Supreme Court Lets Stand Pesticide Use Permitting to Protect Waterways


(Beyond Pesticides, February 26, 2010)

The U.S. Supreme Court refused Monday to review a U.S. Circuit Court decision in National Cotton Council (NCC) v. Environmental Protection Agency (EPA), upholding EPA’s authority to subject pesticide use to a permitting process under the Clean Water Act (CWA). In January of 2009, the 6th Circuit Court of Appeals upheld the ruling that commercial application of certain pesticides must be regulated under the Clean Water Act. EPA is now working to create a permitting system that complies with the ruling under the National Pollutant Discharge Elimination System (NPDES). This is one of three high profile cases the Supreme Court refused to hear involving industry challenges to government regulations.

In the case of the Texas Water Development Board v. the Department of Interior, local government intended to build a reservoir in an area designated by the U.S. Fish and Wildlife Service (FWS) as a wildlife refuge. The U.S. 5th Circuit Court of Appeals found that the FWS did not violate the National Environmental Policy Act when it created the refuge, and so a reservoir cannot be constructed in that area.

In the case of Rose Acre Farms Inc. v. the United States, an egg producer sued the government for damages after the U.S. Department of Agriculture (USDA) destroyed some of the farm’s eggs in an effort to contain an outbreak of salmonella that was traced back to the farm. The Court of Federal Claims originally awarded Rose Acre Farms $5.4 million in damages, but that ruling was overturned by the U.S. Court of Appeals for the Federal Circuit. Environmentalists were concerned that a reversal of the Appeals Court decision would discourage government agencies from enforcing regulations.

The NCC v. EPA decision overturned a 2006 Bush Administration rule, condemned by environmentalists, which exempted certain pesticide applications from CWA regulations. In cases when pesticides are applied directly to water to control pests such as mosquito larvae or aquatic weeds, or pesticides are applied to control pests that are present over or near water (where pesticides invariably drift into local water bodies) applications were held to the much less stringent standards of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). FIFRA unlike the CWA does not fully regulate or oversee water quality and the protection of aquatic ecosystems in the local context. When a pesticide is registered under FIFRA the dangers of heightened toxicity due to combinations of chemicals, and chemical drift are not fully considered. EPA, in implementing FIFRA, uses controversial and many studies say inadequate exposure and need assumptions in its risk assessment and does not take least-toxic alternatives into account. CWA in contrast uses a health-based standard setting maximum contamination levels to protect waterways and requiring permits when chemicals are directly deposited into rivers, lakes and streams.

Numerous conservatives and farm industry trade groups have criticized the Supreme Court’s decision not to review the case, arguing waterways are adequately protected under FIFRA, and requiring farmers to obtain a permit under CWA will only increase bureaucratic red tape. The National Association of Wheat Growers called the Appeals Court’s decision a major defeat for American agriculture. Bob Stallman, president of the American Farm Bureau Federation, said in a statement, “All farmers know they must use chemicals properly. Going through redundant bureaucratic red tape for a duplicate permit to apply a safe product is preposterous. That kind of regulatory overkill will not improve food safety or the environment.”

Conservationists disagree, saying the new regulations will better protect the local environment and human health by requiring the regulatory agencies to evaluate the effects of pesticide applications on fish and wildlife, and to monitor the amount of pesticides in the country’s waterways. Communities near application sites will also gain some say in what pesticides are added to their waterways, as the NPDES permits also allow local citizen input. Charlie Tebbutt, lead council for the environmental organizations and the organic farm that challenged the Bush administration’s rule, said, “We look forward to making sure that the EPA and state permitting processes will protect people and increase protections for clean water, fish and wildlife.”

NY Times, Western Environmental Law Center Press Release