Opposition Brief — CropLife America v. Baykeeper

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Nos. 09-533 and 09-547

Su The

Supreme Court of the United States

CROPLIFE AMERICA, et al.,

Petitioners,

BAYKEEPER, e¢ al.,

Respondents.

AMERICAN FARM BUREAU FEDERATION, e/ a/.,

Petitioners,

BAYKEEPER, et a/.,

Respondents.

On Petitions For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

o—

BRIEF IN OPPOSITION

Of Counsel CHARLES M. TERRUTT

CHARLES C, CALDART Counsel of Record

NATIONAL ENVIRONMENTAL LAW OFFICES OF

LAW CENTER CILARLES M. TEBBUTT

1402 Third Avenue, Suite 715 470 West Broadway

Seattle, WA 98101 Fugene, OR 97401

206-568-2853 541-344-8312

| Additional Counsel Listed On Inside Cover!

DANIEL E. ESTRIN

PACE ENVTL. LITIGATION CLINIC

PACE LAW SCHOOL

78 North Broadway

White Plains, NY 10603

REED W. SUPER

SUPER LAW GROUP LLC

156 William Strect, Suite 800

New York, NY 10038

On The Brief:

JOSEPH J. MANN

NATIONAL ENVIRONMENTAL LAW CENTER

COUNTER STATEMENT OF

QUESTIONS PRESENTED

Was the Sixth Circuit correct in concluding that

the Clean Water Act disallows an administrative rule

purporting to exempt from the Act’s permitting

scheme certain point source discharges of pesticides

directly to or over waters of the United States, in

light of the plain language, purpose, structure, and

history of the Act?

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Respon-

dents Baykeeper, et al., with the exception of Saint

John’s Organic Farm, state that they are all nonprofit

corporations that have no parent corporations or

publicly held stock. Saint John’s Organic Farm states

that it has no parent corporations or publicly held

stock.

ill

TABLE OF CONTENTS

Page

COUNTER STATEMENT OF QUESTIONS

PT ER oi cys ns tvkd ncesvcansbakdddewivacceas Cad weveerecsss i

CORPORATE DISCLOSURE STATEMENT....... i

COUNTER STATEMENT OF THE CASE .......... 1

REASONS FOR DENYING THE PETITIONS.... 5

I. THE SIXTH CIRCUIT'S OPINION IS

HARMONIOUS WITH FEDERAL AP-

PELLATE JURISPRUDENCE INTER-

PPE BE BREE OW esecscesncccvcivsscecassensnerene 6

If, THE COURTS CHEVRON ANALYSIS

WAS CORRECTLY PERFORMED ............ 12

A. The Court Properly Held That Pesticide

Applications That Result in Discharge of

Chemical Waste Directly to Waters Are

Subject to CWA Permitting .................... 14

1. Excess and Residual Pesticide

Materials Are “Chemical Wastes”

Within the Meaning of the CWA.... 14

The Excess and Residual Pesticide

Materials Are Added to Waters

“From Point Sources. .........<.c.sesesss. 16

ee)

Petitioners’ Professed Concerns

About the Eeach of This Holding

Are, at Best, Substantially Over-

RI ors eure eccccuuuaceceutesteneeerienr bees 19

TABLE OF CONTENTS - Continued

Page

B. The Sixth Circuit Properly Held That

Biological Pesticides Are Biological

I Soon ego e ne a eee 22

C. The CWA Does Not Exempt Pesticides

VOM FUG FTW avn ddcxncscccvckeveeceussseceuns 25

Ill. THE PRACTICAL EFFECT OF THE

SIXTH CIRCUIT OPINION WILL NOT

BE UNDULY DISRUPTIVE, AND WILL

BENEFIT THE ENVIRONMENT AND

PUBLIC HEALTH ................. vacsectwncuteuares 30

A. Petitioners Vastly Overstate the

Disruption That May Be Occasioned

by NPDES Permitting for Aquatic

WI Scat cud cervacesseme ecsseoce eee 30

B. The Permitting of Aquatic Pesticides

Does Not Constitute “the Greatest

Expansion” of the NPDES Program..... 32

C. NPDES Permitting Will Have Sub-

stantial Real-World Benefits, Consis-

tent with the Act’s Protective Goals........ 34

Se ce cusicy nus caneadcaun cata esentarvare mea mmaeaaaa 37

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Appendix A— Amicus Brief of United States in

Headwaters, Inc. v. Talent Irrigation Dist.,

243 F.3d 526 (9th Cir. 2001) (No. 99-35373) ... App. 1

Appendix B- Draft Memorandum, United

States Environmental Protection Agency.

Current estimates of the number. of

applicators and applications of pesticides

that fall within pesticide use patterns that

result in the application of pesticides to and

over, including near, waters of the United

States. September 23, 2009 ..................cec cece App. 22

TABLE OF AUTHORITIES

Page

CASES

Appalachian Power Co. v. Train, 545 F.2d 1351

I nd as eT eatin oda aber eamnestannil 21

Arkansas v. Oklahoma, 503 U.S. 91 (1992)............... 23

Association to Protect Hammersley, Eld, &

Totten Inlets v. Taylor Res., Inc., 299 F.3d

OE Ce Mats BID piers vokcnsuenacscnshscavaxenvecesexpseasecncsiih 24

Auer v. Robbins, 519 U.S. 452 (1997)... eee 27

Burlington Northern and Santa Fe Railway Co.

vu. United States, 129 S.Ct. 1870 (2009).......... 2,9, 10

Catskill Mountains Chapter of Trout Unlimited

v. City of New York, 273 F.3d 481 (2d Cir.

NS iit o las cans dencuecesdice ds Kossuccbancikautgsnee sada ilendicte: 7

Chevron USA, Inc. v. NRDC, 467 U.S. 837

fs MRT Re Ore ae ROC ert PN 1,12, 13

City of Chicago v. Environmental Def. Fund,

oe ais Me OT Seon vncccncntchvassdnadbbesebemieses 12, 13, 25

Cordiano v. Metacon Gun Club, Inc., 575 F.3d

Re Se is dicncas ainasusicewuser se saceusateisedsiabensasveen 11

Demarest v. Manspeaker, 498 U.S. 184 (1991).......... 27

Department of Housing & Urban Dev. v. Rucker,

See A ee Bee A IE eccciued cov sauedes snshordacowceneceniseuaiensess 6

Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct.

RE A iiicsincyctuacsoassucuancnttateueetneseeewiervcssaconuns 12,13

Erlenbaugh v. United States, 409 U.S. 239

6) | MARRERO MOOR ena Bis Drei) Prams ae Map Nr anny ben ER tadienr es 29

Vil

TABLE OF AUTHORITIES — Continued

Page

Fairhurst v. Hagener, 422 F.3d 1146 (9th Cir.

BIRD vsxcsncincnoncescnnesssiessnnssesuenesesniietarebaanenanaeane 8

Headwaters, Inc. v. Talent Irrigation Dist., 243

F.3d 526 (9th Cir. 2001) ..............ccc00. 8, 27, 29, 31, 36

Hudson River Fishermen’s Ass’n v. City of New

York, 751 F.Supp. 1088 (S.D.N.Y. 1990),

aff'd, 940 F.2d 649 (2d Cir. 1991)..........ccccsccsccssssees 18

Kentucky Waterways Alliance v. Johnson, 540

Fe SOS Cie Cae. BOOP vcvsccscnesascocssssisnecsenesatenmeens 23

League of Wilderness Defenders v. Fors“ren,

309 F.3d 1181 (Sth Cir. BOOB)........ccscccceccvccccessnss. 8, 24

Long Island Soundkeeper Fund v. New York

Athletic Club, 1996 WL 131863 (S.D.NLY.

BED sccncsvacsensascsvecndesseieicensensaedened aia 11

Minnehaha Creek Watershed Dist. v. Hoffman,

GOT F.Ae CLT CORR Clit, ROTI) vsiccineesecscasstassscssvsasomstares 7

Monongahela Power Co. v. Marsh, 809 F.2d 41

CBAC Ge BR Becdcconkisaniessusaseasenipa eee 29

Moskal v. United States, 498 U.S. 103 (1990)...........25

National Ass’n of Home Builders v. Defenders

of Wildlife, 127 S.Ct. 2518 (2007 )..........ccrccsccreeseress 12

Natural Res. Def. Council (“NRDC”) v. Costle,

568 F.2d 1369 (D.C. Cir. 197T).....cccsccossscsecesesecess 6, 33

NRDC v. EPA, 859 F.2d 156 (D.C. Cir. 1988) ............ 35

NRDC v. Southwest Marine, Inc., 236 F.3d 985

CORR CoO ED oo cnce neescasecaeet eee 18

Vill

TABLE OF AUTHORITIES —- Continued

Page

Northern Plains Res. Council v. Fidelity Expl.

