# Opposition Brief — CropLife America v. Baykeeper > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1194%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2010 - **Citation:** 559 U.S. 936 ## Text Nos. 09-533 and 09-547 Su The Supreme Court of the United States ¢ CROPLIFE AMERICA, et al., Petitioners, V. BAYKEEPER, e¢ al., Respondents. @ AMERICAN FARM BUREAU FEDERATION, e/ a/., Petitioners, v. 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? ll 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 i) ee) Petitioners’ Professed Concerns About the Eeach of This Holding Are, at Best, Substantially Over- RI ors eure eccccuuuaceceutesteneeerienr bees 19 iv 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 vi 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. § 33 U.S.C. § 1344..... N 33 U.S.C. § 1362(6) Maes 33 U.S.C. § 1362(12) 33 U.S.C. § 13862(14) ee 8 — fh oo 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 a 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 2 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. 3 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. 4 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 D 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. 6 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). 7 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. 8 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 9 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. 10 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. 11 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 12 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 13 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 14 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 15 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 16 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. 4 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) 17 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). 18 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) 19 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 20 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 21 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”). 23 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) 24 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”) 25 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 26 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) 28 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 29 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. 30 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 31 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. 32 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 33 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. 34 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) 35 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. 36 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. 37 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, Ve 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 I] 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 } i See also 40 C.F.R. 122.2 App. 5 environmental agencies may issue NPDES permits for the discharge of pollutants “upon condition that such discharge will meet either (A) all applicable requirements [under the CWA], or (B) * * * such con- ditions as the Administrator determines are neces- sary to carry out the provisions of this chapter.” 33 U.S.C. 1342(a). Under the NPDES program, EPA may impose national “effluent limitations,” 33 U.S.C. 1311, on the “quantities, rates, and concentrations” of identified pollutants from particular point source categories, 33 U.S.C. 1362(11). In the absence of such uniform limitations, “the Agency is authorized under CWA § 402(aX(1), 33 U.S.C. 1342(a\1), to develop such limitations in an NPDES permit on a case-by-case basis.” American Mining Congress v. USEPA, 965 F.2d 759, 762 n.3 (9th Cir. 1992). Even when a na- tional effluent limitation has been promulgated, such guidelines can “be modified to take account of special characteristics of subcategories of point sources.” NRDC v. Cosile, 568 F.2d 1369, 1378 (D.C. Cir. 1977). Accordingly, the decision whether to issue an NPDES permit, the rates and quantities of pollutant dis- charges allowed under the permit, and the conditions under which such discharges will be allowed, ordi- narily take into account the specific environmental conditions affected by a project involving pollutant discharges. CWA section 309, 33 U.S.C. 1319. establishes state and federal enforcement mechanisms for the violation of section 301’s prohibition on the discharge App. 6 of pollutants without a permit. CWA section 355, 33 U.S.C. 1365, authorizes citizen suit enforcement by affected individuals. b. The Federal Insecticide Fungicide and Rodenticide Act. First enacted in 1947, FIFRA establishes a federal program for the regulation of pesticides. As amended, FIFRA requires that pesti- cide manufacturers must register their products with EPA. 7 U.S.C. 136a(a). In applying for pesticide registra- tion, manufacturers submit data on the effects of the pesticides on public health and the environment and must also submit a draft product label. 