Petition for Writ of Certiorari — CropLife America v. Baykeeper

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‘US.

Supreme Coe,

09-533 NOV2 - 2009

No. OFFICE OF THE CLERK

Jn the

Supreme Court of the Anited States

CROPLIFE AMERICA, et al.,

Petitioners,

BAYKEEPER, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Of Counsel KENNETH W. WEINSTEIN

DOUGLAS T. NELSON Counsel of Record

JOSHUA B. SALTZMAN CLAUDIA M. O’BRIEN

CROPLIFE AMERICA STACEY L. VANBELLEGHEM

1156 15th Street, NW LATHAM & WATKINS LLP

Suite 400 555 11TH STREET, NW

Washington, D.C. 20005 SUITE 1000

(202) 296-1585 WASHINGTON, DC 20004

(202) 637-2200

Counsel for Petitioners

Agribusiness Association of

Iowa, BASF Corporation,

CropLife a FMC

Corporation, Responsible

Industry for a Sound

Environment, Southern Crop

Production Association and

Syngenta Crop Protection, Inc.

QUESTIONS PRESENTED

Since Congress enacted the Clean Water Act

(“CWA”) in 1972, the Environmental Protection

Agency (“EPA”) has never subjected the use of

pesticides in, over, or near waters to permitting under

the CWA’s National Pollutant Discharge Elimination

System (“NPDES”) program. In 2006, EPA issued a

Final Rule ratifying that settled practice and

establishing that pesticides applied in accordance with

the Federal Insecticide, Fungicide, and Rodenticide

Act (“FIFRA”) are exempt from the CWA’s

permitting requirements in two specific circumstances.

Petitions challenging that Rule were filed in eleven

different circuits and consolidated before the Sixth

Circuit. The Sixth Circuit held that the CWA

unambiguously foreclosed EPA’s interpretation and

invalidated the Final Rule. Its decision not only

reverses more than 35 years of administrative practice,

but mandates the greatest expansion of the NPDES

program since the CWA was enacted. The questions

presented are:

1. Did the Sixth Circuit erroneously conclude—

in conflict with the decisions of this Court and other

circuits—that the CWA unambiguously forecloses

EPA’s Rule?

2. Did the Sixth Circuit improperly substitute

its judgment for that of the expert agency charged

with administering the CWA?

3. Should the Court grant the petition, vacate

the decision below, and remand for consideration in

light of Burlington Northern & Santa Fe Railway Co.

v. United States, 129 S. Ct. 1870 (2009)?

LIST OF PARTIES

1. Industry Petitioners/Intervenors were

Agribusiness Association of lowa, American Farm

Bureau Federation, American Forest & Paper

Association, BASF Corporation, Bayer CropScience,

CropLife America, Delta Council, Eldon C. Stutsman,

Inc., FMC Corporation, Illinois Fertilizer and Chemical

Association, The National Cotton Council of America,

Responsible Industry for a Sound Environment,

Southern Crop Production Association, and Syngenta

Crop Protection, Inc.

2. Environmental Petitioners were Baykeeper,

Californians for Alternatives to Toxics, Calitornia

Sportfishing Protection Alliance, Environment Maine,

National Center for Conservation Science and Policy,

Oregon Wild, Peconic Baykeeper, Inc., Saint John’s

Organic Farm, Soundkeeper, Inc., Toxics Action

Center, and Waterkeeper Alliance.

3. The Environmental Protection Agency was

the respondent.

RULE 29.6 STATEMENT

Agribusiness Association of Iowa. Agribusiness

Association of Iowa has no parent corporation and no

publicly held corporation owns 10% or more of its

stock.

BASF Corporation. BASF Corporation is the

wholly owned subsidiary of BASF Americas

Corporation, which in turn is 100% owned by BASFIN

Corporation, which in turn is 100% owned by BASF

Aktiengessellschaft.

iii

CropLife America. CropLife America has no

parent corporation and no publicly held corporation

owns 10% or more of its stock.

FMC Corporation. FMC Corporation has no

parent corporation and no publicly held corporation

owns 10% or more of its stock.

Responsible Industry for a Sound Environment.

Responsible Industry for a Sound Environment is a

standing committee of CropLife America and is not a

separate legal entity. Responsible Industry for a

Sound Environment has no parent corporation and no

publicly held corporation owns 10% or more of its

stock.

Southern Crop Production Association. Southern

Crop Production Association has no parent corporation

and no publicly held corporation owns 10% or more of

its stock.

Syngenta Crop Protection, Inc. Syngenta Crop

Protection, Inc. is a wholly owned subsidiary of

Syngenta Seeds, which in turn is 100% owned by

Syngenta Corporation, which in turn is 100% owned by

Syngenta Participations Ag, which in turn is 100%

owned by Syngenta AG.

QUESTIONS PRESENTED

LIST OF PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

TABLE OF CONTENTS

Statutory Backgroun ................:ccceseeeeeeeeeeees

CWA Litigation Over Pesticide

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The Sixth Circuit’s Decision................esceeeee

EPA’s Response to the Decision................+.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW IS

PROFOUNDLY MISGUIDED AND

CONFLICTS WITH THE DECISIONS

OF THIS COURT AND OTHER

Ce UE Aetiretshecsatin taestavledssttesentatesnenetbasciace

A. The Sixth Circuit’s Decision

Disregards Settled Principles

Governing The Deference Owed To

Agency Statutory Interpretations.......

COCO ESET EE AAEEESEEEEEEEBBEEED

SOAS OSESS ES ESSREHEAEEEEEEEEO ROSE HEHEEEOOH EERE EEE

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SCECOTE SEES SEESESEH ESS ESESEEEES

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STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

COSHH HHO TECHS SSEEESEBOEEESE

TABLE OF CONTENTS—Continued

Page

B. The Sixth Circuit’s Decision

Conflicts With The Decisions Of This

Court And Other Circuits

Construing Similar Statutory

eve disseabauens 17

C. The Sixth Circuit’s Decision Belies

The Text, Structure, And History of

the CWA, As Well As EPA’s

Longstanding Interpretation Of The

BIE cis cde dessdibadis uroaNaacthtntdhadtevekonsubibcnicntennine 22,

II. THE SWEEPING PRACTICAL

IMPACT OF THE DECISION BELOW

UNDERSCORES THE NEED FOR

TE CU Re FEE VEG Wy cocesccccscensenscsencssorscrscnses 28

A. The Sixth Circuit’s Decision

Represents The Most Dramatic

Expansion of the NPDES Program

Since Enactment Of The CWA.................0 29

B. The Sixth Circuit’s Decision

Threatens Essential Activities That

ys By RO + ee nee 30

lil. AT A MINIMUM, THE COURT

SHOULD GVR THE CASE FOR

CONSIDERATION OF THE COURTS

INTERVENING DECISION IN

BURLINGTON NORTHERN .........scsssssseceeseees 33

ae MEE I intcrescsirias daccacnivtasnsticiasiasnasddeniataipnnsesivamaiteles 35

Page

APPENDIX TABLE OF CONTENTS

Opinion of the United States Court of Appeals

for the Sixth Circuit, National Cotton

Council of America v. United States

Environmental Protection Agency, 553 F.3d

I IIc cdnddisossnsmnapinctiniantsnnsosenensncseiecees la

Final Rule, Application of Pesticides to Waters

of the United States in Compliance with

FIFRA, 71 Fed. Reg. 68,483 (Nov. 27, 2006)....... 26a

Order of the United States Court of Appeal for

the Sixth Circuit Denying Rehearing,

National Cotton Council of America v.

United States Environmental Protection

Agency, No. 06-4630 (6th Cir. Aug. 3, 2009) ........ 64a

I os cciacceavenueasneabintinninsebiaie 66a

ee, TED... cssnobansbnsbnusonnosuneusenebennne 68a

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ee ada MERCED ccicnsssasnstessescesesssoncesceseasnebetensies 79a

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Vii

APPENDIX TABLE OF CONTENTS—Continued

Page

Be rare IN TIE Gesristoencitesiitataneesemastannincanianmauiedin 85a

Se ers IE, CID vivestnsess cniiscicincsitntaiennsemeantinemnanstii 9la

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I ee IT icteiciiseisasstiisaceseaschtnanbienaiisensniiaipeniinionnia 103a

40 C.F.R.§261.2(a)(1), (b)(1), (C)CT) (AI) «..esseeesesereeessnees 104a

Respondent United States Environmental

Protection Agency’s Motion for Stay of

Mandate, National Cotton Council of

America v. United States Environmental

Protection Agency, No. 06-4630 (and

consolidated cases (6th Cir. filed Apr. 9,

SETI sieucceebistingidh heiaisndihanmndieadaeiebeidiaananiiaalacaniniasieeniiiediosiil 105a

Exhibit 1: Declaration of James A. Hanlon...... 124a

Exhibit 2: Declaration of Teung F. Chin,

SPIT: solispceiciscalcdanicehdiatndicshstdcladssnaskieh adialeda siaudbldeitidabuagans 152a

Exhibit 3: Declaration of Erik S. Anderson..... 164a

viii

APPENDIX TABLE OF CONTENTS—Continued

Page

Respondent United States Environmental

Protection Agency's Response to Petition

for Rehearing En Banc, National Cotton

Council of America v. United States

Environmental Protection Agency, No. 06-

4630 (and consolidated cases (6th Cir. filed

FORD Fe Se stscvckisciadessriaderaticinbicasencameanianints 168a

TABLE OF AUTHORITIES

Page(s)

CASES

Altman v. Town of Amherst,

N.Y., 47 Fed. Appx. 62 (2d Cir. 2002) .........c:cceseeesees 6

Association to Protect Hammersley, Eld, &

Totten Inlets v. Taylor Resources, Inc.,

gE ) 22

Barnhart v. Walton,

cis srasnessusncenessevererecnsceeee 26

Burlington Northern & Santa Fe Railway Co. v.

United States,

eR) ) 13, 17, 18, 19, 21

Chevron v. Natural Resources Defense Council,

IT IIIS cc necconscessescnoccronsecccnscecccesconeceees 13, 16

Chisom v. Roemer,

IIIT Dis... scocccocsnsesescececcscocosecescescvecconeses 27

Coeur Alaska, Inc. v. Southeast Alaska

Conservation Council,

EE I SEETIIDD «-.«cococconccesenccccsccccocescccecosees 18, 26

Cordiano v. Metacon Gun Club,

EP OEE GRE, SU) cccccccscccccsccevesccccovecccecees 20, 21

Entergy v. Riverkeepers,

NE EE SEEIIIESD . ccccssosssssevossvccsessessecceccosssosess 22, 26

TABLE OF AUTHORITIES—Continued

Page(s) -

Environmental Defense Center, Inc. v. EPA,

344 F.3d 832 (9th Cir. 2003), cert. denied, 541

Calis. MI ITE inks cehaaentnaeeccenbdesiiatasnaunimetintartadegieents 32

FDA v. Brown & Williamson Tobacco Corp.,

Be SEs Se EE cibnicenecatcansitinicnnsaiiiniainenteia 25, 28

Fairhurst v. Hagener,

GEE FBG LEGS COG CaP. BOOED ccecvsccccsssverevscesccscscenceceseess 6

Headwaters, Inc. v. Talent Irrigation District,

ED Fe Se een Cs BaD ccereccensssnesicnstnseicnsteiciveniones 6

Lawrence v. Chater,

Be Gee ee I anise ienindeniiciaisiiioncta nea ttad 33

League of Wilderness Defenders/Blue

Mountains Biodiversity Project v. Forsgren,

809 F.8d 1181 (Oth Cir. 2002) ...ccrcccoccsccescrecssersecceccssoeee 6

National Association of Home Builders v.

Defenders of Wildlife,

RS ity Oe GET Nvstnsitctncnctnseiseniitaseiasintiineciaceniiniata 16

No Spray Coalition, Inc. v. City of New York,

SE Fe Gere Ce CAs ED sehinteicinthestacmnsinncensssstcenemonn 6

Regions Hospital v. Shalala,

BSE US. 448 (1986) .....ccccccccoccescesesescees cepslenuiesema aia 16

TABLE OF AUTHORITIES—Continued

Page(s)

Train v. Colo. Public Interest Research Group,

pa ITD aii asscesianiisiiieaidiseanubiniesnaiaedngiimnaiintitens 22

Waterkeeper Alliance, Inc. v. EPA,

Be Fk Ge Ce Cire BOD ccesenccccescecescvssccccocsocreccsssesee 32

Whitman v. American Trucking Associations,

581 US. ABT (2001) ssnennsnensnsenannnanansnnn 27

STATUTES

FF ile IPE sescsotscianitnasininsenccinsnensivniienininnniinansta 4

Fes HE sreenisnasesanssslassgeniensaipdintininteaassienaanatnatd 24

FF aA ED sinininnscehacientinanennincantinnnionenmebamnenimniael 22

Fs FSD itteeeocnncsddinaseaeneenainnaaal 5

FF Oe BIEN D ccuisiisnntactneeniennineasenentanionnieciniaiiesees 4

(Pik C8 |". +) FRR eRE cep m mn Menu otaaa 24

BE Ue ihe HEI II cktastiinsinsissitncentsnciinnsantiotiisniniabanaiios 3)

Be Oe ae ED scncccicsevasscenisinsanseiiapenicnesasladausiuianbianaiddsnauuinen l

xii

TABLE OF AUTHORITIES—Continued

33 U.S.C.

33 U.S.C

33 U.S.C.

42 U.S.C.

40 C.F.R.

Page(s)

EER er ae ae Se PE ein ay l

a 3

Se cn ees na ae 4,23

| REESE cero eene Renee ee 23

sR TN ane na TC: 23

| NE a aT 3

al 3

aie eee a 23

RoE 3

4 FEE ant ee Rea ea 26

II sinless pnebeleneimapananbanenesananeeiin 27

ee 3

I as 26

Cee sneer aaceataataaadaes l

ER eRe ar eS 20

| PRE A a RT 32

SII IT ccictes dsissciadiiphansdnnbinusiasaneisaniohvbasndioheakeneseaiensh 11

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

i 5

ee sleeper oe 5

i ins scsssrusicnsueieaibesiiesssesnlevacensvuieaisonwaia 21

i 20

A ee i ac scciscoccncencocoosasnbarencéeicsencssctvenuans 21

60 Fed. Reg. 25,492 (May 11, 1995).............cccsssccccssssccees 20

71 Fed. Reg. 68,483 (Nov. 27, 2006) .............csccsscccsssossseeee 7

OTHER AUTHORITY

American Mosquito Control Association,

Mosquito-Borne Diseases, available at

http://www.mosquito.org/mosquito-

information/mosquito-borne.aspx (last visited

ON Mas eines caoncsncdesnavincuscansicasermenocsseanasbuassanoeiebiass 30

California Department of Public Health, 2009

California Mosquito-borne Virus

Surveillance and Response Plan (Apr. 2009),

available at

www.westnile.ca.gov/resources.php ..............0:020000 31

XIV

TABLE OF AUTHORITIES—Continued

Page(s)

CDC, Epidemic/Epizootic West Nile Virus in

the United States: Revised Guidelines for

Surveillance, Prevention, and Control

(2008), available at

www.cdc.gov/ncidod/dvbid/westnile/resource

s/wnvguidelines2003. pdf ............cssccccsscssssccssssessserseces 31

EPA, Office of Wastewater Management, Water

Permitting 101, available at

http://www.epa.gov/npdes/pubs/101pape.pdf

CRE, VERTOO PROV. Fh, BD vvceccesersesossvcncscosesecessssvecosionse 24

EPA, Pesticide Reregistration Status, available

at http://www.epa.gov/pesticides/

reregistration/status.htm (last visited Nov. 2,

EPA, Water Quality Data Submissions: OPP

Standard Operating Procedures: Inclusion

of Water Quality & Impaired Water Body

Data in OPP’s Registration Review Risk

Assessment & Management Process,

available at

http://www.epa.gov/oppsrrdl/registration_re

view/water_quality_sop.htm (last visited

FET, Een tii ciinietntininnisnnris 5

Ryan M. Carney et al., Efficacy of Aerial

Spraying of Mosquito Adulticide in

Reducing Incidence of West Nile Virus,

California, 2005, 14 Emerging Infectious

EPDOROR FET CGR Be ravesiscsistnvecassnssexonsscasonvecersonsaive 30

TABLE OF AUTHORITIES—Continued

Page(s)

S. Rep. No. 92-414 (1971), as reprinted as 1972

ay i ecceciasinelavic Minus actataa 23

Senate Committee on Environment and Public

Works, 95th Cong., Legislative History of the

Clean Water Act of 1977, Serial No. 95-14

ar I sceczocamencneasedienuiesancoissalercansssueeuilicnLatrn aaa 26

OPINION BELOW

The court of appeals’ opinion is reported at 553

F.3d 927 and reproduced at Pet.App.1a.

JURISDICTION

The court of appeals had jurisdiction pursuant to

33 U.S.C. §1369(b). The court of appeals filed its

opinion on January 7, 2009, and denied petitioners’

timely petition for rehearing and rehearing en banc on

August 3, 2009. Pet.App.la; Pet.App.64a. This Court’s

jurisdiction rests on 28 U.S.C. $1254(1).

STATUTORY PROVISIONS INVOLVED

The pertinent provisions of the Clean Water Act,

33 U.S.C. §§1251-1387, are set forth in the Appendix at

Pet.App.75a.

