The Environmental Protection Agency appears to be leaning toward a broad interpretation of the Sixth Circuit Court of Appeals ruling in the case of National Cotton Council vs. EPA, an interpretation that could cause rice producers and others considerable financial hardship.
But the EPA will have a fight on its hands if it tries to push ahead with any plan to force growers to request NPDES (National Pollutant Discharge Elimination System) permits each time they apply a pesticide to, over or near the waters of the United States.
The potential legal donnybrook stems from the Sixth Circuit’s decision in favor of environmental activist claims that the EPA erred in a 2006 rule that said NPDES permits are not required when applications of pesticides to, over or near waters of the United States are consistent with labeling of the products under the Federal Insecticide, Fungicide and Rodenticide Act.
“EPA is publicly considering the Sixth Circuit ruling narrowly, but, if they and the environmental community thought they could get away with it they would certainly prefer a broader interpretation,” says Beau Greenwood, executive vice president of CropLife America. “It is our responsibility to make sure they don’t get away with it.”
Greenwood, a speaker at the USA Rice Federation’s Rice Outlook Conference in New Orleans, said the Sixth Circuit ruling and EPA’s development of new permitting requirements could have a major impact on all farmers and pesticide applicators, but especially those who grow rice.
“As a result of the Sixth Circuit ruling in the National Cotton Council case, the EPA is considering rice and others like cranberries as farmed wetlands,” he said. “This decision has not yet been made. The question would then become, if they do decide to do that as farmed wetlands, are they then considered jurisdictional waters under the Clean Water Act?
“If EPA decides in the affirmative, then every application of pesticides to flooded rice fields would require Clean Water Act NPDES permits. What constitutes a jurisdictional water of the U.S. as defined by the Clean Water Act is a matter that is currently being hotly debated on Capitol Hill, as you no doubt are aware.”
Greenwood said environmentalists’ efforts to expand the overall reach of the Clean Water Act are currently bottled up in the U.S. Senate. Because rice production is potentially in the bulls-eye of the Sixth Circuit ruling, rice producers need to understand what is at stake.
Efforts by environmental groups to alter the Clean Water Act over the past decade have created uncertainty about the CWA and FIFRA for farmers and the pesticide manufacturers represented by CropLife America.
“In 2006, EPA promulgated a rule designed and intended to clarify this matter. The rule stated the Clean Water Act NPDES permits are not required when applications of pesticides to, over or near waters of the U.S. are consistent with FIFRA labels,” he noted.
“Most importantly, we agree with the EPA rule that pesticides remaining after treatment are non-point source residues and therefore not pollutants. Unfortunately, the Sixth Circuit disagrees. They ruled residues are pollutants and do require Clean Water Act NPDES permits. This is a game-changer for all of us.”
When the Sixth Circuit Court found that pesticide residues are pollutants, it satisfied the final necessary criteria to require NPDES permits. “The court rationalized, incorrectly we believe, that “but for the application of the pesticide, the pesticide residue and excess pesticide would not be added to water. Therefore, the residues were discharged from a point source into waters of the U.S. and thus are subject to NPDES permits.
“What to keep your eye on is whether or not EPA implements the Sixth Circuit ruling narrowly; that is to say, to, over or near waters of the U.S. or more broadly, and in so doing, decides to take on production agriculture generally and the existing agricultural exemption specifically.”
Rice is certainly not alone. If NPDES permits are required for all applications, it could include control of weeds in and adjacent to canals, lakes and rivers. It could also include insect control in forest canopy, mosquito control in and over waters of the U.S., and pest control in golf courses, parks and home and garden maintenance.
The Sixth Circuit granted EPA a two-year stay to April 2011 to give it time to develop an NPDES program. CropLife America and other agricultural stakeholders, including the American Farm Bureau Federation, the American Forest and Paper Association and the National Cotton Council among others have filed “friend of the court” petitions in the case.
“Realistically, the legal challenges are long shots at this point, but we are going to play every card until it’s been exhausted. We don’t expect to hear from the Supreme Court on our application until later in 2010.”
The 2006 EPA rule will remain in effect until the court stay giving EPA until April 2011 to implement an NPDES permit program expires.