& Dev. Co., 325 F.3d 1155 (9th Cir. 2003) .............. 24

Northwest Envtl. Advocates v. EPA, 537 F.3d

1006 (9th Cir. 2008) 02.00.00... ccc ccec ccc ecececeeeeeeeseeeeeeeeO

Pittston Coal Group v. Sebben, 488 U.S. 105

Tari cicadncbeseveprocecsavercesseseccecesecesoseaserseccens 16

Rapanos v. United States, 547 U.S. 715 (2006).....7, 16

Ruckelshaus v. Monsanto Co., 467 U.S. 986

cc bchivesevendecsssosevecooovcconesovecnccsesosecs 29

Sierra Club, Lone Star Chapter v. Cedar Point

Oil Co., 73 F.3d 546 (5th Cir. 1996)... 7

South Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95 (2004).............0..06. 7,32

Tennessee Valley Auth. v. Hill, 437 U.S. 153

Train v. Colorado Public Interest Research

Group, 426 U.S. 1 (1976) ..... jesuesusseeess 22, 23

United States v. Earth Sciences, Inc., 599 F.2d

368 (LOth Cir, 1979) ....ccccccccccccccccceeecueseueenerees 7

United States v. Plaza Health Labs., Inc., 8

F.3d 643 (2d Cir, 1993) ..........cccccccccecesecseceseeeseesecusees 23

Weinberger v. Romero-Barcelo, 456 U.S. 305

|. Napaulasedandopovesesescerseceeseae 6

Williams v. Taylor, 529 U.S. 420 (2000). 13

Wisconsin Public Intervenor v. Mortter, 501

Fetes OT CL ODD.) oc ccccesese o

TABLE OF AUTHORITIES — Continued

STATUTES

7 U.S.C. § 136, et BOG. cvccccscvcccoseess naicioemeneentetebtanentes

28 U.S.C. §

BO U B.C 8 UZBELT).nccoccccccccccceccovcvsvcescoss

Se es ee EAP ccccecosadcuccbunpeniacbiuineeas

33 U.S.C. §

33 U.S.C, §

33 U.S.C. §

33 U.S.C. § 1344.....

33 U.S.C. § 1362(6) Maes

33 U.S.C. § 1362(12)

33 U.S.C. § 13862(14) ee 8

—

SF.

+ 13869(b)

12 U.S.C. § 6903(2%

21S C. §& GB07(1)

REGULATIONS

40 C.F.R. Subchapter N (Parts 405-471

10 C.ELR. § 261.2(an2ninA)

40 C.FLR. § 261.2(b

Page

wTTTiTT J

TABLE OF AUTHORITIES — Continued

Page

FEDERAL REGISTER

55 Fed. Reg. 47,990 (Nov. 16, 1990) ............0..ccccc cece. 15

58 Fed. Reg. 45,008 (Aug. 25, 1993)... 23

64 Fed. Reg. 46,012 (Aug. 23, 1999)...00.0.. co. cuss mee

70 Fed. Reg. 5,093 (Feb. 1, 2005).......... ccc cceecceeeeeee ee 16

73 Fed. Reg. 33,697 (June 13, 2008)..........0.000.ceec ee. 17

LEGISLATIVE HISTORY

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

SF eee Si sbninescevissseccdusdrevvecvesacsencacdscies cae

S. Rep. No. 95-370 (1977), as reprinted in 1977

SF Pas 2 UE sdsisaceccdscnunveevssceesicuhesvecacaterensecssi eee

COUNTER STATEMENT OF THE CASE

Although Petitioners CropLife America, et al.,

(“CropLife”) and American Farm Bureau Federation,

et al., (‘AFBF”) labor mightily to caaracterize the

Sixth Circuit’s opinion below as worthy of review, this

case has none of the important indicia of one meriting

a grant of certiorari.

The case involves a straightforward issue of

federal statutory construction — the meaning of

“discharge of a pollutant” under the Clean Water Act

(“CWA” or “the Act”) — and whether this phrase

clearly indicates that the direct release of potentially

toxic pesticides into waters of the United States is to

be governed by the Act’s permitting program. In

answering this question, the court below did not

“flout” the Chevron doctrine, AFBF Pet. 13, ignore

“contextual evidence or legislative history,” CropLife

Pet. 15, or “trample|] settled principles of judicial

review,” AFBF Pet. 20. Rather, it looked to the Act’s

own definitions of the key terms, interpreted the

words in those definitions in accordance with their

ordinary meaning, and then confirmed that the result

was consistent with the purpose, structure, and

history of the Act. Using this approach, the Sixth

Circuit found that the Act’s definition of “pollutant”

plainly includes the excess and residual chemical and

biological pesticides at issue, that these substances are

added to water from the outside world by identifiable

“point sources,” and that the Environmental Protec-

tion Agency (“EPA”) rule insulating such discharges

from the Act's permit program was inconsistent both

with the plain language of the statute and with its

underlying purpose.

The Sixth Circuit’s opinion is perfectly in line

with more than 35 years of federal jurisprudence

addressing the purview of the Act’s permit program

generally, and its specific holding that certain point

source pesticide discharges to waters of the United

States are subject to the Act’s permitting require-

ments is in accord with the holdings of three separate

panels of the Ninth Circuit. Moreover, the Sixth

Circuit’s primary analysis is consistent with all but

one of the statutory interpretations offered by EPA in

the preamble to the rule. And on that one interpre-

tation, as the court noted, EPA had departed not only

from the plain language of the statute, but also from

what the agency itself had recently characterized as

“EPA’s longstanding position.” CropLife Pet.App. 23a.

Accordingly, although the pesticide industry ar-

gued vigorously below for en banc rehearing, EPA did

not seek rehearing, and not a single judge on the

Sixth Circuit — a forum chosen by the pesticide in-

dustry itself to hear this case — called for a vote on

rehearing. CropLife Pet.App. 64a. Petitioners’ sugges-

tion that the case must now be remanded in light of

Burlington Northern and Santa Fe Railway Co. v.

United States, 129 S.Ct. 1870 (2009) — a case they

thought not important enough to call to the attention

of the Sixth Circuit while their petition for rehearing

was pending — does not bear up under even casual

scrutiny.

Petitioners also are wrong in suggesting that

EPA has held a consistent position on this issue since

1972. In 1999, the agency stated formally that, in

line with its “consistent” historical interpretation,

“faquatic] pesticides containing pollutants may be

discharged from point sources into the navigable

waters only pursuant to a properly issued CWA per-

mit.” Res.App. 14. And while EPA did not itself issue

permits for aquatic pesticide applications, it charac-

terized this as a matter of “enforcement” discretion

(not legal interpretation) as late as 2002. JA 91.’ It

was only after a strenuous lobbying effort by the

pesticide industry that EPA took the position it did in

the 2006 exemption rule. Tebbutt Decl. Supp. Envtl.

Pet. Mot. Dismiss 9] 2-3 (5/1/07).

Rather than seeking rehearing or petitioning for

certiorari, EPA sought, and was granted, a two-year

stay of the mandate so it can develop an effective

CWA permitting program for aquatic pesticide appli-

cations. As EPA noted, this two-year stay will “allow

EPA and authorized permitting authorities sufficient

time to develop and issue Clean Water Act permits

containing appropriate terms to govern the discharge

of pesticide pollutants to waters of the United

States.” CropLife Pet.App. 108a-109a.

‘ Citations to documents not in appendices to briefs to this

Court are to the Joint Appendix (cited as “JA™} used in the Sixth

Circuit wherever possible, otherwise cites are to the document in

the Sixth Circuit docket.

Petitioners’ contention that this will be the

“greatest” or “most dramatic” regulatory expansion in

CWA history, AFBF Pet. 13; CropLife Pet. 29, is, at

best, a vast exaggeration. The number of annual dis-

charges that will be brought into the permitting fold

under pesticide applicator permits is likely to be no

larger than that associated with any of the scores of

industrial categories already regulated under the

Act’s permitting scheme. Moreover, the Sixth Circuit

opinion — like the EPA rule that it set aside — pertains

only to discharges to or over waters. Not only are

terrestrial (land-based) pesticide applications outside

the scope of this opinion, but agricultural runoff and

return flow (about which Petitioners profess to be

particularly concerned) are statutorily exempted from

the Act’s permitting requirements altogether.