STATEMENT OF THE CASE

In the more than 35 years since Congress enacted

the CWA, pesticides used for their intended purpose

have never been subjected to the CWA’s demanding

permitting requirements. The Sixth Circuit’s decision

in this case reverses that long-standing EPA practice

and calls for the biggest expansion of the NPDES

program in the history of the CWA. Several courts of

appeals’ decisions in recent years had generated

uncertainty among the regulated community, state ana

local regulators, and the general public over the scope

of the CWA’s permitting requirements in the context

of pesticide applications, and prompted EPA to issue

the regulation at issue here (the “Rule’”) to eliminate

the confusion and ratify the longstanding agency

practice of not subjecting such applications to

permitting. The Rule was issued following notice and

comment and addressed specific circumstances in

which the use of pesticides on, over or near waters in

accordance with all relevant requirements of FIFRA is

not a “discharge of a pollutant” to waters of the United

States.

Timely petitions for review of EPA’s Rule were

filed in the First, Second, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth, Tenth, and D.C. Circuits, and

were consolidated by the Judicial Panel for

Multidistrict Litigation for review before the Sixth

Circuit. In the decision below, the Sixth Circuit

invalidated EPA’s Rule, finding that—notwithstanding

the more than 35 years of administrative practice

supporting the Rule—the Rule was categorically

barred by the terms of the CWA. That decision cannot

be squared with a commonsense reading of the CWA

and conflicts with the decisions of this Court and other

circuits interpreting similar statutory provisions,

including this ourt’s intervening decision in

Burlington Northern & Santa Fe Railway Co. »v.

United States, 129 S. Ct. 1870 (2009). More

fundamentally, the Sixth Circuit’s decision conflicts

with the decisions of this Court and other circuits on

the deference owed to administrative statutory

interpretations. A more concrete circuit split is not

possible because petitions for review filed in ten other

circuits were consolidated for review before the Sixth

Circuit in this case. Indeed, the fact that the Sixth

Circuit’s decision in this case effectively speaks for ten

other federal circuits makes the need for this Court’s

review here all the more imperative.

Absent review by this Court, the Sixth Circuit’s

decision will require the most sweeping expansion of

the NPDES program in the history of the CWA. As

EPA has acknowledged, the decision “will cause

significant disruption among the hundreds of thousands

of persons and businesses nationwide who apply

pesticides to or over, including near, waters of the

United States without NPDES permits and now, as a

result of the [Sixth Circuit]’s decision, will need to

obtain permits in order to continue doing so consistent

with the [CWA].” Pet.App.106a-07a. Such a

profoundly misguided and devastatingly disruptive

decision warrants this Court’s review. At a minimum,

however, the Court should vacate the decision below

and remand for consideration in light of this Court’s

decision in Burlington Northern.

A. Statutory Background

1. The Clean Water Act

Along with other more general programs designed

“to restore and maintain the chemical, physical and

biological integrity of the Nation’s waters,” 33 U.S.C.

§1251(a), the statute includes a permitting program

that prohibits the “discharge of any pollutant” from a

“point source” into navigable waters unless EPA (or a

delegated state) issues an NPDES permit. /d.

§§1311(a), 13842. The Act defines “discharge of a

pollutant” to mean the “addition of any pollutant to

navigable waters from any point source.” Jd. §1362(12).

It defines “pollutant” to mean several specifically listed

categories of materials, including “chemical wastes”

and “biological materials.” Jd. §1362(6).

The Act imposes significant civil (and potentially

criminal) penalties for any unauthorized pollutant

discharge or violation of permit conditions—up to

$37,500 per violation, per day. See id. §1319(b), (c); 40

C.F.R. §19.4 (2009).

The only CWA provision that specifically refers to

pesticides is Section 104(1), which required EPA to

develop information on the effects of pesticides in

water and methods to control releases of pesticides into

the environment, and to make “recommendations for

any necessary legislation” to implement those methods.

33 U.S.C. §1254(1)(2).

2. The Federal Insecticide, Fungicide

and Rodenticide Act

Three days after Congress enacted the CWA, it

passed comprehensive amendments to FIFRA. See 7

U.S.C. §§136-186y; Pub. L. No. 92-516, 86 Stat. 973

(1972). Under FIFRA, all pesticides sold in the United

States must be registered with EPA, which will accept

such registration only if it finds that the chemical

“when used in accordance with widespread and

commonly recognized practice ... will not generally

cause unreasonable adverse effects on _ the

environment.” 7 U.S.C. $136a(c)(5)(D). EPA issues a

“label” for each registered chemical, setting forth the

manner in which it may be used; the statute makes it

unlawful “to use any pesticide in a manner inconsistent

with its labeling.” 7 U.S.C. §136j(a)(2)(G).

Under FIFRA, EPA conducts a _ rigorous

evaluation of the potential impact of pesticides on

water quality. Unlike the CWA, FIFRA requires

actual testing of pesticides (lasting years and involving

numerous layers of review), before a registration can

be issued, to determine the pesticide’s toxicity to fish

and aquatic organisms and the anticipated levels in

natural water bodies and drinking water supplies.!

EPA bases its registration decisions on a detailed

assessment of a pesticide’s potential effects on human

health and the environment, imposing restrictions in

the registration where necessary to ensure that

pesticide concentrations in water from authorized uses

are safe.2 Before a FIFRA registration can be

approved, the Federal Food Drug and Cosmetic Act

(“FFDCA”) also requires proof to a “reasonable

certainty” that pesticide levels in drinking water

resulting from authorized use will be safe to humans.?

(Indeed, most pesticides never make it to market in

part because of FIFRA’s rigorous standards.)

B. CWA Litigation Over Pesticide Applications

The possibility of regulating pesticide use as a

CWA “pollutant” discharge was first raised in a series

of citizen suits brought in the Ninth and Second

Circuits in the late 1990s. See Pet.App.27a. These

lawsuits generated several decisions in different courts

1 See, e.g., 40 C.F.R. §158.630 (identifying studies required to

determine effects on terrestrial and aquatic non-target

organisms); 40 C.F.R. §158.1300 (identifying environmental fate

and effects studies required to assess potential exposure to

pesticide residues, including in water).

2 See, eg., 7 U.S.C. $136a(a); EPA, Water Quality Data

Submissions: OPP Standard Operating Procedures: Inclusion of

Water Quality & Impaired Water Body Data in OPP’s

Registration Review Risk Assessment & Management Process,

available at

http://www.epa.gov/oppsrrd l/registration_review/water_quality_

sop.htm (last visited Nov. 2, 2009).

3 21 U.S.C. §346a(b)(2)(A)(ii).

of appeals that produced confusion regarding the

application of the CWA’s permitting requirements to

the use of pesticides.

In Headwaters, Inc. v. Talent Irrigation District,

243 F.3d 526, 528, 530, 532-33 (9th Cir. 2001), the Ninth

Circuit held that residuals that remained after

application of a pesticide to an irrigation canal

constituted a “chemical waste” and therefore a

“pollutant.” In League of Wilderness Defenders/Blue

Mountains Biodiversity Project v. Forsgren, 309 F.3d

1181, 1183-85 (9th Cir. 2002), the Ninth Circuit

similarly held that aerial spraying of pesticide to a

forest canopy directly over streams was a discharge of

a pollutant requiring an NPDES permit. In Fairhurst

v. Hagener, 422 F.3d 1146, 1150-51 (9th Cir. 2005),

however, the Ninth Circuit found that a pesticide

application was not a “discharge of a poilutant” where

it was applied in compliance with FIFRA, did not leave

residue, and had no “unintended effects.”

Two citizen suits in the Second Circuit also sought

to impose CWA permitting on pesticide applications,

but in neither case did the court address the merits in

its decision. In Altman v. Town of Amherst, N.Y., 47

Fed. Appx. 62, 66-67 (2d Cir. 2002), the court

specifically called on EPA to resolve the uncertainty

over such pesticide applications and reversed the lower

court’s dismissal of a suit over mosquito-control

spraying, holding that discovery should have been

allowed on the circumstances of the application.

Additionally, in No Spray Coalition, Inc. v. City of

New York, 351 F.3d 602, 605-06 (2d Cir. 2003), the court

held that pesticide use in substantial compliance with

FIFRA did not in and of itself render the CWA citizen

suit provision inapplicable, but specifically did not

address the “complex question” of whether a pesticide

application constitutes a CWA discharge of a pollutant.

C. EPA’s Final Rule

The citizen suits described above resulted in

considerable uncertainty among forest landowners,

public health officials, and others regarding whether

(and under what circumstances) the application of

pesticides triggered NPDES permitting requirements.

Following notice and comment and codifying more than

35 years of state and EPA practice, EPA issued the

final Rule to clarify that certain pesticide applications

made in compliance with relevant FIFRA

requirements on, over or near navigable waters were

not subject to NPDES permitting requirements.

Application of Pesticides to Waters of the United

States in Compliance with FIFRA, 71 Fed.Reg. 68,483

(Nov. 26, 2006), Pet. App.23a-55a.

The Rule focused on the two specific types of

pesticide applications that had been the primary target

of the citizen suits: (1) those made directly to waters,

and (2) those made to control pests that may be present

over or near waters, where a portion of the pesticide

application will unavoidably be deposited to waters in

order to target the pests effectively.4 Pet.App.55a. So

long as the pesticide application is made in compliance

with relevant FIFRA requirements, the Rule found

4 Inthe preamble, EPA clarified that the Rule addressed only

these two limited types of pesticide applications, and was not

intended to cover terrestrial pesticide applications where there

might be “drift over and into waters of the United States.”

Pet.App.37a.

that those applications would not constitute a

“discharge of a pollutant.”

EPA concluded that chemical pesticides used as

set forth in the Rule are not “pollutants” because they

are not “chemical wastes,” but products being used for

their intended purpose. Pet.App.33a. In contrast, the

preamble to the Rule concluded that excess or residual

pesticides remaining after use could be considered

“pollutants.” But because the application of the

pesticide for its intended purpose did not involve the

intentional discharge of excess or residuals (i.e., all of

the pesticide was applied for the purpose of targeting

pests in, over or near waters), there was no “pollutant”

at the time of discharge and the application therefore

did not constitute the “discharge of a pollutant.”

Pet.App.36a. In CWA parlance, therefore, the excess

or residual pesticide would be considered “nonpoint

source” pollution, which is addressed under CWA

programs separate from the NPDES permitting

program. Pet.App.37a.5

The Rule suggests, however, that where an

application of a pesticide was not made in conformance

5 Although the CWA definition of “pollutant” includes both

“chemical wastes” and “biological materials,” EPA found that

biological pesticides should be treated comparably to chemical

pesticides under the Rule. Pet.App.33a-34a. EPA based its

conclusion on the fact that biological pesticides were uncommon

when the CWA definition was enacted-such that the different

statutory language would not have evidenced any Congressional

intent to treat biological pesticides differently—and that modern

biological pesticides are typically “reduced-risk products,” which

Congress could not have intended to subject to more onerous

requirements than chemical pesticides, Pet. App.33a-35a.

with relevant FIFRA requirements, that application

could be deemed the “discharge of a pollutant” and

subject to NPDES permitting requirements.

Pet.App.43a-44a. In this regard, the Rule actually

extended CWA permitting beyond what had ever been

imposed before, as EPA had never previously

subjected to CWA permitting any application of

pesticides for their intended purposes.®

D. The Sixth Circuit’s Decision

The Rule was challenged in eleven different courts

of appeals and consolidated in the Sixth Circuit, which

vacated the Rule, holding that it was unambiguously

foreclosed by the CWA. Pet.App.2a. Although the

court agreed with EPA that the common meaning of

“chemical waste” is “discarded,” “superfluous,” or

“excess” chemical, it ruled that any useful chemical

containing portions that will become waste must itself

be regulated as a “chemical waste.” Pet.App.14a-15a.

Pointing to the Ninth Circuit’s decision in Fairhurst,

the court concluded that chemical pesticides “must be

regulated” as “chemical wastes” unless they are

“intentionally applied to the water and ... leave[] no

excess portions after performing [their] intended

purpose.” Pet.App.l4a-l6a.?7_ The Sixth Circuit

6 Some industry petitioners challenged EPA’s interpretation

that noncompliance with relevant FIFRA requirements may

cause pesticide use to be deemed a CWA pollutant discharge.

Petitioners are not seeking review of the denial of those claims.

7 The Sixth Circuit also concluded that “if we are to give

meaning to the word ‘waste’ in ‘chemical waste,’ we must

recognize Congress’s intent to treat biological and chemical

pesticides differently,” such that the plain language of the CWA

(continued...)

reached this conclusion on the ground that the CWA is

susceptible to no other reasonable interpretation and

thus rejected EPA’s argument that the CWA was

ambiguous on the question presented.

The Sixth Circuit went even further, however,

concluding that “chemical pesticide residuals” added to

water necessarily come from point sources that must

be permitted under the Act. Pet.App.2la. In so doing,

the court not only disregarded the considered

interpretation of the expert agency charged with

administering the CWA and more than 35 years of

administrative practice, but created its own “but for”

test that has no footing in the statute, and that goes far

beyond anything endorsed by EPA or other courts.

Specifically, the Sixth Circuit found that the “plain

language” of the CWA mandates a holding that there is

a “discharge of a pollutant” subject to NPDES

permitting whenever a pesticide residue makes its way

to navigable waters. /d. (“[Bjut for the application of

the pesticide, the pesticide residue and excess pesticide

would not be added to the water; therefore, the

pesticide residue and excess pesticide are from a ‘point

source.””).

Accordingly, the court held that “dischargers of

pesticide pollutants are subject to the NPDES

permitting program,” and that “the statutory text of

the [CWA] forecloses the EPA’s Final Rule.”

Pet.App.21la-22a.

(continued)

requires that “matter of a biological nature, such as biological

pesticides” be deemed a pollutant, whether or not it leaves any

residue or excess. Pet.App.l6a-17a.

E. EP4A’s Response to the Decision

Although EPA vigorously defended the Rule

before the Sixth Circuit, EPA has sent mixed signals in

the wake of the decision and the change in

Administrations. On the one hand, EPA has not

disavowed the policy and legal determinations made in

the Rule. Indeed, in characterizing the court’s decision,

EPA has stated that the Sixth Circuit “did not defer to

EPA’s interpretation of thle] ambiguous statutory

term” “pollutant,” Pet.App.169a (emphasis added),

indicating that EPA has not abandoned its position

that the Act is ambiguous. On the other hand, the

United States did not seek rehearing of the court’s

decision and, instead, took the position—without

addressing the merits of the Sixth Circuit’s decision—

that further review was not warranted because it and

the NPDES-authorized state agencies can manage

permitting for pesticide use through the device of

“general permits” authorized under EPA rules. See

Pet.App.105a-23a; 40 C.F.R. $122.28 (2009).

Significantly, however, EPA acknowledges the

dramatic changes and substantial risks the Sixth

Circuit’s ruling has produced. Indeed, EPA has argued

that the Sixth Circuit’s decision will not only seriously

impede important public health initiatives, but also

result in “substantial disruption to the regulated

program and the regulated community.” Pet.App.110a.

EPA admits that the Sixth Circuit’s decision will

increase the scope of the NPDES permitting program

(currently at approximately 46,000 individual permits

and 466,000 general permits), Pet.App.130a-3la, by

365,000 new permittees and 5.6 million pesticide

applications per year. Pet.App.126a-27a. And EPA

urged the Sixth Circuit to stay its mandate for two

years—which EPA concluded was the bare minimum

amount of time necessary for it to attempt

development of “general permits” to cover these

pesticide applications. But while EPA has bought itself

time to attempt to implement the decision below, the

question remains whether the Sixth Circuit properly

held that the CWA mandated that extraordinarily

burdensome and far-reaching regulatory undertaking.

REASONS FOR GRANTING THE WRIT

The decision below overturns more than three

decades of EPA practice and mandates the greatest

expansion of the NPDES program since the CWA was

enacted in 1972. It will engulf into that program an

estimated minimum of 5.6 million pesticide applications

annually that have never before required permits and

were never envisioned to be within the NPDES

program—by either the government or the statute.

Thus, the decision below will—in the words of EPA—

“cause significant disruption among the hundreds of

thousands of persons and businesses nationwide who

apply pesticices to or over, including near, waters of

the United States without NPDES permits and now, as

a result of the [Sixth Circuit]’s decision, will need to

obtain permits in order to continue doing so consistent

with the [CWA].” Pet.App.106a-07a. The affected

pesticide applicators include local governments that

use pesticides to control mosquitoes to protect public

health, farmers who use pesticides in certain

operations, foresters who use pesticides to protect

timber, and even federal entities such as the U.S. Coast

Guard, which uses pesticides to kill insects that

interfere with the maintenance of navigation devices.

Pet.App.107a. Few decisions in the history of the

CWA have had such a far-reaching and disruptive

impact.

Remarkably, the Sixth Circuit reached the

conclusion that Congress unambiguously intended that

astonishing result and thus foreclesed the issuance of

EPA’s Rule ratifying more than 35 years of

administrative practice recognizing that the pesticide

applications at issue are not subject to NPDES

permitting requirements. The Sixth Circuit’s decision

not only defies common sense, it defies a fair reading of

the Act’s terms, the history of the Act, and

longstanding agency practice. More fundamentally, in

substituting its judgment for that of the expert agency

charged with administering the CWA, the Sixth

Circuit flouted the teachings of this Court in Chevron

v. Natural Resources Defense Council 467 U.S. 837

(1984), and dozens of subsequent decisions up through

Entergy v. Riverkeepers, 129 8S. Ct. 1498 (2009) and

Coeur Alaska, Inc. v. Southeast Alaska Conservation

Council, 129 S. Ct. 2458, 2463 (2009) this past Term,

regarding the deference owed to an agency’s

considered interpretation of a statute that it

administers. Importantly, the Sixth Circuit’s decision

also conflicts with the decisions of this Court and other

circuits construing similar statutory provisions,

including the Court’s intervening decision in

Burlington Northern & Santa Fe Ratlway Co. v.