7 U.S.C. 136a(c). Under FIFRA, EPA may register a pesticide only if it determines that: (A) its composition is such as to war- rant the proposed claims for it; (B) its labeling and other material required to be submitted comply with the requirements of this subchapter; (C) it will perform its intended function without unreasonable adverse effects on the environment: and (D) when used in accordance with widespread and commonly recognized prac- tice it will not generally cause unreasonable adverse effects on the environment. 7 U.S.C. 136a(cvX5). To determine whether a pesticide causes “unreasonable adverse effects on the environ- ment,” EPA conducts a cost-benefit analysis, cxamining App. 7 “the economic, social, and environmental costs and benefits of the use” of the pesticide. 7 U.S.C. 136(bb). FIFRA mandates nationally uniform pesticide labels for a product. 7 U.S.C. 136v. Pesticide labeis must not be false or misleading, 7 U.S.C. 136a(c)(9), must contain certain cautionary statements man- dated by regulations, and must provide comprehen- sible directions for use. See 40 C.F.R. Part 156. 2. Factual background. The following facts were found by the district court. The Talent Irrigation District (TID) is an Oregon municipal corporation which operates a system of irrigation canals. Slip Op. 2. The canals take water from Bear Creek and other surface waters of Oregon, and discharge back into those waters. Id. at 3. To kill weeds and algae that grow in the canals, TID applies a pesticide, Mag- nacide H, directly into the canals. Jd. at 2. TID’s use of the pesticide, which includes the toxic chemical acrolein, has allegedly been linked with massive fish- kills, including a 1996 incident in which over 92,000 juvenile steelhead salmon were found dead. /d. at 3. TID has not obtained a permit under the CWA’s NPDES program, 33 U.S.C. 1342, for the discharge of pollutants into the waters of the United States. Headwaters, Inc., along with Oregon Natural Resources Council Action, (hereinafter “Headwaters”), brought a citizens suit action under 33 U.S.C. 1365. Headwaters alleges that TID violates the CWA by discharging the pollutant acrolein without an NPDES permit. App. 8 3. Procedural background. On February 1, 1999, the United States District Court for the district of Oregon (Aiken, J.), granted TID’s motion for sum- mary judgment. The court found that Headwaters established all elements of a CWA violation. Thus, the court found that TID is a “person” under the CWA, Slip Op. at 5. that TID’s canals constitute “navigable waters” under the Act, id. at 7-11, that Magnacide H contains the “pollutant” acrolein, id. at 11-12, and that TID had discharged acrolein from a “point source,” id. at 5. The court granted summary judgment in favor of TID, however, because it found that the unpermitted discharge of acrolein into the navigable waters was “otherwise authorized by law.” /d. at 12-19. Specif- ically, the court found that TID had followed the instructions on the Magnacide H label, which was approved by EPA under FIFRA. That label did not include an instruction that TID obtain an NPDES permit. As the court stated, the discharge of acrolein in aquatic herbicides “is adequately regulated and controlled by FIFRA and the EPA thus making further regulation by [the Clean Water] Act unneces- sary.” Id. at 12. The court found that “to give effect to both FIFRA and the Act” it “must construe the EPA- approved label on Magnacide H as an indication that an applicator of Magnacide H does not need a NPDES permit.” Jbid. In support of that conclusion, the court pointed to the EPA-approved pesticide label of an- other aquatic pesticide, which included the statement that an NPDES permit may be required to discharge App. 9 the pesticide into public waters. /d. at 13. Because the label for Magnacide H includes no such state- ment, the court reasoned, EPA must have concluded that no NPDES permit is required in order to dis- charge the pesticide. Finding