Petitioners’ further claims that requiring permits

for aquatic pesticide applications will promote disease,

imperil the nation’s food supply, and compromise

natioral security are demonstrably false. Four states

~ California, Nevada, Oregon, and Washington — had

implemented CWA permitting programs for aquatic

pesticides prior to EPA’s 2006 regulation, all without

calamity. California urged EPA not to exclude aquatic

pesticides from the Act’s permitting requirements,

noting that over one quarter of the state’s waterways

were already impaired by pesticide constituents.

JA 142-43.

Finally, Petitioners’ suggestion that an aquatic

pesticide exemption from the CWA’s permitting pro-

gram should be implied from the existence of the

Federal Insecticide, Fungicide, and Rodenticide Act

(“FIFRA”), 7 U.S.C. § 136, et seg., is fundamentally

inconsistent with the language and structure of the

two statutes. As EPA stated in 1999, “[nJothing in

FIFRA or the CWA remotely suggests that compliance

with FIFRA also means compliance with the CWA.”

Res.App. 11. Rather, FIFRA is a screening statute

that determines whether a pesticide may be intro-

duced into commerce. It “does not occupy the field of

pesticide regulation in general or the area of local use

permitting in particular,” and “certainly does not

equate registration and labeling requirements with a

general approval to apply pesticides.” Wisconsin

Public Intervenor v. Mortier, 501 U.S. 597, 613-14

(1991).

At root, Petitioners’ real complaint is that pes-

ticide applicators now face systematic regulation

under the Act. This fact, however, places them in no

different position from all of the other private and

public entities who have had to learn to live with —

and ultimately prosper under — CWA regulation since

the permit program was introduced in 1972 to clean

up our nation’s waters.

REASONS FOR DENYING THE PETITIONS

The petitions for a writ of certiorari should be

denied because the Sixth Circuit’s opinion conflicts

with no opinion of this Court or of any court of

appeals, and because it is faithful to the statute and

to governing principles of statutory construction.

Moreover, the practical effect of the opinion will be no

different from that of dozens of other circuit court

decisions defining the regulatory reach of the CWA.

I. THE SIXTH CIRCUIT’S OPINION IS HAR-

MONIOUS WITH FEDERAL APPELLATE

JURISPRUDENCE INTERPRETING THE

CWA.

The central regulatory feature of the CWA’s

program to protect the waters of the United States is

the National Pollutant Discharge Elimination System

(“NPDES”) permitting system. See Weinberger v.

Romero-Barcelo, 456 U.S. 305, 319 (1982). An NPDES

permit is required for “the discharge of any pol-

lutant,” 33 U.S.C. § 1342(a)(1), and the “discharge of

a pollutant,” in turn, is defined as “any addition of

any pollutant to navigable waters from any point

source,” id. § 1362(12) (emphases added). See gener-

ally Department of Housing & Urban Dev. v. Rucker,

535 U.S. 125, 131 (2002) (“the word ‘any’ has an

expansive meaning, that is, ‘one or some indis-

criminately of whatever kind.’”) (citation omitted).

The Act defines “point source” to mean “any dis-

cernable, confined|,] and discrete conveyance,” and its

definition of “pollutant” includes, inter alia, “chemical

wastes” and “biological materials.” 33 U.S.C.

§§ 1862(6) & (14). The Act itself explicitly exempts

certain discharges from the NPDES requirement, and

EPA has no general authority under the statute to

grant further exemptions. See Natural Res. Def.

Couneil (““NRDC”) v. Costle, 568 F.2d 1369, 1377 (D.C.

Cir. 1977).

The Sixth Circuit opinion here is wholly conso-

nant with a long line of federal appellate decisions

interpreting the scope of the NPDES program broadly

to achieve the Act’s substantive goals. E.g., Sierra

Club, Lone Star Chapter v. Cedar Point Oil Co., 73

F.3d 546, 565-66 (5th Cir. 1996); cf. Rapanos v. United

States, 547 U.S. 715, 723 (2006) (“the discharge of a

pollutant” and “pollutant” are “defined broadly”).”

The opinion is also consistent with multiple ap-

pellate court holdings that Congress intended water

pollution to be controlled through “point source”

regulation whenever feasible, e.g., United States v.

Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.

1979); that a point source “adds” a pollutant when it

“introduces” that pollutant to the waters “from the

outside world,” e.g., Catskill Mountains Chapter of

Trout Unlimited v. City of New York, 273 F.3d 481,

491 (2d Cir. 2001); cf South Fla. Water Mgmt. Dist. v.

Miccosukee Tribe of Indians, 541 U.S. 95, 103 (2004);

and that there is no implied NPDES exemption for

discharges made for allegedly beneficial purposes,

e.g., Minnehaha Creek Watershed Dist. v. Hoffman,

597 F.2d 617, 627 {8th Cir. 1979).

Further, the Sixth Circuit’s specific holding that

NPDES permitting is required for the discharge

of chemical pesticides that include excess or residual

~ As the Sixth Circuit noted, however, it “need not consider

the ... breadth” of the term “pollutant,” since “§ 1362(/6)) [is]

unambiguous as to pesticides ” CropLife Pet.App. lda.

chemicals, and for the discharge of biological pesti-

cides, is exactly the same conclusion reached by the

only other court of appeals to address the issue. See

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

526, 533 (9th Cir. 2001) (NPDES permit is required

for aquatic pesticide discharge because “residual”

chemical pesticide left in water after aquatic

application “qualifies as a chemical waste”); Fairhurst

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

(chemical pesticides that “produce no residue or un-

intended effects” are not pollutants, but aquatic pes-

ticide application that will produce excess or residue

requires a permit); League of Wilderness Defenders v.

Forsgren, 309 F.3d 1181, 1185 (9th Cir. 2002) (bio-

logical pesticides are pollutants and their application

over waters requires a permit).

Despite the unanimity of federal appellate juris-

prudence supporting the Sixth Circuit’s decision,

Petitioners claim that “[a] more concrete circuit split

is not possible,” CropLife Pet. 2, because petitions for

review of EPA’s rule were filed in numerous circuits

before being consolidated randomly in the Sixth

Circuit. But many (if not most) challenges to EPA

rulemaking efforts under the CWA are brought in

multiple circuits, and there is no indication that

Congress, by enacting the venue-determination

provisions in 33 U.S.C. §1369/b) and 28 U.S.C.

§ 2112(a\(3), meant for all such challenges to be

resolved by this Court. Further, it is highly specu-

lative to suggest that any of the other circuits in

which petitions were filed would have come to a

conclusion different from that reached by the Sixth

Circuit. Finally, given that the Ninth Circuit deci-

sions discussed above implicated precisely the same

legal propositions at issue in EPA’s rule, a circuit split

was indeed “possible” — it just did not materialize.”

Nor does this Court’s opinion in Burlington

Northern conflict with the Sixth Circuit’s ruling,

much less compel a remand. Although Petitioners

emphasize that this “highly analogous” opinion was

“issued after the Sixth Circuit’s decision,” CropLife

Pet. 17, they omit that it was issued before the Sixth

Circuit unanimously denied their then-pending peti-

tion for rehearing en banc. Petitioners could have

called Burlington to the lower court’s attention at

that time (as they did two other intervening opinions,

see Rule 284) Resp. (6/15/09); Rule 28(j) Resp.

(7/13/09)), but chose not to do so.

In Burlington Northern, this Court rejected EPA’s

attempt to impose retroactive financial] liability on a

pesticide se/ler under a different federal statute — the

Comprehensive Environmental Response, Compensa-

tion, and Liability Act (“CERCLA”) — when a third

party distributor stored and carelessly spilled that

pesticide elsewhere. 129 S.Ct. at 1875. Contrary to

Petitioners’ assertion, the Court did not address the

question of whether a pesticide can be a “waste” when

“serving its intended purpose.” CropLife Pet. 18.

* As Petitioners note, the Second Circuit did not rule on the

question. CropLife Pet. 6; AFBF Pet. 7.

Indeed, the case did not address the meaning of

“waste,” and it involved no pesticide use at all (as

discussed below, infra 25, CERCLA explicitly exempts

applicators of FIFRA-registered pesticides from

liability).

The question of intent arose solely in the context

of whether the seller “arranged for disposal ... of

hazardous substances,” so as to be jointly liable for

the third party’s spills under 42 U.S.C. § 9607(a)(3)

(emphasis added). 129 S.Ct. at 1878. To answer that

question, this Court employed precisely the same

interpretive method applied by the Sixth Circuit here:

because CERCLA does not define “arrange,” the

Court looked to dictionary definitions, and construed

the term in accordance with its ordinary meaning.