United States, 129 S. Ct. 1870 (2009).

Certiorari is warranted to review the Sixth

Circuit’s decision in this case. Indeed, absent review in

this case, there will be no further opportunity for

review by this Court on the questions presented before

CWA liability and permitting requirements are

imposed on virtually all pesticide use in, over, or near

waters. At a minimum, however, the Court should

grant the petition, vacate the decision below, and

remand this case to the Sixth Circuit for further

consideration in light of the Court’s intervening

decision in Burlington Northern.

I. THE DECISION BELOW IS PROFOUNDLY

MISGUIDED AND CONFLICTS WITH THE

DECISIONS OF THIS COURT AND OTHER

CIRCUITS

The Sixth Circuit’s decision in this case effectively

binds the ten other federal circuits from which

petitions for review were transferred and consolidated

by the Judicial Panel on Multidistrict Litigation and

constitutes the final say—absent further review by this

Court—on the validity of one of the most significant

and most-anticipated rules promulgated by EPA in

years. That decision, however, is fundamentally flawed

and conflicts with the decisions of this Court and other

federal circuits in several important respects.

A. The Sixth Circuit’s Decision Disregards

Settled Principles Governing The

Deference Owed To Agency Statutory

Interpretations.

The Sixth Circuit ruled that “chemical waste”

unambiguously includes useful chemical pesticide

products that may ultimately leave some small amount

of residue, Pet.App.15a, even where the applicator does

not intend to dispose of the pesticide. The court did

not dispute that the common meaning of “chemical

waste” is “discarded,” “superfluous,” or “excess”

chemical. Pet.App.18a-14a. Nor did the court dispute

that the Rule applies only to pesticide products that

are intentionally applied to, over, or near water to

perform their intended purpose of controlling pests in,

over, or near water, or that pesticide products are

thoroughly regulated under FIFRA and applied for an

intended and beneficial use. Pet.App.5a-6a. Yet the

court nevertheless concluded that the product being

applied for its intended purpose is indistinguishable

from any future excess or residue that might remain

after use. See Pet.App.16a. And what is perhaps most

remarkable, the court concluded that the CWA was

susceptible to no other interpretation and thus rejected

EPA’s forceful defense of its Rule.

In concluding that the CWA _ unambiguously

foreclosed EPA’s Rule, the Sixth Circuit seriously

misconstrued the statutory provisions at issue and

reached a conclusion that conflicts with the decisions of

this Court and other circuits construing analogous

statutory provisions. See infra at 14-19. Even more

fundamentally, however, the court seriously departed

from the teachings of this Court on the deference owed

agency statutory interpretations and improperly

substituted its judgment for that of the expert agency

charged with administering the CWA. The court’s

failure to heed this Court’s teachings infected its entire

statutory analysis.

The Sixth Circuit began its decision with a

perfunctory recitation of the Chevron standard of

review, Pet.App.8a-9a, and purported to reject the

Rule based on what has become known as Chevron

“Step One.” Yet the court’s invalidation of the Rule

relies exclusively on its own interpretation of general

statutory terms and general statutory purposes, see,

e.g., Pet.App.19a-20a, with no _ consideration of

contextual evidence or legislative history regarding

Congress’s intent on the specific question at issue. In

this respect, the Sixth Circuit’s “Step One” analysis

omits any meaningful consideration of whether

Congress has “directly spoken to the precise question

at issue,” and pretermits the basic determination of

whether the agency’s interpretation of the statute is

permissible. Cf. Chevron, 467 U.S. at 842. By

prematurely declaring the provisions at issue to be

capable of only one interpretation—when they surely

were susceptible, at a minimum, to two different

interpretations—the Sixth Circuit effectively cut off

the Chevron analysis at the threshold and deprived the

agency of the deference owed to its statutory

interpretations under the second step of the Chevron

inquiry.

The Sixth Circuit’s Chevron analysis directly

conflicts with the decisions of this Court. As Chevron

and many other decisions of this Court make plain, in

determining whether a phrase is ambiguous, the court

must look not only at the particular provision at issue,

but should employ all the traditional tools of statutory

construction. Jd. at 843 n9 (“If a court, employing

traditional tools of statutory construction, ascertains

that Congress had an intention on the precise question

at issue, that intention is the law and must be given

effect.”); accord Regions Hosp. v. Shalala, 522 US.

448, 456 (1998) (“If, by ‘employing traditional tools of

statutory construction, we determine that Congress’

intent is clear, ‘that is the end of the matter.”’). Thus,

as this Court stressed in National Association of

Home Builders v. Defenders of Wildlife, 551 U.S. 644,

666 (2007), “[iJn making the threshold determination

under Chevron, ‘a reviewing court should not confine

itself to examining a particular statutory provision in

isolation” and, instead, should make _ that

determination by looking at the statutory terms “in

context.” When the statutory provisions at issue are

viewed in this light, there is considerable evidence that

Congress did consider the subject of pesticide use in

connection with the CWA and chose not to subject

pesticide use to NPDES permitting. But at a bare

minimum, as EPA argued in the court of appeals, see

EPA Br. 17-25 (filed Dec. 19, 2007), there is sufficient

ambiguity to trigger an inquiry into whether EPA’s

Rule was reasonable. See infra at I.B., I.C.

B. The Sixth Circuit’s Decision Conflicts With

The Decisions Of This Court And Other

Circuits Construing Similar Statutory

Provisions.

When it comes to the text of the CWA, the Sixth

Circuit’s interpretation of the provisions at issue not

only defies common sense, it directly conflicts with the

decisions and analysis of this Court and other circuits

construing analogous statutory provisions. This

Court’s decision in Burlington Northern—which was

issued after the Sixth Circuit’s decision in this case—is

particularly instructive.

In Burlington Northern, the Court reviewed a

Ninth Circuit decision that used highly analogous

reasoning to that employed by the Sixth Circuit below

in finding Shell Oil Company liable under the

Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”) for

“arrangling! for disposal” of a hazardous substance

where Shell sold and delivered a pesticide to an

agricultural chemical distribution company and some of

the pesticide spilled during transfer. 129 S. Ct. at 1875,

1877. This Court reversed, holding that Shell Oil could

not be held liable under CERCLA for “arrang{ing] for

disposal” of a hazardous substance because Shell did

not intend to dispose of the pesticide. Jd. at 1880. The

Court looked to the “ordinary meaning” of the term

“arrange for,” and found that “under the plain language

of the statute, an entity may qualify as an arranger ...

when it takes intentional steps to dispose of a

hazardous substance.” /d. at 1879. Therefore, the

Court concluded “knowledge [of spillage of the product]

alone is insufficient to prove that an entity ‘planned for’

the disposal, particularly when the disposal occurs as a

peripheral result of the legitimate sale of an unused,

useful product.” Jd. at 1880.

The Sixth Circuit below committed the same basic

error as the Ninth Circuit in Burlington Northern.

The court glossed over the ordinary meaning of

“waste”—finding the pesticide applications at issue to

be “chemical waste” because a small portion of the

pesticide applied for its intended use may eventually

result in excess pesticide deposited on water. See

Pet.App.15a. But a pesticide applied for its intended

beneficial purpose is not a “waste”—just as the

pesticide product sold in Burlington Northern was not

“waste.” In both instances, the pesticide at issue was a

valuable product serving its intended purpose (in this

case even more so, as the Rule applies to the pesticide’s

actual use), and it is implausible that these products

were intended for disposal. The term “waste,” like the

term “arrange for disposal,” implies an intention to

discard, not the use or sale of a beneficial product. See

Burlington Northern, 129 §. Ct. at 1879 (“In common

parlance, the word ‘arrange’ implies action directed to a

specific purpose.... impl[{ies] intentional action.”).8

8 Indeed, this case follows a fortiori from Burlington

Northern. As the Ninth Circuit found in Burlington Northern,

(continued...)

Thus, as in Burlington Northern, any small

amount of excess pesticide that might reach navigable

waters would be the “peripheral result” of the

legitimate application of a useful product. (Indeed,

here the pesticide is being applied for its intended

purpose, rather than being accidentally spilled during

transfer, as was the case in Burlington Northern.) And

as in Burlington Northern, knowledge that this

legitimate application may result in some pesticide

reaching navigable waters should be insufficient to

render the pesticide at the time it is applied a

“chemical waste” within the meaning of the CWA—

particularly in light of the fact that EPA accounts for

potential human health and environmental impacts

from any such excess pesticide when it evaluates

whether that pesticide meets the registration standard

under FIFRA. See supra at 4-5.” The Sixth Circuit’s

flawed statutory analysis is directly contrary to this

Court’s intervening decision in Burlington Northern.

The Sixth Circuit’s flawed interpretation of

“chemical waste” also conflicts with the Second

(continued)

CERCLA’s definition of “disposal” included examples of

unintentional acts such as “spilling” and “leaking.” 129 S. Ct. at

1877. Yet, this Court still concluded that the term “arrange for

disposal” implies an intention to discard. Jd. Because none of the

statutory provisions at issue in this case explicitly refer to

unintentional acts like “spilling” and “leaking” the conclusion that

Congress was focused on intentional acts is even stronger.

9 The Sixth Circuit, however, found just the opposite when it

rejected EPA’s position that “at the time of discharge [i.e., the

pesticide application], the pesticide is a nonpollutant, and the

excess pesticide and pesticide residues are not created until later.”

Pet.Az p.19a.

Circuit’s recent decision in Cordiano v. Metacon Gun

Club, 575 F.3d 199, 206-07 (2d Cir. 2009). In that case,

the Second Circuit held that the discharge of lead shot

as part of the normal and intended use of that product

on a shooting range does not render the lead

“abandoned by being disposed of’ within meaning of

the Resource Conservation and Recovery Act

(“RCRA”) regulations defining “solid vaste.”

Contrary to the Sixth Circuit below, the Second Circuit

held that EPA’s interpretation “that materials put to

their ordinary, intended use are not ‘abandoned’ under

the regulatory definition of solid waste ... is consistent

with the RCRA.” /d. at 208.

The Second Circuit’s approach of considering

whether a product is put to its normal and intended use

when determining whether it is regulated as “solid

waste” is consistent with this Court’s decision in

Burlington Northern and is fully supported by the

statutory language of RCRA and EPA’s implementing

regulations. See 42 U.S.C. §6903(27) (defining “solid

waste” as “discarded material ... resulting from

industrial, commercial, mining, and agricultural

operations, and from community activities ....”); 40

C.F.R. §261.2(b)(1) (“Materials are solid waste if they

are abandoned by being: ... [dJisposed of ....”).19 The

10 Thus, EPA has clarified that “it does not have statutory

authority under RCRA to regulate materials which are products

and not wastes,” 60 Fed. Reg. 25,492, 25,532 (May 11, 1995), and

EPA does not regulate pesticides under RCRA until they are

“discarded.” 40 C.F.R. §261.2(a)(1); see also 40 C.F.R.

§261.2(c)(1)(ii) (commercial chemical products “are not solid

wastes if they are applied to the land and that is their ordinary

manner of use”).

Second Circuit’s approval of EPA’s logical

interpretation of RCRA—in which lead shot that is

used as it is intended is not considered waste simply

because it may end up on the ground as a peripheral

result of its use—is flatly inconsistent with the Sixth

Circuit’s interpretation of the Clean Water Act, in

which beneficial product that is used as it is intended is

considered “waste” simply because it may result in a

small amount of excess pesticide being deposited on the

water.

Although this Court’s decision in Burlington

Northern interpreted CERCLA and the Second

Circuit’s decision in Metacon Gun Club interpreted

RCRA, the similarities in terminology, statutory

framework and Congressional intent support

application of the Court’s reasoning to this case.

CERCLA and RCRA focus on the regulation of

“waste,” or materials being “disposed of’—as did the

Sixth Circuit’s interpretation of “chemical waste” in

this case. “Waste” like “arrange for disposal,” implies

an intent to dispose of rather than the use or sale of a

beneficial product. See Burlington Northern, 129 S. Ct.

at 1879. Likewise, the RCRA definition of waste—

“discarded material” or material that is “disposed of’—

also implies such an intent. Cf Metacon Gun Club,

575 F.3d at 208 (finding that lead shot is not “disposed

of’ when put to its intended use). These

interpretations are entirely consistent with the

primary statute for regulating pesticide use—

FIFRA—because FIFRA defines pesticides as

substances “intended” for pesticidal purposes. 7 U.S.C.

§136(u). Moreover, these cases illustrate that the

analogous provisions of the CWA are at the very least

subject to more than one interpretation.!!

C. The Sixth Circuit’s Decision Belies The

Text, Structure, And History of the CWA,

As Well As _EPA’s_Longstanding

Interpretation Of The Act.

Numerous additional considerations belie the

Sixth Circuit’s holding that the CWA unambiguously

forecloses EPA’s Rule allowing the use of pesticide

applications in the circumstances at issue.

1. Contrary to the Sixth Circuit’s apparent

belief, the NPDES program is not the only mechanism

for achieving the Act’s goals. Rather, the Act includes

many nonpoint source programs focused on, among

other things, addressing water quality impacts from

agricultural activities (which presumably would include

pesticide use). See, eg., 38 U.S.C. $1829 (nonpoint

11 Similarly, the Sixth Circuit’s conclusion that “biological

materials’ cannot be read to exclude biological pesticides or their

residuals” also warrants this Court’s review. Pet.App.16a-17a.

Both this Court and the Ninth Circuit have found that the term

“materials” in the CWA pollutant definition (e.g., “biological

materials” and “radiological materials”) does not mean all matter.

See, e.g., Train v. Colo. Pub. Interest Research Group, Inc., 426

U.S. 1, 23-25 (1976); Ass’n to Protect Hammersley, Eld, and

Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1016-18 (9th Cir.

2002). Moreover, there must be some limiting principle on the

term “biological materials” to avoid absurd results—such as

NPDES permitting for a worm on the end of a fisherman’s line.

For these reasons, the meaning of “biological materials” is not

unambiguous on the face of the statute. It is in precisely this

situation that courts must defer to the authorized agency’s

reasonable interpretation. See Entergy v. Riverkeepers, 129 S. Ct.

1498, 1505 (2009).

source management programs); id. §1288(b)(2)(F)

(process for identifying appropriate controls for

agricultural and silvicultural nonpoint sources); id.

§1254(p) (study and research program to reduce

pollution from agriculture). And as noted above,

Section 104(1) is the only CWA provision that refers to

the water quality impact of pesticides. That provision

does not characterize pesticides as “pollutants” and

requires only investigation of “methods to control the

release of pesticides into the environment” and

“recommendations for any necessary legislation”—

language that, at a bare minimum, does _ not

unambiguously mandate regulation of such pesticide

applications under the NPDES program.!2 = Id.

§1254(l).

2. Moreover, the Sixth Circuit’s reading of the

CWA conflicts with the Act’s history and fails to

account for FIFRA. Three days after passing the 1972

CWA, Congress enacted major amendments to

FIFRA, creating a radically different statutory

scheme. Unlike the CWA NPDES program, which is

fundamentally a program to eliminate pollutant

12 Consistent with this understanding, in comments on these

provisions, Senator Dole emphasized that “[plesticides provide

substantial benefits to mankind by protecting plants and animals

from pest losses,” and that “(t]he use of pesticides and other

agricultural chemicals will undoubtedly retain a high level of

importance in agriculture for the foreseeable future. In the

meantime efforts at both State and Federal levels are paying off in

securing the registration [pursuant to FIFRA] and adherence to

recommended usages.” S. Rep. No. 92-414, at 92 (1971), as

reprinted in 1972 U.S.C.C.A.N. 3668, 3760.

discharges from wastewater,!3 FIFRA is designed to

regulate beneficial activities (pesticide applications)

that may also have adverse environmental effects.

Congress mandated that under FIFRA, EPA is to

assess the adverse environmental effects, including the

effects on water,!4 of registered pesticides and impose

restrictions where necessary such that the pesticide

usage will not cause “unreasonable adverse effects on

the environment.” See 7 U.S.C. §§136j(a)(2)(G),

136a(c)(5)(C). Not only does EPA evaluate the effect of

pesticides on water quality through “impacts on both

human health from the presence of pesticides in

drinking water, and on aquatic resources (e.g., fish,

invertebrates, plants, and other species in fresh water,

estuarine, and marine environments),” Pet.App.42a,

EPA also considers water quality when it determines

how pesticides may be applied and dictates conditions

regarding “application rates, active ingredient

concentrations and dilution requirements, buffer zones,

application locations, intended targets, times of day,

temperature or other application requirements,

[concerning] ... the amounts, concentrations, and

viability of substances that may potentially end up in

13 See, e.g., EPA, Office of Wastewater Management, Water

Permitting 101, at 2, 5 available at

http://www. epa.gov/npdes/pubs/101 pape. pdf (last visited Nov. 2,

2009) (The CWA “created the system for permitting wastewater

discharges (Section 402), known as the National Pollutant

Discharge Elimination System (NPDES).... [T]he primary focus

of the NPDES permitting program is municipal and non-municipal

(industrial) direct dischargers.”) (emphasis added).

14 FIFRA’s definition of “environment” includes “water.” 7

U.S.C. §136()).

waters of the United States. ....” Pet.App.32a.

Pesticide users must comply with the requirements

imposed by EPA and reproduced on the label, see 7

U.S.C. §136j(aX(2)(G), but need not seek advance

government authorization to use those pesticides.

