By Dylan J. DuVall

Many who know me know that I initially wanted to practice environmental law in some capacity.  Instead, bankruptcy fell onto my plate and gave me the chance to start my own law firm and help those hardest hit by Michigan’s financial conditions.  Nonetheless, I still try to keep up with some of the goings on in the area of environmental law.

Recently in The National Cotton Council of America, et al. v. EPA, File Name: 09a0004p.6, 2009 (slip opinion),  the Federal Court of Appeals for the Sixth Circuit addressed the question of whether the application of pesticides over “waters of the United States” requires a permit under the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. 

To be regulated under the CWA, a substance must meet two requirements; (1) it must be a pollutant, and (2) it must be released from a point source.  The CWA provides a broad list of pollutants, 33 U.S.C. § 1362, so that determination usually involves basic statutory interpretation.  The CWA also defines “point source” but in a broader manner; a point source is “any discernable, confined, and discrete conveyance.” 33 U.S.C. § 1362.

The Environmental Protection Agency (“EPA”) enacted an administrative rule, 71 Fed. Reg. 68,483 (Nov. 27, 2006), (the “Final Rule” at ) declaring that such applications did not require a permit as long as the pesticide was being applied in compliance with the label restrictions required under the Federal Insecticide, Fungicide, and Rodenticide Act (the “FIFRA”).  Beside the EPA, there were of course, two other parties; the “Environmental Plaintiffs” who’s position it was that all discharges should require permits, and the “Industry Plaintiffs” who’s position it was that whether a pesticide is a pollutant should not hinge on whether it is used in compliance with the FIFRA.

There are essentially two types of pesticides that were at issue; chemical pesticides, which are synthetics, and biological pesticides, which are usually fungi, bacteria, or viruses.  The court held that the EPA exceeded their authority in enacting the “Final Rule” because the Clean Water Act’s use of the terms “chemical waste” and “biological materials” as part of the definition of “pollutant” was not ambiguous. 

The court reasoned that “chemical waste” means discarded, superfluous, or refuse chemicals so chemical pesticides applied to water to perform a particular purpose are not “pollutants” and thus do not require a permit.  The court also reasoned though, that if a chemical pesticide enters the water after being applied to land or the air, the need for a permit might arise.  Additionally, if a chemical pesticide leaves a residue in the water after it serves its purpose and effectively becomes a waste, a permit may be required.  The court ultimately left the question of whether the application of a chemical pesticide needs to be permitted to the EPA’s and industry’s experience with that pesticide; if a chemical does not leave a waste product after serving its purpose, its application does not need to be permitted under the CWA, if it does leave a residue, the EPA must regulate its use in accordance with the CWA.

In addressing whether the application of biological pesticides must be regulated under the CWA, the court again looked to the plain language of the CWA and found that the term “biological materials” necessarily includes matter of a biological nature such as biological pesticides since they are biological materials and, when introduced into the water by man, alter its biological integrity.

These lines of reasoning seem straightforward and logical to me and frankly, predictable.  What seems, in my opinion to be the more important argument, is whether the chemical residue that the CWA requires to be regulated is a point source.  The EPA argued that since the chemical pesticide is not a waste at the time of dispersion, it does not come from a point source.  The Court, in a rather bold line of reasoning, countered that there is no temporal requirement in the CWA’s regulation requirement; that is, a substance does not have to be a “pollutant” at the time it is discharged from a point source, it only needs to be a pollutant at some future time.  The Court also reasoned, and the EPA recognized, that Congress intended that pollutants be controlled at the source whenever possible and it is possible to control the use of pesticides in these situations.

So the “Final Rule” was ultimately overturned, what does this mean for us, the public?  First, it means that as long as a chemical pesticide does not leave a residue after it serves its purpose, it can enter the waters of the United States without a permit under the CWA even if it is being used in violation of the FIFRA.  Keeping in mind that there are separate penalties for violations of FIFRA labels, I do not really feel one way or another about this as long as said pesticides truly leave no residue (I’m not a chemist or chemical engineer so I will defer to the experts on this one).  Second, it means that users of chemical pesticides that do leave a residue must be more careful in their application if there is the risk that those pesticides may enter the water.  The upside is that, in theory these pesticides will be kept out, at least in dangerous concentrations, of our waters by the EPA’s permitting requirements.  The downside is that this may have a negative impact on small farmers who must now go through an expensive permitting process or bear the burden of purchasing chemical pesticides that do not leave a residue (I presume these are more expensive, if they are not, everyone who must apply pesticides should use them regardless of permitting requirements). 

Finally, the Court’s ruling helps cement a broader interpretation of a “point source.”  A point source is not only not limited to a non-moveable object, but the court also foreclosed any temporal requirement.  So what you might be asking.  It is my opinion that this opens a whole new group of defendants to liability.  As an example, a county salt truck, spreading road salt (usually magnesium chloride) near Lake Saint Claire, deposits some of its load too close to a stream and some of the salt enters the stream after melting the ice on the road.  The truck is a point source and, while it is serving a purpose when it is discharged, once it has served that purpose and has entered the water, it is a chemical waste and arguably, the initial application of the salt should have been permitted under the CWA.  This is at the far end of the spectrum and will likely never be litigated but it just illustrates how a seemingly narrow holding in the area of pesticide application can effect our every day lives.

It should be interesting to see whether any of the major environmental groups pick up on this aspect of the ruling since they are the ones that initiate most environmental actions these days.  My prediction, though limited by my lack of practice in the environmental arena, is that we have not seen the last of litigation over the temporal aspects of the term “point source.”