Noting that “the word ‘arrange’ implies action di-

rected to a specific purpose,” the Court concluded that

an entity arranges for disposal “when it takes

intentional steps to dispose.” /d. at 1879.

Burlington Northern is not remotely analogous to

this case. The meaning of “arrange” under CERCLA

has nothing to do with the meaning of “waste” under

the CWA. Moreover, the Sixth Circuit did not hold

that pesticide sellers could be liable as “dischargers

of pollutants” under the CWA for pesticides later

applied to water by third parties. Rather, it held that

pesticide applicators must obtain coverage under

NPDES permits before they may legally discharge

pollutants to or over water.

Petitioners’ further contention that the ruling

below is “flatly inconsistent” with Cordiano v. Meta-

con Gun Club, Inc., 575 F.3d 199 (2d Cir. 2009),

CropLife Pet. 20-21, likewise misses the mark. There,

the only interpretation of “waste” came under the

Resource Conservation and Recovery Act (“RCRA”).

Although the term “waste” is not defined in the CWA,

“solid waste” is narrowly defined in RCRA to mean

“discarded material” that has been “abandoned.” 42

U.S.C. § 6903(27); 40 C.F.R. § 261.2(a)(2)(i)(A), (b).

Accordingly, the Second Circuit held in Cordiano that

the operators of a gun club need not obtain a “hazard-

ous waste disposal” permit under RCRA because

spent ammunition from their firing range did not

meet that narrow definition. 575 F.3d at 206-07.

Despite the differences between the two statutes,

Petitioners argue that RCRA’s definition of “solid

waste” should determine the meaning of “chemical

waste” and “biological materials” under the CWA, so

as to preclude NPDES coverage for the discharge of

“materials put to their ordinary, intended use.”

CropLife Pet. 20. EPA squarely disagrees. In a 1995

amicus brief, EPA stated that spent rounds and skeet

targets from firing ranges are “pollutants” under the

CWA even though they are not “solid waste” under

RCRA. See Long Island Soundkeeper Fund v. New

York Athletic Club, 1996 WL 131863, at *9, *14-*15

(S.D.N.Y. 1996) (adopting EPA’s construction). Simi-

larly, in its 2006 preamble to the pesticide exemption,

EPA specified 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.” CropLife Pet.App.

42a (emphases added),

Il. THE COURT’S CHEVRON ANALYSIS WAS

CORRECTLY PERFORMED.

To determine whether EPA’s regulation exempt-

ing pesticide applications “to” and “over” surface

waters was consistent with the CWA, the Sixth

Circuit employed and properly conducted the familiar

Chevron analysis. See, e.g., CropLife Pet.App. 10a

(citing Chevron USA, Inc. v. NRDC, 467 U.S. 837,

842-43 (1984), and National Ass’n of Home Builders v.

Defenders of Wildlife, 127 S.Ct. 2518, 2534 (2007)); id.

14a (citing additional cases).

Appropriately, the court relied primarily on a

careful reading of the statutory language. E.g., City of

Chicago v. Environmental Def. Fund, 511 U.S. 328,

339 (1994) (“It is not unusual for legislation to

contain diverse purposes that must be reconciled, and

the most reliable guide for that task is the enacted

text.”). The Sixth Circuit was aided in its textual

analysis by the fact that two of the operative terms in

the definition of “discharge of a pollutant” — “pol-

lutant” and “point source” — are themselves sepa-

rately defined in the statute. 33 U.S.C. § 1362(6) &

(14). This generous degree of statutory guidance

easily distinguishes this case from Entergy Corp. v.

Riverkeeper, Inc., 129 S.Ct. 1498 (2009), on which

Petitioners rely, CropLife Pet. 22 n.11, 25-26; AFBF

Pet. 22, 26 n.15, as Entergy addressed a terse pro-

vision of the CWA found to be “silent ... with respect

to all potentially relevant factors.” 129 S.Ct. at 1508.

Where terms in the statutory definitions were

not themselves specifically defined, the Sixth Circuit

gave them their “ordinary, contemporary, [and} com-

mon meaning,” CropLife Pet.App. 15a (quoting

Williams uv. Taylor, 529 U.S. 420, 431-32 (2000)), and

then tested that meaning against the structure,

purpose, and history of the statute. Finally, the court

looked to the longstanding interpretations given to

these terms by the principal regulatory agency, EPA.

Petitioners chide the Sixth Circuit for not simply

deferring to al] of the interpretations offered by EPA

in the rule itself, arguing that the court’s approach

thus “renders agency interpretive rules vulnerable to

the subjective interpretations and policy making of

judges.” AFBF Pet. 27. Petitioners overlook the

critical function of the Chevron Step One analysis: to

guard against wholesale legislating by unelected

executive branch employees. So long as a court’s

analysis is, like the Sixth Circuit's here, faithful to

the language drafted by Congress, the court is not

itself making policy, but rather is giving effect to the

policies of Congress. E.g., City of Chicago, 511 U.S. at

339 (setting aside EPA hazardous waste exemption

for municipal fly ash because it conflicted with the

plain language of RCRA). Such adherence to the plain

statutory language is essential to the preservation of

the separation of powers between the legislative and

executive branches.

A. The Court Properly Held That Pes-

ticide Applications That Result in

Discharge of Chemical Waste Directly

to Waters Are Subject to CWA

Permitting.

As EPA recognizes, and as Petitioners apparently

concede, the airplanes, trucks, and the like used to

apply pesticides “to” and “over” water are “point

sources” within the meaning of 33 U.S.C. § 1362(14).

CropLife Pet.App. 2la. The Sixth Circuit’s deter-

mination that residual and excess pesticide materials

are “chemical wastes” that are “discharged” from these

point source pesticide applications follows directly

from the language of the CWA, and is consistent with

the purpose of the statute, with logic, and with

longstanding precedent.

1. Excess and Residual Pesticide

Materials Are “Chemical Wastes”

Within the Meaning of the CWA.

To determine the ordinary meaning of “waste,”

the court consulted three authoritative dictionaries

and concluded that among the common meanings of

the term are “superfluous” and “excess” materials,

materials that are “no longer useful,” and “worthless

byproduct[s].” CropLife Pet.App. 15a-16a. Thus, the

court found, while chemical pesticides applied to

water for a beneficial purpose are not themselves

waste, “excess pesticide and pesticide residue meet

the common definition of waste.” Jd. 16a. This

interpretation hardly “stretches logic and English

usage past the breaking point.” AFBF Pet. 21. Rather,

it is precisely the same conclusion reached by EPA,

both in the preamble to the rule at issue here,

CropLife Pet.App. 41a (“residual [pesticide] materials

are ... pollutants”), and in its longstanding practice

of treating pesticide materials in point source storm

water discharges as pollutants, id. 40a-41a; see also

55 Fed. Reg. 47,990, 48,019-20 (Nov. 16, 1990) (JA

309-10).

While Petitioners concede that excess and re-

sidual chemicals fall within the common meaning of

waste, CropLife Pet. 14 (“the common meaning of

‘chemical waste’ is ‘discarded,’ ‘superfluous,’ or ‘excess’

chemical”), they argue that pesticide materials cannot

be pollutants because pesticide applicators do not

treat them as waste, id. 18 (“‘waste’... implies an

intention to discard”). It is curious that those who

counsel agency deference would take this position, as

it is diametrically opposed to EPA’s own interpreta-

tion of the Act. EPA has long rejected the notion that

the need for an NPDES permit turns on a dis-

charger’s intent. E.g., EPA Sixth Cir. Merits Br. 39

(11/6/07). If intent were the key, EPA and the Corps of

Engineers could not regulate fill material as the dis-

charge of a pollutant when it is added to waterways

for the (beneficial) purpose of changing their bottom

elevations, yet they have long done so, with the

blessing of the federal courts. F.g., Rapanos, 547 U.S.

at 760.

Moreover, it is hardly noteworthy that pesticides

are not specifically mentioned in the “laundry list” of

substances included in the Act’s definition of “pollut-

ant.” AFBF Pet. 30. Machine oil, paint, and industrial

solvents also are not listed, yet all clearly can be

pollutants, because “chemical waste” is specifically

listed. See Pittston Coal Group v. Sebben, 488 U.S.

105, 115 (1988) (no ambiguity where the statute

“plainly embraces criteria of more general appli-

cation”).

2. The Excess and Residual Pesticide

Materials Are Added to Waters

“From” Point Sources.

The only aspect of EPA’s reasoning here that the

court found inconsistent with the statute was the

agency's illogical position that the excess and residual

pesticides placed in waters by point source pesticide

applications are not discharged by those _ point

sources. EPA took this position only at the very end of

its rulemaking, when it realized that a previously

articulated rationale for the pesticide exemption was

untenable.“ Compare 70 Fed. Reg. 5,093, 5,099 (Feb.