Reading the term “chemical waste” in the context

of these other provisions, therefore, demonstrates that

Congress considered the impacts of pesticide use in

enacting the CWA and determined they should not be

addressed through the NPDES program. At the very

least, as the government forcefully argued before the

court of appeals, this history and context precludes the

Sixth Circuit’s conclusion that Congress

unambiguously required the regulation of pesticide

use as a CWA pollutant discharge. See EPA Br. 12, 42-

45; see also FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000) (“the meaning of one

statute may be affected by other Acts, particularly

where Congress has spoken subsequently and more

specifically to the topic at hand”).

3. The regulatory history of the CWA also

starkly belies the Sixth Circuit’s interpretation. For

the entire 35-year period since enactment of these two

statutes, EPA has regulated pesticide use under

FIFRA and not under the NPDES permitting

program—an interpretation that is a logical result of

harmonizing these statutes. See EPA Br. 34-41.

EPA’s interpretation of the statutory scheme gives

effect to FIFRA’s role in regulating the impact of

pesticides on water quality when used as intended

while the Sixth Circuit’s holding ignores the

framework established by Congress by, in effect,

interpreting the NPDES program as nullifying aspects

of FIFRA regulation. EPA’s contemporaneous—and

consistent—interpretation warrants deference. See,

e.g., Entergy v. Riverkeeopers, 129 S. Ct. 1498, 1509

(2009) (“While not conclusive, it surely tends to show

that EPA’s current practice is a reasonable and hence

legitimate exercise of its discretion ... that the agency

has been proceeding in essentially this fashion for over

30 years.”); Barnhart v. Walton, 535 U.S. 212, 220

(2002) (“[T]his Court will normally accord particular

deference to an agency interpretation of ‘longstanding’

duration.”); see also Coeur Alaska, 129 S. Ct. at 2477.

4. Moreover, over the period during which EPA

clearly signaled that pesticide applications were not

subject to NPDES permitting, the CWA underwent

two major reauthorizations—and during both of these

reauthorizations, Congress clarified its intentions with

respect to the scope of coverage of the NPDES

program. Congress in the 1977 CWA amendments

modified specific statutory language to negate the

effect of a federal court decision that would have

required NPDES permits for return flows from

irrigated agriculture and exempted such discharges

from NPDES coverage. See 33 U.S.C. §§1842(1)(1),

1362(14). In its decision, Congress explicitly

acknowledged that implementing the NPDES program

was very resource intensive for EPA and the states

which had assumed the program and declined to

impose the significant and unnecessary resource

burden that would be required if the NPDES program

were applicable to agriculture. Senate Committee on

Environment and Public Works, 95th Cong.,

Legislative History of the Clean Water Act of 1977,

Serial No. 95-14, at 318 (1978).

In contrast, in the 1987 amendments to the CWA,

Congress explicitly expanded the applicability of the

NPDES program, mandating that EPA develop

NPDES permits for discharges of industrial and

municipal stormwater—discharges which had not been

generally regulated by EPA under the NPDES

program. See 33 U.S.C. §1842(p). Recognizing once

again the resource-intensive nature of the NPDES

program, Congress provided a schedule for the

development of the program, with deadlines for EPA

regulations, permit applications, and the issuance or

denial of stormwater permits. See 33 U.S.C.

$§1342(p)(4)(A)-(B), — (p)(6). When given the

opportunity to include pesticides within the NPDES

regime, however, Congress—which is presumed to be

aware of EPA’s practice of not subjecting pesticide

applications to NPDES permitting during this period—

once again declined.

The fact that Congress did not signal any

disagreement with EPA’s practice in not subjecting

pesticides to NPDES permitting when it acted to

clarify the scope of the NPDES program with respect

to other types of discharges provides strong indication

that Congress agreed with EPA: pesticides being

applied for their intended purpose are not wastes, and

thus do not fall within the scope of the term “pollutant”

or of the NPDES program. As the Supreme Court

held in Chisom v. Roemer, 501 U.S. 380, 396 & n.23

(1991), “we are convinced that if Congress had such an

intent, Congress would have made it explicitly in the

statute, or at least some of the Members would have

identified or mentioned it at some point in the

unusually extensive legislative history .... Congress’

silence in this regard can be likened to the dog that did

not bark.”

5. Indeed, it is implausible Gif not absurd) to

conclude that Congress required EPA to subject

pesticide applications to NPDES permitting without

saying so explicitly. As this Court has admonished,

Congress does not “hide elephants in mouseholes.”

Whitman v. Am. Trucking Ass’ns, Inc., 581 U.S. 457,

468 (2001); Brown & Williamson Tobacco, 529 U.S. at

160 (“[W]e are confident that Congress could not have

intended to delegate a decision of such economic and

political significance to an agency in so cryptic a

fashion.”). And yet, notwithstanding the far-reaching

public health and economic ramifications of subjecting

pesticide applications to NPDES permitting (discussed

next), there is no evidence whatsoever in the

legislative record of the CWA or its amendments that

Congress considered this issue, much less

unambiguously commanded EPA to subject pesticide

applications to NPDES permitting, as the Sixth Circuit

held.

In sum, the ambiguous statutory language, the

statutory context, and subsequent legislative

enactments all serve to negate the Sixth Circuit’s

conclusion that Congress has unambiguously required

the regulation of pesticide use as the “discharge of a

pollutant.”

II. THE SWEEPING PRACTICAL IMPACT OF

THE DECISION BELOW UNDERSCORES

THE NEED FOR THIS COURT’S REVIEW

The questions presented are of undeniable

national importance. Indeed, the dramatic practical

impact of the Sixth Circuit’s decision sweeping

pesticide usage into the onerous liability and

permitting regime of the NPDES program underscores

the need for this Court’s review.

A. The Sixth Circuit’s Decision Represents

The Most Dramatic Expansion of the

NPDES Program Since Enactment Of The

CWA.

Since the CWA’s inception, EPA has never issued

an NPDES permit for the application of a pesticide or

issued any policy interpretation or guidance indicating

that such permits were required. See Pet.App.26a.

EPA has concluded that the Sixth Circuit’s decision

will single-handedly expand the universe of NPDES

permittees by nearly double—and perhaps by many

times more. See Pet.App.130a.

The combined number of stormwater and non-

stormwater discharges within the current program is

roughly 520,000. See Pet.App.130a-31la. EPA

calculates that under a narrow reading of the Sixth

Circuit’s decision, and estimating pesticide applications

from only eight categories of pesticide use patterns

(2.g., “insecticides used in wide-area insect suppression

programs”), the decision will require NPDES permits

for roughly 5.6 million pesticide applications per

year, by roughly 365,000 “applicators.” Pet.App.127a.

The effect of the Sixth Circuit’s decision on the

scope of the permitting program could be far greater.

Many advocates will urge a considerably broader

reading of the Sixth Circuit’s decision that, if adopted,

would multiply even more the number of pesticide uses

covered by permit requirements. While EPA’s current

plans are limited to pesticide application in, over, and

“near” waters, other uses can result in the “drift” of

miniscule amounts of pesticide into waters. Such

“drift” may well be argued by advocates to be within

the scope of the Sixth Circuit’s flawed reasoning and

will certainly be the subject of the next wave of citizen

lawsuits. The 5.6 miliion applications per year included

in EPA’s current permitting efforts, therefore, is a

number that may be eclipsed by the actual number of

permits that will need to be obtained by individuals,

governments and other entities that have never been

required before to do so.

B. The Sixth Circuit’s Decision Threatens

Essential Activities That Protect Public

Health.

If the Sixth Circuit’s decision stands, CWA

liability and citizen suit enforcement will serve as a

serious impediment to pesticide applications to control

mosquito-borne diseases. See, e.g., Pet.App.107a.

Mosquito control is critically important to public

health. Pet.App.185a. Worldwide, mosquitoes cause

more human suffering than any other organism—over

one million people die from mosquito-borne diseases

every year.!5 Mosquito-borne diseases are still present

in the United States, including West Nile Virus and

various forms of encephalitis. Pet.App.120a. There is

no known vaccine or effective cure for any of these

diseases; they are prevented only by controlling

mosquito populations.

Spraying for mosquito control has been widely

demonstrated as an_ effective public health

intervention,!6 is recommended by the Centers for

15 American Mosquito Control Association, Mosquito-Borne

Diseases, avatlable at http//www.mosquito.org/mosquito-

information/mosquito-borne.aspx (last visited Nov. 2, 2009).

16 See, e.9., Pet.App.16la; Ryan M. Carney et al., Efficacy of

Aerial Spraying of Mosquito Adulticide in Reducing Incidence of

West Nile Virus, California, 2005, 14 Emerging Infectious

(continued...)

Disease Control and Prevention (“CDC”) and state

health departments!’ and has been confirmed to be

safe by EPA and the CDC when used according to the

pesticide labels.18 EPA estimates that more than a

thousand local government entities apply pesticides to,

over, or near waters to control mosquito populations in

the United States. See Pet.App.135a.

If the Sixth Circuit’s ruling stands and FIFRA-

approved application of pesticides are subject to

NPDES permitting, local mosquito control

organizations will likely be substantially impeded from

performing their vital public health function of

suppressing mosquito-borne diseases. Preparation and

issuance of an individual NPDES permit takes months,

(continued)

Diseases 747 (May 2008), available at

www.cdc.gov/E1D/content/14/5/pdfs/747.pdf.

17 See, .¢.g., CDC, Epidemic/Epizootic West Nile Virus in the

United States:

Revised Guidelines for Surveillance, Prevention, and Control

(2003), available at

www.cdc.gov/ncidod/dvbid/westnile/resources/wnvguidelines2003.

pdf; California Department of Public Health, 2009 California

Mosquito-borne Virus Surveillance and Response Plan (Apr.

2009), available at www.westnile.ca.gov/resources.php.

18 Extensive reviews of mosquito control pesticides by EPA

and CDC in recent years have confirmed their safety. In fact, the

majority of the mosquito adulticides routinely used in the US.

were fully reregistered by EPA between 2006 and 2008, after

exhaustive risk assessments, and in all cases, the materials were

approved for mosquito control activities over or near water. See

EPA, Pesticide MReregistration Status, available at

http://www.epa.gov/pesticides/reregistration/status.htm (last

visited Nov. 2, 2009).

at a minimum. See 40 C.F.R. Part 124 (requiring a

detailed permit application; draft permit; fact sheet

setting forth the rationale for the permit conditions;

minimum 30 day comment permit; opportunity for

public hearing; final permit and fact sheet; EPA review

and approvai; and opportunity for appeal);

Pet.App.112a. Nor are general permits a panacea.

Monitoring requirements can be extremely

expensive—thus taking away funding that mosquito

control districts otherwise would use for controlling

pest outbreaks. Moreover, environmental groups have

challenged many general permits, claiming they

provide insufficient opportunity for comment on

individual applications and site-specific conditions. See,

e.g., Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486,

489-500, 503-504 (2d Cir. 2005); Envtl. Def. Ctr., Inc. v.

EPA, 344 F.3d 882, 852-58 (9th Cir. 2003), cert. denied,

541 U.S. 1085 (2004). Added to the foregoing is the

continued threat of further citizen suit litigation, with

its attendant costs of defense, coupled with the

potential for fines and attorneys’ fee awards.!9 Thus,

the threat of CWA liability could seriously hinder—or

effectively halt—mosquito control efforts in the United

States, which in turn could result in death and serious

illness for thousands of people from mosquito-borne

illnesses such as West Nile Virus.

Other critical functions also will be jeopardized by

the Sixth Circuit’s ruling. EPA has noted that the

Forest Service relies on pesticides to prevent

19 Ina period of only weeks following the Sixth Circuit decision

invalidating the Final Rule, forty-five local mosquito control

agencies in California alone were served with notices of intent to

sue for using pesticides without an NPDES permit.

significant outbreaks of pests, such as gypsy moths, in

our nation’s forests. Pet.App.115a, 157a. The Animal

and Plant Health Inspection Service also needs

pesticides to prevent or control devastating pest

outbreaks, while the U.S. Coast Guard uses pesticides

to control pests that interfere with navigational

devices. Pet.App.107a, 165a-66a. Pesticides are also

necessary to combat algae, weeds and other vegetation

in irrigation canals, and to control outbreaks of invasive

species such as zebra mussels. Pet.App.115a, 126a-27a.

In sum, the sweeping scope and potentially dire

public health consequences of the decision below

underscore the need for this Court’s review. Although

EPA has sought to stave off those consequences by

securing an extraordinary two-year stay of the decision

below, the fact that EPA secured a stay provides no

reason to decline consideration of the question whether

the Sixth Circuit properly concluded that the CWA

unambiguously mandates that EPA embark on this

exceptionally burdensome and _. highly risky

administrative undertaking at all.

Ill. AT A MINIMUM, THE COURT SHOULD

GVR THE CASE FOR CONSIDERATION OF

THE COURT’S INTERVENING DECISION

IN BURLINGTON NORTHERN

The Sixth Circuit’s decision invalidating EPA’s

Rule warrants plenary review for the reasons

discussed above. At a bare minimum, however, the

Court should grant the petition, vacate the decision

below, and remand for consideration of this Court’s

intervening decision in Burlington Northern.

In Lawrence v. Chater, 516 U.S. 163, 167 (1996),

this Court held that, “(where intervening

developments, or recent developments that we have

reason to believe the court below did not fully consider,

reveal a reasonable probability that the decision below

rests upon a premise that the lower court would reject

if given the opportunity for further consideration, and

where it appears that such a redetermination may

determine the ultimate outcome of the litigation, a

GVR order is, we believe, potentially appropriate.”

That standard is met here.

As explained above, this Court’s decision in

Burlington Northern fatally undercuts the statutory

interpretation undergirding the Sixth Circuit’s

conclusion that the CWA unambiguously forecloses

EPA’s Rule. See supra, at pp. 14-19. The Sixth Circuit

did not have the benefit of the guidance provided by

Burlington Northern, however, because the Court’s

decision in Burlington Northern was issued months

after the Sixth Circuit’s decision in this case. Given the

misguided nature of the Sixth Circuit’s decision and the

sweeping practical ramifications of that decision, this

Court should at a minimum order the Sixth Circuit to

reconsider its decision in light of Burlington Northern

before that misguided decision is allowed to stand once

and for all.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Of Counsel

DOUGLAS T. NELSON

JOSHUA B. SALTZMAN

CROPLIFE AMERICA

1156 15th Street, NW

Suite 400

Washington, D.C. 20005

(202) 296-1585

November 2, 2009

Respectfully submitted,

KENNETH W. WEINSTEIN

Counsel of Record

CLAUDIA M. O’BRIEN

STACEY L. VANBELLEGHEM

LATHAM & WATKINS LLP

555 1ITH STREET, NW

SUITE 1000

WASHINGTON, DC 20004

(202) 637-2200

Counsel for Petitioners

Agribusiness Association of

Iowa, BASF Corporation,

CropLife America, FMC

Corporation, Responsible

Industry for a Sound

Environment, Southern

Crop Production

Association and Syngenta

Crop Protection, Inc.

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THE NATIONAL COTTON

COUNCIL OF AMERICA, Nos. 06-4630; 07-

et al., 3180/3181/3182/

3183/3184/3185/

Petitioners, 3186/3187/3191/

3236

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

On Petition for Review of Final Action of the

United States Environmental Protection Agency.

Nos. OW-2003-0063; 40 CFR Part 122.

Argued: April 29, 2008.

Decided and Filed: January 7, 2009.

553 F.3d 927

Before: GUY, SUHRHEINRICH, and COLE, Circuit

Judges.

OPINION

COLE, Circuit Judge. These proceedings involve a

final regulation issued by the Environmental

Protection Agency (the “EPA”) under the Clean Water

Act, 33 U.S.C. § 1251 et seq. 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. Jd.

§§ 1311(a), 1842. On November 27, 2007, the EPA

issued a Final Rule concluding that pesticides applied

in accordance with the Federal Insecticide, Fungicide,

and Rodenticide Act (the “FIFRA”) are exempt from

the Clean Water Act’s permitting requirements. See

71 Fed. Reg. 68,483 (Nov. 27, 2006) (the “Final Rule”).

Two different groups of Petitioners—one representing

environmental interest groups and the other

representing industry interest groups—oppose the

EPA’s Final Rule as exceeding the EPA’s interpretive

authority. The EPA defends the Final Rule by arguing

that the terms of the Clean Water Act are ambiguous

and that the Final Rule is a reasonable construction of

the Clean Water Act entitled to deference from this

Court. We cannot agree. The Clean Water Act is not

ambiguous. Further, it is a fundamental precept of this

Court that we interpret unambiguous expressions of

Congressional will as written. Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43

(1984). Therefore, we hold that the EPA’s Final Rule

is not a reasonable interpretation of the Act and

VACATE the Final Rule.

I. BACKGROUND

A. The Regulatory Background

1. The Clean Water Act

Congress enacted the Clean Water Act “to restore

and maintain the chemical, physical and biological

integrity of the Nation’s waters.” Nat’l Wildlife Fed’n

v. Consumers Power Co., 862 F.2d 580, 582 (6th Cir.

1988) (quoting 33 U.S.C. §1251(a)). The goal of the

Clean Water Act is to achieve “water quality which

provides for the protection and propagation of fish,

shellfish, and wildlife and provides for recreation in and

on the water.” 33 U.S.C. § 1251(a)(2). Thus, the Act

provides that “the discharge of any pollutant by any

person shall be unlawful.” Jd. § 1311(a). “Pollutant” is

a statutorily defined term that includes, at least,

“dredged spoil, solid waste, incinerator residue,

sewage, garbage, sewage sludge, munitions, chemical

wastes, biological materials, radioactive materials,

heat, wrecked or discarded equipment, rock, sand,

cellar dirt and industrial, municipal, and agricultural

waste discharged into water.” Jd. § 1362(6). The

Supreme Court has held that this list is not exhaustive

and that “pollutant” should be interpreted broadly.