that TID followed the label ‘instructions, the court granted it summary judgment. SUMMARY OF ARGUMENT The district court erred in concluding that com- pliance with the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) obviates the need for a permit under the Clean Water Act (CWA). Nothing in either statute supports that conclusion. FIFRA and the CWA establish separate statutory programs, serve distinct purposes, and call for very different environmental analyses. FIFRA establishes nationally uniform pesticide regulation and labeling, requiring EPA to weigh the economic benefits of registering a pesticide against the environmental! harms associated with the pesticide’s use. The CWA, in contrast, or- dinarily calls for a case-by-case analysis of the environmental effects of particular discharges of a pollutant into a particular water body. Except where it is mandated by statute, EPA’s approval of a pesticide label under FIFRA does not involve analysis of whether, or under what conditions, the use of the pesticide would be consistent with other statutes EPA administers. App. 10 The two statutes are easily compatible: a person seeking to discharge a pollutant into a public water body from a point source may comply with both FIFRA and the CWA by following the directions on a pesticide label approved under FIFRA and by obtaining a permit when required by the CWA. The district court erred in concluding that compliance with a pesticide label alone satisfies both statutes. ARGUMENT COMPLIANCE WITH FIFRA DOES NOT ELIMINATE THE NEED TO OBTAIN AN NPDES PERMIT UNDER THE CWA As the Supreme Court has stated, “when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974). Where two statutes overlap, “the proper approach * * * is an analysis which reconciles the operation of both statu- tory schemes with one another rather than holding one completely ousted.” Silver v. New York Stock Exchange, 373 U.S. 341, 357 (1963). There is no conflict between the CWA and FIFRA. Notwithstanding the district court’s sugges- tion to the contrary, it is not unusual that a subject like pesticide use ts addressed by two different statutory programs. As the D.C. Circuit has stated, “the provision of multiple regulatory authorities is far from unknown.” Environmental Defense Fund v. EPA, App. 11 598 F.2d 62, 77-78 (D.C. Cir. 1978). The two statutes are easily “capable of co-existence”: a person who seeks to discharge a pesticide into the waters of the United States from a point source must comply with both statutes by following the instructions on the pesticide label and by obtaining an NPDES permit when required by the CWA. The district court erred in concluding that compliance with the approved instructions on a_ pesticide label satisfies both statutes. A. Two Distinct Analyses Are Required to Determine Compliance with FIFRA and Compliance with the CWA Nothing in FIFRA or the CWA remotely suggests that compliance with FIFRA also means compliance with the CWA. Indeed, the CWA and FIFRA address different concerns and establish different regulatory programs, necessitating distinct analysis under each statute. The CWA seeks “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. 125l(a). To accomplish that goal, the CWA establishes a permitting process — the NPDES process, 33 U.S.C. 1342 — under which a permit is required in order to discharge pollutants from a point source into the navigable waters. FIFRA, by contrast, seeks to ensure uniform pesticide label- ing and to protect human health and the environment from the harms caused by pesticides. To establish that goal, FIFRA requires pesticide manufacturers to register their products with EPA and requires App. 12 pesticide users to comply with the instructions on a pesticide label. 7 U.S.C. 136a, 136j(a)(2)(G). The two statutes require different environmental analyses [sic] FIFRA requires evaluation of whether a pesticide may cause “unreasonable adverse effects on the environment.” 7 U.S.C. 136a(c)(5). EPA may reg- ister a pesticide under FIFRA only if the economic and social benefits brought by a pesticide outweigh the environmenta! harms caused by pesticide use. 7 U.S.C, 136(bb). Under the CWA, EPA may permit the discharge of a pollutant only if it will satisfy the effluent limitations imposed on the basis of available technology and any other conditions imposed by EPA to protect water quality. 