In :ts explanation for the proposed rule, EPA had stated

that pesticide residues from lawful pesticide applications are not

pollutants. It dropped this rationale after receiving comments

noting that this was inconsistent with its own longstanding

(Continued on following page)

1, 2005) (JA 140), with CropLife Pet.App. 41la-42a.

As the Sixth Circuit noted, EPA’s new position was

fundamentally inconsistent not only with the lan-

guage and purpose of the Act, but with what the

agency itself had recently characterized as “EPA's

longstanding position ... that an NPDES pollutant is

‘added’ when it is introduced into a water from the

‘outside world’ by a point source.” CropLife Pet.App.

23a (quoting 73 Fed. Reg. 33,697, 33,701 (June 13,

2008) (final rule defining phrase “addition of any pol-

lutant” in 33 U.S.C. § 13862(12)). Certainly, the excess

and residual pesticide is “introduced into the water

from the outside world” by the point source appli-

cator.

Petitioners’ argument to the contrary — that

“fo]ne cannot spray ice ‘from’ a hose,” or “squeeze

butter ‘from’ a cow,” AFBF Pet. 22 — misses the point.

Those examples rely on a transformative interme-

diary (a temperature drop and the butter churn,

respectively), while pesticides become waste material

with no transformation whatsoever. CropLife Pet.App.

2la (“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”) (emphases added). Further, as the

Sixth Circuit found, all “excess” or “residual” pesti-

cide deposited to the water from aerial applications to

interpretation that such residues are pollutants when they reach

waterways (e.g ,in stormwater).

pests over water is “necessarily” waste before it

enters the water. /d. 17a. All of the “excess” pesticide

from applications to the water — the portion that does

not reach the target — is also waste at the point of

discharge. See also id. (“both non-waste aqueous

pesticide and pesticide residual are applied to the

water at the same moment”).

Indeed, even if one were to assume that none of

the pesticide became waste until after discharge to

the water, there would be nothing remarkable about

the conclusion that the discharge to the water of some-

thing that inexorably becomes a pollutant shortly

after discharge is the discharge of that pollutant.°

EPA itself has long held this position. See supra p. 11

(skeet targets used at firing range).

Petitioners’ further suggestion that the statute is

ambiguous because it uses the simple term “from,”

AFBF Pet. 22-23, is preposterous. Indeed, as Peti-

tioners later acknowledge, “(t]he words and their

natural reading are fairly simple.” /d. 25. The ordi-

nary meaning of “from” is “a function word to indicate

* Petitioners tend to emphasize pesticide “residue,” while

downplaying the court’s finding that “excess” pesticide is also

waste, in an attempt to obscure this fact. AFBF Pet. 10, 20-23:

CropLife Pet 9, 10.

* E.g., NRDC v. Southwest Marine, Inc., 236 F.3d 985, 990

(9th Cir. 2000) (aerial discharge of cleaning and paint products

during use at marina); Hudson River Fishermen’s Ass’n v. City of

New York, 751 F. Supp. 1088, 1101-02 (S.D.N.Y. 1990) (chlorine

and alum injected to waterway as purification agents), aff'd,

940 F.2d 649 (2d Cir. 1991)

a starting point of a physical movement.” Merriam-

Webster Online Dictionary, first definition (emphasis

added), available at http://www.merriam-webster.com/

dictionary/from. If the excess and residual pesticide

does not come “from” the point source, from where

does it come? In Petitioners’ view, apparently, it arises

spontaneously.’

As the Sixth Circuit observed, its holding on this

point is also fully consistent with legislative history

indicating the Act’s intent that water pollution be

controlled through “point source” regulation when

feasible, and with the Act’s central purpose of protect-

ing surface waters through the NPDES permitting

program. CropLife Pet.App. 14a-l5a, 22a-23a (citing

S.Rep. No. 92-414, at 76-78 (1971)), as reprinted in

1972 U.S.C.C.A.N. 3668, 3742-44.

3. Petitioners’ Professed Concerns

About the Reach of This Holding Are,

at Best, Substantially Overblown.

Imagining catastrophe, Petitioners argue that

the Sixth Circuit’s opinion will sweep into the Act’s

permitting program a variety of activities Congress

" Petitioners offer the following analysis: “‘Pollutants

from a point source, in common parlance, means pollutants

coming out of a point source — not pollutants caused d5y a point

source.” AFBF Pet. 25. Even if there is a meaningful difference

between these two phrasings, there can be no question that ex-

cess and residual pesticide “comes out of” the point source

pesticide application

did not intend to regulate. These arguments either

misread the court’s opinion or ignore other portions of

the statute. At best, they suggest that this case war-

rants review because other courts may mistakenly

extend the Sixth Circuit’s analysis beyond the opin-

ion’s holding. This is not the standard for certiorart.

For example, Petitioners argue that the court

“created its own ‘but for’ test” and thereby “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.” CropLife Pet. 10

(second emphasis added). This is patently untrue.

The Sixth Circuit’s application of a “but for” analysis

to pesticides discharged directly into or over surface

waters was simply a means of demonstrating that

excess and residual pesticide materials are “added” to

the surface waters from these point source applica-

tions, and the court’s opinion (like the EPA rule it

addresses) is limited to that set of facts. The opinion

does not purport to transform the eventual runoff to

surface waters from pesticides applied on the land

into point source discharges.

Nonetheless, Petitioners suggest that the Sixth

Circuit’s reasoning cou/d be extended that far, re-

quiring, for cxampliec, NPDES permitting for “farmers

who use pesticides to save crops.” AFBF Pet. 13. But

the Act itself explicitly exempts “agricultural storm-

water discharges and return flows from irrigated

agriculture” from the definition of “point source” —

and thus from NPDES permitting requirements

even when it reaches the water through a discrete

conveyance that would otherwise be classified as a

point source. 33 U.S.C. §1362(14). Where non-

agricultural additions of pesticide residues to water

come from diffuse “nonpoint sources” (such as sheet

runoff from golf courses or residential areas), they

will continue to be outside of the Act’s permitting

program as well. See generally Appalachian Power

Co. v. Train, 545 F.2d 1351, 1373 (4th Cir. 1976)

(NPDES program does not regulate “unchanneled

and uncollected surface waters”). No NPDES permit

is required for diffuse pesticide runoff because the

pesticide residues do not enter the water directly

“from” the point source pesticide application.

Petitioners also express concern that airborne

pesticide “drift” to surface waters from aerial spray-

ing on land may be subject to NPDES permitting,

another topic not addressed by the opinion below.

CropLife Pet. 29-30; AFBF Pet. 16-17. When it issued

the pesticide exemption, EPA specifically declined to

extend the exemption to such situations, noting that

it is “continuing to consider the applicability of the

CWA to ... [the] drift of pesticides applied aerially

over land.” CropLife Pet.App. 43a-44a. Review of the

Sixth Circuit’s opinion to address this inchoate,

ancillary issue is not warranted.

* One focus of the multi-stakeholder advisory committee

EPA has established to study the issue is “minimizing both the

occurrence and potential adverse effects of pesticide spray dnft.”

Id. 44a.

B. The Sixth Circuit Properly Held That

Biological Pesticides Are Biological

Materials.

No one disputes that biological pesticides are, in

fact, biological materials. EPA describes them as

“microorganisms, including bacteria, fungi, viruses,

and protozoa,” and as being “derived from plants,

fungi, bacteria, or other non-man-made synthesis.”

Under Chevron, this ends the analysis. The statutory

language is clear, and the substances in question

plainly come within that language.

Petitioners endeavor to inject “ambiguity” into

the plain statutory language with two arguments.

The first is that Congress could not possibly have

meant what it said. As the Sixth Circuit noted,

however, “Congress purposefully included the term

‘biological materials,’ rather than a more limited term

such as ‘biological wastes.’”” CropLife Pet.App. 19a.

Although Petitioners seek support for a contrary

reading from Train vu. Colorado Public Interest

Research Group, 426 U.S. 1 (1976), see CropLife Pet.

* EPA, Pesticides: Glossary, available at http.//www.epa.gov:

pesticides/ylossary; see also 64 Fed. Reg 46,012, 46,017 (Aug

23, 1999).

‘°° This was not a result of careless drafting: Congress did

append the term “waste” to five of the other enumerated

“pollutants” in 33 USC. § 1362(6). Moreover, that list includes

six other items that also are not necessarily “wastes.” Id

‘“munuitions,” “radioactive materials,” “heat,” “rock,” “sand,” and

“cellar dirt”).