Rapanos v. United States, 547 U.S. 715, 724 (2006).

The Clean Water Act prohibits the discharge of any

“pollutant” into navigable waters from any “point

source” unless the EPA issues a permit under the

NPDES permitting program, 33 U.S.C. §§ 1311(a),

1342, where a “point source” is “any discernible,

confined, and discrete conveyance . . . from which

pollutants are or may be discharged.” Jd. § 1362(14).

The permitting program constitutes an exception to

the Clean Water Act’s prohibition on _ pollutant

discharges into the Nation’s waters. Jd. §§ 1311(a),

1342; 40 C.F.R. § 122.3. Thus, if a party obtains a

permit, the discharge of pollutants in accordance with

that permit is not unlawful. /d.

Before a permit is issued, the EPA, or a state

agency that has been approved by the EPA, evaluates

the permit application to ensure that the discharge of a

pollutant under the proposed circumstances will not

cause undue harm to the quality of the water. See 33

U.S.C. § 1342. In addition to granting permits for

specific discharges, the EPA and state authorities may

also grant general permits that allow for the discharge

of a specific pollutant or type of pollutant across an

entire region. Jd. For example, prior to the EPA’s

adoption of the Final Rule, the State of Washington

had issued a general permit to allow for the application

of all aquatic pesticides in the State. See Acquatechnex

v. Washington Dep't of Ecology, PCHB No. 02-090,

2002 WA ENV LEXIS 87, *2-5 (Pollution Control

Hr’gs Bd. Dec. 24, 2002).1 As a result, users of aquatic

pesticides in Washington could discharge those

pesticides covered by the rule without obtaining a

permit. These general permits “greatly reduce [the]

administrative burden by authorizing discharges from

a category of point sources within a _ specified

geographic area.” S. Florida Water Mgmt. Dist. v.

Miccosukee Tribe of Indians, 541 U.S. 95, 108 n.*

(2004) (citing 40 C.F.R. § 122.28(b)(2)(v)). “Once [the]

EPA or a state agency issues such a [general] permit,

covered entities, in some cases, need take no further

action to achieve compliance with the NPDES besides

adhering to the permit conditions.” /d.

2. The Federal Insecticide, Fungicide, and

Rodenticide Act

The EPA also regulates the labeling and sale of

1 The State of California’s State Water Resources Control

Board (the “Board”) also issued a general permit that covered all

aquatic pesticide discharges, as long as the discharger certified

that alternative options had been evaluated and that any impact

the pesticide application had on the water quality would be

reported to the Board. General Permit No. CAG990003, 2001 Cal.

ENV LEXIS 12, at *1, 3-4, 19-21 (July 19, 2001).

pesticides under the Federal Insecticide, Fungicide,

and Rodenticide Act. Under the FIFRA, all pesticides

sold in the United States must be registered with the

EPA. See 7 U.S.C. § 186 et seq. The EPA approves an

insecticide for registration only when it finds that the

chemical, “when used in accordance with widespread

and commonly recognized practice ...[,] will not

generally cause unreasonably ‘adverse effects on the

environment.” No Spray Coalition v. City of New

York, 351 F.3d 602, 604-05 (2d Cir. 2003) (quoting 7

U.S.C. § 186a(c)(5)(D)). Under the FIFRA, the EPA

issues a “label” for each registered pesticide, indicating

the manner in which it may be used; the statute makes

it unlawful “to use any pesticide in a manner

inconsistent with its labeling.” Jd. (quoting 7 U.S.C.

§ 136)j(a)(Z)(6)).

For nearly thirty years prior to the adoption of the

Final Rule, pesticide labels issued under the FIFRA

were required to contain a notice stating that the

pesticide could not be “discharge[d] into lakes, streams,

ponds, or public waters unless in accordance with an

NPDES permit.” EPA’s Policy and Criteria Notice

2180.1 (1977). Despite amendments made to the

FIFRA’s labeling requirements over the years,

pesticide labels have always included a notice about the

necessity of obtaining an NPDES permit. See EPA’s

Policy and Criteria Notice 2180.1 (1984); Pesticide

Registration (“PR”) Notice 93-10 (July 29, 1993); PR

Notice 95-1 (May 1, 1995); see also EPA-738-7-96-007

(Feb. 1996), available at http://www.epa.gov/oppsrrd1/

REDs/factsheets/3095fact.pdf, (Pesticide Reregistration

notification for 4, 4- Dimetayloxazolidine) (referring to

the labeling requirement described in the PR Notice).

3. The Regulatory Framework Under the Final

Rule

Under the Clean Water Act, pollutants may only be

discharged according to a permit unless they fit into

one of the exceptions listed in the federal regulations at

40 C.F.R. § 122.8. The Final Rule revises the

regulations by adding pesticides to these exceptions as

long as they are used in accordance with the FIFRA’s

requirements. 71 Fed. Reg. at 68,485, 58,492.

Specifically, the Final Rule states that pesticides

applied consistently with the FIFRA do not require an

NPDES permit in the following two circumstances:

(1) The application of pesticides directly to

waters of the United States in order to control

pests. Examples of such applications include

applications to control mosquito larvae, aquatic

weeds, or other pests that are present in waters of

the United States.

(2) The application of pesticides to control pests

that are present over waters of the United States,

including near such waters, where a portion of the

pesticides will unavoidably be deposited to waters

of the United States in order to target the pests

effectively; for example, when insecticides are

aerially applied to a forest canopy where waters of

the United States may be present below the

canopy or where pesticides are applied over or

near water for control of adult mosquitoes or

other pests.

40. C.F.R. § 122.3(h).

Although the EPA, through its Final Rule, takes

the position that pesticides are not generally

pollutants, it makes an exception for “pesticide

residuals,” which “include[{] excess amounts. of

pesticide.” 71 Fed. Reg. at 68,487. “Pesticide

residuals” are those portions of the pesticide that

“remain in the water after the application and its

intended purpose (elimination of targeted pests) have

beeii completed....” Jd. The EPA concedes that

pesticide residue (unlike pesticides generally) is a

pollutant under the Clean Water Act because it is

“waste[] of the pesticide application.” Jd. Nonetheless,

the EPA contends that pesticide residue is not subject

to the NPDES permitting program because “at the

time of discharge to a water of the United States, the

material in the discharge must be both a pollutant, and

from a point source.” Jd. According to the EPA, the

residue cannot be subject to the permitting program

because by the time it becomes a pollutant it is no

longer from a “point source.” Since no “point source” is

at play, the EPA reasons, pesticide residue is a

“nonpoint source pollutant” and therefore not subject

to the permitting requirements. /d.

B. Procedural Background

Timely petitions for review of the Final Rule were

filed in the First, Second, Third, Fourth, Fifth, Sixth,

Seventh, Eighth, Ninth, Tenth, and D.C. Circuits by

either the “Industry Petitioners’? or the

“Environmental Petitioners.” The petitions for

2 Agribusiness Association of lowa, BASF Corporation, Bayer

CropScience LP, 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., LP.

3 Baykeeper, Californians for Alternatives to Toxics, California

Sportfishing Protection Alliance, National Center for

Conservation Science and Policy, Oregon Wild, Saint John’s

review were consolidated in this circuit by an order of

the Judicial Panel on Multidistrict Litigation, under 28

U.S.C. $§ 1407 and 2112(a)(3). The self-titled “Industry

Intervenors’”4 filed a motion to intervene in support of

the Final Rule.®

Environmental Petitioners filed a timely motion to

dismiss the petitions because of lack of subject matter

jurisdiction or, alternatively, to transfer the cases to

the Ninth Circuit. Industry Petitioners, the EPA, and

Industry Intervenors opposed this motion. The

Environmental Petitioners have also filed a complaint

challenging the Final Rule in the Northern District of

California in order to preserve review of the Final Rule

in the event this Court grants their motion to dismiss.

On July 24, 2007, we denied the motion to transfer and

deferred the decision on the question of subject matter

jurisdiction.

II. JURISDICTION

Environmental Petitioners contend that this

dispute should be dismissed for lack of subject matter

jurisdiction, arguing that original review of the Final

Rule by the courts of appeals is not covered by the

grant of original jurisdiction set forth in the Clean

Water Act, 33 U.S.C. § 1869(b)(1). Environmental

Petitioners are correct that “Congress did not intend

court of appeals jurisdiction over all EPA actions taken

Organic Farm, Waterkeeper Alliance, Inc., Peconic Baykeeper,

Inc., Soundkeeper, Inc., Environmental Maine, and Toxics Action

Center.

4 [Industry Intervenors include each of the Industry

Petitioners listed above as well as American Farm Bureau

Federation and American Forest & Paper Association.

5 American Mosquito Association submitted a brief as amicus

curiae in support of the Final Rule.

pursuant to the Act.” Lake Cumberland Trust, Inc. v.

EPA, 954 F.2d 1218, 1222 (6th Cir. 1992) (quoting Boise

Cascade Corp. v. EPA, 942 F.2d 1427, 1431 (9th Cir.

1991)). However, we conclude that, at a minimum,

§ 1869(b)(1)(F) encompasses the action before us.

Under 338 U.S.C. § 1369(b)(1)(F), a party may

challenge EPA actions “issuing or denying any permit

under [33 U.S.C.] section 1342 . . .” in the appropriate

circuit court. The Clean Water Act’s permitting

program is set forth in § 1342. The jurisdictional grant

of § 1369(b)(1)(F) authorizes the courts of appeals “to

review the regulations governing the issuance of

permits under section 402, 33 U.S.C. § 1342, as well as

the issuance or denial of a particular permit.” Am.

Mining Cong. v. EPA, 965 F.2d 759, 763 (9th Cir. 1992).

Thus, in Natural Resources Defense Council, Inc. v.

EPA, 966 F.2d 1292, 1296-97 (9th Cir. 1992), the court

held that it had jurisdiction to review an EPA rule

exempting uncontaminated storm-water discharge

from the permitting regulations. The Natural

Resources court concluded that it had “the power to

review rules that regulate the underlying permit

procedures.” Jd. at 1297 (citing NRDC v. EPA, 656

F.2d 768, 775 (D.C. Cir. 1981) and E.J. du Pont de

Nemours & Co. v. Train, 480 U.S. 112, 136 (1976)). The

Final Rule before us today likewise regulates the

permitting procedures, and we therefore conclude that

jurisdiction is proper under § 1369(b)(1)(F).

III. DISCUSSION

A. Standard of Review

Our review ‘of agency decisions has two

components. First, we determine whether the agency’s

chosen action complies with Chevron. 467 U.S. at 842-

45; see United States v. Mead Corp., 533 U.S. 218, 227

10a

(2001); Riverkeeper, Inc. v. EPA (“Riverkeeper IT’),

475 F.3d 83, 95 (2d Cir. 2007). When conducting

Chevron review of the Final Rule, we “examine the

[Final Rule] against the statute that contains the

EPA’s_ charge.” Riverkeeper, Inc. v. EPA

(“Riverkeeper I’), 358 F.3d 174, 183 (2d Cir. 2004).

Here, we must determine whether “the intent of

Congress is clear as to the precise question at issue.”

Nations Bank of N.C., N.A. v. Variable Annuity Life

Ins. Co., 513 U.S. 251, 257 (1995); Chevron, 467 U.S. at

842. “In making [this] threshold determination under

Chevron, a reviewing court should not confine itself to

examining a particular statutory provision in isolation.

Rather, the meaning—or ambiguity—of certain words

or phrases may only become evident when placed in

context.” Nat’l Ass’n of Home Builders v. Defenders of

Wildlife, 127 S. Ct. 2518, 2534 (2007). If the intent of

Congress is clear, “that is the end of the matter; for the

court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.”

Chevron, 467 U.S. at 842-48. If, and only if, the statute

is silent or ambiguous regarding the question at issue,

we then move to step two of Chevron review and ask

whether “the agency’s answer is based on a permissible

construction of the statute.” /d. at 843. If the agency’s

“interpretation is reasonable, we must defer to its

construction of the statute.” Wachovia Bank, N.A. v.

Watters, 431 F.3d 556, 562 (6th Cir. 2005).

The second part of our review would require us to

consider the Final Rule under the standards set forth

by the Administrative Procedure Act section 10(2)(e), 5

U.S.C. § 706(2) (the “APA”), under which we are

required to “hold unlawful and set aside agency action,

findings, and conclusions” that, among other criteria,

lla

are found to be “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). Agency action is arbitrary and

capricious where

the agency has relied on factors that Congress has

not intended it to consider, entirely failed to

consider an important aspect of the problem,

offered an explanation for its decision that runs

counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a

difference in view or the product of agency

experience.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 48 (1988); see also Citizens Coal

Council, 447 F.3d at 890. When conducting this form of

review, we ensure that the agency “examine[d] the

relevant data and articulate[d] a _ satisfactory

explanation for its action including a _ rational

connection between the facts and the choice made.”

Motor Vehicle Mfrs., 463 U.S. at 48. “The court is

required to make a ‘searching and careful review’ in its

assessment of the agency action, but ‘the ultimate

standard of review is a narrow one.” Citizens Coal

Council, 447 F.3d at 890 (quoting Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

B. The Parties’ Positions

1. The Petitioners

Environmental Petitioners argue: (1) that the EPA

exceeded its authority under the Clean Water Act in

issuing a rule that excludes pesticides from the

definition of “pollutant” under 33 U.S.C. § 1362(6); (2)

that the EPA exceeded its authority under the Clean

Water Act when it determined that, while pesticides

are discharged by point sources, the residue of these

12a

pesticides is nonetheless a “nonpoint source pollutant”;

and (3) that the EPA may not exempt FIFRA-

compliant applications of pesticides from the

requirements of the Clean Water Act. Industry

Petitioners, on the other hand, argue that the Final

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.

In other words, the Industry Petitioners complain that

whether something constitutes a pollutant should not

hinge upon compliance with the FIFRA.

2. TheEPA

As described above, the EPA’s Final Rule exempts

from the NPDES permitting program pesticides that

are applied directly to the Nation’s waters, or near

such waters, in order to control pests. 40 C.F.R.

§ 122.3(h). The EPA says that its Final Rule exempts

both pesticides generally and “pesticide residue,”

which includes “excess pesticide.” 71 Fed. Reg. at

68,487.

The EPA provides two reasons that its Final Rule

is reasonable. First, the EPA argues that the Clean

Water Act as it applies to pesticides is ambiguous. The

EPA contends that it reasonably determined that

pesticides applied according to the FIFRA

requirements are not pollutants and therefore are not

subject to the NPDES permitting program. The EPA

reasons that “Congress defined the term ‘pollutant’ in

the Clean Water Act to mean one of 16 specific items.”

(EPA Br. at 22.) Of these sixteen, the EPA states that

pesticides, which are either chemical or biological in

nature, may only be considered to be “chemical wastes”

or “biological materials.” 71 Fed. Reg. at 68,486. The

18a

EPA argues that pesticides are not “chemical wastes”

in the ordinary dictionary definition of the word

“waste,” because waste is that which is “eliminated or

discarded as no longer useful or required after the

completion of a process.” Jd. (quoting The New Ozford

American Dictionary 1905 (Elizabeth J. Jewell &

Frank Abate eds., 2001)). Rather than being wastes,

the EPA reasons that pesticides applied according to

the FIFRA’s labeling requirements “are products that

the EPA has evaluated and registered for the purpose

of controlling target organisms, and are designed,

purchased, and applied to perform that purpose.” Jd.

The EPA next concludes that pesticides applied in

accordance with the FIFRA are not “biological

materials” because to find otherwise would lead to the

anomalous result “that biological pesticides are

pollutants, while chemical pesticides used in the same

circumstances are not.” Id.

The EPA’s second argument attempts to justify its

Fina! Rule as applied to pesticide residue. In contrast

to pesticides generally, which the EPA contends are

not pollutants, the EPA concedes that pesticide residue

and excess pesticide are pollutants within the meaning

of the Clean Water Act because “they are wastes of the

pesticide application.” 71 Fed. Reg. at 68,487. The

EPA also concedes that pesticides are discharged from

a point source. Jd. at 68,487-88. Nonetheless, the EPA

concludes that no permit is required for pesticide

applications that result in excess or residue pesticide

because it interprets the Clean Water Act as requiring

permits only for discharges that are “both a pollutant,

and from a point source” at the time of discharge. /d.

at 68,487.

l4a

C. Analysis

1. Are Pesticides Unambiguously “Pollutants”

Within the Meaning of the Act?

The first question under Chevron is whether the

Clean Water Act unambiguously includes pesticides

within its definition of “pollutant.” Under this first

step, this Court determines “whether Congress has

directly spoken to the precise question at issue.” 467

U.S. at 842. This is determined by “employing

traditional tools of statutory construction.” Jd. The

meaning of a statute “is determined by reference to the

language itself, the specific context in which that

language is used, and the broader context of the

statute as a whole.” Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997); see also Dole v. United Steelworkers of

Am., 494 U.S. 26, 35 (1990) (“Our ‘starting point is the

language of the statute,’ ... but ‘in expounding a

statute, we are not guided by a single sentence or

member of a sentence, but look to the provisions of the

whole law, and to its object and policy.””) (citations

omitted). If Congress’s intent is clear from the

statutory language, then “that intent must be given

effect.” Chevron, 467 U.S. at 842-43.

As noted above, the Clean Water Act defines

“pollutant” as “dredged spoil, solid waste, incinerator

residue, sewage, garbage, sewage sludge, munitions,

chemical wastes, biological materials, radioactive

materials, heat, wrecked or discarded equipment, rock,

sand, cellar dirt and industrial, municipal, and

agricultural waste discharged into water.” 33 U.S.C.