33 U.S.C. 1342(a). Pollutant discharges may not satisfy the CWA standards even though they involve the discharge of pesticides registered under FIFRA. Moreover, the two statutes differ fundamentally because FIFRA establishes nationally uniform pesti- cide labeling and nationally uniform pesticide regu- lation, 7 U.S.C. 136v, while the NPDES program permits particular discharges into particular water bodies, which ordinarily must be determined on a case-by-case basis. American Mining Congress ov. USEPA, 965 F.2d 759, 762 n.3 (9th Cir. 1992); NRDC vu. Costle, 568 F.2d 1369, 1378 (D.C. Cir. 1977).* Even *“ Under the CWA, EPA may issue nationally applicable general permits from point sources that (1) all involve the same or similar types of operations; (2) discharge the same types of (Continued on following page) App. 13 when an NPDES permit enforces nationally appli- cable technology-based effluent limitations, EPA may prescribe other conditions to protect the particular water quality values that may be disturbed by a particular pollutant discharge. 33 U.S.C. 1342(a)(2). Given these differences in the programs estab- lished by FIFRA and the CWA, it is plain that regis- tration of a pesticide under FIFRA does not take into account the range of considerations necessary for determining whether a particular discharge of a pesticide into a particular water body should be permitted under the NPDES program. In performing the generalized cost-benefit analysis under FIFRA, EPA is not required to take into account the effluent limitations established by the CWA and could not practically consider the particular environmental conditions existing at a particular water body. Be- cause the NPDES permitting process ordinarily calls for a case-by-case analysis of the effects of particular discharges into particular water bodies, it would be altogether infeasible for EPA to use the FIFRA registration process to ensure that all relevant CWA requirements are met. The need for separate analyses under the CWA and FIFRA is equally true for pesticides such as Magnacide H, which are applied directly into waters. In approving the registration of that pesticide, EPA wastes; and (3) require the same or similar monitoring. 40 C.F.R. 122.28 App. 14 concluded that the overall economic benefits of allowing the use of the product outweigh adverse environmental effects. EPA did not analyze, was not required to analyze, and could not feasibly have analyzed, whether, or under what conditions, the product could be discharged from a point source into particular public water bodies in compliance with the CWA. In approving the registration of Magnacide H, EPA did not warrant that a user’s compliance with the pesticide label instructions would satisfy all other federal environmental laws. Indeed, 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. In two provisions, FIFRA does require EPA to consider the applicability of other statutes, but nei- ther provision involves the CWA. In determining whether a pesticide constitutes an “imminent haz- ard,” EPA must consider whether the pesticide will pose hazards to species listed as endangered or threatened under the Endangered Species Act. 16 U.S.C. 1531 et seq. 7 U.S.C. 136(7). Similarly, in de- termining whether use of a pesticide may leave harmful residues on food, EPA must consider the standards established by the Federal Food and Drug Control Act, 21 U.S.C. 346a. 7 U.S.C. 136(bb). The explicit requirements that EPA consider other stat- utes in approving a pesticide under FIFRA, and the absence of any requirement that EPA consider the CWA in approving a pesticide under FIFRA, suggests App. 15 that Congress had no intent to require EPA to consider the CWA in making FIFRA decisions. In granting summary judgment to TID, the district court relied on an EPA fact sheet for a pesticide containing copper sulfate, which mandated the inclusion of a label statement that an NPDES permit would be required to discharge the pesticide into navigable waters. Slip Op. 13. The district court reasoned that, because the Magnacide H label ap- proved by EPA does not contain a similar statement, EPA must have concluded that no NPDES permit would be required. That reasoning is faulty. While EPA may on occasion require pesticide manufacturers to include statements on their labels regarding the application of laws other than FIFRA, nothing in FIFRA or the CWA requires that EPA must do so. The absence of such a statement on a pesticide label does not mean that EPA has concluded that use of the pesticide is always consistent with all other statutes. Indeed, EPA has issued a public notice that the absence of a label statement regarding the possible need for a NPDES permit “does not relieve a producer or user of such products from the requirements of the Clean Water Act.” Pesticide Regulation (PR) Notice 95-1 (May 1, 1995), available at http://www.epa.gov/ opppmsd1/PR_Notices/pr95-1.html. As discussed be- low, EPA deserves deference for that reasonable con- struction of the statutes it administers. App. 16 B. This Court’s Cases Hold that Compliance with FIFRA Does Not Obviate the Need to Comply with Other Environmental Laws The district court’s decision is inconsistent with this Court’s cases. As this Court has made clear, compliance with FIFRA does not relieve a party of its independent obligations under other statutes. Thus, this Court has twice held that EPA’s registration of a pesticide under FIFRA does not relieve an agency of its independent obligations under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321- 4370C. NEPA requires federal agencies to analyze the environmental impacts of major federal actions. 42 U.S.C. 4332. When an agency plans to use a pesticide approved by EPA under FIFRA, the agency cannot rely on the environmental analysis conducted in the FIFRA registration process. This Court thus stated: “(T]he mere fact that a program involves use of substances registered under FIFRA does not exempt the program from the requirements of NEPA.” Oregon Environmental Council v. Kunzman, 714 F.2d 901, 905 (9th Cir. 1983). See also Save Our Ecosystems v. Clark, 747 F.2d 1240, 1248 (9th Cir. 1984). As this Court recognized, the analysis required under NEPA to examine a specific application of a pesticide is not equivalent to the more generalizéd analysis required under FIFRA. See bid. (“The EPA registration process for herbicides under FIFRA is inadequate to address environmental concerns under NEPA.”). See also Dithiocarbamate Task Force v. Environmental Protection Agency, 98 F.3d 1394, 1401 (D.C. Cir. 1994) App. 17 (holding that EPA analysis under FIFRA is inade- quate to satisfy RCRA).” The same conclusion applies here. The environ- mental analysis necessary to register a _ pesticide under FIFRA is not equivalent to the analysis re- quired to determine whether a pollutant may be dis- charged under the CWA. As a result, EPA’s approval of a pesticide under FIFRA does not mean that it may be used without a CWA permit. The district court’s decision has the effect of holding that FIFRA repeals by implication the CWA’s requirement for a NPDES permit. As the Supreme Court has held, however, “[iJn the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irrecon- cilable.” Mancari, 417 U.S. at 551. No repeal by impli- cation may be found here because FIFRA and the CWA are not irreconcilable. A pesticide user may com- ply with both statutes by following the instructions * When EPA registers a pesticide under FIFRA, its FIFRA analysis does satisfy its obligations under NEPA to examine the environmental impacts of the registration itself. See Merre// v. Thomas, 608 F. Supp. 644 (D. Or. 1985), aff'd 807 F.2d 776 (9th Cir. 1986). The Merre/l court clearly understood, however, that separate analysis under NEPA may be required for a speeufic application of a pesticide: “[A]n agency engaged in a program of pesticide use, to which NEPA does apply, cannot rely solely on a FIFRA registration as a substitute for its own oblhgation to prepare an impact statement analyzing the environmental im- pacts of using a certain herbicide in a given location.” 608 F. Supp. at 646. App. 18 on the pesticide label and, where the use of the pesticide constitutes the discharge of a pollutant from a point source into the navigable waters, the pesticide user must also obtain an NPDES permit.° C. EPA Deserves Deference for Its View that Compliance with FIFRA Does Not Satisfy the CWA The agency that administers a statute is entitled to deference for its reasonable resolution of statutory silence or ambiguity. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-843 (1984). As discussed above, nothing in the CWA and FIFRA establish that com- pliance with the instructions on a pesticide label relieves a party of the need for a permit under the CWA. If this Court were to find any ambiguity in the statutes on this question, however, the Court must nonetheless defer to the reasonable conclusion of EPA, which administers both statutes, that compli- ance with FIFRA does not necessarily satisfy the requirements of the CWA. * It has been held that other federal statutes do not repeal by implication the application of the CWA. See Hudson River Fishermen's Assoctation v. City of New York, 751 F. Supp. 1088, 1099-1100 (S.D.N Y. 1990) (*Clearly, the Safe Drinking Water Act does not provide adequate justification for ynoring the express and unambiguous directive of the previously adopted Clean Water Act.”); Environmental Defense Fund v. EPA, 598 F.2d 62-77-78 (D.C. Cir. 1978) (Toxic Substances Control Act does not repeal by implication provision of CWA) App. 19 EPA has consistently recognized that compliance with FIFRA does not ensure compliance with other environmental statutes. EPA thus concluded that registration of a pesticide under FIFRA “does not mean, however, that materials treated with pesticides should not be managed in a controlled manner under RCRA [the Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k]|.” 