22 n.11; AFBF Pet. 35-36, that case illustrates the

kind of exceptional circumstances that must be

present before the courts may disregard the plain text

of a statute. There, this Court found clear and un-

equivocal evidence in the legislative history of the

CWA that Congress did not intend the Act to regulate

the nuclear byproduct materials covered by the

Atomic Energy Act. Thus, the Court held that the

unqualified inclusion of “radioactive materials” in

the Act’s definition of pollutant had been, in effect,

a scrivener’s error. 426 U.S. at 11-24. As discussed

below, there is nothing in the legislative history

stating that Congress did not intend the Act to cover

pesticides.

Petitioners’ second argument is that a plain

reading of the statute could lead to absurd results,

“such as NPDES permitting for a worm at the end of

a fisherman’s line.” CropLife Pet. 22 n.11. This is not

a serious possibility. Several circuit courts have found

an implied exemption in the Act for de minimis

situations of that nature,’ and this Court has re-

versed a contrary decision on that very issue, Arkan-

sas v. Oklahoma, 503 U.S. 91, 96, 110-12 (1992).

" E.g., Kentucky Waterways Alliance v. Johnson, 540 F.3d

466, 483, 491 (6th Cir. 2008) (citing cases); cf United States v.

Plaza Health Labs., Inc., 3 F.3d 643, 647 (2d Cir. 1993) (passerby

flinging candy wrapper into river or swimmer urinating is not

violating the Act). EPA recognizes this principle as well. F.g., 58

Fed. Reg. 45,008, 45,020 (Aug. 25, 1993) (no “dredge and fill”

permit required under 33 U.S.C. § 1344 for de minimus additions

to waters)

The potential harm from biological pesticides, on

the other hand, cannot reasonably be characterized

as de minimis. Biological pesticides are designed to

cause harm to certain species, and can harm others

as well. Thus, while the Ninth Circuit has applied the

de minimis principle in holding that native mussels

taken from one part of Puget Sound and deposited to

another are not “pollutants” under the Act, Associa-

tion to Protect Hammersley, Eld, & Totten Inlets

(“APHETYT”) v. Taylor Res., Inc., 299 F.3d 1007, 1017

(9th Cir. 2002), it has also held that biological in-

secticides “meet the definition of ‘pollutant’ under the

[CWA],” Forsgren, 309 F.3d at 1185, noting that “(t]he

record reveals a number of harmful side effects” to

their use, id. at 1183."

Moreover, the Sixth Circuit was careful to note

that it was not endeavoring to “define[ | the outer-

most bounds of ‘biological materials’” within the

meaning of the Act’s definition of pollutant. CropLife

Pet.App. 19a. Rather, the court simply held that,

whatever those limits might reasonably be, biological

pesticides come within them.

“ ‘The common feature among the items listed as “pollut-

ants” is that all may impair water quality, a feature that

biological pesticides share. See Northern Plains Res. Council v.

Fidelity Expl. & Dev. Co., 325 F.3d 1155, 1162-63 (9th Cir. 2003)

(clarifying that the APHETIT holding turned on whether there

was “degradation of the quality of receiving waters”)

C. The CWA Does Not Exempt Pesticides

From Its Purview.

Alternatively, Petitioners argue that the Sixth

Circuit should have ruled that the CWA impliedly

exempts pesticide materials from NPDES permitting

requirements. Such a ruling would have been par-

ticularly unwarranted, given that Congress has

already included an express NPDES exemption for

some agricultural pesticide discharges, 33 U.S.C.

§§ 1862(14), 1342(1)(i), but not for pesticide use

generally. See Tennessee Valley Auth. v. Hill, 437 U.S.

153, 188 (1978) (applying maxim of expressio unius

est exclusio alterius to reject implied exemption under

similar circumstances). Congress has plainly demon-

strated elsewhere that it knows how to exempt pesti-

cide use when it wants to. E.g., 42 U.S.C. § 9607(1)

(exempting applicators of FIFRA-registered pesticides

from CERCLA liability); cf City of Chicago, 511 U.S.

at 338 (“Congress knew how to draft a waste stream

exemption in RCRA when it wanted to.”).

None of Petitioners’ arguments on implied ex-

emption has merit. That the legislative history of the

1972 Act does not discuss the permitting of pesticide

discharges, AFBF Pet. 30, is unavailing. See Moskal

v. United States, 498 U.S. 103, 111 (1990) (“This

Court has never required that every permissible

application of a statute be expressly referred to in its

legislative history.”). Moreover, there is nothing in the

legislative history to indicate that Congress intended

to exempt pesticide use from the Act’s provisions

but forgot to do so. Petitioners cite statements from

Senator Dole, AFBF Pet. 29-30 n.16; CropLife Pet. 23

n.12, regarding the general benefit of pesticides —

which are similar to statements made by other

members of Congress about the benefit of industry

generally — but they fail to mention Senator Dole’s

pointed observation that some pesticides “retain their

potency for virtually unlimited periods after applica-

tion, their residues are introduced into the compli-

cated food chains at work in nature, and, ultimately,

they become concentrated at levels which are

hazardous to both animal and human life.” S.Rep. No.

92-414, at 99.

That Congress chose in 1977 to exempt some

pesticide discharges by adding an exemption for

certain agricultural flows, CropLife Pet. 26, simply

makes the point that they were not exempted pre-

viously. There would have been no need for this

limited exemption if, as Petitioners argue, all pesti-

cide discharges had already been exempted in the

1972 Act.”

Moreover, there was no “contemporaneous inter-

pretation” by EPA that pesticide discharges were

exempt. AFBF Pet. 33-34; CropLife Pet. 25-26. EPA

made various statements from 1977 through 1996

” The pertinent legislative history indicates that Congress

specifically meant for the 1977 exemption to extend to “pesti-

cides” as one of the harmful constituents of agricultural runoff

{based on the usually “diffuse” nature of those discharges)

S.Rep. No. 95-370, at 37 (1977), as reprinted wun 1977

U.S.C.C.A.N. 4326, 4353.

indicating that pesticides may be “discharged” to

water only “in accordance with an NPDES permit,”

CropLife Pet.App. 5a, stated in a 1999 amicus brief

that “EPA approves pesticides under FIFRA with the

knowledge that pesticides containing pollutants may

be discharged from point sources into the navigable

waters only pursuant to a properly issued CWA

permit,” Res.App. 14," and published policy guidance

documents in 2001 and 2002 characterizing the

application of aquatic pesticides as a “low enforcement

priority,” JA 91 (emphasis added). At most, at the

time EPA published its final rule in 2006, the agency

had a 30-year track record of not enforcing the CWA

against unpermitted pesticide applications made to

water — “a sort of 30-year adverse possession” marked

by the agency’s “disregard of statutory text.”

Rapanos, 547 U.S. at 752. Because this practice was

not formally announced — and because EPA’s public

statements suggested that permitting was occurring

~ Congress would have had no reason to know about

it. See Demarest v. Manspeaker, 498 U.S. 184, 190

(1991).

‘* EPA's brief in Headwaters, see supra p. 8, stated that

the Act was unambiguous on this port. Alternatively, EPA

sought deference for its position under Chevron Step Two based

on its “consistent” histoncal interpretation. Jd 18-21. Agency

amicus briefs are not mere “lhtigation positions.” Especially

where, as here, the agency offers a broad policy position of its

own accord, “|t)]here is simply no reason to suspect that the

interpretation does not reflect the agency's fair and considered

judgment on the matter in question ”" Auer vu Robbins, 519 U.S.

452, 462 (1997)

Nor is section 104(1) of the Act supportive of an

implied pesticide exemption. That provision — which

no party thought important enough to cite to the

Sixth Circuit, but which Petitioners now offer as a

central point in their argument — directs EPA to

study (1) the fate and effect of pesticides in water-

ways, (2) “methods to control” pesticide releases, and

(3) “alternatives” to pesticides. 33 U.S.C. § 1254(1).

This provision, if anything, suggests that Congress

believed that pesticides are within the purview of the

CWA. It is certainly not inconsistent with NPDES

permitting for pesticide pollutants, and evinces no in-

tent to override later sections of the Act that actually

address the question of when an NPDES permit is

required.” Indeed, other subsections of section 104

direct EPA to also study other substances that are

undisputedly regulated under the NPDES program.

Id. § 1254(m) (waste oil), § 1254(0) (sewage).