§ 1862(6). This Court has previously concluded that the

“broad generic terms” included in the definition of

“pollutant” demonstrate Congress’s intent to capture

more than just the items expressly enumerated.

15a

United States v. Hamel, 551 F.2d 107, 110 (6th Cir.

1977) (concluding that the Clean Water Act covers, at a

minimum, those pollutants covered under the Refuse

Act, which applies to “all foreign substances” not

explicitly exempted from coverage); see alsc, e.g.,

Cedar Point Oil Co., 73 F.3d at 565 (“{T]Jhe breadth of

many of the items in the list of ‘pollutants’ tends to

eviscerate any restrictive effect.”); No Spray

Coalition, Inc., 2005 U.S. Dist. LEXIS 11097, at *17

(citing S. Rep. No. 92-414 at 76 (1972), reprinted in 1972

U.S.C.C.A.N. 3668, 3742). However, we need not

consider the term’s breadth today. Rather, we find the

plain language of “chemical waste” and “biological

materials” in § 1362(b) to be unambiguous as to

pesticides. This Court must, therefore, give effect to

the Congress’s expressed intent. See Chevron, 467

USS. at 842-43.

a. Chemical Waste

Generally, a court should give a word in a statute its

“ordinary, contemporary, common meaning, absent an

indication Congress intended [it] to bear some different

import.” Grand Traverse Band of Ottawa & Chippewa

Indians v. Office of U.S. Attorney, 369 F.3d 960, 967

(6th Cir. 2004) (quoting Williams v. Taylor, 529 US.

420, 431-32 (2000)). The EPA refers the Court to The

New Oaford American Dict? nary (Jewell & Abate

eds. 2001), which defines waste as “eliminated or

discarded as no longer useful or required after the

completion of a process.” /d. at 1905. Industry

Petitioners point the Court to Black’s Law Dictionary

(8th ed. 2004), which defines waste as “[rlefuse or

superfluous material, esp. that after a manufacturing or

chemical process.” /d. at 1621. Similarly, the Ninth

Circuit has accepted the American Heritage

16a

Dictionary’s definition of waste as “any useless or

worthless byproduct of a process or the like; refuse or

excess material.” N. Plains Res. Council v. Fidelity

Exploration & Dev. Co., 325 F.3d 1155, 1161 (9th Cir.

2003); Fairhurst v. Hagener, 422 F.3d 1146, 1149 (2005).

Under any of these definitions of “waste,” “chemical

waste” for the purposes of the Clean Water Act would

include “discarded” chemicals, “superfluous” chemicals,

or “refuse or excess” chemicals. As such, under a plain-

meaning analysis of the term, we cannot conclude that

all chemical pesticides require NPDES permits.

Rather, like our sister circuit in Fairhurst, we conclude

that: so long as the chemical pesticide “is intentionally

applied to the water [to perform a particular useful

purpose] and leaves no excess portions after

performing its intended purpose[] it is not a ‘chemical

waste,” 422 F.3d at 1149, and does not require an

NPDES permit. Jd.

On the other hand, as Environmental Petitioners

argue and the EPA concedes, excess pesticide and

pesticide residue meet the common definition of waste.

To this extent, the EPA’s Final Rule is in line with the

expressed intent of Congress, as the Rule defines these

pesticide residues as pollutants “because they are

wastes of the pesticide application.” 71 Fed. Reg. at

68,487. The EPA aptly states:

[Pesticides applied to land but later contained

in a waste stream, including storm water

regulated under the Clean Water Act, could

trigger the requirement of obtaining an NPDES

permit .... In addition, if there are residual

materials resulting from pesticides that remain in

the water after the application and its intended

purpose has been completed, the _ residual

17a

materials are pollutants because they are

substances that are no longer useful or required

after the completion of a process.

(EPA Br. 29-30.) This Court agrees.

Therefore, at least two easily defined sets of

circumstances arise whereby chemical pesticides

qualify as pollutants under the Clean Water Act. In

the first circumstance, a chemical pesticide is initially

applied to land or dispersed in the air—these pesticides

are sometimes referred to as either “terrestrial

pesticides” or “aerial pesticides” and_ include

applications “above” or “near” waterways. At some

point following application, excess pesticide or residual

pesticide finds its way into the navigable waters of the

United States. Pesticides applied in this way and later

affecting the water are necessarily “discarded,”

“superfluous,” or “excess” chemical. Such chemical

pesticide residuals meet the Clean Water Act’s

definition of “chemical waste.”

In the second circumstance, a chemical pesticide is

applied directly and purposefully to navigable waters

to serve a beneficial purpose—such pesticides are often

referred to as “aqueous” or “aquatic” pesticides. As

contemplated by the EPA, if residual aquatic pesticide

“remain({s] in the water after the application and [the

pesticide’s] intended purpose has been completed,”

then the residue would likewise qualify as a “chemical

waste.” (EPA Br. 29-30.) As such, these chemical

wastes would unambiguously fall within the ambit of

the Clean Water Act.

This second scenario, of course, leads to the

inevitable quandary that both nonwaste aqueous

pesticide and pesticide residual are applied to water at

the same moment, which then gives rise to the question

18a

of how the EPA can regulate and permit the residual.

However, this problem is more theoretical than

practical. In reality, whether or not a particular

chemical pesticide needs to be regulated can be easily

answered by both the EPA’s and industry’s experience

with that pesticide. If, as was the case in Fairhurst, a

chemical such as antimycin leaves no excess portions

after performing its intended purpose, then that

chemical’s use need not be regulated. See Fairhurst,

422 F.3d at 1149. If, on the other hand, a chemical

pesticide is known to have lasting effects beyond the

pesticide’s intended object, then its use must be

regulated under the Clean Water Act. See also

Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d

526, 532-33 (9th Cir. 2001).

b. Biological Materials

Continuing our review under Chevron, we must

examine the “ordinary, contemporary, [and] common

meaning” of “biological materials.” Grand Traverse

Band, 369 F.3d at 967. Environmental Petitioners

point out that Webster’s Third New International

Dictionary (Gove ed. 1993) defines “material” as “of,

relating to, or consisting of matter’ and “the basic

matter from which the whole or the great part of

something is made.” Id. at 1892. The Oxford English

Dictionary provides that “material” is “that which

constitutes the substance of a thing (physical or

nonphysical); a physics] substance; a material thing.”

OED Online, available at http://dictionary.ced.com/

egi/entry/00303279? query_type=word&queryword=ma

terial&first=1&max_to_show=10&sort_type=alpha&re

sult_place=1&search_id=VoPl-c VwRjA-12823&hilite=

00303279. The plain, unambiguous nature of this

language compels this Court to find that matter of a

19a

biological nature, such as biological pesticides, qualifies

as a biological material and falls under the Clean Water

Act if it is “discharged into water.” 33 U.S.C. § 1362(6).

The EPA points to Ninth Circuit case law that

holds that “mussel shells and mussel byproduct are not

pollutants” under the Clean Water Act. Ass’n to

Protect Hammersley, Eld & Totten Inlets v. Taylor,

299 F.3d 1007, 1016 (9th Cir. 2002). The Hammersley

court found the Clean Water Act to be “ambiguous on

whether ‘biological materials’ means all biological

matter regardless of quantum and nature.” Jd. While

that case is distinguishable, we choose a more limited

analysis.6 We see our obligation not as defining the

outermost bounds of “biological materials,” but rather

simply as deciding whether biological pesticides fit into

the ordinary meaning of “biological materials.”

The term “biological materials” cannot be read to

exclude biological pesticides or their residuals. The

EPA’s Final Rule treats biological pesticides no

differently from chemical pesticides, exempting both

from NPDES permitting requirements in certain

circumstances. See 71 Fed. Reg. at 68,492. We find this

interpretation to be contrary to the plain meaning of

the Clean Water Act. In 33 U.S.C. § 1362, Congress

purposefully included the term “biological materials,”

rather than a more limited term such as “biological

wastes.” Congress could easily have drafted the list of

pollutants in the Clean Water Act to include “chemical

wastes” and “biological wastes.” But, here, the word

6 The Hammersley court based its conclusion on the fact that

shells and shell byproduct of shellfish-farming facilities are the

result of natural biological processes, not the result of a

transforming human process. See Hammersley, 299 F.3d at 1016-

17.

20a

“waste” does not accompany “biological materials.”

Thus, if we are to give meaning to the word “waste” in

“chemical waste,” we must recognize Congress’s intent

to treat biological and chemical pesticides differently.

This interpretation is consistent with the precedent

of this Court and others. In National Wildlife

Federation v. Consumer Power Co., 862 F.2d 580 (6th

Cir. 1988), we determined that “(millions of pounds of

live fish, dead fish and fish remains annually discharged

in Lake Michigan by [a] facility are pollutants within

the meaning of the [Clean Water Act], since they are

“biological materials.” Likewise, the District Court of

Maine determined that “salmon feces and urine that

exit the net pens and enter the waters are pollutants as

they constitute ‘biological materials’ or ‘agricultural

wastes.” United States Pub. Interest Research Group

v. Atl. Salmon of Maine, 215 F. Supp. 2d 239, 247 (D.

Me. 2002) (citing Higbee v. Starr, 598 F. Supp. 323, 330-

31 (D. Ark. 1984) aff'd, 782 F.2d 1048 (8th Cir. 1985)).

Biological pesticides similarly must be considered

“biological materials.” Biological pesticides consist of

artificial concentrations of viruses, bacteria, fungi,

piant materials, and/or other biological materials. See

Pesticides: Glossary, U.S. EPA, available at

http://www.epa.gov/pesticides/glossary. Congress

defined “pollution” as “the man-made or man-induced

alteration of the chemical, physical, biological, and

radiological integrity of water.” 33 U.S.C. § 1362(19).

Adding biological pesticides to water undeniably alters

its biological integrity. Therefore, we find biological

pesticides to be “biological materials” under the Clean

Water Act.

2la

2. Are Chemical Pesticide Residuals Added to the

Water by “Point Sources?”?

The EPA further defends its Final Rule by arguing

that excess pesticide and residue pesticide are not

discharged from a “point source.” In other words,

though excess and residue pesticides have exactly the

same chemical composition and are discharged from the

Same point source at exactly the same time as the

original pesticide, and though excess and residue

pesticides would not enter the Nation’s waterways but

for the discharge of the original pesticide, the EPA

concludes that excess and residue pesticides are not

discharged from a “point source” because at the

moment of discharge there is only pesticide. This is so,

according to the EPA, because excess and residue

pesticides do not exist until after the discharge is

complete, and therefore “should be treated as a

nonpoint source poliutant.” 71 Fed. Reg. at 65,847.

The Clean Water Act defines “point source” as “any

discernible, confined, and discrete conveyance,”

including a variety of mechanisms such as “container,”

“rolling stock,” or “vessel or other floating craft.” 33

U.S.C. § 1862(14). The EPA and the courts agree that

pesticides are applied by point sources. See 71 Fed.

Reg. at 65,847; League of Wilderness Defenders v.

Forsgren, 309 F.3d ‘1181, 1185 (9th Cir. 2002);

Headwaters, 243 F.3d at 528. The EPA argues that, at

the time of discharge, the pesticide is a nonpollutant,

and the excess pesticide and pesticide residues are not

7 This analysis is not necessary for biological pesticides

because, as discussed above, both biological pesticides and their

residuals are pollutants under the Clean Water Act. Because

biological pesticides are discharged from a “point source” they

must be regulated under the Act.

22a

created until later, presumably after they are already

in the water. Therefore, according to the EPA,

pesticides at the time of discharge do not require

permits because they are not yet excess pesticides or

residue pesticides. But there is no requirement that

the discharged chemical, or other’ substance,

immediately cause harm to be considered as coming

from a “point source.” Rather, the requirement is that

the discharge come from a “discernible, confined, and

discrete conveyance,” 33 U.S.C. § 13862(14), which is the

case for pesticide applications.

The EPA offers no direct support for its assertion

that a pesticide must be “excess” or “residue” at the

time of discharge if it is to be considered as discharged

from a “point source.” 'This omission of authority is

understandable, as none exists. The Clean Water Act

does not create such a requirement. Instead, it defines

“discharge of a pollutant” as “any addition of any

pollutant to navigable waters from any point source.”

33 U.S.C. § 1362(12). The EPA’s attempt at temporally

tying the “addition” (or “discharge”) of the pollutant to

the “point source” does not follow the plain language of

the Clean Water Act. Injecting a temporal

requirement to the “discharge of a pollutant” is not

only unsupported by the Act, but it is also contrary to

the purpose of the permitting program, which is “to

prevent harmful discharges into the Nation’s waters.”

Defenders of Wildlife, 127 S. Ct. at 2525. If the EPA’s

interpretation were allowed to stand, discharges that

are innocuous at the time they are made but extremely

harmful at a later point would not be subject to the

permitting program. Further, the EPA’s

interpretation ignores the directive given to it by

Congress in the Clean Water Act, which is to protect

23a

water quality. As the EPA itself recognizes,

“Congress generally intended that pollutants be

controlled at the source whenever possible.” 73 Fed.

Reg. at 33,702 (citing S. Rep. No. 92-414, p. 77 (1972)).

Here, it is certainly possible for pesticide residue to be

controlled at its source because the discharge of the

pesticide introduces such residue into the water.

The EPA’s newly asserted temporal element also

runs contrary to its own recent interpretation of the

Clean Water Act’s term “addition.” See 73 Fed Reg.

33,697 (June 18, 2008). The EPA determined that

transfers of water from one body of water to another

do not constitute the “addition” of a pollutant to the

new body of water, and in doing so clarified its

understanding of the term “addition.” 73 Fed Reg.

33,697. The EPA explained:

Given the broad definition of “pollutant,”

transferred (and receiving) water will always

contain intrinsic pollutants, but the pollutants in

transferred water are already in “the waters of the

United States” before, during, and after the water

transfer. Thus, there is no “addition”; nothing is

being added “to” “the waters of the United States”

by virtue of the water transfer, because the

pollutant at issue is already part of “the waters of

the United States” to begin with.

As noted above, EPA’s longstanding position is that

an NPDES pollutant is “added” when it is

introduced into a water from the “outside world” by

a point source. Gorsuch, 693 F.2d at 174-75.

Id. at 33,701. Given the EPA’s understanding of

“addition” of a pollutant as stated above, it is clear that

under the meaning of the Clean Water Act, pesticide

24a

residue or excess pesticide—even if treated as distinct

from pesticide—is a pollutant discharged from a point

source because the pollutant is “introduced into a

water from the ‘outside world’ by” the pesticide

applicator from a “point source.” See id. This

interpretation coincides with the method of

determining whether a discharge is from a “point

source” that the Supreme Court recently cited with

approval: “For an addition of pollutants to be from a

point source, the relevant inquiry is whether—but for

the point source—the pollutants would have been

added to the receiving body of water.” Miccosukee, 541

U.S. at 103 (quoting Florida Water Mgmt. Dist. v.

Miccosukee Tribe of Indians, 280 F.3d 1364, 1368 (11th

Cir. 2002)). It is clear that but for the application of the

pesticide, the pesticide residue and excess pesticide

would not be added to the water; therefore, the

pesticide residue and excess pesticide are from a “point

source.”

3. May the Final Rule Stand?

For all of these reasons, we conclude that the

statutory text of the Clean Water Act forecloses the

EPA’s Final Rule. The EPA properly argues that

excess chemical pesticides and chemical pesticide

residues, rather than all chemical pesticides, are

pollutants. However, the Final Rule does not account

for the differences between chemical and biological

pesticides under the language of the Clean Water Act.

Further, because the Act provides that residual and

excess chemical pesticides are added to the water by a

“point source” there is no room for the EPA’s

argument that residual and excess pesticides do not

require an NPDES permit. The “point source” from

which the residue originates is easily discernable and

25a

necessarily must “be controlled at the source.” See 73

Fed. Reg. at 33,702. Given all of the above in

combination with the EPA’s interpretation that

“(ploint sources need only convey pollutants into

navigable waters to be subject to the Act,” id. at

33,703, dischargers of pesticide pollutants are subject

to the NDPES permitting program in the Clean Water

Act. As such, the EPA’s Final Rule cannot stand.

Because the Clean Water Act’s text bars the Final

Rule we make no determination regarding the validity

of the issuance of the Final Rule under the APA, nor do

we analyze the relationship between the Clean Water

Act and the FIFRA.

CONCLUSION

For the foregoing reasons, Environmental

Petitioners’ petitions are GRANTED in part and

DENIED in part, and Industry Petitioners’ petitions

are DENIED in whole. We VACATE the Final Rule.

26a

[68483]

Federal Register/Vol. 71, No. 227/

Monday, November 27, 2006/Rules and Regulations

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[OW-2003-0063; FR L--8248-1]

RIN 2040-AE79

Application of Pesticides to Waters of the United

States in Compliance With FIFRA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: Today, EPA is issuing a regulation

stating that the application of a pesticide in compliance

with relevant requirements of the Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA) does not

require a National Pollutant Discharge Elimination

System (NPDES) permit in two specific circumstances.

The first circumstance is when the application of the

pesticide is made directly to waters of the United

States to control pests that are present in the water.

The second circumstance is when the application of the

pesticide is made to control pests that are over,

including near, waters of the United States. This

rulemaking is based on the Agency’s interpretation of

the definition of the term “pollutant” under the Clean

Water Act (CWA) as not including such pesticides.