55 Fed. Reg. 11,798, 11,839 (March 29, 1990).’ Similarly, pesticides may be regu- lated by EPA under both FIFRA and the Clean Air Act. See 58 Fed. Reg. 28,094 (May 12, 1993). The same is true for the CWA; compliance with FIFRA does not ensure compliance with the CWA. See 55 Fed. Reg. 50450, 50451 (1990) (“If Congress intended either FIFRA or the CWA to be the exclusive statutory basis for regulating several aspects of the wood preserving industry, the relevant statutes would have so stated.”); id. at 50462 (“[Whhile labeling under FIFRA is one mechanism that couJd be used to regulate certain wood treatment drippage and spills, the Agency does not agree that it is the best or only approach.”). EPA's construction of the statutes it administers is reasonable and is entitled to deference. In enacting FIFRA, Congress mandated that pesticide users must comply with the label instructions on registered ' See also rd. at 11,838 (“[T)hese wastes may be regulated under both FIFRA and RCRA.”); 58 Fed. Reg. 8102, 8114 (Feb. 11, 1993) (“[Bjoth FIFRA and RCRA requirements may apply to the pestinde waste.”); 55 Fed Reg. 11798, 11838 (March 29, 1990): 50 Fed. Reg. 18,622, 18625 (May 1, 1985) ‘“|T]he statu- tory standards under RCRA and FIFRA are different.”). App. 20 pesticides; in enacting the CWA, Congress mandated that pollutants may only be discharged into the navigable waters from a point source with a permit. Putting these two statutory schemes together, EPA reasonably concludes that FIFRA Jabeling does not relieve the pesticide user from the obligation to comply with any applicable permitting requirements of the CWA. That reasonable conclusion deserves deference. The contrary conclusion suggested by the district court threatens to do considerable damage to EPA administration of FIFRA. The district court’s decision suggests that, in order to register a pesticide under FIFRA, EPA must determine whether the use of the pesticide would be consistent with the CWA and, perhaps, with all statutory programs administered by EPA. Requiring such determinations would signifi- cantly increase the burden on EPA in administering FIFRA and would require a significant increase in resources in order to do sv, since a pesticide registra- tion would have to be reviewed by many other offices in EPA." In addition to the considerable resource * Although the district court’s decision is not altogether clear on this point, EPA perhaps could comply with the district court’s understanding of the interrelationship between FIFRA and other statutes administered by EPA by requirng that all pesticide labels bear a statement that pesticide users must comply with other applicable laws. Requiring such a statement on all pesticide labels would tmpose considerable costs on all pesticide manufacturers, who would have to re-label all pesticide packages that lack such a statement. Nothing in FIFRA, however, imposes a requirement that labels bear warnings regarding the application of other laws. See 7 U.S.C. 136iq) (Continued on following page) App. 2] implications of the district court’s ruling, the decision suggests that FIFRA provides EPA with authority to extend or restrict the jurisdiction of other statutes. That suggestion is at odds with both FIFRA and the CWA. In order to register a pesticide under FIFRA, EPA must determine only that it meets the criteria spelled out in FIFRA; it need not consider the reach of other statutes that may also govern the use of such pesticides in certain circumstances. CONCLUSION For the foregoing reasons, the district court’s ruling should be reversed. Respectfully submitted, OF COUNSEL: LOIS J. SCHIFFER GARY S. GUZY Assistant Attorney Acting General Counsel General ROBERTG. DREHER **eertn ee’ JARED A. GOLDSTEIN /s/ Jared A. Goldstein KARYN WENDELOWSKI Attorneys Deputy General Counsel MARK DYNER Environment & Natural Attorneys Resources Division United States Environmental U.S. Department Protection Agency of Justice Washington, D.C. 20044 Washington, D.C. 20530 (defining misbranded labels); 40 C.F.R