Petitioners’ further suggestion that FIFRA should

be read to imply an intent to exclude pesticides from

the CWA is flatly inconsistent with the language of

the statutes and the decisions of this Court. Peti-

tioners point to no language in the text or history of

either statute to indicate a clear intent that the CWA

stand down in favor of FIFRA, and it is a bedrock

principle of statutory construction that “where two

statutes are capable of coexistence, it is the duty of

* The same is true of section 208, 33 U.S.C. § 1288, a pro-

vision of general application on which Petitioners now purport to

rely

the courts, absent a clearly expressed congressional

intention to the contrary, to regard each as effective.”

Ruckelshaus_v. Monsanto Co., 467 U.S. 986, 1018

(1984) (internal quotes omitted) (reading FIFRA

narrowly to avoid conflict with the Tucker Act). In the

field of federal environmental law, overlapping pro-

tection by multiple statutes is the norm, not the

exception, e.g., Res.App. 10-11, 16-20 (citing exam-

ples); Monongahela Power Co. v. Marsh, 809 F.2d 41,

53 (D.C. Cir. 1987), and this Court has already held

that FIFRA is not the final regulatory word on

pesticide use, Mortier, 501 U.S. at 613-14. As EPA has

noted, the CWA and FIFRA serve different purposes,

use different risk management approaches, and

employ different but not inconsistent — control

strategies. Res.App. 10-21; see also Headwaters, 243

F.3d at 531-32; cf. Erlenbaugh v. United States, 409

U.S. 239, 244-48 (1972) (refusing to apply the canon

of in pari materia “to introduce an exception to the

coverage of [a broad, remedial statute} where none is

now apparent”).

Finally, Petitioners’ claim that “the overall statu-

tory scheme” supports its interpretation because the

NPDES “is not a program to regulate beneficial

activities that also can have adverse environmental

effects, but a program to eliminate pollutant dis-

charges seen as serving no societal good,” AFBF Pet

31, is demonstrably untrue. Pest control activities are

no different in this respect from steel mills or military

installations, both of which provide an obvious social

yuood, yet are nonetheless regulated by the NPDES

program to control their adverse effects.

Ill. THE PRACTICAL EFFECT OF THE SIXTH

CIRCUIT OPINION WILL NOT BE UN-

DULY DISRUPTIVE, AND WILL BENEFIT

THE ENVIRONMENT AND PUBLIC

HEALTH.

A. Petitioners Vastly Overstate the Dis-

ruption That May Be Occasioned by

NPDES Permitting for Aquatic Pesti-

cides.

Relying largely on a quote taken out of context

from EPA’s brief in support of the stay of the

mandate, Petitioners argue that there will be

“significant disruption” to pesticide use. CropLife Pet.

2-3, 12; AFBF Pet. 12. But EPA did not, as petitioners

suggest, state that subjecting pesticide discharges to

NPDES permitting would be inherently disruptive.

Rather, EPA stated that the decision would be dis-

ruptive unless stayed, but that granting the two-year

stay would eliminate the disruption by “allowl[ing]

EPA and authorized permitting authorities sufficient

time to develop and issue [CWA] permits containing

appropriate terms to govern the discharge of pesticide

pollutants to waters of the United States.” CropLife

Pet.App. 108a-109a. Until the permits are issued,

pesticide applicators are allowed to continue practices

as usual without threat of CWA enforcement.

Any future disruption to food production or di-

sease control is purely speculative. The vast majority

of the nation’s agricultural activities were unaffected

by the rule in the first place and will remain

unaffected by the decision below, both because the Act

exempts agricultural stormwater and irrigation re-

turn flows from NPDES regulation and because most

agricultural pesticide use does not involve discharges

“to” or “over” waters.

Nor have Petitioners offered any concrete exam-

ples of increased threats to public health resulting

from NPDES permitting. Recent history shows this

fear to be unfounded. Four states — California,

Oregon, Washington, and Nevada — issued general

NPDES permits covering many pesticide applications

to waters after the 2001 Headwaters decision.

CropLife Pet.App. 3la. And, as EPA has noted,

“twenty-three states have developed permits to cover

some types of pesticide discharges.” Id. 149a. In none

of these situations were pest control efforts substan-

tially impeded, or a public health threat caused, by

the imposition of a permitting requirement.

Petitioners premise the bulk of their arguments

on the false assumption that they face a stark binary

choice between ceasing their activities and violating

the CWA. Yet there are many ways to avoid dis-

charging pesticides into waters — such as the use of

buffer zones around waterways, or using means of

control other than pesticides — that would obviate the

need for CWA permitting altogether. Should these

options not be available, obtaining and complying

with NPDES permits would render necessary dis-

charges legal.

Under the Sixth Circuit’s stay, EPA is moving

forward with the development of a “mode!” general

permit, which it expects to serve as a template to ease

administrative burden on state and tribal permitting

agencies, as well as on pesticide applicators. CropLife

Pet.App. 115a-116a, 118a-119a; see generally Micco-

sukee Tribe, 541 U.S. at 108 n.* (noting efficiency of

general permit approach). The use of general permits

is not merely a “theoretical possibility.” AFBF Pet. 19

n.12. EPA is proceeding under this approach precisely

because it believes that most aquatic pesticide

applications will, in fact, be covered under that

general permit (or a state equivalent). In those

instances where pesticide use is “safe” (as Petitioners

maintain is often the case), permitting should be

relatively easy.

B. The Permitting of Aquatic Pesticides

Does Not Constitute “the Greatest

Expansion” of the NPDES Program.

Petitioners’ contention that the decision below

constitutes the “greatest” or “most dramatic” regula-

tory expansion in CWA history, AFBF Pet. 13;

CropLife Pet. 29, is pure fantasy. In fact, several

times prior to the Sixth Circuit’s ruling (most recently

two years ago), federal appellate courts struck down

illegal attempts by EPA to exempt point source

discharges from the NPDES program.” Each of these

was at least as “dramatic” as this one. Moreover,

Petitioners greatly understate the scope and com-

plexity of the existing NPDES permitting program. At

present, that program includes 57 effluent limitation

guideline categories, with roughly 450 subcategories,

see 40 C.F.R. Subchapter N (Parts 405-471); aquatic

pesticides will be just one more category, with eight

proposed subcategories. Permits in most of these

other categories are far more complex than will be

required for routine pesticide applications.”

Furthermore, an examination of EPA’s estimate

of the potential universe of aquatic pesticide per-

mitting demonstrates both that the agency’s pro-

jections are likely to be exaggerated and that the

overwhelming majority of permitted applications will

' E.g., Costle, 568 F.2d at 1372-73 (certain silviculture,

agricultural, and stormwater discharges); Northwest Envtl.

Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008) (ballast water

from ships).

’ EPA estimates that over 115,000 facilities are presently

covered by NPDES permits, of which over 45,000 have indi-

vidual permits, and 6,700 of which are “major” facilities (e.g., oil

refineries, chemical manufacturing facilities, power plants).

EPA, Faetlitics and Enforcement Activities Related to the [CWA’s

NPDES] Program, available at http://www.epa.gov/oecaerth/data/

results/performance/cwa/index.html#1. A single “major” facility

often has numerous outfalls discharging dozens, if not hundreds,

of different pollutants on a near-continuous basis. Aquatic pesti-

cide applications, by contrast, tend to involve the infrequent

discharge of one or a few pollutants from a single discharge

point.

have nothing to do with insect-borne disease. EPA

acknowledges that its projections (done to support

the April 2009 stay motion) were assembled quickly,

and without peer review, from secondary sources

and through the use of generalizing assumptions.

Res.App. 22. Almost all of the estimated annual appli-

cations are for weed and aquatic vegetation control,

and the estimated numbers for these applications are

based on expansive assumptions.” Applications for

mosquito control represent less than one percent of

the assumed total. See id. 23.

C. NPDES Permitting Will Have Substan-

tial Real-World Benefits, Consistent

with the Act’s Protective Goals.

Although Petitioners strive to characterize it as

regulation for regulation’s sake, EPA believes that

requiring NPDES permits for aquatic pesticide ap-

plicators has significant, demonstrable benefits for

human and ecological health. See Res.App. 12-14

(citing protections afforded by CWA, but not by

FIFRA). Unlike the CWA, FIFRA imposes no

‘* Over 90% of of the total number of estimated applicators

are for assumed applications to irngation “ditchbanks,” with no

indication of how many of these potential applicators actually

apply (or need to apply) pesticides or whether application to the

banks of these ditches would actually reach navigable waters.