This final rulemaking replaces EPA’s previously

published Interim and Final Interpretive Statements

on the Application of Pesticides to Waters of the

United States in Compliance with FIFRA. EPA’s

Interpretive Statement, published February 1, 2005,

described the Agency’s interpretation of the CWA with

27a

regard to the application of pesticides regulated under

FIFRA that are applied to or over, including near,

waters of the United States. On August 13, 2008, EPA

provided public notice of and solicited public comment

on an Interim Statement and incorporated that input

into the Interpretive Statement. On February 1, 2005,

EPA published the Interpretive Statement and

proposed to codify its substance in EPA’s NPDES

regulations and solicited comment on that proposed

action. Today’s final rule is the result of this process.

DATES: These final regulations are effective on

January 26, 2006.

ADDRESSES: EPA has established a ¢ocket for this

action under Docket ID No. OW-2003-0063. All

documents in the docket are listed online at http://

www.regulations.gov. Although listed in the online

docket, some information is not publicly availauie, i.e.,

Confidential Business Information (CBI) or other

information whose disclosure is restricted by statute.

Certain other material, such as copyrighted material,

is not placed on the Internet and will be publicly

available only in hard copy form. Publicly available

docket materials are available either online or in hard

copy at the Water Docket, EPA/DC, EPA West, Room

B102, 1301 Constitution Ave., NW., Washington, DC.

The Public Reading Room is open from 8:30 a.m. to 4:30

p.m., Monday through Friday, excluding legal holidays.

The telephone number for the Public Reading Room is

(202) 566-1744, and the telephone number for the

Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: For

additional information, contact Jeremy Arling, Water

Permits Division, Office of Wastewater Management

(4203M), Environmental Protection Agency, 1200

28a

Pennsylvania Ave., NW., Washington, DC 20460;

telephone number: 202—564- 2218, e-mail address:

arling.jeremy@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

You may be affected by this action if you apply

pesticides to or over, including near, water. Potentially

affected entities may include, but are not limited to:

[Table 1. omitted]

[68484] This table is not intended to be exhaustive,

but rather provides a guide for readers regarding

entities likely to be affected by this action. This table

lists the types of entities that EPA is now aware could

potentially be affected by this action. Other types of

entities not listed in the table could also be affected. To

determine whether your facility is affected by this

action, you should carefully examine the applicability

criteria in 40 CFR 122.23. If you have questions

regarding the applicability of this action to a particular

entity, consult the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section.

II. Background

A. Clean Water Act and the Federal Insecticide,

Fungicide, and Rodenticide Act

Congress passed the Federal Water Pollution

Control Act (1972), also known as the Clean Water Act

(CWA), to “restore and maintain the chemical,

physical, and biological integrity of the nation’s waters”

33 U.S.C. 125i(a). The CWA prohibits the discharge of

any pollutant by any person from a point source into a

water of the United States, except in compliance with

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certain other provisions of the Act, including Section

402. 33 U.S.C. 1311(a). Section 402 in turn authorizes

EPA to issue permits under the National Pollutant

Discharge Elimination System (NPDES) permit

program for such discharges. States may also issue

NPDES permits if authorized to do so by EPA. 33

U.S.C. 1342(a) and (0b).

NPDES permits under the CWA are required only

for point source discharges of materials that are

pollutants to waters of the United States. Section

502(6) of the CWA defines “pollutant” to mean:

** * dredged spoil, solid waste, incinerator residue,

sewage, garbage, sewage sludge, munitions, chemical

wastes, biological materials, radioactive materials,

heat, wrecked or discarded equipment, rock, sand,

cellar dirt and industrial, municipal and agricultural

waste discharged into water.

83 U.S.C. 1862(6).1 In the more than 30 years that

EPA has administered the CWA, the Agency has

never issued an NPDES permit for the application of a

pesticide to or over water to target a pest that is

present in or over the water. Nor has the Agency ever

stated in any general policy or guidance that an

NPDES permit is required for such applications.

1 The remaining language of the definition of “pollutant” in

Section 502(6) is as follows, and is not relevant to today’s action:

“The term does not mean (A) “sewage from vessels” within the

meaning of Section 312 of this Act; or (B) water, gas, or other

material which is injected into a well to facilitate production of oil

or gas, or water derived in association with oil or gas production

and disposed of in a well, if the well used either to facilitate

production or for disposal purposes is approved by authority of the

State in which the well is located, and if such State determines

that such injection or disposal will not result in the degradation of

ground or surface water resources.”

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EPA regulates the sale, distribution and use of

pesticides in the United States under the statutory

framework of the Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA) to ensure that when used in

conformance with FIFRA labeling directions,

pesticides will not pose unreasonable risks to human

health and the environment. All new pesticides must

undergo a rigorous registration procedure under

FIFRA during which EPA assesses a variety of

potential human health and environmental effects

associated with use of the product.

Under FIFRA, EPA is required to consider the

effects of pesticides on the environment by

determining, among [68485] other things, whether a

pesticide “will perform its intended function without

unreasonable adverse effects on the environment,” and

whether “when used in accordance with widespread

and commonly recognized practice [the pesticide] will

not generally cause unreasonable adverse effects on

the environment.” 7 U.S.C. 136a(c)(5). In performing

this analysis, EPA examines the ingredients of a

pesticide, the intended type of application site and

directions for use, and supporting scientific studies for

human hea'th and _ environmental effects and

exposures. The applicant for registration of the

pesticide must provide data from tests done according

to EPA guidelines. This process is discussed in more

detail below.

Several courts have recently addressed the

question of whether the CWA requires NPDES

permits for pesticide applications. These cases have

resulted in some confusion among the regulated

community and other affected citizens about the

applicability of the CWA to pesticides applied to

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waters of the United States. In 2001, the U.S. Court of

Appeals for the Ninth Circuit held in Headwaters, Inc.

v. Talent Irrigation District (Talent) that an applicator

of herbicides was required to obtain an NPDES permit

under the circumstances before the court (described in

detail in Section V.C. below). 243 F.3rd 526 (9th Cir.

2001). The Talent decision caused considerable concern

and confusion among public health authorities, natural

resource managers, and others who rely on pesticides

regarding their potential obligation to obtain an

NPDES permit when applying a pesticide consistent

with FIFRA and particularly about the impact of such

a requirement on accomplishing their mission of

protecting human health and the environment.

‘In 2002, the Ninth Circuit in League of Wilderness

Defenders et al. v. Forsgren (Forsgren) held that the

application of pesticides to control gypsy moths in

National Forest lands required an NPDES permit. 309

F.3d 1181 (9th Cir. 2002). The court in Forsgren did

not analyze the question of whether the pesticides

applied were pollutants, because it assumed that the

parties agreed that they were. In fact, the United

States expressly reserved its arguments on that issue

in its brief to the District Court. Id. at 1184, n.2. The

court instead analyzed the question of whether the

aerial application of the pesticide constituted a point

source discharge, and concluded that it did. Id. at 1185.

Since Talent and Forsgren, California, Nevada,

Oregon, and Washington, all of which are within the

Ninth Circuit, have issued permits for the application

of certain types of pesticides (e.g., products to control

aquatic weeds and algae and products to control

mosquito larvae). Other States have continued their

longstanding practice of not issuing permits to people

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who apply pesticides to waters of the United States.

These varying practices reflect the substantial

uncertainty among regulators, the regulated

community, and the public regarding how the Clean

Water Act applies to pesticides that have been

properly applied and used for their intended purpose.

The Ninth Circuit recently addressed the Clean Water

Act’s applicability to pesticide applications for a third

time. In Fairhurst v. Hagener, the court held that

pesticides applied directly to a lake in order to

eliminate non-native fish species, where there are no

residues or unintended effects, are not “pollutants”

under the CWA because they are not chemical wastes.

422 F.3d 1146 (9th Cir. 2005).

Since Talent and Forsgren, other courts have

addressed the applicability of the CWA’s NPDES

permit requirements to pesticide applications. In

Altman v. Town of Amherst (Altman), the Second

Circuit vacated and remanded for further development

of the record a District Court decision holding that the

Town of Amherst was not required to obtain an

NPDES permit to spray mosquitocides over waters of

the United States. 47 Fed. Appx. 62, 67 (2nd Cir. 2002).

The United States filed an amicus brief setting forth

the Agency’s views in the context of that particular

case. In its opinion, the Second Circuit stated that

“fujntil the EPA articulates a clear interpretation of

current law—among other things, whether properly

used pesticides released into or over waters of the

United States can trigger the requirement for NPDES

permits * * *—the question of whether properly used

pesticides can become pollutants that violate the CWA

will remain open.” Jd. at 67.

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B. Interim and Interpretive Statements

In August 2003, EPA first analyzed _ the

applicability of the NPDES permit program to

pesticide applications in an administrative context

through an Interim Statement and Guidance. 68 FR

48385 (Aug. 13, 2003). The Interim Statement

presented EPA’s position on the two circumstances in

which pesticides applied to waters of the United States

consistent with all relevant requirements of FIFRA

are not “pollutants” under the CWA and thus do not

require an NPDES permit. Although the United

States previously addressed issues related to the

Interim Statement in several amicus briefs, including

those filed in Talent and Altman, those briefs reflected

the government’s evaluation of the law in the context

of specific factual situations, and did not result from

deliberative consideration through an administrative

process. As such, the amicus briefs did not represent

EPA’s legal position on the precise questions at issue in

the Interim Statement or in today’s regulation.

EPA solicited public comments on its interpretation

of the term “pollutant” in the Interim Statement as it

relates to certain pesticide applications. After

considering the public comments, EPA issued a final

Interpretive Statement on January 25, 2005. EPA

simultaneously published a notice of proposed

rulemaking to incorporate the substance of the

Interpretive Statement into EPA regulations and

solicited public comment on the proposed rulemaking.

70 FR 5093 (Feb.1, 2005). EPA has considered the

comments received and is today taking final action on

the proposed regulation. The final regulation is

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substantially similar to the proposed regulations, with

certain modifications described below.

III. Summary of the Final Rule

EPA is revising the NPDES permit program

regulations to add a paragraph to the list of discharges

in 40 CFR 122.3 that are excluded from NPDES permit

requirements. Specifically, today’s regulation excludes

applications of pesticides to waters of the United

States consistent with all relevant requirements under

FIFRA in two specific circumstances as follows:

(1) The application of pesticides directly to waters

of the United States in order to control pests.

Examples of such applications include applications to

controi mosquito larvae,

aquatic weeds, or other pests that are present in

waters of the United States.

(2) The application of pesticides to control pests

that are present over waters of the United States,

including near such waters, where a portion of the

pesticides will unavoidably be deposited to waters of

the United States in order to target the pests

effectively; for example, when insecticides are aerialiy

applied to a forest canopy where [68486] waters of the

United States may be present below the canopy or

when pesticides are applied over or near water for

control of adult mosquitoes or other pests.

2 On March 29, 2002, EPA issued an Interpretive Statement

and Regional Guidance on the Clean Water Act’s Exemption for

Return Flows from Irrigated Agriculture, which clarified that the

application of an aquatic herbicide consistent with the FIFRA

labeling to ensure the passage of irrigation return flow is a

nonpoint source activity not subject to NPDES permit

requirements under the Clean Water Act. This regulation does not

address the March 2002 guidance.

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Pesticides applied under these circumstances are not

pollutants and therefore are not subject to NPDES

permitting requirements.

EPA’s final rule is substantially similar to the rule

proposed in February 2005. EPA has modified the

proposed regulatory text only to clarify the types of

pesticide applications covered in the _ second

circumstance (those to control pests present over,

including near, waters of the United States).

Commenters raised concerns that the _ second

circumstance, as written in the proposed rule, could be

interpreted more broadly than the Agency intended

(e.g. encompassing drift from terrestrial pesticide

applications). The final rule clarifies that the

applications in the second circumstance are those in

which it is unavoidable that some of the pesticides will

be deposited into water in order to effectively target

the pests. In other words, EPA is clarifying in the final

rule that the regulation encompasses only those

applications to control pests over, including near,

waters of the United States, where the pesticide

necessarily must enter the water in order for the

application to achieve its intended purpose. Thus, the

applications mus: first be intended to control pests

over (including near) a water of the United States.

Second, it must be unavoidable that the pesticide enter

the water in order to target such pests effectively. For

example, EPA believes that wide-area forest canopy

insecticide applications can result in deposition to

streams and other waters of the U.S. which are either

not visible to the aerial applicator or not possible to

avoid given the lcation of aerial application, and that

in such circumstances, it is unavoidable that the

pesticide enter tre water in order to effectively target

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pests living in the canopy. Likewise, mosquito

adulticide applications can result in some pesticide

product entering the water because adult mosquitoes

generally live over and adjacent to waterbodies.

Similarly, pesticide applications to control non-native

plants which grow at the water’s edge, such as purple

loosestrife, are intended to be covered by this

provision, because when targeting piants at the water’s

edge, it is unavoidable that some of the herbicide will

enter the water. EPA notes that the clarifying

language in § 122.3(h)(2) is not intended to impose any

additional requirements on pesticide applications

beyond relevant FIFRA requirements. In addition, it

is not intended to address applications of pesticides to

terrestrial agricultural crops.

IV. Discussion

Today’s rulemaking implements EPA’s

interpretation of the CWA’s definition of “pollutant”

with respect to certain applications of pesticides.

Under the CWA, pollutant means:

* * * dredged spoil, solid waste, incinerator residue,

sewage, garbage, sewage sludge, munitions, chemical

wastes, biological materials, radicactive materials,

heat, wrecked or discarded equipment, rock, sand,

cellar dirt and industrial, municipal, and agricultural

waste discharged into water. 33 U.S.C. 1362(6).

The circumstances of pesticide applications covered

under today’s rule are limited to the two types of

applications described above, when conducted in

compliance with all relevant requirements of FIFRA.

EPA considers “relevant requirements” of FIFRA to

mean those FIFRA requirements that relate to water

quality. For instance, violating a requirement that the

person mixing the pesticide must wear protective

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clothing, while an unlawful act that can be enforced

under FIFRA, is not related to the protection of water

quality, and therefore not a relevant FIFRA

requirement for purposes of today’s regulation.

However, a labeling provision that governs application

rates, active ingredient concentrations and dilution

requirements, buffer zones, application locations,

intended targets, times of day, temperature or other

application requirements, and thus concerns the

amounts, concentrations, and viability of substances

that may potentially end up in waters of the United

States, is related to water quality. Relevant FIFRA

requirements may appear in product labeling, FIFRA

regulation, or other documents setting forth

requirements applied pursuant to FIFRA.

The application of a pesticide from a point source to

waters of the United States requires an NPDES

permit only if it constitutes the discharge of a

“pollutant” within the meaning of that term in the

CWA. EPA has evaluated whether pesticides

regulated under and applied consistent with relevant

FIFRA requirements for the two circumstances

previously described fall within the terms in the

CWA’s definition of “pollutant,” and concludes that

they do not. Pesticides are not dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, radioactive materials, heat, wrecked

or discarded equipment, rock, sand, cellar dirt or

industrial, municipal, and agricultural waste. See

CWA section 502(6). In addition, as described below,

the terms, “chemical waste” and “biological materials,”

also do not encompass the types of pesticide

applications addressed in today’s action.

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First, such pesticides are not “chemical wastes.”

The term “waste” ordinarily means that which is

“eliminated or discarded as no longer useful or

required after the completion of a process.” The New

Oxford American Dictionary 1905 (Elizabeth J. Jewell

& Frank Abate eds., 2001). Pesticides applied

consistent with relevant FIFRA requirements are not

“wastes” as that term is commonly defined—on the

contrary, they are products that EPA has evaluated

and registered for the purpose of controlling target

organisms, and are designed, purchased, and applied to

perform that purpose. See Fairhurst v. Hagener, 422

F.3d at 1150.

EPA also interprets the term “biological materials”

not to include biological pesticides applied consistent

with relevant FIFRA requirements. This

interpretation is both reasonable and consistent with

Congressional intent, and is supported by relevant case

law. It is unlikely that Congress intended to include

biological pesticides applied in the circumstances

described in today’s rule within the Clean Water Act’s

definition of “pollutant.” To do so would mean that

biological pesticides are pollutants, while chemical

pesticides used in the seme circumstances are not.

Since biologically and chemically based pesticides

applied consistent with relevant requirements adopted

by EPA under FIFRA are both EPA-evaluated

products, treating them differently under the Clean

Water Act is not warranted. Moreover, at the time the

Act was adopted in 1972, chemical pesticides were

predominant. It is therefore not surprising that

Congress failed to discuss whether biological pesticides

were to be covered by the Act. The fact that more

biological pesticides have been develoned since passage

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of the Act in 1972 does not justify expanding the reach

of the NPDES permit requirement when there is no

evidence that Congress intended the CWA to regulate

biological pesticides in a manner different from

chemical pesticides. Finally, biological pesticides in use

today are generally reduced-risk products that have a

narrower range of potential adverse environmental

effects compared to many chemical pesticides. For this

reason it would not make sense, and would be

inconsistent with the goals of the Clean Water Act, to

discourage the [68487] use of biological pesticides by

requiring applicators of these products to obtain an

NPDES permit when chemical pesticides have no such

requirement.

In cases in which courts have found specific

biological materials to be “pollutants” under section

502(6) the substances at issue were waste materials

discharged from a point source. See Concerned Area

Residents for the Environment v. Southview Farm, 34

F.3d 114 (2d Cir. 1994) (liquid manure is solid waste,

sewage, biological material, and agricultural waste and

is therefore a pollutant); USPIRG v. Atiantic Salmon,

215 F Supp. 2d 239, 247-49 (D. Maine 2002) (non-native

fish escaped from net pens and salmon feces and urine

exiting net pens’ are. biological materials;

pharmaceuticals in excess salmon feed exiting net pens

are chemical wastes), National Wildlife Federation v.