Part 156 (establishing FIFRA label requirements). App. 22 APPENDIX B September 23, 2009 — Draft The following table provides EPA’s 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. The information has not undergone peer review, and EPA intends to update these estimates as additional data become available. There are two main limitations to the data provided. First, there is not a direct source of information on the number of applicators and applications made for these pesticide use patterns. As a result, the esti- mates were derived from secondary sources of information, and generalizing assumptions were sometimes made. The second limitation is that the definition of an application and an applicator is derived from the best available data by use pattern. Therefore the definition may be different by use pattern. More detail, by pesticide use pattern, is provided in the calculation notes. Following the table is a listing of information sources used in EPA’s estimation of the number of pesticide applicators and applications. Information sources are listed by pesticide use pattern. NPDES Applicator & Application Estimates Use Number Number Calculation Notes Patterns Of Appli- of Appli- cations Mosquito Adulticides 461,450 There are 400 mos- quito abatement districts and ap- proximately 800 other public agen- cies that apply mos- quito control pesti- cides — it is assumed that each represents an applicator. There were 103 million acre-treatments with insecticides in 2005 (99 million for adulticides and 4 million for larvi- cides). Assuming that 77% of adulti- cide applications are made by ground and 23% are made by air and that an average adulticide applica- tion by ground cov- ers 180 acres and that an adulticide application by air covers 600 acres, there are an esti- mated 461,450 App. 24 annual adulticide applications. Mosquito 1,200 Larvicides 18,800 There are 400 mos- quito abatement districts and ap- proximately 800 other public agen- cies that apply mosquito contro! pesticides — it is assumed that each represents an applicator. There were 103 million acre-treatments with insecticides in 2005 (99 million for adulticides and 4 million for larvi- cides). Assuming that 77% of larvi- cide applications are made by ground and 23% are made by air and that an average larvicide application by ground covers 180 acres and thata larvicide application by air covers 600 acres, there are an estimated 18,800 annual larvicide applications. _ App. 25 Aquatic Weed Control — Lakes and Ponds 23,200 4,524,000 OPP data show approximately 23,200 applicators holding certification in the aquatic cate- gory. The estimate of applications to lakes, ponds, irri- gation systems and waterways is the result of 23,200 multiplied by 1 application per day over 195 work days (5 work days per week multiplied by 39 weeks [9 months of the year]), which equals 4,524,000 applications per year. EPA cannot determine what applications are made to each site, so one overall num- ber has been calcu- lated for all aquatic weed control in lakes, ponds, irri- gation systems, and waterways. App. 26 Aquatic See See See Aquatic Weed Weed Aquatic Aquatic Control — Lakes Control — Weed Weed and Ponds Irrigation Control— Control — Systems Lakes and Lakes and and Ponds Ponds Waterways Aquatic 330,000 660,000 About 15%, or Weed 330,000, of 2.2 Control —- million U.S. farms Ditchbanks are irrigated. EPA assumes that each farm is treated twice per year. This does not account for types of irrigation. Aquatic Not Not Includes use of pes- Nuisance Available Available ticides for the con- Animal tro] of fish, lampreys, Control and mollusks. FPA currently does not have an estimate of the number of applicators and applications within this use pattern. Wide Area 170 5,000 Based on grass- Pest hopper & Mormon Control — cricket control. Esti- Insects mate of 5 million acres treated with a minimum of 1,000 acres per applica- tion. This is a low estimate because App. 27 it does not include east of the Missis- sippi, and parts of west. Number of applicators is based on NAAA survey estimate of avail- able aircraft. Wide Area Pest Control — Invasive Weeds Forestry 5,000 4,500 — 10,000 Herbicides are usu- ally not feasible for control of large wide area infestations. They are most like- ly used to control and/or eradicate smaller newer in- festations. Apphi- cators may be indi- vidual landowners or government agencies. No data is available for num- ber of applicators and applications, but EPA estimates that there are at least 5,000 appli- cators and 10,000 applications, and that these estimates may be low. 4,500 There are 5,175 tracts of forest in the U.S. and 2.7 million acres of App. 28 forest are treated per year. Assuming that am average pesticide applica- tion to forests is 600 acres (based on NAAA survey), the number of ap- plications is calcu- lated as the number of acres treated per year divided by the number of acres treated per applica- tion. It is assumed that the 4,500 applications are evenly distributed across the 5,175 forest tracts, thus it is assumed that there is one appli- cator per treated tract. The estimate of the number of applications and applicators may be low because data are not available on pesticides applied by ground. 