" The agency recently reiterated that “(plermit require-

ments goling] beyond the FIFRA label” will yield “environmental

benefits.” EPA, CWA Permitting of Discharges from Pesticide

(Continued on following page)

requirements for site specific analysis of the presence

of endangered species, or of whether certain water-

ways need special protections because of extraor-

dinarily pure conditions (e.g., in wilderness areas) or

because they are already polluted at levels toxic to

fish and wildlife.” Thus, the State of California, in its

comments opposing EPA’s rule, noted that 27% of its

waters were impaired by pesticides and that

permitting gave it an important tool to address point

source discharges of pesticides. JA 142-43.

Implementation of EPA’s permitting program

should lead both to the development of newer aquatic

pesticides that do their work without leaving residues

and to increased reliance on less toxic means of pest

control. This is wholly consonant with the Act’s

“technology-forcing” focus. NRDC v. EPA, 859 F.2d

156, 208-09 (D.C. Cir. 1988). Indeed, in the 1971 CWA

Senate Report, Senator Dole emphasized the impor-

tance of “develop[ing) alternative means of pest, weed

and fungal control,” reducing “[loJff-target applica-

tions,” and developing “pesticides which degrade after

Applications (Oct. 14, 2009), at 5, available at http://www.epa.

gov/pesticides/ppdc/2009/october/session-la.pdf.

“ In one nationwide study, “[mjore than one-half of agri-

cultural and urban streams sampled had concentrations of at

least one pesticide that exceeded a guideline for the protection of

aquatic life,” despite regulation by FIFRA, with most samples

containing multiple pesticides. U.S. Geological Survey, The

Quality of Our Nation’s Waters, Nutrients and Pesticides (USGS

Circular 1225, 1999), at 6, available at http://pubs.usgs.gov/

cire/circ1225/pdf.

application and leave no toxic or hazardous after-

products.” S.Rep. No. 92-414, at 99 (emphases added).

Two cases illustrate how NPDES permitting can

spur the effective use of non-pesticide alternatives.

After the Ninth Circuit’s 2001 Headwaters decision,

the Talent Irrigation District switched from a

chemical herbicide to mechanical means for control-

ling aquatic vegetation, thus avoiding the need for an

NPDES permit while simultaneously producing

improvement in the environmental quality of the

waterway. See Graham Decl. Supp. Pet’r Opp’n EPA

Mot. Stay Mandate 99] 4-8 (5/8/09).” And, after a

challenge to its unpermitted aquatic pesticide use,

Idaho’s Gem County Mosquito Abatement District

eliminated the direct discharge of chemical pesticides

to water, implemented programs to reduce mosquito

habitat, and significantly reduced pesticide use over-

all. See Dill Decl. Supp. Pet’r Opp’n EPA Mot. Stay

Mandate {JQ 6-7 (5/8/09). This approach has proven

successful in controlling pests and insect-borne di-

sease: Gem County has experienced a decrease in the

incidence of West Nile virus. Jd. ¥ 7.

Petitioners offer no reason why public and en-

vironmental health will not be best served by

mandating compliance with the provisions of both

* Headwaters also illustrates the scrious potential harm

from aquatic pesticide use. one application of chemical herbicide

to control aquatic weeds killed over 92,000 juvemile steelhead

along a five mile stretch in Bear Creek, a tributary to the

famous Rogue River fishery in Oregon. See 243 F 3d at 528.

FIFRA and the CWA. There is nothing unsound about

the proposition that the use of potentially toxic

pesticides should be conducted as safely as possible.

The only major potential disruption here appears to

be to the pesticide manufacturers’ sales, which places

these entities in no different position from the myriad

other commercial enterprises regulated under the

Act.

CONCLUSION

The petitions for certiorari should be denied.

Respectfully submitted,

CHARLES M. TEBBUTT DANIEL E. ESTRIN

Counsel of Record PACE ENVTL. LITIGATION CLINIC

LAW OFFICES OF PACE LAW SCHOOL

CHARLES M. TEBBUTT 78 North Broadway

470 West Broadway White Plains, NY 10603

Eugene, OR 97401 REED W. SUPER

941-344-8312 SuPER LAW Group LLC

Of Counsel 156 William Street,

CHARLES C. CALDART Suite 800

NATIONAL ENVIRONMENTA!, New York, NY 10038

LAW CENTER

1402 Third Avenue,

Suite 715

Seattle, WA 98101

206-568-2853

JANUARY 11, 2010

App. 1

APPENDIX A

No. 99-35373

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HEADWATERS, INC., et al.,

Plaintiffs-Appellants,

TALENT IRRIGATION DISTRICT,

Defendant-Appellee.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE IN SUPPORT

OF APPELLANTS

QUESTION PRESENTED

Whether compliance with a pesticide label ap-

proved under the Federal Insecticide, Fungicide, and

Rodenticide Act satisfies the otherwise-applicable

requirements of the Clean Water Act governing the

discharge of a pollutant into the waters of the United

States.

INTRODUCTION

Pursuant to Fed. R. App. Pro. 29(a), the United

States submits this brief amicus curiae on behalf of

App. 2

the Environmental Protection Agency (EPA), the

federal agency that administers both the Clean Water

Act (CWA), 33 U.S.C. 1251 et seq., and the Federal

Insecticide, Fungicide, and Rodenticide Act (FIFRA),

7 U.S.C. 186 et seq. In this case, the district court

mistakenly concluded that the absence of instructions

on a pesticide label approved by EPA under FIFRA

directing the user to obtain a CWA permit eliminates

the need for a permit under the CWA. The United

States submits this brief to explain the distinct

nature of the CWA and FIFRA programs admin-

istered by EPA, and to explain that compliance with

one statute does not mean compliance with the other.

The CWA and FIFRA create two separate regu-

latory regimes which address distinct environmental

problems. The CWA is designed to restore and main-

tain water quality by requiring pollutant dischargers

to obtain permits for point source discharges into

interstate water systems. 33 U.S.C. 1251, 1342.

FIFRA, by contrast, is designed to protect against the

environmental and health harms caused by pesticides

by establishing nationally uniform pesticide labeling

and nationally uniform pesticide use regulation. 7

U.S.C. 136a. Neither statute contains any provision

suggesting that EPA will make CWA permitting

decisions in the course of approving pesticide product

labels under FIFRA. Indeed, such an approach would

be infeasible. Congress envisioned that FIFRA would

promote nationally uniform pesticide regulation and

labeling, while Congress envisioned that the CWA’s

permitting process would allow individualized

App. 3

determinations of appropriate pollutant discharge

levels for individual bodies of water. EPA cannot

make blanket determinations through its label ap-

proval process of whether, or under what conditions,

it is safe to discharge a particular pesticide into a

particular water body. Instead, the CWA’s permit

process is designed to provide a forum for those types

of fact-specific determinations.

Approval of a pesticide under FIFRA thus does

not speak to the question of whether a permit is

required under the CWA to discharge the pesticide

into the waters of the United States. Indeed, EPA has

construed the two statutes as requiring distinct anal-

yses and has issued a public notice that compliance

with the instructions on a FIFRA-approved label does

not obviate the need for a permit unde [sic] the CWA.

That reasonable interpretation is entitled to defer-

ence. As a result, the district court’s decision must be

reversed.

BACKGROUND

1, Statutory background.

a. The Clean Water Act. The CWA establishes

a national objective “to restore and maintain the

chemical, physical, and biological integrity of the

Nation's waters.” 33 U.S.C. 125l1(a). To achieve that

goal, CWA scction 301(a), 33 U.S.C. 1311(a), imposes

App. 4

a prohibition on the discharge of all pollutants from

point sources’ into the navigable waters,’ except in

compliance with the permitting programs established

under the Act.

Among the CWA programs that establish an

exception to the general prohibition on the discharge

of all pollutants, CWA section 402 establishes a

permit program administered by the EPA and by

approved states under the National Pollution Dis-

charge Elimination System (NPDES). 33 U.S.C. 1342.

Under the NPDES program, EPA and approved state

The CWA defines “pollutant” as

dredged spoil, solid waste, incinerator residue, sew-

ave, garbaye, sewaye sludge, munitions, chemncal

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. 1362(6). EPA has listed acrolein, found in Magnacide

H, as a hazardous substance, 40 C F.R 116.4 Table 116.4A, and

as an organic toxic pollutant. 40 C.F.R. Part 122 App. D, Table

The CWA defines a “point source” as

any discernible, confined and discrete conveyance, in

cluding but not limited to any pipe, ditch, channe!,

tunnel, conduit, well, discrete fissure, container, rol!

ing stock, concentrated animal feeding operation, or

vessel or other floating craft, from which pullutants

are or may be discharged

'3 U.S.C. 1362(14)

Che CWA defines “navigable waters’ as all waters of the

United States, including the territorial seas. 33 U.S.C. 1362/7

}