Consumers Power Co., 862 F.2d 580, 585 (6th Cir. 1988)

(live fish, dead fish, and fish remains released from

hydro-electric facility turbine are biological

materials), U.S. v. Plaza Health Laboratories, Inc., 3

F.3d 643, 646 (2d Cir. 1993), cert. denied 114 S.Ct. 2764

(1994) (discarded vials of human blood are pollutants).

In none of these cases, which were cited by

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commenters, did a court find that a product applied for

its intended purpose consistent with applicable EPA

requirements was a “biological material” and therefore

a pollutant under the CWA.

The Ninth Circuit Court of Appeals in Assn. to

Protect Hammersley, Eld, and Totten Inlets

(APHETI) v. Taylor Resources, Inc., 299 F.3d 1007,

1017 (9th Cir. 2002), cited to several of these cases as

being in accord with its finding that “biological

materials” means the waste product of a human or

industrial process. The APHETI court based its

decision that mussel shells, mussel feces, and other

materials emitted from mussels grown on harvesting

rafts are not pollutants on the doctrine of ejwsdem

generis. The court found that the more specific terms in

the CWA’s definition of “pollutant” support an

understanding of the more general term “biological

materials” as waste material of a human or industrial

process. /d. at 1015. The court went on to analyze

ongress’ intent in enacting the CWA and found that the

purpose of the statute further supported such an

interpretation of biological materials in that case. Jd. at

1016.

Furthermore, EPA’s interpretation that biological

and chemical pesticides are not pollutants is reasonable

because both types of pesticides must comply with

FIFRA registration requirements. EPA reviews and

evaluates these pesticides and authorizes their use,

subject to the limitations and requirements of the EPA

registration.

Today’s action applies only to the specific categories

of pesticide applications addressed in the text of the

regulation. EPA notes that pesticides are waste

materials, and therefore pollutants under the Act,

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when contained in a waste stream, including storm

water regulated under section 402(p) or other

industrial or municipal discharges. In those

circumstances, an NPDES permit may be required if

the pesticides are discharged into a water of the United

States from a point source.

In addition, if there are residual materials resulting

from pesticides that remain in the water after the

application and its intended purpose (elimination of

targeted pests) have been completed, these residual

materials are also pollutants under CWA section 502(6)

because they are wastes of the pesticide application.

Such residuals include excess amounts of pesticide that

do not reach a target organism and materials that

remain after the application has completed its intended

task. These materials are waste materials, as that

term is commonly defined, because they are substances

that are “no longer useful or required after the

completion of a process.” The New Oxford American

Dictionary 1905, supra. See also Fairhurst v. Hagener,

422 F.3d 1146.

However, pesticide applications under the

circumstances described above and consistent with

FIFRA do not require NPDES permits, even if the

application leaves residual materials which are

“pollutants” under the Act in waters of the United

States. Section 30l(a) of the CWA prohibits the

“discharge of any pollutant” except in compliance with

certain other provisions of the Act. The CWA defines

“discharge of a pollutant” to mean “any addition of any

pollutant to navigable waters from any point source.”

Thus, at the time of discharge to a water of the United

States, the material in the discharge must be both a

pollutant, and from a point source. In this case, while

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the discharge of the pesticide is from a point source

(generally a hose or an airplane), it is not a pollutant at

the time of the discharge. The material added by a

pesticide applicator to or over, including near, water is

not a pollutant for the reasons stated above. Even

though the pesticide may become a “pollutant” at a

later time (e.g., after the pesticide product has served

its intended purpose), a permit is not required for its

application because it did not meet both statutory

prerequisites (pollutant and point source) at the time of

its discharge into the water. Instead, the residual

should be treated as a nonpoint source pollutant,

potentially subject to CWA programs other than the

NPDES permit program (e.g., listing and TMDL

development pursuant to CWA section 303(d)).

Today’s action does not address drift over and into

waters of the United States from pesticide applications

to land. As discussed below, EPA has established a

multi-stakeholder workgroup under one of its federal

advisory committees to explore policy issues relating to

the terrestrial application of pesticides that may drift

into aquatic environments. EPA also notes that

today’s discussion of the terms “chemical waste” and

“biological materials” applies only for CWA purposes

and is not intended to address the use of those terms or

similar terms under any other statutes the Agency

administers.

V. Public Comment

EPA first solicited comment on its interpretation of

“pollutant” under the CWA with respect to certain

pesticide applications on August 13, 2003. See 68 FR

48385 (Awg. 18, 2003). EPA provided a second

opportunitty for public comment on its interpretation

when it proposed the regulation on which the Agency is

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today taking final action. See 70 FR 5093 (Feb. 1,

2005). EPA received many comments on its

interpretation during both comment periods, from a

wide range of interested parties including pesticide

manufacturers and applicators, public health control

agencies, State agricultural agencies, State

environmental agencies, environmental groups, human

health advocates, farming interests, and other

members of the public. Many commenters supported

EPA’s interpretation, while others opposed it as

inconsistent with the CWA.

The record for today’s action contains EPA’s

detailed responses to comments received during both

public comment periods. See Docket ID No. OW-2003-

0063 at hitp://www.regulations.gov. EPA is providing a

summary below of its responses to some of the

significant comments received.

A. Scope of Regulation

Many of the commenters who supported EPA’s

proposed rule also recommended that EPA broaden

the scope of the final rule to cover all pesticide

applications, including agricultural applications over

land, that are conducted in accordance with the

relevant requirements of FIFRA. This final rule

addresses only the following two circumstances

described in the proposed rule: The application of

[68488] aquatic pesticides directly to waters of the

United States, and the application of pesticides to

control pests over, including near, such waters.

In the meantime, EPA will continue to follow its

long-standing practice of not requiring NPDES

permits for agricultural pesticide applications that are

conducted in compliance with relevant FIFRA

requirements. EPA is continuing to consider the

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applicability of the CWA to situations other than those

EPA is addressing in today’s action where pesticides

applied in accordance with relevant FIFRA

requirements may reach and enter waters of the

United States, including drift of pesticides applied

aerially over land. Therefore, EPA does not believe it

is appropriate to broaden the scope of the regulation to

include additional types of pesticide applications at this

time.

To assist the Agency’s consideration of these issues,

EPA has established a workgroup under the existing

Pesticide Program Dialogue Committee (PPDC) (an

advisory committee chartered under the Federal

Advisory Committee Act (FACA)) to address issues

involving pesticide spray drift from agricultural and

other applications. The goals of the workgroup are the

following: (1) Improving understanding of the

perspectives of all stakeholders regarding pesticide

spray drift; (2) finding common ground for further

work toward minimizing both the occurrence and

potential adverse effects of pesticide spray drift; (3)

developing options for undertaking work where

common ground exists; and (4) exploring the extent of

drift, even with proper usage, and the range and

effectiveness of potential responses to unacceptable

levels of off-target drift. The spray drift workgroup

will provide advice to EPA through the PPDC.

The PPDC is a FACA-authorized forum for a

diverse group of stakeholders to provide feedback to

the Agency’s pesticide program on various pesticide

regulatory, policy, and program implementation issues.

Topics of discussion at past meetings have included the

disclosure of inert ingredients, registration review,

nonanimal testing, antimicrobial pesticides,

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endangered species, reduced risk pesticides, labeling,

minor uses, ecological standards, fees for service,

experimental use permits, environmental marketing

claims, outreach to the public, and several

implementation issues emanating from the Food

Quality Protection Act of 1996.

Members of the PPDC include representatives of

environmental and public interest groups, pesticide

manufacturers and trade associations, user and

commodity groups, public health and academic

institutions, federal and State agencies, and the general

public. Participants in the Spray Drift workgroup

reflect the range of stakeholder interests represented

on the full PPDC, and also include members with

backgrounds in water quality issues. By operating

under the PPDC, the Spray Drift workgroup will

comply with FACA procedural requirements including

timely public notice of meetings, public access to

meetings and opportunity for the public to comment;

public availability of documents considered by the

workgroup; and attendance of a federal officer or

employee at each meeting.

B. Sufficiency of FIFRA to Address Water Quality

Impacts of Pesticide Applications

Many commenters objected to the proposed rule on

the basis that EPA’s regulation of pesticides under

FIFRA does not adequately protect water quality, and

thus pesticide applications should require an NPDES

permit. These commenters alleged both legal and

policy shortcomings of FIFRA. They also asserted

that EPA’s interpretation is improper because FIFRA

does not preempt CWA requirements and because

EPA lacks authority to exempt categories of

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discharges from the CWA’s prohibition against

discharges without an NPDES permit.

These commenters may have misinterpreted the

legal interpretation that provides the basis for today’s

action. First, EPA is not expressly or by implication

repealing any provision of the CWA in today’s action,

nor is the Agency arguing that FIFRA registration

preempts CWA section 301(a) or section 402(a).

Moreover, EPA is not arguing that registration under

FIFRA or compliance with FIFRA requirements

replaces or satisfies an otherwise applicable

requirement under the CWA to obtain an NPDES

permit. Nor is EPA exempting from section 301(a) or

section 402(a) any categories of pollutants, because the

pesticide applications at issue here are not pollutants

under the Act. The proscription in the CWA against

discharging pollutants from point sources to waters of

the United States except in compliance with section

402 continues to apply. Rather, EPA is exercising its

authority to interpret a term in a statute it

administers. EPA is clarifying that pesticides applied

to or over, including near, water for their intended

purpose consistent with all relevant requirements

under FIFRA in the circumstances specified in the rule

are not, at the time of application, “pollutants” under

the CWA, and therefore applications are not

discharges required to obtain permits.

EPA’s review, evaluation, and registration of

pesticides used in these two circumstances further

demonstrate that this is a reasonable interpretation,

consistent with Congressional intent. EPA’s

regulatory programs under FIFRA provide support

for the Agency’s conclusion that the pesticides applied

to or over, including near, water are not wastes (and

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therefore not pollutants) and serve as an indicator of

when a pesticide is being applied as a product for its

intended, beneficial purpose. Under FIFRA, EPA

receives applications from people who wish to sell and

distribute pesticides. The Agency may approve and

issue a registration for a product if EPA determines

that the product will not cause “unreasonable adverse

effects on the environment,” which is defined as “any

unreasonable risk to man or the environment, taking

into account the economic, social and environmental

costs and benefits of the use of [a] pesticide * * *.”

FIFRA Section 3(c)(5). In other words, the Agency

may register a pesticide only if the product provides

economic, social, and environmental benefits that

outweigh risks from its use. As part of FIFRA

registration, EPA may establish requirements, which

are typically contained in the label for the pesticide, to

ensure that when used, it will not cause unreasonable

adverse effects on the environment, including the

aquatic environment. Thus, registration and use of a

pesticide in accordance with its approved labeling or

other relevant FIFRA requirements indicates that a

pesticide is a product intended to be used for a

beneficial purpose that is authorized by EPA and is not

a waste. For these reasons, comments regarding the

adequacy of EPA’s pesticide regulatory program do

not pertain to the legal interpretation of whether a

pesticide is a “chemical waste” or a “biological

material” for purposes of the definition of “pollutant”

under the CWA.

Nonetheless, it is important to note that EPA

disagrees with commenters’ concerns that EPA’s

registration process does not take into account local

conditions, existing water quality standards and use

48a

designations, synergistic effects of multiple pesticides,

inert ingredients, non-target aquatic organisms, and

the effect of multiple applicators in the same area. The

regulatory and non-regulatory tools under FIFRA

provide means of addressing water quality problems

arising from the use of pesticides. In [68489]

particular, the pesticide registration and_ re-

registration processes consider impacts on both human

health from the presence of pesticides in drinking

water, and on aquatic resources (e.g., fish,

invertebrates, plants, and other species in fresh water,

estuarine, and marine environments). EPA requires a

pesticide company to submit a substantial body of data

in support of an application for registration. EPA then

supplements this required database with information

obtained through a systematic search of the open

literature on the _ ecotoxicity of environmental

substances. EPA compares’ the _ estimated

environmental concentrations expected to result from

use of a pesticide with toxicity values observed in

required studies and studies from the open literature.

This database provides sufficient information to

conduct assessments of potential ecological and human

health risks, including the _ identification of

toxicologically significant degradation products and/or

metabolites. For additional information on EPA’s

approach to ecological risk assessment in general, and

endangered and threatened species in particular, see:

http://www.epa.gov/espp/consultation/ecorisk-overview.

pdf.

C. EPA’s Interpretation of the Term “Pollutant”

Under the CWA

Some commenters claimed that EPA’s

interpretation of the term “pollutant” is inconsistent

49a

with the Clean Water Act, with relevant case law, or

with prior Agency statements. EPA disagrees with

the commenters and believes its interpretation of the

term “pollutant” is reasonable and consistent with the

language and legislative intent of the Clean Water Act.

As described above, pesticides applied in the

circumstances addressed in today’s regulation, in

compliance with FIFRA, for their intended purpose,

are not pollutants under the Act. EPA also disagrees

with commenters that the term “biological materials”

can only be read to include biological pesticides applied

in the circumstances addressed by today’s regulation—

i.e., application to or over waters of the United States

consistent with relevant requirements of FIFRA.

EPA’s analysis of the terms “chemical waste” and

“biological materials” in the circumstances addressed

by today’s regulation is described in more detail above.

In addition, the Ninth Circuit Court of Appeals

recently held that pesticides that do not generate a

residue when applied directly to a lake to eliminate a

non-native fish species are not “pollutants” under the

CWA because they are not chemical wastes. Fairhurst

v. Hagener, 422 F.3d 1146 (9th Cir. 2005). In so

holding, the court considered the plain meaning of the

term “chemical waste” and noted that its analysis was

in accord with EPA’s interpretation of the term in its

July 2003 Interim Statement, and that EPA’s

interpretation is “reasonable and not in conflict with

the expressed intent of Congress.” Id. at 1149-50.

Today’s regulation is based on the same interpretation

EPA first articulated in the Interim Statement, and is

consistent with the Fairhurst court’s holding.

Moreover, EPA’s interpretation is not inconsistent

with Talent and Forsgren as some commenters have

50a

asserted. As explained below, these cases do not

interpret the term “pollutant” as including the

pesticide applications addressed in today’s rule.

In Headwaters v. Talent, the Ninth Circuit

reversed the District Court’s dismissal of a CWA

citizen suit against an irrigation district alleging that

application of the herbicide Magnacide H to irrigation

canals to control aquatic weeds and vegetation

required an NPDES permit. The District Court had

concluded that the application of the pesticide was

adequately regulated under FIFRA, and further

regulation under the CWA _ was_ unnecessary.

Headwaters v. Talent, No. 98-6004-AA slip op. at 12

(D. Ore. Feb. 1, 1999). The Ninth Circuit found that

residual from the application of Magnacide H was a

pollutant in this case and that registration of the

herbicide under FIFRA did not preclude applicability

of the CWA. Headwaters v. Talent, 243 F.3d at 5382.

This conclusion is consistent with EPA’s

interpretation. As described above, EPA agrees that

residual materials from pesticide applications are

“pollutants” under the Act. In addition, the irrigation

district in Talent failed to comply with a FIFRA

registration requirement to contain the herbicide-laden

water in an irrigation canal for a specified number of

days. EPA’s interpretation codified in today’s action is

that pesticides applied in the circumstances described

in the rule are not “pollutants” where they are applied

consistent with relevant FIFRA requirements. Thus,

EPA’s interpretation is consistent with the result

reached by the Talent court.

In League of Wilderness Defenders v. Forsgren, the

Ninth Circuit held that the aerial application of

insecticides over National Forest lands in Washington

5la

and Oregon to control a predicted outbreak of the

Douglas fir tussock moth required an NPDES permit.

However, the court in Forsgren stated incorrectly that

the parties in the case did not dispute that the

insecticides met the CWA definition of “pollutant.”

League of Wilderness Defenders v. Forsgren, 309 F.3d

at 1184, n.2. In fact, the Forest Service in its brief

before the District Court reserved its arguments on

that particular issue. Because the Ninth Circuit

erroneously assumed that the question of whether the

applications were pollutants was not in dispute, it did

not analyze the issue but simply stated that they were.

Id. at 1185. The issue that the Forsgren court did

analyze in detail was whether the airplanes from which

the insecticides were sprayed are point sources under

the CWA—a different issue from that addressed in

today’s interpretation.3

Commenters also claimed that EPA’s interpretation

is inconsistent with the Clean Water Act because the

purpose for which a pesticide is applied is not relevant

to the question of whether it is a pollutant under the

Act. The commenters pointed primarily to two cases—

Hudson River Fisherman’s Assn. v. City of New York,

3 EPA’s General Counsel issued a memorandum on September

3, 2003, addressing the Agency’s views on the effect of the

Forsgren decision. Specifically, EPA stated that it did not

acquiesce outside the Ninth Circuit with the court’s decision

regarding the application of EPA regulation defining “silvicultural

point source” at 40 CFR 122.27(b)(1), and would continue to follow

its longstanding interpretation of the statute and these

regulations. Memorandum from Robert E. Fabricant to Regional

Administrators, “interpretive Statement and Guidance

Addressing Effect of Ninth Circuit Decision in League of

Wilderness Defenders v. Forsgren on Application of Pesticides

and Fire Retardants,” Sept. 3, 2003.

52a

751 F.Supp. 1088 (S.D.N.Y.), affd., 940 F.2d 649 (2d Cir.

1991), and Minnehaha Creek Watershed District v.

Hoffman, 597 F.2d 617 (8th Cir. 1979)—as supporting

their assertion. However, both these cases are

distinguishable from EPA’s interpretation.

In Minnehaha Creek, t

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