intended to bring some clarity to this confusion.  

It specifically provides that application of pesticides:

§         Directly to waters of the United States in order to control pests in accordance with FIFRA will be excluded from NPDES permitting requirements.

§         To control pests that are present over waters of the United States will also be excluded from the NPDES permitting requirements of the Clean Water Act if the pesticides are applied in accordance with FIFRA. 

The rationale used by the EPA to support the new regulation is that pesticides applied under the above‑listed circumstances are not Apollutants@ and therefore cannot be subject to Clean Water Act permitting requirements. 

In  the  publication  issuing  the new rule, the EPA noted that the new regulation is consistent with Talent Irrigation District and Forsgren because those cases did not interpret the term Apollutant.@  The EPA pointed out that the Ninth Circuit found that residue from the application of the pesticide at question in Talent Irrigation District was a pollutant. 

Accordingly, the EPA believes Talent Irrigation District was decided correctly because the residual materials resulting from pesticide applications in that case were pollutants for Clean Water Act purposes (even under the new regulation).  Had those chemicals not left residue, their application would have been exempt under the new rule.

Similarly, the EPA believes that its new regulation is consistent with Forsgren because the Ninth Circuit erroneously assumed that the question of whether applications were pollutants was not in dispute.  According to the EPA, the Ninth Circuit simply made a mistake by assuming that the chemicals involved were pollutants for purposes of the Clean Water Act.

AS A RESULT OF THE NEW RGULATION, the use of chemicals in canal maintenance would not require an NPDES permit under the Clean Water Act as long as they do not leave any residue or have unintended effects. 

However, in the wake of Talent Irrigation District and Forsgren, many state agencies adopted and implemented their own regulatory schemes addressing the circumstances at issue in those cases, and it remains unclear whether they will withdraw those regulations in light of the new EPA rule or continue to enforce them under separate authority.