70 5,683,750 __ App. 29 NPDES Applicator & Application Information Sources Mosquito Control CDC, 2009. Infectious disease information: Mosquito- borne diseases. U.S. Centers for Disease Control and Prevention. Available online at: http://www.cdc.gov/ ncidod/diseases/list_ mosquitoborne.htm EPA Proprietar Marketing Research Data. EPA and CDC, 2007. Joint statement on mosquito control in the United States. U.S. Environmental Protection Agency and the U.S. Centers for Disease Control and Prevention. Available online at: http:// www.epa.gov/opp0000 I/health/mosquitoes/mosquitojoint. htm Florida Coordinating Council on Mosquito Control, 1998. Florida mosquito control: The state of the mis- sion as defined by mosquito controllers, regulators, and environmental managers, University of Florida, Vero Beach, FL. NAAA, 2004. Pesticide use survey report for agri- cultural aviation. National Agricultural Aviation Association, Washington, DC. University of Florida, IFAS Extension,(undated). Integrated mosquito management (IMM). Florida Medical Entomology Laboratory. Available online at: http://mosquito.ifas.ufl.edu/Integrated_Mosquito_ Management.htm App. 30 Aquatic Weed Control Baker Hughes Incorporated, 2004. MAGNACIDE® H herbicide: Most cost effective aquatic weed control. Available online at: http://www.bakerhughesdirect.com/ cgi/hello.cgi/BPC/public/agriculture/pdfBakerPetrolie_ costeffective.pdf Bronzini, Michael S., i997. Inland waterways: Still or turbulent waters ahead? Annals of the American Academy of Political and Social Science, Vol. 553, Transport at the Millennium (Sep., 1997), 66-74. California Department of Pesticide Regulation. Pesti- cide Information Portal, 2009. Pesticide Use Re- porting. Available online at: http://www.cdpr.ca.gov/ docs/pur/purmain. htm EPA Proprietar Marketing Research Data. EPA. 2007. Survey of the Nation’s lakes: A fact sheet for communities. U.S. EPA, Office of Water, National Lakes Assessment. Available online at: http://epa.gov/ owow/lakes/lakessurvey/ Smith, S.V., W.H. Renwick, J.D. Bartley, and R.W. Buddenmier, 2002. Distribution and significance of small, artificial water bodies across the United States landscape. The Science of The Total Environment, Volume 299, Issues 1-3, 1 November 2002, 21-36. University of Kentuchy [sic], 2009. Aquatic weed control. Univ. of Kentucky Pesticide Education Pro- gram, Available online at: http://www.uky.edu/Ag/PAT/ cat5/cat5. htm App. 31 U.S. Census Bureau, 2003. 2002 Census of Gov- ernments, Volume 1, Number 1, Government Organi- zation, GC02(1)-1, U.S. Government Printing Office, Washington, DC. Available online at: http://www. census. gov/prod/2003pubs/gc021xl.pdf USDA NASS, 2005 Census of Aquaculture, Volume 3, Special Studies, Part 2, AC-02-SP-2, 2006. Available online at: http://www.agcensus.usda.gov/Publications/ 2002/Aquaculture/index.asp USDA NASS. 2009. 2007 Census of Agriculture. U.S. Department of Agriculture, National Agricultural Statistics Service. Available online at: http://www. agcensus.usda.gov/ Wide Area Pest Control Evans, E.W. and E.W. Hodgdon, 2008. Grasshoppers, Utah Pests Fact Sheet ENT-125-08. Utah State U. Extension and Utah Plant Pest Diagnostic Labora- tory, June 2008. NAAA, 2004. Pesticide use survey report for agricultural aviation. National Agricultural Aviation Association, Washington, DC. Plant Protection Act, Public Law 106-224 of June 20, 2000, Title IV, as amended by Public Law 108-412, Section 1, Noxious Weed Control and Eradication, October 30, 2004. Roe, Alan, 2000. Grasshoppers and their control, Fact Sheet No.48. Utah State U. 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Douglas-fir Tussock moth, Forest Insect and Disease Leaflet 86. U.S. Department of Agriculture, Forest i App. 35 Service, retrieved 3/12/09. Available online at: http:// www.na.fs.fed.us/spfo/pubs/fidls/tussock/fidl-tuss.htm --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1194%3A3. Public record. Not legal advice.